November 6, 2017
By Certified Mail, Return Receipt Requested
Ryan McCarthy
Acting Secretary of the Army
1500 Defense Pentagon
Washington, DC 20310

Scott Pruitt
U.S. Environmental Protection Agency
Ariel Rios Building, M/C 1101A
1200 Pennsylvania Avenue, NW
Washington, DC 20460-0003

Lt. Gen’l Todd Semonite
U.S. Army Corps of Engineers
2600 Army Pentagon
Room 2A514B
Washington, DC 20310-2600
and
441 G St., NW
Washington, DC 20314-1000

EPA HQ Overnight Delivery
USEPA WJC East
1201 Constitution Avenue NW
Washington, DC 20004
Robert A. Kaplan
Acting Regional Administrator, Region V
U.S. Environmental Protection Agency
77 W. Jackson Blvd.
Mail Code R-19j
Chicago, IL 60604-3507
(also by electronic mail)

Lt. Col. Dennis P. Sugrue
U.S. Army Corps of Engineers
Detroit District
477 Michigan Avenue, 7th Floor
Detroit, MI 48226
(also by electronic mail)

Re:

60 Day Notice of Intent to Sue; Notice of Violation of Non-Discretionary Duty to
Exercise Section 404 Regulatory and Permitting Jurisdiction Over Permit
Application for Back Forty Mine, Aquila Resources, Menominee River and
Adjacent Wetlands; 33 U.S.C. §§ 1344 and 1365(a)(2)

Dear Sirs:
On behalf of the Menominee Indian Tribe of Wisconsin (the “Menominee Tribe”), we
ask that you take immediate action to remedy ongoing violations of a non-discretionary duty
under the Clean Water Act (“CWA”). As fully described below, the U.S. Army Corps of
Engineers (the “Corps”) and the U.S. Environmental Protection Agency (“EPA”) are in violation
of their mandatory duties under the Clean Water Act Section 404 (33 U.S.C. § 1344), due to their
failure to exercise jurisdiction and regulatory authority over navigable waters of the United
States—the Menominee River and adjacent wetlands—that are not delegable to the State of
Michigan under 33 U.S.C. § 1344(g). This letter constitutes a 60-day notice of intent to file a
citizen suit against EPA pursuant to Section 505 of the CWA, 33 U.S.C. § 1365(a)(2).
NORTHWEST OFFICE
T: 206.343.7340

705 SECOND AVENUE, SUITE 203

F: 206.343.1526

SEATTLE, WA 98104

NWOFFICE@EARTHJUSTICE.ORG

WWW.EARTHJUSTICE.ORG

 USEPA and COE
November 6, 2017
Page 2

I.

BACKGROUND

The CWA prohibits all discharges of pollutants to waters of the United States absent a
permit. 33 U.S.C. § 1311(a). The CWA provides that the Corps may issue permits that allow for
the discharge of dredge and fill after notice and opportunity for public hearing. 33 U.S.C. §
1344(a). (“Section 404 Permits”). The Corps oversees and issues Section 404 Permits pursuant
to it rules at 33 C.F.R. § 320.3(f). EPA retains oversight and implements its authority over
Section 404 Permits pursuant to its rules at 40 C.F.R. Pt. 230.
EPA has previously approved delegation of Section 404 permitting to the State of
Michigan. 40 C.F.R. § 233.70. In accordance with the limitations on delegation set forth in 33
U.S.C. § 1344(g), the delegation does not include (and cannot include) “waters which are
presently used, or are susceptible to use in their natural condition or by reasonable improvement
as a means to transport interstate or foreign commerce shoreward to their ordinary high water
mark…including wetlands adjacent thereto.” See also, 40 C.F.R. § 233.70.
Aquila Resources, Inc. (“Aquila”) has proposed a sulfide minerals mine named the “Back
Forty Project” on the banks of the Menominee River in Lake Township, Menominee County
Michigan. 1 As part of the Back Forty Project proposal, Aquila intends to fill, dredge, dewater,
alter, or otherwise adversely affect wetlands at and/or near the mine location which wetlands are
adjacent to the Menominee River. 2 Aquila must obtain a Section 404 Permit under the CWA in
order to proceed with its proposal to discharge to and/or fill the river and wetlands. In
recognition of CWA requirements and the application of Section 404 obligations, Aquila has
applied to the State of Michigan for a Section 404 Permit for the Back Forty Project. The State
of Michigan is exercising regulatory control, authority, and/or jurisdiction over Aquila’s Section
404 Permit application. The Corps has not exercised jurisdiction, authority, or control over the
Section 404 Permit application and has pointedly refused to do so.

1

The location is described as occupying at least, in whole or in part, Sections 1, 11, and 12 of
Township 35 North, Range 29 West; Sections 4-9 of Township 35 North, Range 28 West; and
Section 32 of Township 36 North, Range 28, all in Lake Township, Menominee County,
Michigan.
2
It appears from the Environmental Impact Assessment prepared for the Back Forty Project that
the mine will also affect groundwater levels throughout the mine site. It also indicates that it will
affect wetlands and groundwater across the river in Wisconsin, as well as potentially altering
water levels in the Menominee River itself. Altering water levels will adversely affect the river
and adjacent wetlands in both states.

 USEPA and COE
November 6, 2017
Page 3

II.

THE CORPS AND EPA ARE IN VIOLATION OF A NON-DISCRETIONARY DUTY
BY FAILING TO EXERCISE JURISDICTION OVER THE SECTION 404 PERMIT
APPLICATION AND PERMITTING PROCESS FOR THE PROPOSED BACK
FORTY MINE ON THE MENOMINEE RIVER AND ADJACENT WETLANDS.

The Menominee Tribe informed the Corps and EPA, by letter dated August 21, 2017, that
the State of Michigan does not have jurisdiction or authority over the Section 404 permit
application and does not have authority to oversee or issue the Section 404 permit for the Back
Forty Project. The Menominee Tribe further informed EPA and the Corps that the State of
Michigan lacked jurisdiction because Section 404 permitting for the Menominee River and its
adjacent wetlands cannot be delegated to a State under 33 U.S.C. § 1344(g). 3 See copy of letter
attached and enclosed with this Notice. The Menominee River for its entire length is an
interstate river, forming the border between the States of Wisconsin and Michigan and is a water
which is presently used, or is susceptible to use, in its natural condition or by reasonable
improvement as a means to transport interstate or foreign commerce shoreward to its ordinary
high water mark including wetlands adjacent thereto. The Corps’ own study in 1979 and
subsequent recommendation by its counsel finds this to be true, beginning with extensive use of
the Menominee River and its tributaries for commerce associated with logging and power
generation through present day use for recreation, tourism and fishing. 4 The entirety of
Menominee River and its adjacent wetlands are not delegable, nor could they have been
delegated, to the State of Michigan for Section 404 permitting and therefore the State of
Michigan cannot exercise Section 404 jurisdiction for the Back Forty Project permitting.
Rather than taking control of the Section 404 process, the Corps has refused to exercise
authority or jurisdiction over the process. See copy of Corps September 28, 2017 letter.
In its September 28 letter, the Corps failed to respond to the evidence and arguments regarding
navigability. The Corps’ letter also claimed the Corps “lacked authority” to determine or
exercise jurisdiction over, or to consult on, the Section 404 Permit for the Back Forty Project
because EPA had not invoked federal jurisdiction in the Corps. 5

3

The Menominee Tribe, in its August 21 letter, also submitted evidence of the use of the
Menominee River for fishing and recreation in interstate commerce. See attached copy of
August 21 letter. See also, enclosed copies of example materials demonstrating interstate
commercial use from fishing and boating recreational businesses.
4
Moreover, 33 U.S.C. § 1344(g) plainly provides that waters that are “susceptible to use in their
natural condition or by reasonable improvement” as a means of transport in interstate or foreign
commerce are not delegable. The Menominee is plainly susceptible in its natural condition to
use in interstate commerce.
5
The Corps responded similarly to Wisconsin Senator Baldwin by letter dated August 25, 2017,
stating the Corps lacked authority over the Back Forty Section 404 Permit application unless
directed to exercise jurisdiction by EPA.

 USEPA and COE
November 6, 2017
Page 4

EPA has also failed to specifically respond to the jurisdictional and navigability issue.
Instead, in a letter dated October 13, 2017 and received by the Menominee Tribe on October 18,
2017, EPA offered only a telephone “consultation” regarding the “Section 404 permit process”
for the mine (but not, apparently on a permit or other issues surrounding the mine project
proposal and permitting.)
The Corps and EPA have a mandatory duty under 33 U.S.C. §§ 1311 and 1344 to
regulate and exercise permitting jurisdiction over the Aquila Section 404 Permit application for
the Back Forty Project. The language of the CWA plainly provides the Menominee River could
not be and was not delegated for purposes of Section 404 permitting. Further, the Corps and
EPA cannot allow a state to authorize dredge and fill under the CWA where the state has no
jurisdiction or authority to do so. Both the Corps’ own analysis and the Menominee Tribe’s
proffered evidence demonstrate the Menominee River’s navigability and use in interstate
commerce. EPA and the Corps thus have a mandatory duty to assume jurisdiction over Aquila’s
pending Section 404 Permit application for the Back Forty Project. EPA and the Corps are in
violation of a statutory duty for failing to do so. See, Nat’l Wildlife Federation v. Hanson, 859
F.2d 313, 315-16 (4th Cir. 1988). See also, Natural Res. Defense Council, Inc. v. Callaway, 392
F.Supp. 685, 686 (D.D.C. 1975) (Corps cannot define away and refuse to exercise jurisdiction
under the Clean Water Act.)
The Corps and EPA must immediately:
1. inform the permit applicant Aquila Resources, Inc. that its application is
insufficient, because it is not addressed to the Corps and doesn’t otherwise meet
Corps procedures;
2. inform the State of Michigan that the Corps is assuming full federal jurisdiction
and authority over the Back Forty Project Section 404 Permit Application; and
3. assume full primary control and jurisdiction over the Back Forty Project Section
404 Permit Application and permitting process.
III.

IDENTITY AND ADDRESSES OF PARTY GIVING NOTICE:
Menominee Indian Tribe of Wisconsin
Gary Besaw, Chairman
Lindzey Spice, Dir., Dep’t of Legal Services
P.O. Box 910
Keshena, WI 54135-0910
lspice@mitw.org

 USEPA and COE
November 6, 2017
Page 5

Counsel for Menominee Indian Tribe of Wisconsin
Janette K. Brimmer
Stephanie Tsosie
Earthjustice
705 2nd Avenue, Suite 203
Seattle, WA 98104
jbrimmer@earthjustice.org
stsosie@earthjustice.org

CONCLUSION
EPA and the Corps are in continuing violation of the Clean Water Act, 33 U.S.C. §§ 1311
and 1344. The Menominee Indian Tribe of Wisconsin hereby provides this Notice for the
continuing violation outlined above, including if the violation continues subsequent to the date of
this Notice. This Notice is given pursuant to 33 U.S.C. § 1365.
Unless this violation is cured within sixty days by the Corps and EPA assuming
jurisdiction and control over the Back Forty Project’s Section 404 Permit application and
processing, the Menominee Tribe reserves the right to take appropriate legal action to compel the
Corps and EPA to comply with the Clean Water Act and applicable regulation to protect the
Menominee Tribe, the Menominee River, and wetlands adjacent to the river.
Please contact the undersigned should you have any questions.
Sincerely,

Janette K. Brimmer
Stephanie Tsosie
Earthjustice, Counsel for Menominee Indian Tribe
of Wisconsin

Enclosures
cc:
Michigan Dep’t of Env’t’l Quality
Water Resources Division
Upper Peninsula District Office
1504 West Washington Street
Marquette, MI 49855
(by certified mail)

Michigan Attorney General
G. Mennen Williams Bldg., 7th
Floor
525 W. Ottawa St.
P.O. Box 30212
Lansing, MI 48909

 USEPA and COE
November 6, 2017
Page 6

Peter Swenson
U.S. Env’t’l Protection Agency
77 W. Jackson Blvd.
Mail Code WW-16j
Chicago, IL 60604-3507
Jeffrey Sessions
United States Attorney General
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
(by certified mail)
Menominee Indian Tribe of
Wisconsin
Gary Besaw, Chairman
P.O. Box 910
Keshena, WI 54135-0910