Mining Impact Coalition of WI Inc.

...committed to research and education about the social, economic and environmental impacts of
metallic sulfide mining...

Request to U.S. Army Corps of Engineers to apply the Water Resources

Development Act, 42 U.S.C. ß1962d-20, "Prohibition of Great Lakes

Diversions," to Crandon Mining Company's proposed interbasin diversion.

Part 1 Part 2

 

From: <Goblinfern@aol.com>

Date: Thu, 5 Jun 1997 07:41:13 -0400 (EDT)

 

Memorandum to:

 

Honorable H. Martin Lancaster

Assistant Secretary of Civil Works

US Department of the Army

Room 2E570, The Pentagon

Washington D.C. 20310-0102

 

May 15, 1997

 

Ref. Code. No.: 94-01298-IP-DLB / Interbasin Transfer Proposal by Crandon

Mining Company, WI

 

Dear Honorable Assistant Secretary Lancaster:

 

This letter addresses the applicability of the Water Resources Development

Act of 1986, 42 U.S.C. ß1962d-20, ("WRDA"), to Crandon Mining Company's

proposed zinc-copper mine near Crandon, Wisconsin. Specifically, Crandon

Mining Company (CMC) proposes to divert a combination of groundwater, mine

wastewater, and stormwater runoff, away from the highly protected Wolf River

and the Great Lakes basin, via a 38.3 mile underground sewer pipeline, and

discharge this water into the Wisconsin River, a component of the Mississippi

River drainage basin.

 

At issue here is whether or not the WRDA should apply to CMC's proposed

diversion of Great Lakes groundwater. Over the lifetime of the project, this

diversion will result in a 7- to 10-billion-gallon loss of water to the

Great Lakes basin. The analysis contained herein demonstrates that the WRDA

does and should apply to CMC's proposed diversion, and thus requires the

consent of all eight Great Lakes States' governors.

 

It is important to note that application of the WRDA to CMC's proposed

interbasin diversion does not obviate debate, scrutiny, or eventual approval

of the proposal. On the contrary, the letter and the spirit of the WRDA are

intended to infuse multiple voices and perspectives into policy decisions of

regional import to achieve mutually beneficial outcomes for all impacted

parties on the United States' side of the Great Lakes. If there is clearly no

impact from this loss of Great Lakes water, and/or if all the affected

parties agree that the impacts are worth the benefits, then the environmental

impact studies, as mandated under the National Environmental Policy Act of

1969 (NEPA), 42 U.S.C. ß4332, and the regional conflict resolution processes,

as mandated by the WRDA, will bear this out. If CMC is confident that, as

claimed, its diversion proposal will result in no significant impact and that

the region will benefit from CMC's exclusive "use" of the water within the

Great Lakes basin, then it has nothing to fear from such regional scrutiny.

Indeed, such democratic and analytic processes are the direct intent of the

WRDA, and should only strengthen the proposal, thus providing a broader

foundation of support for an already controversial effort.

 

This memorandum is divided into several parts. It begins with a discussion

of the legislative intent and jurisdictional scope of both the Great Lakes

Charter and the Water Resources Development Act. The second part of this

memorandum provides legal and scientific perspectives on the relationship of

surface and groundwater. Thirdly, the "for use" language contained within

the WRDA is addressed. Lastly, we discuss the policy implications and

precedent setting nature of this debate.

 

I. Legislative Intent and Jurisdictional Scope

 

Perhaps the most significant issue at hand is the proper harmonization of

the GLC and the WRDA. The definitions and implementation procedures (or lack

thereof) of the GLC, and the legislative history and intent of the WRDA are

crucial for determining the appropriate relationship between the two

policies.

 

A September 5, 1996, memo from Foley & Lardner, CMC's counsel, to Mr. Ben

A. Wopat, Chief, Regulatory Branch, U.S. Army Corps of Engineers (COE), St.

Paul District, presents CMC's primary arguments for why the Great Lakes

Charter should apply to its proposed wastewater discharge out of the Great

Lakes basin, and why the WRDA should not apply.

 

Among other arguments presented in its memo, CMC construes the GLC as

placing limits on the applicability of the WRDA. Specifically, CMC states:

 

The WRDA was enacted at the specific behest of the Great Lakes governors. It

would be absurd to suppose that (1) these governors hammered out a carefully

crafted regulatory scheme in the Great Lakes Charter, which authorizes states

to permit certain transfers of water out of the Great Lakes basin pursuant to

well-defined standards without having to notify and consult with the other

Great Lakes states; while (2) these same governors at the same time were

seeking to obtain federal legislation that would prohibit any transfers of

any waters out of the Great Lakes basin without their unanimous consent,

thereby rendering much of their Charter a nullity.î (CMC Memo I, pp. 4-5,

original emphasis).

 

What CMC fails to mention is that because of the non-binding nature of

practically all international agreements, "much of their Charter" was already

a "nullity" at the time the WRDA was enacted. The Great Lakes governors, who

signed the Great Lakes Charter on February 11, 1985, clearly recognized that

the GLC was unenforceable at both the international and interstate levels,

and desired additional protection against activities that would benefit one

party at the expense of the others' water resources. The Wisconsin state

codification of the GLC, (Wis. Stats. ß144.026), like other states' statutes

implementing components of the GLC, provides for intrastate regulation of

Great Lakes water diversions, but does not provide a forcing,

conflict-resolving mechanism for regional management of Great Lakes water

resources that transcends the permitting authority of an individual signatory

to the Charter. Note that in all of its correspondences, CMC never refers to

the GLC as a "law," because it is not. States do not, and indeed cannot,

adopt the whole of the GLC as enforceable law.

 

The GLC states plainly, "The permitting State or Province will have lead

responsibility for resolution of water management permit issues. The

permitting State or Province will notify each affected Great Lakes State or

Province of its final decision to issue, issue with conditions, or deny a

permit." (GLC "Consultation Procedures"). In other words, though regional

cooperation and management of Great Lakes water resources are primary goals

of the GLC , there is no binding language in the GLC to enforce such

cooperative management of the Great Lakes basin. Rather, enforcement of the

Charter is left to moral censure: "The signatory States and Provinces

recognize and commit to a spirit of cooperation ... in the study, monitoring,

planning, and conservation of the water resources of the Great Lakes Basin."

(GLC, Principle II, ìCooperation Among Jurisdictions.î)

 

Putting the WRDA aside for a moment, if an individual State or Province

chooses to ignore the regulatory framework or opposing viewpoints of other

GLC signatories, the GLC provides no recourse. For example, if CMC's

proposed diversion is allowed to proceed without being subject to the WRDA,

and Great Lakes States other than Wisconsin have concerns or questions about

loss of Great Lakes waters, there is no path of action these other entities

may pursue that will require Wisconsin to cooperatively manage their Great

Lakes water resources. In other words, enforcement of the WRDA will foster

debate, not hinder it, as CMC contends.

 

However, CMC is exactly correct in pointing out that "The WRDA was enacted

at the specific behest of the Great Lakes governors." This is because the

Governors wanted more authority and more binding language to force regional

management and cooperation than what was provided for in the GLC. Hence,

contrary to it being an "absurd" supposition, the only logical explanation

of why the Great Lakes governors returned to Congress with a request for the

WRDA was precisely because the GLC was a "paper tiger," i.e., a symbolic

agreement with no enforcement authority. As a result, the U.S. Federal

Government was charged with regulating interbasin transfers from the Great

Lakes Basin. In their wisdom, the Great Lakes States' Governors realized

that an overarching authority was necessary to officiate disputes and enforce

decisions on trans-boundary Great Lakes issues. In their reciprocal wisdom,

federal authorities recognized that those best able to make decisions about

such regional matters were those most involved and affected, i.e., the

citizens and authorities of the Great Lakes themselves. Hence, federal

approval and veto power regarding interbasin transfers has been placed under

the authority of the Council of Great Lakes Governors, thus providing an

enforceable conflict resolution mechanism -- the WRDA -- that requires

consensus of all Governors in the region.

 

Expanding on statutory construction arguments, we offer that it would be

absurd to suppose that after spending several years hammering out an

international agreement that culminated in the GLC, Great Lakes Governors

would then specifically appeal to the US Congress to create legislation that

requires regional cooperation and approval for all Great Lakes water

withdrawals, and intentionally allow a loophole for a groundwater diversion

such as CMC is now trying to exploit. In other words, had

the GLC been deemed adequate, and had the Great Lakes Governors been

satisfied with the authority provided by the GLC and their own codifications

into state law, there would have been no need for the WRDA. But again, as

CMC readily acknowledges: "The WRDA was enacted at the specific behest of the

Great Lakes Governors."

 

If, on the one hand, application of the WRDA would render much of the GLC a

"nullity," while on the other, long-settled canons of statutory construction

are to apply, namely that all pertinent acts be given meaning, then how are

these two legislative efforts to be harmonized? Specifically, what is the

role of the GLC? Quite simply, and in accordance with the evolution of most

international agreements that eventually become codified through federal

legislatures, the lofty, highly conceptual GLC is appropriately viewed as

defining the scope of the jurisdictional authority, while the brief and

to-the-point WRDA provides implementation details. In other words, the

goals, intent and jurisdictional scope of the GLC are pertinent and relevant,

including the definition of "Great Lakes Basin water resources" to include

"... all streams, rivers, lakes, connecting channels, and other bodies of

water, including tributary groundwater, within the Great Lakes Basin." (GLC,

"Definitions," emphasis added). The WRDA is the complementary legislation

that provides implementation details ("no water shall be diverted..." 42

U.S.C. ß1962d-20), and compels compliance within a political unit that is

enforceable, i.e., within the boundaries of a single nation, in this case the

United States. The GLC defines the jurisdictional reach and authority, while

the WRDA provides binding implementation within that jurisdiction. This is

the proper harmonization of the two policies.

 

In comparison, CMC adamantly argues that to properly harmonize the GLC and

the WRDA, both policies must be given "meaningful effect." We agree. CMC

continues by saying that if the WRDA were to apply, then the GLC would be

"rendered a nullity." Hence, the WRDA does not apply. From CMCís

perspective, therefore, to give both the GLC and the WRDA "meaningful

effect," the WRDA must not be given any effect at all! This is a

self-serving slight-of-hand that flies in the face of both scientific fact

and deductive logic and attempts a harmonization that rejects the entire

WRDA, as well as the "Findings," "Purpose," Management Principles,î and

"Definitions" sections of the GLC. Such an interpretation renders both the

WRDA and much of the GLC a nullity.

 

Finally, in its November 14, 1996 memorandum to the Corps of Engineers in

response to opinions offered by the Great Lakes Indian Fish and Wildlife

Commission (GLIFWC) and the Sierra Club, CMC states:

 

GLIFWC's reply to our [September 5] memo almost entirely ignores the Great

Lakes Charter. It argues simply that ß1109 [of WRDA], as supreme federal

law, controls in cases of conflict . Of course it does, and we have not

argued otherwise. But settled principles of construction require that ß1109

and the Charter be read together and harmonized if possible -- a requirement

that CMC's reading achieves, and that GLIFWC's flouts. (CMC Memo II, p. 5,

emphasis in original.)

 

In other words, CMC seems to be saying that if one can present an alternative

harmonization of the GLC and the WRDA that gives both policies meaning effect

and complies with the Supremacy Clause of the US Constitution, then that

interpretation should hold sway. We believe we have offered that

interpretation herein.

 

II. Surface and Groundwater Relationships

 

The regulatory and jurisdictional framework that harmonizes the GLC and the

WRDA as described above makes sense from both a legal/policy perspective, as

well as a scientific perspective. Just as overarching authority and an

appropriate legal mechanism -- the Council of Great Lakes Governors and the

WRDA -- are necessary to decide and enforce trans-boundary management issues,

the Great Lakes Basin itself is a coherent physical entity that transcends

political boundaries. For example, the Great Lakes Water Quality Initiative,

a series of legislative efforts initiated by the USEPA and subscribed to by,

among others, the Wisconsin Department of Natural Resources, recognizes the

trans-boundary nature and unique features of the Great Lakes Basin and

mandates ecosystem management of the entire Great Lakes system. To attempt

to manage the world's largest accumulation of available fresh water by

ignoring groundwater resources within the Basin, as CMC proposes, is bad

science and bad policy.

 

The National Water Commission, for example, in a study entitled ìGroundwater

Law, Management and Administration,î stated ì[g]roundwater and surface water

are physically interrelated as integral parts of the hydrologic cycleî

(Corker, Legal Study No. 6, 1971, p. XXIV). In Cappaert v. US, 426 U.S. 128

(1976), the United States Supreme Court referred to the National Water

Commission study in deciding that the federal government may protect federal

waters from diversions of both surface and groundwater. CMC's Environmental

Impact Report (EIR) not only acknowledges this hydrologic relationship

between the waters, but even recognizes that groundwater pumping will

diminish surface water resources. ( EIR, ß4.2.5.3, 4.2.5.7, and 4.2.6.3.3,

among others). Yet despite these scientifically established connections,

CMC is now trying to artificially separate surface and groundwater through a

legal lens to avoid compliance with the WRDA.

 

Ironically, CMC uses the GLC as the filter to legally separate surface and

groundwater. Yet the GLC could not be more clear in opposing this viewpoint.

In its introductory "Findings" section, the GLC states in part, "The Waters

of the Great Lakes Basin are interconnected and part of a single hydrologic

system ...." The ìDefinitionsî section, as stated previously, reinforces the

ecosystem concept by defining "Great Lakes Basin" to include "tributary

groundwater." Further, in its first management principle, "Integrity of the

Great Lakes Basin," the GLC states:

 

The planning and management of the water resources of the Great Lakes Basin

should recognize and be founded upon the integrity of the natural resources

and ecosystem of the Great Lakes Basin. The water resources of the Basin

transcend political boundaries within the Basin, and should be recognized and

treated as a single hydrologic system. In managing Great Lakes Basin waters,

the natural resources and ecosystem of the Basin should be considered as a

unified whole.

 

Clearly the same people who signed a document containing the above language

(the Great Lakes governors), and then appealed to the federal government for

additional protection of their Great Lakes waters a year later, would be hard

pressed to explain how the WRDA could not apply to a 7-10-billion-gallon

withdrawal of water from the Great Lakes Basin.

 

CMC, alternatively, goes to great lengths to de-couple surface and tributary

groundwater. For example, it offers a legal definition of "tributary" as

"[a]ny stream flowing directly or indirectly into a river." (Black's Law

Dictionary, p. 1506, 6th ed. 1990, emphasis added; CMC Memo I, p. 18). The

important omission, however, is that flowing "indirectly" can, and often

does, mean flowing underground. Tributaries, like other water bodies,

variably consist of surface water runoff and groundwater discharge and

scientifically do not "make sense" if the various "tributes" are artificially

separated at an arbitrary point such as the earth's surface. Another

example, the near-surface groundwater layer (ìhyporheic zoneî) that supports

benthic organisms previously believed to only live in surface waters, further

challenges this arbitrary division.

 

Extending the scientific perspective of this analysis, the numerous

wetlands, lakes and streams -- the surface water bodies -- in the area

surrounding the proposed mine site are frequently denoted in the technical

literature and maps simply by the words "discharge" or "recharge," indicating

their effect on groundwater. Similarly, the Tailings Management Area (TMA)

would be located in groundwater recharge wetlands between both streams and

lakes. As an aside, the inherent lack of separation between surface and

groundwaters in the TMA and the underground mine shaft pose perhaps the

single largest technical challenge of the entire mining project. In short,

the entire area is a large sponge with accumulations of water at both the

surface and below ground that are intimately connected and interdependent.

The science of hydrogeology, as the Corps well knows but is apparently a

mystery to CMC, examines this relationship. When considering the saturated

wetlands in and around the proposed mine site, the bold-faced, artificial

distinction between surface and groundwater imposed by CMC's interpretation

of the WRDA simply does not hold water.

 

As our scientific understanding of the hydrologic cycle has improved, there

has followed a clear judicial trend extending the meaning of "water" to

include groundwater. Namely, in October 1996, the Washington State

Department of Ecology's authority was upheld by the state's Pollution Control

Hearing Board to deny groundwater use applications if the water is

hydraulically connected to a surface water body (U.S. Water News, October

1996). Similarly, in August 1996, the Texas Supreme Court affirmed the

jurisdiction of the Edwards Aquifer Authority, a state agency, to regulate

groundwater based on surface water connectivity and impacts. (Barsshop v.

Medina County Underground Water Conservation District, 925 S.W. 2d681 (Texas

1996). In the case at hand, CMC is the entity asking the COE to go against

scientific fact and judicial trends by narrowly interpreting water to

explicitly not include groundwater.

 

Top

Part 2

 

Citations available for this memorandum from:

Mining Impact Coalition of WI Inc.

P.O. Box 259034

Madison, WI 53711

Ph: 608-233-8455

FAX: 608-236-9111

Goblinfern@aol.com


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