Proposed legislation calls for $6.7 billion to bring clean drinking water to Native American communities. Indigenous leaders say it's long overdue.
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The Keweenaw Bay Indian Community, on the shores of one of the largest freshwater lakes in the world, is petitioning the federal government to hand over control of setting water quality standards.
It would make them the first tribe in Michigan to receive that right and join 60 tribes in the United States already granted that ability. Many tribes argue that an increased role in setting water regulation allows them to tailor the standards to protect plants and wildlife important to them. Tribes across the country who've been granted the authority have used it to tackle environmental issues specific to their area, including reducing phosphorus in Florida water; preserving clean water in a Montana lake; forcing upstream users in New Mexico to stop sending waste down the Rio Grande; and halting a controversial mine project in Wisconsin.
The provision of the Clean Water Act, called "treatment in a manner similar as states," allows tribes to take the leading role in establishing uses for water bodies. The designated use of each body of water determines the EPA regulations that apply to it. In order to have their application approved, the tribe must be federally recognized and have a government capable of enforcing water regulation. The EPA also considers public comments, which are being accepted through June 21, after which a decision will be made.
Like many tribes who've attempted this before, the Keweenaw Bay Indian Community—located in the northern reaches of Michigan's Upper Peninsula on the shore of Lake Superior—is already dealing with some blowback from state representatives who feel that authority will create a confusing patchwork of regulations.
However, the tribe says the push to regulate the water on their lands is rooted in the goal of shaping regulations to fit their community's specific needs.
"As a federally recognized tribe, we follow the federal water regulations," Stephanie Cree, water resource specialist for the Keweenaw Bay Indian Community's Department of Natural Resources, told EHN. However, she said federal standards set by the EPA are too broad to effectively meet the community's needs.
For example, the community's consumption of wild plants and animals, including waterfowl, fish and berries, which rely on high quality water.
A survey conducted by the community's natural resources department found that close to 90 percent of community members used fish caught from local water for at least part of their food supply.
Cree said community members eat an average of 330 grams of fish per day, well more than Michigan's recommendations for Lake Superior fish. Those recommendations are per month consumption advisories on a species-by-species basis and aim to limit a person's exposure to harmful water pollutants, like mercury and polychlorinated biphenyls (PCBs), found in fish. A person weighing 180 pounds and carefully scheduling their fish consumption could conceivably eat 330 grams of fish per day while following the guidelines. A person weighing less could not.
In the same survey, nearly 75 percent said they consumed wild rice, a plant central to the community's identity.
The tribe's application to the EPA states that "pollution of waters within the Reservation boundaries is a threat to the political integrity, the economic security, and the health and welfare of KBIC."
It lists agriculture, forestry, illegal dumping of waste, residential development, septic systems and ongoing mining exploration as threats to water quality. It says the tribe needs to step in because of budget cuts and reduced workforce at Michigan Department of Environment, Great Lakes, and Energy, which regulates the state's water.
"We are concerned not only for recreational, but for cultural, ceremonial, and subsistence along with other designated uses. Our community is a fishing community, that uses the water for ceremonies, harvesting for food and medicines and wild rice seeding and harvesting," Cree said.
The community's application states that wild rice was a sign to ancient members of their community to stop their westward migration and begin more than 1,000 years of history in the region.
Water pollutants, like sulfate from mining, can reduce or eliminate wild rice harvests, which depends on high quality water, the tribe says.
Credit: KBIC Natural Resources Department
Keweenaw Bay Indian Community would join tribes across the country who, for reasons of cultural and environmental protection and tribal sovereignty, have successfully applied for the right to influence their water's regulation.
It's part of tribes exercising their rights as sovereign governments and it can't be understood without knowing two key cases, Heather Whiteman Runs Him, an attorney with the Native American Rights Foundation and member of the Crow Tribe, told EHN.
In a legal battle spanning the late 1990s and early 2000s, the Pueblo of Isleta in western New Mexico, under the treatment in a manner similar as states provision, gained the right to set water regulations for the Rio Grande within the pueblo boundaries and what was dumped into the river upstream.
Pueblo of Isleta was one of the first tribes to receive treatment in a manner similar as states.
Second, the Sokaogon Chippewa Community Mole Lake Band in northern Wisconsin leveraged their power under the same provision to put the regulatory brakes on the proposed Crandon Mine that threatened the quality of water needed to grow wild rice, a crop similarly tied to the tribe's long history in the area.
The tribe regulates their waters as Outstanding National Resource Waters, the most stringent federal water regulation allowed, which means water quality cannot be lowered, except temporarily. This allowed them to legally challenge the Crandon Mine on the grounds that discharge from the mine would adversely affect their water bodies.
Since then, Sokaogon Chippewa Community and others purchased the site and halted its development as a mine, ending one of the longest battles over regulation in Wisconsin's history.
These two significant cases show how tribes have established their standards under treatment in a manner similar as states in different ways and for different reasons throughout the country.
Other examples include:
Kathleen Smith and Terri Denomie during a water ceremony on Lake Superior last summer. (Credit: KBIC Natural Resources Department)
Given the protracted legal and regulatory struggles of Pueblo of Isleta and the Sokaogon Chippewa Community, it's not surprising to find opposition to the Keweenaw Bay Indian Community's application.
Perhaps the most notable came from Michigan's Senate Natural Resources Committee, which passed a resolution in opposition to the tribe's application.
The resolution, which doesn't have any legal weight behind it, states that "concerns exist that approval—particularly approval of the water quality request—would inevitably lead to unreasonable consequences, create a patchwork of regulations, and be inappropriate for nontribal property owners within and outside of the reservation borders."
It goes on to say that the state is already doing a good job protecting water.
Republican Senators Ed McBroom and Curt VanderWall sponsored the resolution. Neither responded to requests for comment.
Challenges like this are not uncommon, but usually unsuccessful, Elizabeth Kronk Warner, a law professor and the Director of Tribal Law and Government at University of Kansas and member of the Sault Ste. Marie Tribe of Chippewa Indians, told EHN.
Treatment in a manner similar as states is not something states should be afraid of, she said. It's an opportunity for states to work with tribes that has generally worked really well.
"Especially in the state of Michigan, with Flint and water quality issues, I would argue it's a good thing," she said.
The treatment in a manner similar as states provision changes who suggests regulations, not who enforces them. Citizens concerned by proposed regulations can still submit comments to EPA and participate in the process that way, she said.
"We think this is an opportunity to work together with the state of Michigan, the federal government and the Keweenaw Bay Indian Community to help those clean water standards so my people can live a clean life," said Tribal Council President Warren Swartz in a statement to Michigan's Senate committee on natural resources.
Water quality standards, which the KBIC will craft should EPA approve their application, can be set to meet the needs of the tribes and the water bodies in question.
The Keweenaw Bay Indian Community hasn't said what standards they'll set, though they've indicated they will be based in over a decade of water monitoring the tribe has conducted.
"We want to set standards that fit our community," Cree said.
If the tribe's application is approved by the EPA, Cree hopes other tribes in Michigan follow suit. She says tribes themselves have the regional, scientific and cultural knowledge to best set water quality standards.
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Washington state tomorrow will face off against the U.S. government and tribes as it attempts to overturn a court injunction forcing it to repair hundreds of culverts that are blocking salmon from reaching upstream habitat.
Last month more than 100 Seneca Nation tribal members showed up at the monthly meeting of the local municipal authority in the small town of Coudersport, Pennsylvania, carrying protest signs and ceremonial drums.
They couldn't all fit inside the sewer plant building, so many stood outside, where they sang and chanted in the Seneca language. Their signs bore messages like, "Water is sacred," and "Keep your fracking in Pennsylvania."
They were protesting a proposed fracking wastewater treatment plant adjacent to the Coudersport Area Municipal Authority's sewage treatment facility. If approved, the facility would take up to 42,000 gallons of fracking wastewater per day from Marcellus shale gas drillers to be treated and discharged into the Allegheny River—which flows from Coudersport in north central Pennsylvania's Potter County up into Western New York and through the Seneca Nation's territory.
No one consulted tribal members about the plan. They read about it in the news.
"Our name for the Allegheny is Ohi'yo, which means 'beautiful water,'" said Seneca Nation president Todd Gates. "We're determined to keep it that way. We can't do anything without water. It's the basis of all life. It's a sacred resource."
After flowing from Coudersport into New York and through the Seneca Nation's land, the river turns back into Pennsylvania and meanders down into Pittsburgh, where it converges with the Monongahela River to form the Ohio River.
In other words, every community on the Allegheny River between New York and Pittsburgh is downstream of the proposed wastewater treatment plant.
"It's not a question of would something go wrong," John Stolz, director of the Center for Environmental Research and Education at Duquesne University in Pittsburgh, said. "The question is if there are still even small amounts of dangerous constituents in the discharge, especially radioactive ones, then there's the possibility of buildup in the river over time."
Stolz's background is in microbiology, but since 2009, his work has focused on water quality issues associated with unconventional shale gas extraction. In January, Stolz submitted a comment to the DEP urging them to reject Epiphany's permit application.
Stolz pointed to a 2013 study that found radium from fracking wastewater had made its way into a watershed that supplies Pittsburgh's drinking water. The wastewater came from a sewage treatment facility on Blacklick Creek in Indiana County, Pennsylvania.
The facility claimed to remove 90 percent of the radium in the wastewater (Epiphany promises to remove 100 percent), but the cumulative impact resulted in radium at concentrations roughly 200 times higher than background levels detected in sediment.
"We're still feeling the effects of that now," said Stolz, who works with a consortium that regularly monitors the water quality of Pittsburgh's three rivers. "The human health impact of this stuff is going to show up maybe 20-30 years down the road, and at that point it will be very difficult to connect it back to what's happening in the industry currently."
"On the other hand," he added, "it doesn't hurt anything to be careful."
This isn't the first time the Seneca Nation's resources have been threatened.
"We seem to be always reacting to forces beyond our control outside our borders," Gates said, noting that in 1965, the federal government flooded 10,000 acres of Seneca Nation Land to create the Kinzua Dam, displacing more than 600 tribal members. The land-grab desecrated the Seneca Nation's ceremonial burial grounds and violated the Canandaigua Treaty, which had been signed by President George Washington.
"It was an affront to our culture," Gates said, "and it lends itself to a distrust of companies and government agencies that try to come tell us what we need to do to get along."
The company proposing the fracking wastewater plant is a small, Pittsburgh-based startup called Epiphany Water Solutions, LLC. The company, which has 12 employees, operates from a former warehouse on a residential street in Pittsburgh's trendy Lawrenceville neighborhood.
This project would be Epiphany's first commercial fracking wastewater treatment plant. In January, the Pennsylvania Department of Environmental Protection (DEP) rejected their initial permit application due to technical deficiencies, requesting clarification on the water quality monitoring, among other items. Epiphany has since submitted an updated permit application that's still under review.
Founded in 2009, one of the company's initial projects involved harnessing solar power to remove the salt from seawater to make it drinkable. They soon realized they could apply the same technology to fracking wastewater, which contains about seven times the amount of salt as seawater, and in 2012 they secured $500,000 in funding from Consol Energy to fund a fracking wastewater cleaning pilot project.
"Our original and ongoing mission as a business is to provide clean drinking water for people all over the world," Epiphany co-founder and chief technology officer Tom Joseph said. "We're doing this not because we have deep-seated love for the oil and gas industry, but because we care for our world and the environment."
The company is no stranger to unconventional projects. In 2013, Epiphany also launched a Kickstarter to raise funds for a heat-powered, phone charging coffee coaster. The project was fully funded through donations from people who wanted the product, but it ultimately fell apart due to logistical challenges and Epiphany never delivered any of the coasters or issued refunds to most backers (despite promises to do so).
Joseph said they've issued refunds to "several backers who requested them," and are still working on the rest due to issues with Kickstarter's payment system.
In addition to salt, untreated fracking wastewater in Pennsylvania often contains heavy metals and radioactive elements like strontium and radium. Those compounds are associated with myriad risks to human health, including cancer and birth defects. Untreated frack wastewater spills have also been linked to fish kills.
The stretch of river near the proposed plant is home to at least 38 species of fish, two of which—the Bigmouth Shiner and the Burbot— are protected as threatened, according to the Pennsylvania Fish and Boat Commission.
Prior to 2011, it was common for fracking wastewater to be processed through municipal sewage treatment plants in Pennsylvania. The practice was halted after it was discovered that the small amounts of heavy metals and radioactive materials they released into the water supply were building up in sediment and drinking water.
The DEP is considering the plan at Coudersport because Epiphany claims their pre-treatment process makes the wastewater "cleaner than rain" before it's sent to the municipal sewage treatment plant.
A representative from the DEP said via email that federal and state regulations allow fracking wastewater to be discharged through a municipal sewage treatment plant if it's pre-treated according to their standards first, which is what Epiphany is proposing.
Epiphany uses a process called mechanical vapor recompression distiller evaporation, which works like the natural water cycle. The water is heated and the steam is captured, while the solids stay behind. The technology itself isn't new—in fact, according to the DEP, there's at least one other company using similar (though not identical) technology to treat fracking wastewater already operational in the state.
Eureka Resources has two locations in north central Pennsylvania: Their Williamsport facility discharges pre-treated fracking wastewater to the Williamsport Sanitary Authority, which then processes back into the public water supply, and the facility at Standing Stone discharges directly to the Susquehanna River.
Both plants have a mostly clean track record so far, but public records show at least one 2018 violation of the effluent limits for hazardous materials laid out in the permit for the Standing Stone location.
What's different about Epiphany's proposal is the size of their water treatment technology, which is significantly smaller than Eureka's.
"Henry Ford didn't invent automobiles; he just figured out how to mass produce them," Joseph said. "We've done that with distillation technology. We didn't invent it, but what we're proud of is that we miniaturized it so we can mass produce it at about 10 percent of cost anyone else can do it at."
Currently, most wastewater from shale drilling operations in the region is sent to recycling facilities, where it's processed for reuse in fracking. The remaining waste, which contains the most dangerous elements, is often trucked to Ohio to be deposited in injection wells deep in the Earth, a practice that's been associated with leaks and earthquakes.
Joseph said Epiphany aims to provide a more environmentally sustainable solution. If this project gets off the ground, he hopes to set up similar operations in 30 more locations in the region. Epiphany and the Seneca Nation have plans to meet so the Nation's scientists and consultants can review the technology. Gates said they're eager to hear what the company has to say, but they remain wary.
"If they can clean the fracking wastewater to the point where they'll stand in front of us and take the first drink of it," Gates said, "we'll listen."
According to Joseph, their staff members actually do drink the water they treat—regularly.
"We literally, not kidding, drink the water out of our distillation units anytime we're working in the field," Joseph said.
Every community on the Allegheny River between New York and Pittsburgh is downstream of the proposed wastewater treatment plant. (Credit: jpellgen/flickr)
The Seneca Nation has other concerns, too—about how the buildup of heavy metals and radioactive materials removed through the distillation process will be stored and disposed of, and about the site being on a 100-year floodplain, to name a few.
And the Seneca Nation isn't the only group skeptical about the plan.
The DEP received more than 3,000 public comments about the project during a 30-day period.
Pittsburgh representatives of the US Army Corps of Engineers, the Pennsylvania Fish and Boat Commission, the American Indian Law Alliance and the New York State Department of Environmental Conservation all sent letters expressing concern about Epiphany's permit application.
The U.S. Army Corps of Engineers questioned Epiphany's water quality monitoring system and about the site being on a 100-year floodplain, noting that "in the event of a flood or spill resulting in the loss of the stored material into the Allegheny River, the risk to water resources is high."
The New York State Department of Environmental Conservation also urged the DEP to require more stringent water quality monitoring than was proposed in Epiphany's permit application, suggesting that even if the water was tested after leaving Epiphany, it should be re-tested for radioactive elements, heavy metals, and total dissolved solids right before entering the Allegheny River to "provide assurance to downstream communities."
The Coudersport Borough Council, a Senator from New York, at least one physician, and the government of Cattaraugus County, which neighbors the Seneca Nation in New York, have stated their opposition to Epiphany's project, and a community activist group called Save the Allegheny has raised the alarm that the proposed plant is less than a mile from the local elementary school.
"When we learned about the proposal, our first concern was 'oh my god, look how close this is to the school,'" Laurie Barr, a Potter County resident and the founder of Save the Allegheny, said.
Barr points to Epiphany's failed phone charger Kickstarter as evidence that the company has a track record of poor communication and breaches of trust with stakeholders.
"If this project goes badly, Epiphany can just pack up shop and go open some other business in another name," Barr said. "Coudersport can't do that."
Joseph accused Barr and her group of intentionally spreading false information as a fear tactic.
"We've been in touch with [Save the Allegheny] from the beginning," Joseph said. "And what you have to know is that these are not good people. These are anti-fracking fanatics. They don't care about the community. They don't care about the environment."
Joseph also said the Seneca Nation is only concerned about the plant because they've received false information from members of Save the Allegheny. He said the Seneca Nation recently pushed back their scheduled meeting with Epiphany.
"They continue to make incorrect statements about Epiphany's facility and have not yet given us the opportunity to provide them with the facts and scientific data that would eliminate their concerns," he said.
Since we spoke with Joseph, a law firm representing Epiphany has sent cease and desist letters to the Seneca Nation and a pair of investigative journalists at the Public Herald who've written about the proposed treatment plant.
There's no deadline for the DEP's application review process, so it's unclear when Epiphany will know whether they're moving forward with the project or not.
As for the Seneca Nation, they're eager to meet with Epiphany and learn more—but they won't be swayed easily.
"We're trying to make sure everybody has the facts to make the best decision," Gates said. "But no matter what, we will not compromise in our promise to protect our resources."
The Michigan Department of Environmental Quality accepted the fourth and final permit required for the controversial Back Forty Mine to move forward.
The mine— a proposed 83-acre open pit gold, zinc and copper mine in the southwestern corner of Michigan's Upper Peninsula—has been slowly weaving through the state's permitting process for years amid growing opposition from tribes and local residents.
The wetland permit filed by Aquila Resources was accepted last week and allows the regulatory review to move forward.
The Michigan DEQ will consult with the U.S. Environmental Protection Agency and is expected to make a final permitting decision on the mine by mid-2018. Aquila has promised jobs and money to the region—a company-backed study estimated 240 permanent jobs and more than $20 million annually paid in taxes to federal, state, and local government.
But opposition persists—and leading the charge is the Menominee Indian Tribe of Wisconsin.
The state of Michigan "lacks jurisdiction and authority to oversee or issue the wetlands permit required by the federal Clean Water Act," said tribal chairman Gary Besaw.
The mine would sit on sacred ground near tribal burial sites and centuries-old raised garden beds.
It would also be within 150 feet of the Menominee River—which forms the border of Michigan and Wisconsin. The mouth of the river is the center of the tribe's creation story.
In addition to cultural concerns, the tribe and locals fear pollution: extracting metals from sulfide ores can produce toxic sulfuric acid, which can release harmful metals and potentially drain into nearby waterways. More than 100 tributaries drain into the Menominee River and the watershed covers about 4,000 square miles. It supports large populations of bass, pike, walleye and spawning grounds for sturgeon.
Our fourth and final permit for the Back Forty Project has been deemed administratively complete. A public hearing will take place in January, while a permit decision is expected from the MDEQ in the first half of 2018. #mining #MiningAmerica pic.twitter.com/LqQovnAKqv
— Aquila Resources (@AquilaResources) December 10, 2017
The tribe may take to federal court to stop the mine. In November the tribe sent a 60-day notice to the Environmental Protection Agency and the Army Corps of Engineers of intent to sue over the alleged failure to protect the water quality of the tribe's namesake river.
The tribe contends that the Clean Water Act mandates a culturally—and commercially—important waterway that drains into the Great Lakes should fall under federal responsibility in mine permitting.
"The Corps and EPA cannot allow a state to authorize dredge and fill under the [Clean Water Act] where the state has no jurisdiction or authority to do so," said the letter, which was sent November 6. The agencies have 60 days to respond.
Next up, however, is a January public hearing in nearby Stephenson, Michigan—where the high school gym is sure to be packed.
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