Settlement with the Navajo Nation may quell worries about the San Juan River streamflow

Many Indian reservations are located in or near contentious river basins where demand for water outstrips supply. Map courtesy of the Bureau of Reclamation.
Many Indian reservations are located in or near contentious river basins where demand for water outstrips supply. Map courtesy of the Bureau of Reclamation.

From Indian Country Today (Anne Minard):

Congress must still approve the deal, but the key players – the federal Bureau of Reclamation, the Navajo Nation and the state of Utah – are in agreement on a settlement they say is both fair and likely to calm uncertainty on a major tributary to the Colorado River. The San Juan, popular with river-runners, traverses 383 east-west miles in the Four Corners area before it empties into the Colorado near Glen Canyon.

Daniel Cordalis, Navajo, is an advising attorney hired by the Navajo Nation to analyze the settlement along with his wife and fellow attorney Amy Cordalis, Yurok. “That analysis led us to believe the settlement is fair and provides the Navajo Nation a favorable resolution of their Utah water rights claims,” he said.

Earlier this month, Navajo Nation president Russell Begaye issued a tentative stamp of approval.

“The Office of the President and Vice President commend the Utah chapters along with their respective delegates for working hard to draft the settlement,” Begaye said in a statement.

The Navajo Nation was established by treaty starting in 1868, long before many of the regional rivers’ current users began drawing water. By law, the reservation theoretically holds rights senior to most competing uses, according to the “first in time, first in right” bedrock principle of Western water law. But for the Navajo Nation, as with many tribes, quantifying those rights – and thereby turning them from “paper” to “wet” water – has meant decades-long slogs through political negotiations and, sometimes, the courts. The Navajo Nation Council first announced in January that it had reached an agreement with the state of Utah and other stakeholders, entitling it to 81,500 acre-feet of water for use on the relatively small part of the reservation in Utah. Based on average per capita water use, 81,500 acre-feet of water could support 300,000 people a year, or irrigate between 25,000 and 40,000 acres.

The settlement includes a waiver of any past legal claims by the Navajo Nation against the state of Utah and the United States within the state of Utah, which is standard in Indian water settlements. In addition, the Utah-Navajo settlement contains an agreement by the Navajo Nation that, if there is not enough water to fill its needs, it will not assert priority over pre-existing, non-Native water users.

This alarms some in the conservation community, who question the value of water rights that can’t be enforced. “It kind of tells me that the state of Utah understands that there’s no water left for the tribes,” said John Weisheit, conservation director for Living Rivers, a Utah-based water advocacy group. “They’re first in rights, but last in line for water.”

But Cordalis said while water supplies are questionable by some measures on the Colorado River as a whole, the situation on the San Juan is more nuanced. “The San Juan River is not burdened with downstream water rights such that those existing water rights present a significant detriment to Navajo’s 81,500 acre-feet a year (AFY) right,” he said. “In our opinion, there will be enough water in the San Juan River to achieve the full settlement value on a yearly basis.”

Wayne Pullen, the Bureau of Reclamation’s Provo area manager and chairman of the federal negotiating team, added that there are few pre-existing uses on the San Juan River. He said small towns like Mexican Hat draw modest supplies, as do some small wells and agricultural irrigators.

Cordalis pointed to state of Utah and Bureau of Reclamation figures indicating that in the Upper Colorado River Basin Compact, Utah was apportioned 23 percent of the water available to the Upper Basin, or roughly 1.37 million AFY of Colorado River water. The Upper Basin includes all or part of the states of Arizona, Colorado, New Mexico, Utah, and Wyoming that draw water from above Glen Canyon Dam, while the Lower Basin users draw their water downstream of the dam. In 2009, Utah used just over 1.07 million AFY, leaving about 300,000 AFY in Utah’s Upper Basin apportionment. Navajo’s allocation will be counted against that share.

“What the settlement does is provide that flexibility for tribal members to both use water now and have enough water for future development, which ultimately is most important,” Cordalis said…

“We want to be part of the decision-making, but we are not,” said Anna Frazier, a long-time activist with the Navajo grassroots group Diné CARE. Still, there has not been public opposition to the Utah San Juan settlement as there was to the Little Colorado proposal in 2012.

Leonard Tsosie, a Navajo Nation Council delegate representing the Baca/Prewitt, Casamero Lake, Counselor, Littlewater, Ojo Encino, Pueblo Pintado, Torreon, and Whitehorse Lake chapters, has been promoting the settlement among his colleagues and constituents, as a way to support existing and future Navajo communities in southeastern Utah. “We can dream all we want but if there is no water, there is no development,” he said.

In addition to the water rights, the settlement calls for a Congressionally allocated, $200 million Utah Navajo Water Development Fund for Utah Navajo water projects.

So far, all seven Navajo chapters in Utah have approved the settlement, and the Navajo Nation Council voted 13-7 to approve it. President Begaye’s office pointed out that if the Navajo Nation is going to push for a legislative package, it must do so before the September Congressional lame duck session.

#AnimasRiver: #GoldKingMine spill update

On April 7,  2016, the Environmental Protection Agency proposed adding the “Bonita Peak Mining District” to the National Priorities List, making it eligible for Superfund. Forty-eight mine portals and tailings piles are “under consideration” to be included. The Gold King Mine will almost certainly be on the final list, as will the nearby American Tunnel. The Mayflower Mill #4 tailings repository, just outside Silverton, is another likely candidate, given that it appears to be leaching large quantities of metals into the Animas River. What Superfund will entail for the area beyond that, and when the actual cleanup will begin, remains unclear. Eric Baker
On April 7, 2016, the Environmental Protection Agency proposed adding the “Bonita Peak Mining District” to the National Priorities List, making it eligible for Superfund. Forty-eight mine portals and tailings piles are “under consideration” to be included. The Gold King Mine will almost certainly be on the final list, as will the nearby American Tunnel. The Mayflower Mill #4 tailings repository, just outside Silverton, is another likely candidate, given that it appears to be leaching large quantities of metals into the Animas River. What Superfund will entail for the area beyond that, and when the actual cleanup will begin, remains unclear.
Eric Baker

From The Denver Post (Bruce Finley):

Federal steps toward a Superfund cleanup still consist mostly of meetings. The EPA decision on whether to designate the Gold King and other nearby mines a national priority disaster — crucial to secure cleanup funds — still hasn’t been made.

While the Gold King blowout boosted awareness of the tens of thousands of dormant mines draining into western waterways, Congress continues to debate remedies, failing so far to create a national cleanup fund and reduce Clean Water Act liability to encourage voluntary cleanups.

And Colorado lawmakers, too, have been considering the problem but haven’t yet acted to increase state mining regulators’ capacity. State inspectors have not begun planned visits of 140 leaking mines, those causing the worst harm along more than 1,800 miles of streams classified as impaired.

“The Gold King Mine release has prompted some activities, like the draining mines inventory and characterization efforts through the Mining Impacted Streams Task Force — but no new money for the Inactive Mines Program that the program wouldn’t potentially have received absent the Gold King release,” said Ginny Brannon, director of Colorado’s Division of Reclamation, Mining and Safety.

“There’s nothing we can do now that we could not do before,” Brannon said.

So what is the overall legacy, one year later, of the Gold King disaster? It prompted Silverton and San Juan County to reverse their long opposition to a federally run cleanup. Numerous local forums have been held for planning what might be done. But conditions at the Gold King and hundreds of other inactive mines, steadily contaminating waterways to the point that fish cannot reproduce, remain the same as on Aug. 5, 2015, when EPA-led contractors botched efforts to open the portal and triggered a 3 million-gallon deluge.

“There’s much more awareness about the issue of abandoned mines,” said Peter Butler, chairman of the Animas River Stakeholders Group that for two decades drove efforts to deal the acid metals draining into mountains above Silverton.

Conservation groups acknowledged the lag but are hoping robust conversations after the disaster will lead to getting cleanups done.

“We really need a sense of urgency on this. Many of these old mines are leaching poisons into our rivers, day in and day out,” said Ty Churchwell, Trout Unlimited’s southwestern Colorado coordinator.

“It’s good to see some momentum in Washington, D.C. to address two big needs: liability protection, and funding for mine cleanups. We’re eager to roll up our sleeves and get to work on cleanups, but we need the tools to do it,” Churchwell said, referring to efforts by Colorado Sens. Michael Bennet and Cory Gardner, and Rep. Scott Tipton, to push legal changes that would hold mining companies more accountable. “The sad truth is, mining pollution is forever. We need a sustainable, long-term fund for dealing with this long-term problem.”

No one at EPA has been punished. The Gold King site coordinator, Steve Way, retired in June. He was on vacation on Aug. 5, 2015, and fellow EPA coordinator Hays Griswold led efforts to gain access to the Gold King. A Government Accountability Office investigation and an internal EPA probe, demanded by House Republicans, haven’t been completed…

Nor have owners of the Gold King and adjacent Sunnyside mines been cleared as potentially responsible parties. Gold King owner Todd Hennis, and Canada-based Kinross, owner of Sunnyside, could be forced to pay cleanup costs if the EPA decides on a Superfund cleanup…

EPA officials would not discuss their efforts.

That agency has made internal changes to be more careful around toxic mines. EPA chiefs this year issued orders that, whenever anyone is working to open up a collapsed mine that could release fluids, senior officials in Washington D.C. must sign off first. EPA assistant administrator Mathy Stanislaus issued a statement saying “additional consultation, coordination, and technical review prior to site work being conducted will help minimize the potential for uncontrolled fluid releases.”

Yet in other ways the EPA approach, working with the Colorado Department of Public Health and Environment, still involves considerable expense and delay. EPA administrator Gina McCarthy, visiting Colorado after the spill, vowed greater transparency. The agency communicates with reporters mostly through prepared statements, discouraging direct conversations, with instructions to reporters to attribute statements to officials. Neither McCarthy nor Denver-based regional director Shaun McGrath were made available for interviews.

And requested public documents — The Denver Post asked for Gold King-related records on Aug. 20, 2015, under the Freedom of Information Act — still are being reviewed by agency lawyers who said they are limiting the requested documents to about 75 that the EPA deems “responsive” and then redacting portions of those documents.

CDPHE water qualify officials have not received any new funding to deal with mines draining into streams, the agency’s senior hydrologist Andrew Ross said. However, the Gold King Mine incident has led to “a more coordinated effort between local, state and federal agencies that will, over time, be more successful at addressing water quality impairments from abandoned mines,” Ross said.

This month, EPA officials announced they’d work at the Gold King portal and 30 feet inside, the stabilization initiated after the EPA-run crew triggered the disaster. “EPA initiated these stabilization efforts immediately following the August 5, 2015 release and continued efforts through November 2015, when winter weather inhibited further action,” according to an agency statement attributed to spokeswoman Nancy Grantham.

EPA crews have been sampling water and sediment and the agency gave funds for locals to test water. The EPA also is working on plans for “stabilizing a waste pile on site and installing steel bracing and concrete to continue stabilizing the portal,” the statement said. “This work is designed to prevent collapses and ensure safe access for future work.”

EPA officials said the portal should be safe by October.

At other toxic mines, EPA-run cleanups typically take more than 20 years.

Gov. John Hickenlooper and local leaders repeatedly have urged EPA officials to commit to keep running a temporary water treatment plant below the Gold King, reducing contamination of Animas headwaters until a final cleanup is done.

EPA officials say they’ll run the treatment system until November, but that they haven’t decided what to do after that.

“The EPA’s water treatment plant at the Gold King Mine is operating now to protect Colorado’s waterways and communities. We are assisting EPA on mine sites in the area and on the national priority listing, and we trust that cooperation will continue,” Hickenlooper said.

“We’re working with the EPA and others to ensure that an appropriate long-term plan is in place that ensures the health and safety of our waters and communities. The temporary water treatment facility is one part of that process.”

In Washington D.C., environment groups steadily pressed for a more aggressive approach to the mines that pollute western waterways.

“The main thing that has changed” is that the problem has received attention, said Alan Septoff of the advocacy group Earthworks. “In Congress, both the left and the right have focused attention on the issue of abandoned and inoperative mines in a way that hasn’t occurred since the early 1990s,” Septoff said.

Animas River through Durango August 9, 2015 photo credit Grace Hood
Animas River through Durango August 9, 2015 photo credit Grace Hood

#AnimasRiver: Sen. Gardner wants to fast-track reimbursements for #GoldKingMine spill

This image was taken during the peak outflow from the Gold King Mine spill at 10:57 a.m. Aug. 5. The waste-rock dump can be seen eroding on the right. Federal investigators placed blame for the blowout squarely on engineering errors made by the Environmental Protection Agency’s-contracted company in a 132-page report released Thursday [October 22, 2015]
This image was taken during the peak outflow from the Gold King Mine spill at 10:57 a.m. Aug. 5. The waste-rock dump can be seen eroding on the right. Federal investigators placed blame for the blowout squarely on engineering errors made by the Environmental Protection Agency’s-contracted company in a 132-page report released Thursday [October 22, 2015]

From The Durango Herald (Kate Magill):

Senators Cory Gardner, R-Colorado, and Orrin Hatch, R-Utah, on Thursday called for a hearing on a bill that would expedite reimbursements to communities impacted by last year’s Gold King Mine spill.

In a letter to senators Chuck Grassley, R-Iowa, and Patrick Leahy, D-Vermont, the chairman and ranking member of the Senate Judiciary Committee, the pair called for a hearing on Gold King Mine Accountability and Compensation for Taxpayers legislation that they introduced in May.

The bill would require the EPA to fully reimburse communities for expenses caused by the spill. It would also expedite the payout of emergency response costs for tribes, local and state governments. The letter asks for the “swift consideration” of the bill.

It is one of several pieces of legislation pending approval in Congress concerning the spill, as well as good Samaritan legislation for mine reclamation. Sen. Michael Bennet, D-Colorado, introduced a similar EPA reimbursement bill in September last year that would also require the EPA to compensate those affected by the spill.

Here’s the release from US Senator Gardner’s office.

Cortez Sanitation District plans small rate increase — The Cortez Journal

Montezuma Valley
Montezuma Valley

From The Cortez Journal (Jacob Klopfenstein):

Cortez Sanitation District board members on Monday discussed a rate increase next year of $1 per month for wastewater treatment up to 5,000 gallons.

@RockiesProject: Student Researchers Study River Governance, Management

The Colorado Rockies.
The Colorado Rockies.

Here’s the release from the State of the Rockies Project:

Five Colorado College State of the Rockies Project student researchers are in the field this summer, studying and comparing issues of river governance and river management.

Joseph Friedland ’17, Emelie Frojen ’17, Lea Linse ’17, Mollie Podmore ’17, and Amy Rawn ’17, along with Program Coordinator Jonah Seifer ’16 and Associate Director Brendan Boepple ’11, are working in two of the West’s largest river basins, the Colorado River Basin and the Columbia River Basin. The focus of the 2016-17 State of the Rockies is “Inclusive River Governance in a Changing West,” with the core this year’s project being a comparative study of water issues in the Southwest vs. Northwest,

The State of the Rockies Project research team recently spent four days in Silverton and Durango, Colorado, where they examined how governance systems allow for the incorporation of traditionally under-represented values in water management. These issues are particularly important in an increasingly water-stressed future, affected by climate change and growing populations throughout the West.

“We were fortunate to meet with a diverse set of stakeholders involved with the Animas River on the trip, and were also able to sit in on a meeting of the Animas River Stakeholders Group, the local watershed group that has been working to address the region’s mining legacy for the last 20-plus years,” says Boepple, who has been with the project for five years.

“The trip not only allowed the students to further their research and see some of these important issues firsthand, but it also allowed them to see how actual management decisions are made,” says Boepple. “Additionally, the Gold King Mine spill, which occurred last August, provided an interesting backdrop to conversations and research discussions about the Animas River and its management.”

While in Silverton, the team visited the Mountain Studies Institute, which conducts scientific research and environmental restoration in the area, and emphasizes the need for communicating that research to a wide audience in the San Juan Mountains region. Boepple says they have some of the most complete data on the Animas River before, during, and after the Gold King Mine spill, and have been sharing that information with the local community to help residents understand the impact of the spill.

The State of the Rockies team will head next to the Pacific Northwest, where they will spend two weeks researching tribal water issues, the debates surrounding regional dam deconstruction, and the important role that salmon play in the management of the Columbia River system.

This summer’s research will be published in the 2017 State of the Rockies Report, due out in the spring.

#AnimasRiver: Navajo Nation Endorses Superfund Cleanup Of Colorado Mines — CBS Denver

On April 7,  2016, the Environmental Protection Agency proposed adding the “Bonita Peak Mining District” to the National Priorities List, making it eligible for Superfund. Forty-eight mine portals and tailings piles are “under consideration” to be included. The Gold King Mine will almost certainly be on the final list, as will the nearby American Tunnel. The Mayflower Mill #4 tailings repository, just outside Silverton, is another likely candidate, given that it appears to be leaching large quantities of metals into the Animas River. What Superfund will entail for the area beyond that, and when the actual cleanup will begin, remains unclear. Eric Baker
On April 7, 2016, the Environmental Protection Agency proposed adding the “Bonita Peak Mining District” to the National Priorities List, making it eligible for Superfund. Forty-eight mine portals and tailings piles are “under consideration” to be included. The Gold King Mine will almost certainly be on the final list, as will the nearby American Tunnel. The Mayflower Mill #4 tailings repository, just outside Silverton, is another likely candidate, given that it appears to be leaching large quantities of metals into the Animas River. What Superfund will entail for the area beyond that, and when the actual cleanup will begin, remains unclear.
Eric Baker

From the Associated Press via CBS Denver:

The Navajo Nation has formally endorsed a Superfund cleanup of southwestern Colorado mines, including one that released millions of gallons of wastewater into a river on Navajo land.

The U.S. Environmental Protection Agency, which is considering a Superfund designation for the Gold King Mine and other sites, released the letter Monday…

A Superfund designation could release millions of dollars for a cleanup. The EPA says a decision could come as early as this fall.

Cement Creek aerial photo -- Jonathan Thompson via Twitter
Cement Creek aerial photo — Jonathan Thompson via Twitter

#AnimasRiver: No fish die-off from #GoldKingMine spill

A “get well soon” balloon floats in the contaminated waters of the Animas River flowing through Durango on Monday afternoon August 10, 2015 -- photo The Durango Herald, Shane Benjamin
A “get well soon” balloon floats in the contaminated waters of the Animas River flowing through Durango on Monday afternoon August 10, 2015 — photo The Durango Herald, Shane Benjamin

From CBS Denver:

On Friday the EPA mobilized contractors to stabilize the mine and the waste pile…

Wildlife officials shared some good news, saying their testing shows the fish survived with no evidence of die-offs. But the problems are far from over…

The spill drew attention to the thousands of abandoned mines throughout the West that may also pollute rivers.

And on Friday EPA crews returned to the mine to start work stabilizing the entrance. Here’s a report from Dan Elliott writing for the Associated Press. Here’s an excerpt:

Construction crews will return this weekend to the scene of a massive mine-waste spill in southwestern Colorado to stabilize the mine opening with steel and concrete, the U.S. Environmental Protection Agency said Friday.

The EPA said the work is designed to keep rock and dirt from collapsing at the entrance to the Gold King Mine and to make sure it’s safe to enter during future cleanup efforts. The stabilization work will last through October…

In an email to The Associated Press, the EPA said it is very unlikely the work being done at the mine this year would trigger another spill. “The EPA has taken precautions to prevent any unanticipated discharges,” the agency said.

The contractor hired to do this summer’s work, Environmental Restoration LLC, was also on the scene at the time of the August blowout. But the EPA and outside investigators have said it was government officials, not the contractor, who made the decision to begin the work that led to the spill.

The EPA pledged to alert downstream communities if anything goes wrong this summer, using a notification plan put in place after the August blowout. The agency was widely criticized for not alerting all the tribal, state and local governments affected by the spill.

Wastewater is still running from the mine, and if the rate increases during this summer’s work, a temporary treatment plant installed last fall can handle a higher flow, the EPA said.

The $1.8 million plant went into operation in October. Officials said at the time it could handle 800 gallons per minute, while wastewater was flowing from the mine at about 560 gallons per minute.

The plant is scheduled to run through November of this year. Colorado lawmakers have urged the EPA to keep it operating, and the agency said Friday it is looking into that.