#ColoradoRiver: The latest Water Center @ CMU E-Newsletter newsletter is hot off the presses

Sprawl
Sprawl

Click here to read the newsletter. Here’s an excerpt:

LAND USE IN WATER DISCUSSION
Addressing land use patterns has recently become more central to the discussion over how to meet Colorado’s future water needs. For more details, see this Water Center column.

Reclamation Releases a Draft Environmental Assessment for Developing Hydropower at Drop 5 of the South Canal

South Canal hydroelectric site
South Canal hydroelectric site

Here’s the release from the US Bureau of Reclamation (Justyn Liff/Jennifer Ward):

Reclamation announced today that it has released a draft environmental assessment for a hydropower project at Drop 5 of the South Canal, part of the Uncompahgre Project in Montrose, Colorado.

The project, proposed by the Uncompahgre Valley Water Users Association, will be located approximately four miles downstream from the Drop 4 hydropower project on the South Canal. A Lease of Power Privilege will authorize the use of federal facilities and Uncompahgre Project water to construct, operate and maintain a 2.4 megawatt hydropower facility and associated interconnect power lines.

The hydropower plant will operate on irrigation water conveyed in the South Canal and no new diversions will occur as a result of the hydropower project. Construction activities and operation of the hydropower plant will not affect the delivery of irrigation water.

The draft environmental assessment is available and can be received by contacting Jennifer Ward by phone at 970-248-0651 or email jward@usbr.gov.

Reclamation will consider all comments received prior to preparing a final environmental assessment. Comments can be submitted by email to lmcwhirter@usbr.gov or to: Ed Warner, Area Manager, Bureau of Reclamation, 445 West Gunnison Ave, Suite 221, Grand Junction, CO 81501. Comments are due by Monday, September 14, 2015.

Eric Wilkinson (Northern Water) statement about Fort Collins staff recommendation on NISP

Map of the Northern Integrated Supply Project via Northern Water
Map of the Northern Integrated Supply Project via Northern Water

From the Northern Water Twitter feed and FaceBook:

“The 15 Northern Integrated Supply Project participants and Northern Water are disappointed in the City of Fort Collins’ staff report pertaining to the NISP supplemental draft environmental impact statement.

“NISP participants have spent $12 million on the detailed SDEIS process. Under the direction of the Army Corps of Engineers, several expertly qualified independent consultants have thoroughly studied all aspects of NISP as reflected by the funding provided by the NISP participants to complete those studies. Two different consultant teams have independently studied the issues surrounding water and wastewater treatment and have concluded that NISP will have little to no impact on the City of Fort Collins operations. As a result of these efforts, we had sincerely hoped that staff would have had a more favorable opinion of those analyses and of the SDEIS as a whole.

“As planned by the Corps, in addition to the river water quality evaluation completed for the SDEIS, detailed water temperature and water quality analyses will be completed prior to the release of the Final EIS.

“We are very pleased that NISP has received more than 100 endorsements from throughout the state including the Fort Collins Coloradoan editorial board, BizWest, the Fort Collins Area Chamber of Commerce and the Larimer County commissioners.

“The NISP participants and Northern Water look forward to establishing working groups with both the City of Fort Collins and the City of Greeley to develop measures to address their concerns and further enhance the Poudre River.”

#AnimasRiver: Antiquated mining law hamstrings cleanups — The Durango Herald

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From The Durango Herald (Peter Marcus):

Outdated hard-rock mining laws enacted in the 1870s tie the hands of the federal government to curb pollution that contaminates water supplies, as was the case with the Gold King Mine spill.

Perhaps the most significant deficiency comes in the form of a “free and open” provision of the Mining Law of 1872, otherwise known as a “right to mine.” Limited reforms have been made to the law over the last 143 years, leaving in place a provision that prohibits the federal government from blocking a mine from opening or even collecting royalties from operations.

The law also left little to government regulation, falling in line with the theme of Manifest Destiny from Western expansion in the 19th century. When the nation’s mining laws were crafted, the goal was settlement, not environmental regulation.

“The 1872 mining law is the freest ride of all free rides on the books,” said Roger Flynn, an adjunct professor at the University of Colorado School of Law and the director and managing attorney of Western Mining Action Project, a nonprofit that handles hard-rock mining cases…

Just who holds the liability remains unclear. Flynn said some of the responsibility rests with the mine’s owner, Todd Hennis. Some liability also may fall on the EPA, which became a sort of operator when it began working there.

But it’s much more complicated than that. Gold King, near Silverton, became inactive in the 1920s. But the neighboring mine of Sunnyside also is entangled in the web. The mine became inactive in the 1990s, and ownership at the time reached an agreement with Colorado to install bulkheads in the mine. Since that mine was dammed, wastewater in nearby mines has increased.

Sunnyside Gold Corp., a subsidiary of Kinross Gold, entered into a consent decree, allowing for the mine to continue to leak heavy metals, while the company agreed to costly reclamation projects.

Judging by the disaster earlier this month, overall efforts have not been enough, which begs the question: How did it get to this point?

The simplest answer is money. The Mining Law of 1872 allows companies to extract billions of dollars worth of precious metals – such as gold and uranium – pay no royalties and avoid liability for environmental damage in several situations. Without the royalties, there is limited government funding for reclamation, and few burdens are placed on the companies themselves.

Over the years, beginning in the 1970s, the federal government began to take action on environmental issues, enacting laws around clean water and endangered species. But companies have found loopholes. One example is hiring experts to vouch for water quality.

Because the federal government is charged with the “free and open” provision under mining laws, officials often default to this clause. In other words, if the experts say the water is safe, and the government is obligated to let a company operate, then there’s little recourse for regulators.

An option for reclamation is declaring an area blighted with a Superfund listing, which opens the doors to funding. But as was the case with Gold King, communities sometimes resist the federal listing, as they fear it leaving a stain. Flynn said the end result is a government that is rendered impotent.

“The 1872 mining law makes mining the highest and best use of the land,” he said. “Whatever minerals you find on that are free. … Agencies will say we can’t say no to the mine no matter how destructive, unless you can prove there will be a Clean Water Act violation on Day 1.”

The irony, of course, is that those violations don’t occur until well after operations have begun.

“The feds don’t have the ability on public land to say no – no matter how bad the idea is, how bad the place is – because of the 1872 mining law,” Flynn said. “So, they permit these things all over … and they allow potential pollution.”[…]

State Rep. Don Coram, R-Montrose, is not so sure that the answer is additional regulations, suggesting that there are new technologies out there that allow for cleaner mining activities. Coram has years of experience in hard-rock mining, having owned several mines, including uranium.

“I don’t think the problem lies with what we’re doing today. … That changed. We do a lot better,” he said.

“I’m not comfortable with the EPA being in charge,” Coram said. “I would much rather that federal funding goes into letting the state run those projects.”

Meanwhile Durango and parts thereabouts are worried about the spill and its affect on the economy. Here’s a report from Jonathan Romeo writing for The Durango Herald. Here’s an excerpt:

Some fear the frenzy of images broadcast around the world when the Animas River turned a sickly orange for more than 12 hours could have an effect for years to come.

“Stigma is the perception of the public, even after fixing the problem,” said Tom Alleman, an attorney at Dallas-based Dykema Cox Smith. “The Animas had brand damage.”

Alleman told the crowd of about 20 people Friday at the DoubleTree Hotel that the state of Colorado does allow individuals to file claims for compensation for stigma damages, but those kinds of situations aren’t common and can be subjective.

He said the law lists stigma damage as an event that is not “reputationally enhancing,” and in the case of the Gold King Mine spill, that might be easier to prove.

Jack Llewellyn, executive director at the Durango Chamber of Commerce, said it’s too early to tell the long-term effect the spill will have on the city’s tourism industry, but there is no denying the hit river-related businesses took in the immediate aftermath of the blowout.

“We definitely saw an impact, and it directly affected the river-rafting industry. It was like shutting down Main Street at Christmas time,” Llewellyn said, referencing the fact that August is a critical revenue month for summer tourism businesses.

Llewellyn added that just the other day, a woman bringing 20 senior citizens to the area called ahead to ask if the water was safe to drink, and it’s that skepticism he fears might influence other visitors to choose a different destination when making vacation plans.

Durango & Silverton Narrow Gauge Railroad Owner Al Harper said the train suffered some cancellations at first, but ridership rebounded rather quickly. Most of the railroad’s projected 183,000 riders come from outside Durango.

He’s more concerned about how stakeholders of the mining network north of Silverton will implement a wastewater-treatment plan.

And that brings in yet another layer of “stigma” in connection to the Gold King Mine spill: a Superfund listing, which is an EPA program that cleans up hazardous waste sites.

Since the spill, there has been considerable pushback from Silverton residents who believe visitors will fear and avoid the small tourism town if it is designated a “Superfund” site and prefer to explore other options.

However, those in favor of the Superfund argue the stigma of a town that refuses to clean up once and for all a history of unregulated mining regulations that have tainted the Animas for decades is far worse.

Harper, who also owns a hotel in Silverton, said residents of the town may be more open to the Superfund designation if the EPA draws clear lines of where the boundary extends.

“Let’s face it, the city limits of Silverton have not been polluting the river,” he said. “We need to make clear the mining area is a Superfund; Silverton is not.”

#CleanWaterRules Litigation Update: Let’s All Just Take a Breath — Jon Devine

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Photo via Aspen Journalism — Brent Gardner-Smith

From Switchboard (Jon Devine):

If you’re following the legal fallout from the Obama Administration’s finalization of its initiative to protect critical streams and wetlands – called the Clean Water Rule – you were probably on the lookout for action this week. (And, you’re a bit odd. It’s OK – me too.)

That’s because the rule, which the Environmental Protection Agency Administrator, Gina McCarthy, and the Assistant Secretary of the Army for Civil Works, Jo-Ellen Darcy, signed back in May, was scheduled to take effect today.

That didn’t entirely happen as planned, due to a single court ruling yesterday. More on that in a minute, but first some background to provide context for my ultimate message in this post: this is just part of the process, and there is no need to overreact to a preliminary ruling in one case…

What Happened [last] Week

In the run-up to the rule’s implementation date today, a number of the parties that sued the agencies claiming that the rule is too protective of the nation’s water resources asked four trial-level courts to block the rule from taking effect. One of these courts, in Oklahoma, where two cases were pending, granted the federal government’s request weeks ago to put those cases on hold while the government seeks to have the cases transferred and consolidated in Washington, DC. The other three courts – located in Georgia, North Dakota, and West Virginia – all issued rulings this week. (All but one of the remaining district courts with pending challenges from state or industry opponents have postponed any further proceedings in the cases, at the federal government’s request. Similar requests are pending in the challenges that the conservation groups have filed.)

Of the three courts that issued rulings this week on opponents’ requests to delay the rule, two of them, the Northern District of West Virginia and the Southern District of Georgia, both refused to grant the delay and held instead that the cases should be heard by the appellate court.

That leaves one court – the District of North Dakota – which ruled yesterday that it both has the jurisdiction to decide the case and that it should temporarily prevent implementation of the rule while the case is more fully argued. The court concluded that the state plaintiffs in that case, led by North Dakota, were likely to prevail on their legal claims that the rule was too protective, and that the states would be harmed by the rule taking effect.

Although we are still reviewing the decision closely and evaluating our options for next steps, we profoundly disagree with the court’s conclusion that the extraordinary remedy of an injunction is justified here, and are disappointed that the rule’s implementation will be delayed, at least to some extent. Every day the rule is not in force in a given place, the streams, ponds, and wetlands that people swim in, fish from, boat on, and depend on for drinking water are at unnecessary risk of being polluted or destroyed.

At the same time, let’s see this ruling for what it is – a temporary delay in one of a dozen or so cases. Indeed, the agencies have explained that the Clean Water Rule will take effect today for those states not involved in the North Dakota litigation. And, even in that case, proponents of the Clean Water Rule will have additional opportunities to explain why the rule’s safeguards are well within the bounds established by the Supreme Court and are supported by the voluminous scientific evidence of the importance of the waters that the rule protects.

Consider a recent point of reference: the Affordable Care Act was found to be invalid by some different courts when it was similarly challenged in a number of places. At the end of the day, however, it was twice upheld by the Supreme Court, and is now the law of the land.

Cases such as that, plus the certainty that the Clean Water Act authorizes the agencies to protect those water bodies that significantly affect downstream waters, give me confidence that, despite the delay in this instance, the cases attacking the rule as too protective will ultimately fail. When that happens, the rule will remain in place with necessary protections for the health and well-being of our families and communities, as well as our prosperous fisheries and tourism industries.

Inhale, exhale, repeat.

#AnimasRiver: Tribes, Counties, Environmental Groups Unite to Prevent Future Mining Contamination

raftinganimasriver08152015gracehoodtwitter

Here’s the release from the Center for Biological Diversity (Rex Tilousi, Sherry Counts, Art Babbott, Art Goodtimes, Anne Mariah Tapp, Katie Davis, Bonnie Gestring, Matthew Sanders):

In the wake of the toxic spill in the Animas River earlier this month, tribes, local governments and environmental groups today petitioned the Department of the Interior and Department of Agriculture to reform outdated mining rules on the federal lands they manage. The 74-page petition requests four key changes to federal mining regulations to help protect western water resources from future environmental disasters like the recent Gold King Mine spill in Colorado, and ensure that mine owners cannot simply walk away from existing and inactive mines.

“The Hualapai Tribe supports the petition to make long overdue changes to the mining regulations,” said Councilwoman Sherry Counts of the Hualapai Nation. “Indian tribes have always viewed themselves as stewards with an obligation to take care of the Earth that has provided for them. The Animas disaster only accentuates the urgency for federal agencies and the mining industry to do a much better job of protecting our precious land, air, and water.”

The petition, submitted under the federal Administrative Procedure Act, requests that the Bureau of Land Management and U.S. Forest Service reform existing mining rules by: limiting the lifetime of a mine permit, imposing enforceable reclamation deadlines and groundwater monitoring requirements on mines, requiring regular monitoring and inspections, and limiting the number of years that a mine can remain inactive.

“As a county with hundreds of abandoned mines affecting two headwaters rivers of the Colorado Basin, we really place a high importance on sustainable uses of our public lands and protecting water,” said Art Goodtimes, a commissioner in San Miguel County, Colo. “The proposed rules will help ensure that existing and inactive mines are reclaimed in a timely manner and the environment will be better protected than what happened with our San Juan County neighbors.”

“The Animas River disaster must mark the end of the days where irresponsible mining threatens our region’s livable future,” said Anne Mariah Tapp, energy program director for the Grand Canyon Trust. “Our coalition’s petition provides the federal agencies with a reasonable path forward that will benefit western communities, taxpayers, water resources, and our most treasured landscapes.”

The threat that uranium mining poses to the Grand Canyon prompted the support of many regional governments for regulatory reform. Uranium mines in the Grand Canyon region are operating under environmental reviews and permits from the 1980s, with no requirements for groundwater monitoring once mining is complete.

“The Havasupai Tribe supports this petition that will better protect our aboriginal homelands and the waters that flow into our canyon home,” said Rex Tilousi, Havasupai tribal chairman. “This petition is an important part of our decades-long fight to protect our tribal members, homeland, and sacred mountain Red Butte from toxic uranium mining contamination.”

Along with the threats posed by existing mines, there are hundreds of thousands of abandoned mines in the United States that pollute an estimated 40 percent of streams in the headwaters of western watersheds. Most of these toxic mines, including the Gold King Mine, exist because the 1872 Mining Law, still the law of the land, didn’t require cleanup.

“If we are serious about the protection of the Grand Canyon and Colorado River water resources, we need to call for change,” said Art Babbott, a county supervisor in Coconino County, Ariz. “Common sense reforms to the federal agencies’ mining regulations and the 1872 Mining Law serve the interests of healthy watersheds, strong regional economies, and having science — as opposed to politics — guide our decision-making for mining on public lands.”

“For too long, the federal government has allowed our public lands to become toxic dumping grounds for mining corporations,” said Katie Davis, public lands campaigner with the Center for Biological Diversity. “Federal agencies have the ability to start addressing the problems unfolding at existing mines now, without waiting for congressional action, to ensure better protection of public lands, water supplies and wildlife habitat.”

“We must act to prevent future disasters like the one that turned the Animas River orange,” said Earthworks’ Bonnie Gestring. “Our petition for stronger mining rules would help reform dangerous industry practices while we push to reform the 1872 Mining Law, which would fund the cleanup of the hundreds of thousands of abandoned mines that litter the West.”

Background
Today’s petition, submitted under the federal Administrative Procedures Act, requests four changes to existing federal mining regulations: (1) limit the duration of approved plans of operations to 20 years, with the option to apply for 20-year renewals; (2) require supplemental review under the National Environmental Policy Act and National Historic Preservation Act, as well as a new approval for any mining operation that has been inoperative for 10 or more consecutive years; (3) require the BLM and Forest Service to regularly inspect mining operations, and mining operators to regularly gather and disclose information regarding the status and conditions of those operations, during non-operational periods; and (4) impose deadlines for commencing and completing reclamation activities once a mining operation ceases, and impose long-term monitoring requirements for surface water and groundwater quality.

The petition was prepared by the Stanford Law Clinic and is supported by the Havasupai Tribe (Arizona), the Hualapai Tribe (Arizona), the Zuni Tribe (New Mexico), Coconino County (Arizona), and San Miguel County (Colorado), as well as more than a dozen national and regional environmental organizations including the Grand Canyon Trust, the Center for Biological Diversity, Earthworks, the Sierra Club, the Information Network For Responsible Mining, Uranium Watch and others, representing millions of people who treasure our public lands and waters.

Don’t miss the screening of the Great Divide tonight #COWaterPlan

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From 9News.com (Maya Rodriquez):

“We do live in a desert. It’s hard to see that because we have made it this,” said Jim Havey, director of a new documentary called “The Great Divide.”

It explores how Colorado settlers, from early Native Americans to 20th century civil engineers, used water to create the state we call home today. 9NEWS is also broadcasting documentary film “The Great Divide” on Monday, Aug. 31, at 7 p.m. on KTVD-TV, Channel 20…

The film looks forward as well, specifically at the Colorado Water Plan. It’s the first ever comprehensive plan, attempting to guide the state towards a future where more water will be needed to deal with a predicted doubling of the population: 10 million people by 2050.

“We’ve got multiple sectors all across this state that depend on water and making sure that water is delivered with some certainty to them and reliably,” said James Eklund, director of the Colorado Water Conservation Board, which is shaping the water plan.

The pressure for more water could potentially put a strain on the state’s agriculture sector, where farmers and ranchers – who have senior water rights – could sell those rights to growing urban areas.

“Those farmers and ranchers who made an economic decision to move that water from their land and move it to a municipal use—that’s where the balance comes about,” said Colorado Farm Bureau President Don Shawcroft…

We want to make sure that as we move forward with a strategic plan, we’re able to deal with drought, flooding, wildfire – all the things that have been thrown at this state over the course of the last several years — in a strategic manner,” Eklund said.

The final draft of the Colorado Water is set to be finished by Dec. 10. The state is still taking public comment on it, but that will end on Sept. 17. To add your voice to the plan, go to http://coloradowaterplan.com.

Here’s the Coyote Gulch review of the film.