Often referred to as the “accidental lake,” the Salton Sea formed in the early twentieth century when heavy rain and snowfall caused a diversion in the Colorado River to burst and pour out into a dried up lakebed in the California desert. The Salton Sea is a terminal lake with no outlets and very little inflow of water, and it depends of agricultural runoff from the Imperial and Coachella valleys. As a result, the Salton Sea is ridden with pesticides, fertilizers, and salinity levels fifty percent greater than that of the Pacific Ocean.

Current State

Since the 1990s the Salton Sea has receded dramatically, driving out most remaining residents, businesses, as well as its wildlife.  In the late 1990s, and also to a lesser extent in 2006, the low water levels and lack of oxygen in the lake caused some ten million Tilapia to suffocate and wash up on shore.

As the Salton Sea’s shoreline continues to recede, hundreds of acres of foul-smelling, dry, chemically ridden lakebed is exposed. When kicked up by desert winds, the lakebed has the potential to cause hazardous dust storms, raising serious environmental and public health concerns. Furthermore, public health officials are concerned that because of the high levels of pesticides and fertilizers in the water, the dust may contain toxic heavy metals, such as arsenic. The high levels of dust released from the dried-up lakebed are inhaled by the 650,000 residents of the surrounding area.  Consequently, Imperial County currently has the highest asthma-related hospitalization rates in California.

The lake’s receding waters and hazardous dust storms are not only posing serious public health issues, but also a number of environmental concerns.  The Salton Sea, at forty-five miles long and fifteen miles wide, is California’s largest lake and one of the few remaining waterways in Southern California, and therefore serves as an important migration point for more than four hundred species of birds each year. Although there are varying opinions on the matter, most stakeholders agree that allowing the lake to dry up will have devastating effects on surrounding areas.

What Next?

The Salton Sea’s bleak conditions are only expected to worsen as even less water becomes available to maintain the lake.  In 2003, California implemented the Quantification Settlement Agreement, which re-apportioned water from the Colorado River to be distributed to urban areas and divert water away from the Salton Sea.  In response to concerns that the condition of the lake would worsen without an inflow of water, the Imperial Irrigation District (“IID”) agreed to send “mitigation water” to the sea until 2018.  Mitigation water is collected by asking farmers to fallow their land in exchange for a monetary pay out.  Being that this is only a temporary fix, under the agreement, the state is required to have a large-scale restoration effort ready to be set in motion by 2018.

As 2018 and the end of the supply of mitigation water approaches, the state and federal governments have begun to address the future of the Salton Sea.  This past July, Governor Jerry Brown announced an $80.5 million plan to work with the IID to build canals and artificial wetlands along the lake’s continuously receding shoreline.  Additionally, this past September, the Obama Administration budgeted $30 million to further expedite California’s habitat and dust suppression projects, improving air and water quality, and restoring fish and wildlife habitat.  Currently, the state is drafting a more comprehensive Salton Sea Management Plan, estimated at upwards of three billion dollars, which is scheduled for release by the end of 2016.

IID’s plan to salvage the Salton Sea proposes creating a smaller but more sustainable version of its former self that will still be able to serve the needs of its wildlife and surrounding communities.  The plan focuses on five specific goals: ensuring water supply reliability, protecting public health, developing carbon-free energy, protecting and restoring the sea’s ecosystem, and providing for economic growth.  IID Program manager, Bruce Wilcox states that, “a reconfigured sea will limit fugitive dust emissions, preserve and create avian habitat and expand economic opportunity for one of California’s most economically distressed areas.”

Currently, construction has begun on an experimental portion of artificial habitat of the Salton Sea. Small sections that are completely isolated from the rest of the lake are pumped with fresh water and then filled with new fish.  With the ability to move water in and out of these habitats, scientists hope that some of the lake’s stagnation and hyper-salinity issues will be resolved. These shoreline pools and shallow water habitats serve not only to restore the sea’s ecosystem, but also to reduce the formation of hazardous dust storms.

In regards to controlling the hazardous dust storms in the area, the IID’s plan focuses on covering exposed lakebed through the creation of shoreline pools and artificial habitats. Additionally, thanks to a two million dollar grant from the National Institute of Environmental Health Sciences, new air monitoring devices will be installed in the area to measure the amount of hazardous particles in the air.  These air monitoring devices will not only notify residents when they need to take extra precautions, but will also provide data that can help bring public awareness to the seriousness risk posed by airborne dust in the area.

Funding the Plan: Geothermal Potential

In addition to state and federal funding, local officials hope that they could tap in to the Salton Sea’s geothermal potential in order to secure much of the funding necessary. Despite being the largest geothermal reservoir in the United States, there are only eleven existing geothermal plants in the area. Although there are proposed plans to build large-scale geothermal plants on the dried up lakebed, construction of theses plants is very costly, which has prevented development in the past.  Most recently, Controlled Thermal Resources has proposed a plan to build a 250-megawatt geothermal plant on the Salton Sea’s southern shore. In their recent studies, the IID projected that the new geothermal developments could generate up to two billion dollars total, some of which would go towards Salton Sea restoration efforts. However, research done by the National Renewable Energy Laboratory predicts much smaller numbers, somewhere between $98 million and $210 million.

Conclusion

The proposed visions for the future of Salton Sea are far from the dynamic place it once was.  However, in its current, toxic condition, it poses serious health concerns to surrounding citizens; and as water levels continue to fall, it threatens California’s ecosystems that rely on clean water for survival.  Future restoration projects will be designed with this in mind, and will focus on long-term solutions to fix the Salton Sea’s catastrophic problems.  Although not ideal, the varying proposals are realistic and, if successful, the restoration of Salton Sea will help alleviate many environmental and public health concerns that currently plague the area.

Alicia Garcia

Image: Dead trees in the Salton Sea, California. Flickr User Phil Price, Creative Commons.

 

Sources:

Chris Iovenko, Toxic Dust From a Dying California Lake, THE ATLANTIC (Nov. 9, 2015), http://www.theatlantic.com/science/archive/2015/11/the-airborne-toxic-lake-event/414888/.

Ian James, As the Salton Sea’s decline looms, a rush to cover up dry lakebed, DESERT SUN (Oct. 26, 2016), http://www.desertsun.com/story/news/environment/energy-water-summit/2016/10/27/salton-seas-decline-looms-rush-cover-up-dry-lakebed/92521442/.

Allison Harvey Turner & Barry Gold, Solving the Salton Sea Crisis, SAN DIEGO TRIB. (Oct. 12, 2016), http://www.sandiegouniontribune.com/opinion/commentary/sd-utbg-salton-sea-crisis-20161012-story.html.

Matt Simon, The Salton Sea: Death and Politics in the Great American Water Wars, WIRED (Sept. 9, 2016), https://www.wired.com/2012/09/salton-sea-saga/.

Neal V. Hitch, A History of Water- and the Salton Sea- in Imperial, IVY PRESS (Mar. 21, 2015), http://www.ivpressonline.com/life/desertmuseum/a-history-of-water-and-the-salton-sea-in-imperial/article_40c423a4-c9d3-5aa7-8255-e43ea4c6a559.html.

Quantification Settlement Agreement, Water Education Foundation,  http://www.watereducation.org/aquapedia/quantification-settlement-agreement, (last visited Nov. 11, 2016).

Sarah Friedman & Kyle Jones, Time is Running Out to Save the Salton Sea, SACRAMENTO BEE (Sept. 27, 2017), http://www.sacbee.com/opinion/op-ed/soapbox/article104484671.html.

Pamela Marineau, Imperial Irrigation District Releases Framework for Salton Sea Restoration, Ass’n Cal. Water Agencies (July 29, 2015), http://www.acwa.com/news/conservation/imperial-irrigation-district-releases-framework-salton-sea-restoration.

Tyler Haden, Where’s the Money and the Plan That Will Save the Salton Sea?, L.A. TIMES (Oct. 16, 2016), http://www.acwa.com/news/conservation/imperial-irrigation-district-releases-framework-salton-sea-restoration.

Ian James, Tracking Asthma Threats in the Imperial Valley’s Hazy Air, DESERT SUN (Sept. 26, 2016), http://www.desertsun.com/story/news/environment/2016/09/21/imperial-valley-new-pollution-monitors-installed-help-track-dangers-hazy-air-asthma/89818666/.

Sammy Roth, Salton Sea Could Get New Geothermal Power plant, DESERT SUN (Mar, 16, 2015), http://www.desertsun.com/story/tech/science/energy/2016/03/15/salton-sea-could-get-new-geothermal-power-plant/81839422/.

Sammy Roth, Don’t Count on Geothermal to Save Salton Sea, DESERT SUN (Feb. 3, 2016), http://www.desertsun.com/story/tech/science/energy/2015/12/31/report-dont-count-geothermal-save-salton-sea/78031508/.


United States v. Washington, 827 F.3d 836 (9th Cir. 2016) (holding: (i) the fishing clause in the Stevens Treaties guaranteed Indian tribes the right to off-reservation fishing, with an inferred promise that sustainable fish populations would be available for tribal harvest; (ii) the State violated the fishing clause by constructing and operating barrier culverts that interfered with fish migration; and (iii) the permanent injunction appropriately ordered the State to correct barrier culverts).

In 1854 and 1855, multiple Pacific Northwest Indian tribes (“Tribes”) entered into the Stevens Treaties (“Treaties”), in which, inter alia, tribes relinquished land known as the “Case Area” to what is now the State of Washington (“State”) in exchange for a guaranteed right to off-reservation fishing.  Pursuant to this “fishing clause,” tribes had the right to take fish “at all usual and accustomed grounds and stations . . . in common with all citizens of the Territory.”  These Tribes rely on salmon fishing and engage in commercial salmon fishing, consume salmon to meet dietary needs, and use salmon in cultural and religious ceremonies.  Tribes and the State have long been in conflict over these fishing rights.  This case stems from a United States suit brought on behalf of Tribes in 1970 to resolve these persistent conflicts.

When building roads over streams, State road builders historically constructed culverts under the roads to allow natural stream flow.  However, these culverts interfere with salmon migration.  The culverts prevent juvenile salmon from migrating to sea where they mature, prevent mature salmon from returning to their spawning grounds, and prevent young salmon from freely locating food and avoiding predators.  As a result, salmon numbers diminished.

In 2001, the Tribes filed a request for determination with the United States District Court for the Western District of Washington (“district court”), which sought to impose a duty upon the State to abstain from constructing culverts that degraded fish habitat and reduced adult fish populations.  The United States joined the Tribes’ request for determination and sought declaration from the district court that the fishing clause in the Treaties imposed a duty upon the State to abstain from constructing or maintaining culverts that interfered with the fishery resource in way that “deprive[d] the Tribes of a moderate living from the fishery.”    Additionally, both the Tribes and the United States individually sought a permanent injunction from the district court requiring that the State open culverts that interfered with salmon migration, and requiring the State to remedy culverts that substantially reduced fish migration, respectively.

The district court ruled against the State on two grounds: (i) that the fishing clause imposed a duty upon the State to abstain from constructing or operating culverts that interfered with fish migration in a manner that reduced salmon that would “otherwise be available for Tribal harvest”; and (ii) that the State operated culverts that violated this duty.

In 2013, after failed settlement efforts, the district court issued a Memorandum of Decision, in which it found that the Treaties purported to assure Tribes that they would forever have an adequate salmon supply.  The district court reasoned that culverts, in part, degraded salmon habitat by inhibiting the free migration of adult and juvenile salmon, which resulted in reduced Tribal harvests that prevented tribal members from earning a living and caused “cultural and social harm to the Tribes in addition to economic harm.”  On the same day, the district court issued a permanent injunction ordering the State, in consultation with the United States and Tribes, to compile a list of state-owned barrier culverts within the Case Area and required the State to correct all listed culverts in a manner that provided fish passage.  The State appealed.

On review in the United States Court of Appeals, Ninth Circuit (“court”), the State contended that the Treaties did not impose a duty on the State to abstain from constructing barrier culverts, and objected to the scope of the district court’s injunction

First, the court determined the State’s duties under the Treaties.  The court found that the State misconstrued the Treaties by characterizing their primary purpose as “opening up the region to settlement”; the court instead deemed the primary purpose as establishing a reliable means to sustain tribal livelihoods once the Treaties took effect.  The court, relying on Supreme Court precedent, construed treaties between tribes and the United States in favor of the tribes. Along that vein, the court reasoned the Tribes understood that the Treaties would provide not only access to usual and accustomed fishing places, but also to sustainable salmon populations; thus, regardless of explicit language, the court would infer that promise.

The court then reviewed the facts presented to the district court regarding the State’s culverts and recognized their effects within the Case Area as “block[ing] approximately 1,000 linear miles of streams suitable for salmon habitat.”  Therefore, the culverts precluded sufficient salmon populations that would maintain a moderate living for the Tribes.  The court further reasoned that replacing or modifying culverts to increase salmon migration would render more mature salmon available for Tribal harvest.

Next, the court addressed the appropriateness of the district court’s injunction and rejected the State’s contentions.  The State contended that the Tribes did not provide sufficient evidence that the culverts significantly caused the salmon’s decline. However, the court determined that the Tribes had presented extensive evidence.  Specifically, the Tribes presented a report prepared by state agencies, which acknowledged culverts as a type of barrier to fish migration and as “correctable obstacles.”  The State also contended that the district court’s injunction ordered the State to correct almost all state-owned barrier culverts without evidence that such corrections would improve salmon migrations.  However, the court reiterated that the State’s own evidence illustrated that once salmon habitat is accessible by un-blocking barrier culverts, “hundreds of thousands of adult salmon” would be available to Tribes.

Accordingly, the court affirmed the district court’s holdings and concluded that the district court did not abuse its discretion by issuing the permanent injunction.

Gia Austin

Image: A coho salmon spawning on the Salmon River in the Pacific Northwest. Flickr User BLMOregon, Creative Commons.


During late summer 2015, activity by the U.S. Environmental Protection Agency (“EPA” or “Agency”) triggered a catastrophic release of three million gallons of acidic mine drainage from the Gold King Mine north of Silverton, Colorado into Cement Creek, a tributary of the Animas River.  The yellowish-orange Release, consisting of arsenic, cadmium, iron, and zinc flooded into the creek.  The acidic release then travelled down the river over the course of a few days, crossing several states and communities in the process. Over a year later, the Gold King Mine spill has left many questions and impending legal battles in its wake.

On August 5, 2015, the EPA began digging at the Gold King Mine Level 7 Audit. At 10:51 A.M, a worker stopped when he discovered a “spring.”  Within minutes, the water increased flow and turned from clear to red to orange.  The EPA immediately took action by stabilizing the mine entry and creating various treatment ponds.  Though the EPA took immediate measures, it could not remove the sediments from the water that had already mixed with the waters of Cement Creek. Several metals were dissolved in the release—such as lead, arsenic, and cadmium—resulting in orange-yellow river flows. The EPA’s report on the release can be found here.

One year later, surface water has returned to pre-release levels.  In addition to avoiding discolored water and soil, the EPA suggested some guidelines for health and safety issues associated with spills.  Moreover, the EPA has assured the public that downstream sources are safe for irrigating farms and for watering livestock, as the region’s livelihood relies heavily on agriculture.  Fish from the Animas River are even safe to eat; however, the EPA has authorized continued monitoring of metals in local fish, since contaminants may concentrate over time.

The EPA listed Gold King Mine Remediation on its National Priorities List for Superfund Cleanup in September 2016, despite local concerns over marketing for tourism. The superfund program uses federal money to investigate and clean up after disasters. The Agency hopes to collaborate with all relevant entities, including private, public, tribal, and non-profit, to stimulate remediation and change in the area.  Later in September, the EPA granted an additional $260,000 for cleanup costs to both tribal and state authorities, including the Southern Ute Indian Tribe, the City of Durango, and La Plata and San Juan Counties. The EPA hopes that Gold King’s superfund designation will help not only the immediately-impacted areas surrounding the mine, but also downstream water users, including states like New Mexico and Utah as well as the Native American tribes of the Navajo Nation and Southern Ute Tribe. Colorado’s Department of Public Health and Environment mirrored these sentiments, has worked to facilitate collaboration between state and federal actors and community involvement.

Despite Superfund designation, environmental lawyer Thaddeus Lightfoot believes listing Gold King Mine will do little to resolve the ongoing lawsuits against the EPA. Most significantly for Lightfoot, the Superfund designation green-lights funding to investigate the release’s cause and to begin actual cleanup. Finally, the government’s role, according to Lightfoot, will help answer a long-debated question regarding the head of environmental cleanup in favor of the federal government.

The release also spurred awareness about inactive mine seepage and long-resisted cleanup. For instance, the Impacted Streams Task Force has plans to evaluate the draining mines inventory and, hopefully, prevent or reduce toxic drainage from inactive mines. Moreover, the town of Silverton and San Juan County have embraced the federal program, despite an argument that, through its slow-moving process, the EPA is holding the region hostage.

As of October 2016, Navajo Nation farmers adjacent to the Animas River have not received compensation for their losses associated with the Gold King Mine Release.  Navajo Nation President Russell Begaye said he believes the Navajo farmers deserve reimbursement and the San Juan River deserves cleaning, neither of which the federal government has done.  President Begaye called the inaction “shameful,” especially following two instances in which the U.S. Senate accepted responsibility for the release. In fact, Navajo Nation has filed suit against the EPA and other entities, alleging the release could have been prevented. Politicians have commented on the suit, including Arizona Congressman Raúl Grijalva, who believes the EPA should make efforts to mitigate the losses the release triggered.

During December 2016, the Navajo Nation filed a complaint against the EPA seeking over $160,000,000 in damages resulting from the Release. Navajo Nation claims the release injured the Navajo’s longstanding confidence on the San Juan.  This is the second lawsuit from Navajo Nation, the first being civil suits against mining companies for incurred response costs with the release. Navajo Nation’s Attorney General, Ethel Branch, commented that the release transformed their sacred river from a source of life into a threat to life. The Navajo complaint alleges the EPA knew Gold King was at risk to a blowout and failed to notify the Navajo residents for two days after the release. Moreover, the Navajo claim the contamination will continue to pollute the Navajo Nation and its resources.

The EPA announced January 13, 2017 that it would not reimburse residents—including the Navajo—for the spill. The Agency, in a press release, said that an independent claims officer ruled that the EPA and its actions leading up to the spill were protected under the Federal Tort Claims Act, which protects government actions that constitute a “discretionary function or duty” if done with due care.  Those who have filed claims, however, may challenge the EPA’s decision.

More than a year after the Gold King Mine spill, remediation efforts are ongoing, and metallic levels in the affected waters has returned to normal. Despite these environmental efforts, residents must bear their own individual costs associated with the spill. As long as individuals remain uncompensated, fully resolving the spill might become arduous and drawn out.

Connor Pace

Image: The Animas River between Silverton and Durango, Colorado. Wikimedia Commons User Riverhugger.

Sources:

Alysa Landry, Navajo Nation seeks $160 Million in damages for EPA spill, NAVAJO-HOPI OBSERVER (Dec. 27, 2016),  http://www.nhonews.com/news/2016/dec/27/navajo-nation-seeks-160-million-damages-epa-spill/.

Bruce Finley, EPA puts Gold King Mine, other Colorado sites on priority list and pegs acid muck flow at 5.4 m gallons a day, DENVER POST (Sept. 7, 2016), http://www.denverpost.com/2016/09/07/gold-king-animas-mining-sites-disaster-declaration/.

Bruce Finley, Gold King one year later: Colorado’s mustard-yellow disaster spurs plans for leaking mine, DENVER POST (Aug. 5, 2016), http://www.denverpost.com/2016/07/24/gold-king-mine-spill-animas-river-one-year-later/.

Darryl Fears, Colorado gold mine is one of EPA’s new Superfund pollution sites, WASH. POST  (Sept. 7, 2016), https://www.washingtonpost.com/news/energy-environment/wp/2016/09/07/colorado-gold-mine-is-one-of-the-epas-new-superfund-pollution-sites/?utm_term=.b6bb50d49f84.

Encouraging News from the EPA on the Gold King Mine, DENVER POST (Sept. 9, 2016), http://www.denverpost.com/2016/09/09/encouraging-news-from-the-epa-on-gold-king-mine/.

Kieran Nicholson, EPA awards $260,000 more in grants in wake of Gold King Mine spill, DENVER POST (Sept. 29, 2016), http://www.denverpost.com/2016/09/29/epa-grants-gold-king-spill/.

Chase Olivarius-Mcallister, Superfund: A dirty word to some in Silverton, DURANGO HERALD (Aug. 3, 2013 1:14 PM), https://durangoherald.com/articles/2026-superfund-a-dirty-word-to-some-in-silverton.

Navajo Nation Sues EPA Over Gold King Mine Disaster, INDIAN COUNTRY TODAY MEDIA NETWORK (Aug. 18, 2016), http://indiancountrytodaymedianetwork.com/2016/08/18/navajo-nation-sues-epa-over-gold-king-mine-disaster-165510.

Navajo President Slams EPA, NAVAJO POST (Oct. 3, 2016), http://navajopost.org/navajo-president-slams-epa/.

Sara Randazzo, Navajo Nation Seeks More Than $160 Million From EPA in Colorado Mine Disaster, WALL ST. J. (Dec. 5, 2016 7:09 PM), http://www.wsj.com/articles/navajo-nation-seeks-more-than-160-million-from-epa-in-colorado-mine-disaster-1480982978.

U.S. Dep’t. of the Interior, Bureau of Reclamation Technical Service Center, Technical Evaluation of the Gold King Mine Incident, https://www.usbr.gov/docs/goldkingminereport.pdf (last visited Feb. 9, 2017).

U.S. EPA, Frequent Questions Related to Gold King Mine Response, https://www.epa.gov/goldkingmine/frequent-questions-related-gold-king-mine-response (last updated Dec. 13, 2016).

Press Release, U.S. EPA, Press Releases and Updates for Gold King Mine Response, https://www.epa.gov/goldkingmine/press-releases-and-updates-gold-king-mine-response (last updated Jan. 13, 2017).

Federal Tort Claims Act, 28 U.S.C. § 2680(a) (2017).

 

 


The Water Law Review would like to congratulate our six new Staff Editors for their hard work in completing a successful Spring 2017 Candidacy packet.

Welcome to the Water Law Review!


Kristina Ellis
Michael Larrick
Kathryn Mailliard
Megan McCulloch
Christopher McMichael
Alexandra Tressler