People all over the world share the experience concerning access to and use of water resources. The particular problem may be too much water causing destructive floods, too little water to sustain human livelihood, too many people vying for a limited amount, or even all three problems. Bangladesh, one of the most densely populated countries in the world, experiences drastic seasonal variations in water availability.

Small Country, Lots of Water

Nearly 160 million people cohabitate roughly 90,000 square miles (slightly smaller than Iowa), a population density of nearly 1,800 people per square mile. Floodplains encompass 80% of Bangladesh as three rivers flow from the Himalayas through the country (the Brahmaputra, the Ganges, and the Maghna) to create the largest river delta in the world at the Indian Ocean. On average, Bangladesh sits only thirty three feet above sea level. Few countries are more threatened by the immediate impacts of climate change than Bangladesh. Its unique geography and population density mean more intense and chaotic monsoon oscillations and fluctuations in snow melt patterns feeding the Himalayan rivers impact Bangladeshis directly and substantially.

Inequitable Land Distribution Amongst Rural Farmers

Dkaha, the capital, is one of the world’s most densely populated cities, but nearly 70% of Bangladeshis still live in rural areas and engage in agricultural practices as their main source of income. Inequitable distribution and landlessness plague Bangladeshi society as so many people compete for property. Nearly 89% of the population owns less than 2.5 acres of land and 13% of rural Bangladeshis own absolutely no real property. Those who do not own land squat on government-owned land, or engage in sharecropping, using the land of an affluent owner for a steep price. The largely poor population struggles to access property ownership through an ineffective, complicated, and often corrupt institutional framework to secure land title.

Lack of Legally Protected Water for Rural Farmers

Formal access to water is tied to land ownership. All water in Bangladesh is owned by the national government, which allocates appropriations through permits and licenses based on recognized land ownership. Owners of water rights can create protections on their land through drainage systems and canals during the runoff season and can formally access their water allocations during the dry season. Without legal title to their property, many farmers in rural Bangladesh have no formal access to water for irrigation during the farming season and lack the ability to protect fields from flooding during the wet season. This informality is an accepted norm in Bangladesh, where rural poor eke out a living for six months a year on borrowed land and borrowed water.

The other half of the year, the rivers flow at their highest rates due to snowmelt in the Himalayas and monsoonal rains fueled by the Indian Ocean. Most of the floodplains, where rural farming primarily occurs, is under ten or more feet of water, leaving no access to land for living, let alone farming. Income for these rural residents disappears for six months as nearby villages are cut off from one another, along access to infrastructure such as hospitals and schools as nearby villages are cut off from one another. The inability to work and the isolation from society creates a breeding ground for hunger, domestic violence, illiteracy, and a lack of medical care.

The national government recognizes the problems of landlessness and water access on paper through various poverty reduction strategy reports to the World Bank and other international development agencies. Unfortunately, legislative reforms to the land allocation and tenure systems in the last two decades failed to put land in the hands of the landless. Instead, corruption and bribery continues to concentrate land ownership with the wealthy, further exacerbating the land and water access problem in rural areas.

Turning the Tides of Sustainable Livelihoods

Where the government fails to meet the needs of its people, Bangladeshis themselves find creative solutions to the landlessness problem. Enter Shidhula Swanirvar Sangstha, a Bangladeshi non-profit founded in 1998, that creates floating villages in the country’s northwestern region. Even though Shidhula initially helped villages create floating schools, libraries, and hospitals, complete with wireless internet access, these structures failed to meet the income and nutritional needs of farmers and their families. Recently, Shidhula expanded their development services to include floating farms, operated primarily by women, educated by Shidhula’s adult education programs on the floating schools. These farms recycle oil drums, plastic jugs, bamboo, and discarded netting to create enclosed tilapia ponds, duck coops, and vegetable gardens. The gardens provide fresh vegetable and protein in the otherwise lean flood season, sustaining families both nutritionally and economically. The communally operated structures enable women to earn income for their families when traditional farmable land is inaccessible. Empowering women to provide for their families helps redefine gender roles in Bangladesh’s traditionally conservative Muslim society.

Traditionally an obstacle, Bangladesh’s annual floods are now an opportunity for development in rural communities. To date, Shidhula operates over 100 boats, with plans to build more. These floating villages, complete with reliable food sources, can provide stability for floodplain dwellers in the face of climate change impacts on flood and monsoon patterns.

The title image features a man fishing in a flooded agricultural field in Bangladesh. This image is licensed under the Creative Commons Attribution 2.0 Generic license by the image owner who does not endorse this blog.


Sources:

USAID, Country Profile: Bangladesh Property Rights and Resource Governance, (Nov 2010) available at http://usaidlandtenure.net/sites/default/files/country-profiles/full-reports/USAID_Land_Tenure_Bangladesh_Profile.pdf.

Shidhula Swanirvar Sangstha, http://www.shidhulai.org/index.html, (last visited Jan. 19, 2015).

Amy Yee, Farming on Water to Prevent Effect of Rising Waters, New York Times (Nov. 18, 2014), http://www.nytimes.com/2014/11/19/business/energy-environment/bangladesh-farming-on-water-to-prevent-effect-of-rising-waters.html?_r=1.

The CIA WorldFact Book: Bangladesh, https://www.cia.gov/library/publications/the-world-factbook/geos/bg.html (last visited Jan. 19, 2015).

Ben Schiller, In Bangladesh, Floating Schools, Farms, and Health Clinics Help Stay on Top of Rising Waters, Co.Exist, http://www.fastcoexist.com/3034613/in-bangladesh-floating-schools-farms-and-health-clinics-help-stay-on-top-of-rising-waters (last visited Jan. 19, 2015).


Background

Colorado has legal marijuana, a booming economy, and an excellent quality of life; it’s a popular place to be. The state’s population is expected to double between 2010 and 2050. Such a growth trend will put a tremendous amount of pressure on Colorado’s already limited water supply. Experts from a diverse array of fields have begun developing and implementing solutions designed to alleviate pressures Coloradans are facing today and preparing for major population growth. Urban sprawl accounts for a great deal of Colorado’s infrastructural growth, and transporting water to rapidly expanding suburban areas is presenting a substantial challenge to water management groups and supply planners.

Issue

The Denver Metro area is working to meet its expanding populace’s water needs, and organizations across the state are currently involved in efforts to improve water storage capabilities and water transportation infrastructure. Managing Denver Metro’s water needs involves a great number of parties, and balancing the sometimes-competing interests of those parties can present a challenge. Even though most parties complying with Denver Metro’s water management plan are interested in improving upon water storage and infrastructure, parties often differ on how plans should exact improvements.

In 1967, the United States Army Corps of Engineers began constructing the Chatfield dam on the South Platte River, and its construction led to the creation of the Chatfield Reservoir. In 1974, Colorado State Parks began leasing the reservoir and surrounding area for recreational use and, in 1976, the area was developed into what is now known as Chatfield State Park (“Chatfield”). The park is located 25 miles southwest of Denver, and it is one of Colorado’s most popular state parks. Chatfield has an area of nearly 5,400 acres open to a wide variety of recreational activities and hosting over 1.6 million visitors per year.

On May 29, 2014, the Omaha District of the United States Army Corps of Engineers (“Corps”) authorized the Chatfield Storage Reallocation Project (“Project”), a plan to reallocate portions of Chatfield in an effort to provide more water storage for suburbs and rural areas south of Denver. The Corps’ Project will require flooding 500 acres of the park in order to raise the current water level by up to twelve feet, when the reservoir reaches rare high water marks. Proponents of the Project have touted it as a restoration of the South Platte River – which runs through Chatfield – and plans for the Project say it will increase water yield by 8,539 acre-feet (or roughly 2.8 billion gallons) per year. The Corps asserts that the Project is environmentally and economically conscious, and that it is the least environmentally damaging option even though it will significantly change the topography and environment at Chatfield.

Some Colorado environmentalists aren’t buying the Corps’ proposal, however, and the Project is not without opposition. On October 8, 2014, the Audubon Society of Greater Denver (“Audubon Society”) filed a petition for review of the Corps’ decision to move forward with the Project. The Audubon Society would like to prevent the Project’s construction because the plan will destroy large groves of cottonwood trees, destroy habitats many species of birds and fish rely upon, and leave an unpleasant ring of mud flats around the reservoir. In its complaint, the Audubon Society alleged violations of the National Environmental Policy Act, the Clean Water Act, and the Administrative Procedure Act. According to the complaint, the Audubon Society strongly believes that the Project will irreparably destroy the nature Chatfield visitors enjoy, that the destruction of natural areas will result in revenue losses, and that those losses will negatively impact parks across the state that are partially funded by Chatfield’s large number of visitors. The Audubon Society asserts that authorities have summarily dismissed alternative plans that would be less damaging and less expensive. In submissions to the Corps, the Audubon Society has put forth ideas for alternative plans: in one it suggested using offsite gravel pits adjacent to Chatfield for additional water storage, and in another it suggested using a different reservoir, Rueter-Hess, to supplement water storage needs. The Corps dismissed both ideas in its decision without clearly showing why these alternatives were not as or more reasonable than the Chatfield Project. While the Corps and other supporters of the Project have argued that plans include the creation of new wildlife habitats and the replacement of park structures, the resulting damage would significantly change and impact all wildlife, vegetation, and visitors who rely on Chatfield.

The Water Infrastructure and Supply Efficiency partnership (“WISE”) is working on a plan parallel to the Project. The WISE partnership includes Denver Water, Aurora Water, and ten other water districts, and the partners are interested in improving upon water infrastructure across the Denver Metro area. On October 21, 2014, Denver Water and the South Metro Water Supply authority agreed to pay thirty-four million dollars to purchase the Western Waterline from the East Cherry Creek Valley District, and the purchase will allow for more water to be delivered to districts in the south metro Denver area. While the Western Waterline will not provide a complete alternative to the Project, it will increase districts’ abilities to move, share, and reuse water. The Corps oversees WISE like it does the Project, and because of the shared interests of WISE and the Project, the two should be considered and implemented together. As of now, however, the Corps is not conjunctively approaching the two projects. Interestingly, when it comes to investing in WISE and/or the Project, water districts in the south metro Denver area are currently being selective about which to support, and several districts that initially supported the Project have shifted (or are in the process of shifting) support to WISE and other options because of the Project’s damage and cost.

Conclusion

As Denver’s metropolitan areas continue to expand, and as those areas’ populations continue to grow, the water management groups will face great challenges arising from the scarcity of water. Groups with sometimes-divergent interests will be forced to compromise during the process of creating and implementing solutions, and litigation will likely play a large role in determining the speed and direction of projects. Water providers developing solutions must take into consideration potential environmental and societal costs, and they must take steps to mitigate damages. Even where the scarcity of water presents immediate challenges, Coloradans will expect careful, well-thought-out solutions that do the least possible damage to natural areas. Colorado’s many environmental advocacy organizations will likely commence litigation when and where they feel less damaging alternatives are available as solutions.

 

The title image is an aerial shot of Chatfield Reservoir, including the dam and portions of the state park. This image was produced by a government official in his/her position as an employee and is therefor part of the public domain. The government does not endorse this blog.

 


Sources:

Cathy Proctor, Pipeline Deal Brings Denver’s South Suburbs Closer to New Water Supply, Denver Business Journal (Oct. 30, 2014, 5:00 AM), http://www.bizjournals.com/denver/blog/earth_to_power/2014/10/pipeline-deal-brings-denvers-south-suburbs-closer.html.

 

Alan Prendergast, Chatfield Reservoir: Lawsuit Claims “Massive Environmental Damage” From Project, Denver Westword (Oct. 10, 2014, 12:50 PM), http://blogs.westword.com/latestword/2014/10/chatfield_reservoir_lawsuit_environmental_damage.php.

 

Bruce Finley, Chatfield Reservoir Water Supply Project OK’d by Feds, Faces Lawsuit, Denver Post (Oct. 09, 2014, 12:52 PM), http://www.denverpost.com/environment/ci_26695640/chatfield-reservoir-water-supply-project-okd-by-feds.

 

Chatfield Reservoir Reallocation Project, Colorado Water Conservation Board, http://cwcb.state.co.us/water-management/water-projects-programs/Pages/ChatfieldReservoirReallocationProject.aspx (last updated Oct. 2014).

 

Chatfield History, Colorado Parks & Wildlife, http://cpw.state.co.us/placestogo/parks/Chatfield/Pages/History.aspx.


Background

Climate change is threatening to destroy villages in Alaska. The Arctic, which encompasses about one-third of Alaska, is warming around twice as fast as the rest of the world. As a result, ice and permafrost are melting at an alarming rate. This year, Arctic sea ice cover is at its sixth lowest level measured since recording began in 1978. Ice coverage is in a downward trend and the Arctic is losing about 13% of sea ice per decade. Permafrost (permanently frozen subsoil) is a less publicized problem but is just as important as sea ice melt. Over 80% of Alaska is held together by permafrost, but now, due to climate change and warming, the permafrost is melting. As a result, the ground on which Alaska Native villages are built is softening and becoming more susceptible to erosion.

Alaska Natives suffer a wide array of challenges from permafrost melt. To appreciate the challenges, it’s important to know that historically, Alaska Natives migrated throughout Alaska to follow fish and wild game. However, when the Department of the Interior’s (“DOI”) Bureau of Education required Alaska Natives to settle near bodies of water for easier access, this migratory lifestyle had to adapt.

Flooding

The most pressing issue facing Alaska Native settlements is flooding. Heavy rainfall, snowmelt, and the sudden release of water from breaking ice blockages are all causing floods. The Alaska Division of Homeland Security and Emergency Management recorded a much higher number of floods in recent years than ever before. From 1978 to 2008 there were 228 flood disasters. About 40% of these flood disasters occurred between 2000 and 2008.

Permafrost melt exacerbates flooding and flood-induced erosion because it softens the ground. This leads to various problems such as loss of land and contaminated water supplies. The town of Newtok, for example, is losing up to 113 feet of land per year and the villagers are in the process of relocating their entire community to nearby higher ground before their village is completely destroyed. The floods have also exposed their water supply to sewage.

Relocation

Newtok is not the only village relocating; the Government Accountability Office (“GAO”) found in 2009 that out of 31 villages in imminent danger, 12 decided to relocate. Relocation is a significant stress on the Alaska Natives. Before the DOI’s settlement mandate, Alaska Natives could move to different locations more easily in order to avoid erosion and flooding. But now it is more difficult to relocate because they have adapted to more sedentary lifestyles. In an analysis of the GAO report, Robin Bronen found that no government agency has the authority to relocate communities, no governmental organization exists that can address the strategic planning needs of relocation, and no funding is specifically designated for relocation. In fact, the Stafford Disaster Relief and Emergency Assistance Act, a federal act meant to assist state and local governments with disaster relief, can only assist Alaska Natives who remain in and repair their original community and not the Alaska Natives who must permanently relocate. This is a problem given the high cost of relocation. For example, Newtok, a village of 350 people, has an estimated relocation cost of about $375,000 per person. And because there’s no single government agency dedicated to relocation, villages must coordinate with multiple agencies, significantly slowing the process.

Subsistence

Another issue Alaska Natives face is river warming’s effects on subsistence hunting and fishing. Hunters primarily use rivers to get around due to the lack of road infrastructure in Alaska. They ride snowmobiles on the frozen rivers in the winter and use boats in the summer. The rivers are too unsafe to use during spring when the ice is melting and fall when the ice is forming. Because ice is now forming at a slower pace, hunters have less time in the year to use these transportation corridors. As a result, groups such as the Athabascan people are finding it more difficult to hunt moose, caribou, and other game.

Some Alaska Native communities’ access to salmonoids will also change. As temperatures warm, glaciers will melt at an increased rate and the melt will increase river flow. However, summer river flow will eventually be much less than it is now for many streams and rivers because there will be considerably less glacial ice to melt. The change in river flow, temperature, and sediment loads will have varying effects throughout Alaska. Some communities recently experienced record runs of salmon and are also enjoying positive outcomes for flounder and pollak. However, western Alaska has experienced substantial decreases in the salmon population.

Increased ice melt is also affecting community interactions. Research indicates that when hunters are forced to relocate they become depressed because the knowledge they can pass on to younger generations becomes less relevant. This stress can lead to an increase in drinking and violence, which are already at concerning levels in this region. A member of the Qikiktagrugmiut discussed with a reporter about how the shorter ice fishing seasons are limiting interactions between village elders and youth and negatively impacting the culture.

 Closing Thoughts

Alaska Natives face many climate change and warming-induced problems. There are many more costal and oceanic issues, which require addressing. For example, a recent report found that increased temperatures in northern waters are allowing pathogens to migrate northward and infect subsistence foods (such as whales) that are important for coastal communities. As the pathogen example demonstrates, the issues facing the Alaska Natives are very broad and can include problems that most of us would never even consider.

Compared to the lower-48, Alaska and its residents are distinctly challenged by melting ice and permafrost and general warming. The United States needs to address the emerging environmental challenges of Alaska Natives and other indigenous Arctic peoples.

 

The title image features the Aialik Glacier in Alaska. The file is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license, the owner of which, does not endorse this blog.


Sources:

Karen Northon, 2014 Arctic Sea Ice Minimum Sixth Lowest on Record, http://www.nasa.gov/press/2014/september/2014-arctic-sea-ice-minimum-sixth-lowest-on-record (last visited Oct. 13, 2014).

Gov’t Accountability Office, Alaska Native Villages: Limited Progress Has Been Made on Relocating Villages Threatened by Flooding and Erosion 7, 12, 24-27 (June 2009), http://www.gao.gov/new.items/d09551.pdf.

Robin Bronen, Climate-Induced Displacement of Alaska Native Communities 1-2, 4-9, 12-14, 19 (Jan. 30, 2013), http://www.brookings.edu/~/media/Research/Files/Papers/2013/1/30%20arctic%20alaska%20bronen/30%20climate%20alaska%20bronen%20paper.pdf.

U.S. Army Corps. Of Engineers, Study Findings and Technical Report: Alaska Baseline Erosion Assessment 4-7 (Mar. 2009), http://www.climatechange.alaska.gov/docs/iaw_USACE_erosion_rpt.pdf.

Suzanne Goldenberg, Alaska on the edge: Newtok’s residents race to stop village falling into sea, The Guardian, May 13, 2013, http://www.theguardian.com/environment/interactive/2013/may/13/newtok-alaska-climate-change-refugees.

Gary P. Kofinas et al., Resilience of Athabascan subsistence systems to interior Alaska’s changing climate (July 8, 2010), http://www.fs.fed.us/pnw/pubs/journals/pnw_2010_kofinas001.pdf.

U.S. Forest Service, Climate Change: Anticipated Effects on Ecosystem Services and Potential Actions by the Alaska Region 12 (2010), http://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fsbdev2_038171.pdf.

John Callaway, A Changing Climate: Consequences for Subsistence Communities, http://www.nps.gov/archeology/months/callaway.pdf (last visited Oct. 13, 2014).

Harvey Liefert, Parasites spread across the Arctic under the “new normal” (July 2, 2014), http://www.earthmagazine.org/article/parasites-spread-across-arctic-under-new-normal.


INTRODUCTION

 

In 1943, the states of Kansas, Nebraska, and Colorado (the “States”) formed the Republican River Compact (“Compact”). Pursuant to its obligation under article 1, section 2 of the United States Constitution, Congress reviewed and approved the Compact. To administer the Compact, the States established the Republican River Compact Administration (“RRCA”). Since 1999, Kansas has not been happy with Nebraska’s excessive water consumption. After years of litigation, the dispute is back before the Supreme Court of the United States (“Court”). Kansas seeks money damages and other relief from Nebraska for breaching the Compact, and Nebraska wants different accounting methods. Nebraska concedes it breached the Compact by using more than its contractual entitlement of water. The Compact, however, contains no remedial provisions for what should take place in the event of breach. The parties argued the case before the Court on October 14, 2014. The Court must now decide what remedies are available when a state breaches an interstate water compact.

FACTUAL BACKGROUND

 

In 1998, Kansas filed an action with the Court alleging that Nebraska was pumping too much groundwater and unlawfully depleting the Republican River. Pursuant to the Compact, Kansas receives forty percent (40%) of the water from the Republican River, while Nebraska receives forty-nine percent (49%), and Colorado receives eleven percent (11%). The Court has original jurisdiction over suits involving interstate compacts, but appointed a special master to take evidence, make findings, and recommend a resolution. The parties negotiated a settlement as to how each would account for “Virgin Water Supply, Computed Water Supply, Allocations, Imported Water Supply Credit, Augmentation Credit and Computed Beneficial Consumptive Use.” This agreement is known as the Final Settlement Stipulation (“FSS”); the methodology for computing water supply, allocations, and water use (the “Accounting Procedures”) are found in Appendix C to the FSS. The Court expressly approved the FSS in 2003, five years after Kansas initiated the suit.

In 2010, Kansas filed the instant action with the Court, claiming that Nebraska was still consuming too much water and was in breach of the FSS. Kansas relied upon the calculations required under the current Accounting Procedures to support its claim. According to Kansas, each of the States fully understood the formulas being used, the variables in play, and the possible outcomes, including those about which Nebraska now complains. None of the States was mistaken about these issues, Kansas argued. Nebraska, on the other hand, claims the States were mistaken as to whether “imported” water would be counted as “virgin” water.   Nebraska argued that this mistake resulted in the charge that Nebraska was using more than its allotted share of water. In response to Kansas’s suit, Nebraska counterclaimed and proposed a solution to what it perceived as a problem with the Accounting Procedures. Nebraska termed its solution the “5-Run Proposal.” The Court appointed another special master (“Master”) to address these claims.

On November 15, 2013, the Master issued a 188-page Special Master’s Report (“Report”). In his first recommendation to the Court, to cure what he deemed a “technical, mutual mistake,” the Master recommended reforming the RRCA Accounting Procedures “so that Nebraska is not charged with the consumption of Imported Water Supply as if it were Virgin Water Supply.” The Master further found that Nebraska acted as a “conscious wrongdoer” and substantially exceeded its allocation of water under the Compact. The Master recommended judgment in Kansas’s favor in the amount of $3.7 million to compensate for its loss of water and $1.8 million to account for Nebraska’s wrongdoing. Finally, the Master recommended denying all other requested relief, specifically including Kansas’s requests for injunctive relief, sanctions, and appointment of a river master.

Both Kansas and Nebraska filed exceptions to the Report. The United States appeared in the proceeding as amicus curiae. The Master’s findings and recommendation are subject to de novo review by the Court. In other words, while it has received assistance, the Court is the final arbiter of this dispute.                                                                       

Kansas wants the water “to which it is entitled year in and year out, including especially when water is scarce.” Nebraska conceded that it violated the Compact by consuming more than its allotment of water but blamed its violation on “the driest condition now of record in the basin.” However, since 2006, Nebraska contends that it has implemented additional tools to ensure compliance with the Compact in future dry years. Hence, Nebraska appears willing to give Kansas all the water to which it is entitled under the Compact. The question is thus presented: Do the States abide by their settlement agreement, even if perhaps not equitable, or should the Court use its equitable powers to create a more fair apportionment of the water? This is the question with which the Court is now grappling.

THE ARGUMENTS

 

 Is it a contract or “something else”?

Of initial concern to the Court during oral argument was whether the FSS is a “simple” contract to which ordinary contract principals would apply, or whether it is “something else entirely,” as pondered by Justice Kagan, “because public rights and public interests are affected here.” If the FSS is something other than a simple contract, how can the Court construct a remedy?

Kansas argued the FSS represents the mere contractual settlement of a dispute to which ordinary contract principals should apply. The States knew exactly what formulas they put in place to measure the consumption of specific types of water, Kansas argued, but nobody really knew what the final numbers would look like until the rules were put into practice. This distinction, however, did not equate to any mistake, it argued. There are many variables when predicting water availability and consumption. Kansas argued it made a deal and Nebraska should be forced to stick to it.

Nebraska argued the FSS is a contract with regard to issues of mutual mistake, but its relationship to the Compact opens wide the doors of equity. Stated differently, the FSS and the Accounting Procedures are contractual rules that serve the purpose of the Compact—rules to which the parties agreed and the Court approved. Congress, however, approved the Compact. Nebraska relied upon this nexus to argue that the FSS and the Accounting Principles represent more than a mere contract, thus inviting the Court to apply equitable, and not just legal, remedies.

 The State of Nebraska was mistaken. Really?

The Master concluded the parties made a “mutual mistake” with respect to the Accounting Procedures and how water levels, consumptions, and imports would be calculated. Applying ordinary contract principals, a court may reform a contract that is based upon a mutual mistake to reflect the parties’ original intentions. A unilateral mistake by one party is not sufficient; all parties to a contract must be mistaken as to a material term for a “mutual mistake” to be reformed. Here, the Master recommended amending the RRCA Accounting Procedures to reflect the 5-Run Proposal asserted by Nebraska, a change that Kansas vehemently opposed. Justice Sotomayor called it “a reformation that’s one-sided.”

The parties clearly disagreed on whether there was a mutual mistake, and on this issue Kansas was quite vocal during oral argument. Kansas argued Nebraska had not shown a mistake by clear and convincing evidence because neither party to the FSS was mistaken. Kansas contends the States “were aware of the very phenomenon” that the Master and Nebraska deemed a mutual mistake. According to Kansas, “It wasn’t a mistake. They just think they’ve got a better way to do it now.” Further, Kansas referred to the 5-Run Proposal as one of Nebraska’s many “maneuvers over the years as it sought to relax its compliance burden by rewriting the formulas used for the Compact accounting.” Kansas contended the parties should be left to make any accounting changes pursuant to the procedures already established by RRCA. Nebraska, on the other hand, was simply “seek[ing] vindication of its rights to correct what everyone agrees is a mistake.” Simple, yet Nebraska did not seem to argue from a strong position on this issue.

The Court took an interesting approach in analyzing the issue of mutual mistake. Justice Breyer likened the situation to an agreement to buy seventeen cows from a barn only to learn there were only horses in the barn. “So we’re under a mutual mistake,” he said. Justice Scalia summed up Kansas’s position as Nebraska having bought “whatever animals are in the barn,” but later in the argument came up with his own analogy. Justice Scalia suggested that one person offered an antique dealer $200 for a piece of furniture. Neither knew that the piece was actually worth much more. Justice Scalia said buying and selling antiques is “a game of rolling the dice,” and “that’s the same risk here.” Justice Breyer took Justice Scalia’s example farther and made a closer analogy to this case. In Justice Breyer’s example, the antique dealer and buyer agree to buy all Ming vases, and they will use a technical method to identify the Mings (i.e., Republican River water). However, pursuant to the method, Tang vases are thrown into the mix (i.e., imported water) and nobody thinks the buyer should get the Tangs. One can only wonder what the Justices discussed in conference after this argument.

Perhaps most foretelling of the Court’s direction here on the mistake and reformation issues were comments made by Chief Justice Roberts and Justice Sotomayor. Justice Sotomayor asked Nebraska’s counsel: “What gives . . . the special master or anyone, under reformation principles[, the right] to create a new procedure because the 5-run protocol is a new procedure that [Kansas] never agreed to[?]” Justice Roberts was more pointed: “I think, putting aside what contract principles may provide as a general matter, that the idea of a special master or this Court changing the nature of [the FSS] is a pretty radical one.” We shall await the Court’s opinion to see just how “radical” it gets.

Should Nebraska be disgorged of its “massive gain”?

On the issue of disgorgement, Kansas contended Nebraska should be disgorged of the “massive gain” resulting from its four-year long breach. Kansas argued that “disgorgement can be justified by more than contract principles,” including the simple fact that Congress approved the Compact. Nebraska argued that the unusual remedy of disgorgement required a finding of an intentional act under ordinary contract principals. The United States supported Kansas on this issue, although it conceded the Master’s calculation of $1.8 million as the amount to be disgorged was “pretty much unexplained.” The Court will have to decide whether being a “conscious wrongdoer” is enough to support disgorgement or whether a court acting in equity must find an intentional violation. However, because this is a de novo proceeding, the Court could also find that Nebraska acted intentionally, thus avoiding the issue entirely.

The Court seemed burdened by this long-running spat. Justice Breyer, trying not to cast aspersions upon the other justices, admitted to Nebraska’s counsel that he knew nothing about computing water consumption, yet he and the other justices are “supposed to decide whether some system here is going to work or not.” Justice Breyer voiced concern for farmers and other water users who might be harmed “when another five years goes by without anybody understanding what the procedure is.” Here, Justice Breyer was referencing the apparent five-year cycle between the States’ disputes and their resolutions, and the years that, unless something changes, will continue to roll by without anyone having any real understanding of what’s occurring in the Compact. Ultimately, Justice Breyer asked, “Is there any chance that you all could work this out?” Perhaps they will. Just perhaps, the states of Kansas and Nebraska will present the Court with a nice holiday gift: another settlement agreement. Maybe this time, each of these great states will understand the terms.

COLORADO

Which state did Colorado side with, you ask? Limiting its argument to the disgorgement theory, Colorado argued on behalf of Nebraska, on brief only. According to Kansas, Colorado “made a deal with Nebraska to the 5-run.” That’s one way of looking at it, but one might also argue that Colorado stayed out of the courts, reduced its attorneys’ fees, and kept water flowing into the Centennial State exactly as derived from the Compact, with the possibility of improving its position if the Court adopts the 5-Run Proposal.

CONCLUSION

 

How the Court ultimately decides this case is anybody’s guess. Meanwhile, as we await the Court’s decision, check out “Puppy Justice,” which is a video of puppies mimicking the Supreme Court Justices synchronized with the actual oral argument audio recording, as seen on Last Week Tonight by John Oliver. You can listen to snippets of the argument and laugh at the parody of what is otherwise a very serious situation: the sharing of a scarce resource in the West.

 

The title image features the Republican River. The image has been released into the public domain.


What do air conditioners, white water rafters, and humpback chub have in common? Each influences when and how much water is released through the Glen Canyon Dam.

Unique Commodity

Hydropower is most valuable when highest in demand. If dam operators in Arizona were only concerned with economically efficient hydropower production, the decision of when and how much water to release would correspond to the dials on air conditioners. That’s how the Glen Canyon Dam operated in its first few decades of use. Its energy production largely reflected electricity market conditions: high water releases during peak energy-use months countered by lower flows during off-peak months, with similar fluctuations for time of day. This operational system worked well for hydro energy production, but was at odds with the dam’s other purposes such as preserving a healthy ecosystem, promoting recreation, and protecting cultural sites.

Creating Science-based Policy: Glen Canyon Dam Adaptive Management Program

In response to the public’s concern about the negative impacts of its operation, Glen Canyon Dam adjusted its operational regime to better balance competing water uses through a series of studies and programs. In 1982, the U.S. Bureau of Reclamation (“Reclamation”) initiated the Glen Canyon Environmental Studies (“GCES”), an interdisciplinary research study identifying the adverse impacts of dam operation on the Colorado River and Grand Canyon ecosystems. Seven years later, Reclamation evaluated Glen Canyon dam operation strategies through an Environmental Impact Study (“EIS”), identifying several operation techniques that could reduce the negative environmental impact of dam operation. Reclamation considered nine alternative operational regimes. To hasten completion of the study, the US Congress passed the Grand Canyon Protection Act of 1992 (“Act”), which directed the Secretary of the Interior (“Secretary”) to mitigate adverse environmental impacts caused by Glen Canyon Dam operation in a timely manner. In 1996, the Secretary and Reclamation released a Record of Decision (“ROD”) selecting modified low fluctuating flow (“MLLF”) as the new operating regime for Glen Canyon Dam. The Secretary and Reclamation selected the MLLF regime because it had the potential to mitigate environmental and cultural impacts of dam operation while allowing flexibility for consistent hydropower production through reduced daily flow fluctuation and periodic “controlled floods.”

Today, a federal advisory committee called the Adaptive Management Work Group (“AMWG” or “Work Group”) implements the MLLF regime through the Glen Canyon Dam Adaptive Management Program (“GCDAMP”). The AMWG includes representatives from Native American Tribes, Federal and State resource agencies, Colorado River Basin States, and nongovernmental groups. The Work Group evaluates and revises dam management strategies in order to maximize hydropower production and mitigate negative impacts on the natural, cultural, and recreational resources in Grand Canyon National Park and Glen Canyon National Recreation Area.

What “natural, cultural, and recreational resources” are affected by the operation of Glen Canyon Dam?

The Secretary and Reclamation established the MLLF operating criteria to mitigate negative impacts of dam operation on endangered native fish populations, sacred prehistoric and Native American sites, sandbars, and camping beaches.

The humpback chub is the most notable endangered fish impacted by dam operations on the Colorado River. Dam operations affect water temperature, the amount of sediment in the river, and the health of the aquatic food base — all impacting the livelihood of the humpback chub. The MLLF regime aims to establish a new population of humpback chub in the main stem of the Grand Canyon through reduced daily flow fluctuation and the removal of nonnative fish. The MLLF regime limits the difference between daily maximum and minimum water flows through the dam to 6,500 cfs, as compared to the 25,000 cfs fluctuation in the former operational regime. These “habitat maintenance flows” reduce disruption of backwater and nearshore habitats essential to recently spawned humpback chub, increase the temperature of the water in these habitats, and support an aquatic food base. Mechanical removal of nonnative fish near the Little Colorado River reduces predation for humpback chub.

The MLLF regime also includes a long-term monitoring program to gauge any erosion to prehistoric and sacred Native American sites, such as the Rainbow Bridge National Monument. Though an established program is still in the works, GCMRC scientists have experimented with the following methods to monitor cultural resource conditions: (1) the development of baseline geomorphic data to compare with future changes, (2) new methods for tracking changes in site condition, such as light detection, laser-based topographic mapping, and weather monitoring stations, and (3) data compilation for creating a geomorphic model to explain the effects on site conditions. Concurrently, several Native American Tribes in GCDAMP have explored resource-monitoring methods that incorporate traditional ecological knowledge and western science.

A third major goal of the MLLF regime is to restore sandbars and camping beaches through periodic controlled floods. The volume of water that must be released annually from the Glen Canyon Dam is determined by the “Law of the River” — a collection of laws and agreements that manage the use of the Colorado River among the seven basin states and Mexico. However, AMWG determines the frequency and quantity of water releases. In the right conditions, high flow experimental releases (“HFEs”) redistribute sand from the main river channel farther downstream to restore riparian vegetation, provide key wildlife habitat, reduce erosion, and improve conditions for recreation like rafting and fishing.

Progress to Date

The Department of the Interior reports that GCDAMP has already had a positive impact. The humpback chub fish population nearly doubled from 2001 to 2008. The efforts of GCDAMP at Glen Canyon Dam have likely contributed to the rebound. The Department also reported general benefit resulted from the 2008 HFE including temporary increases in sandbars, stifling nonnative seedling germination, and an 80 percent reduction in an unwanted nonnative snail population.

In May 2012, the Department approved a protocol for GCDAMP to conduct HFEs any time trigger conditions are met until 2020. So far, one HFE was conducted in 2012.

Limited hydropower production is better for the health of the Colorado River, right?

As dams like Glen Canyon move away from market-based hydropower production to protect riparian habitat, other resources like natural gas and coal must compensate for the lost energy. If that is the case, what is the net environmental benefit?

This conversation is relatively new. There are more questions than answers about how management practices at Glen Canyon Dam impact ecological, recreational, and cultural resources, and how best to mitigate that impact. GCDAMP, with the help of scientists, economists, and the public, will continue to balance community needs for hydropower with other competing resources.

 

The title image features Glen Canyon Dam and is licensed under the Creative Commons Attribution 2.5 Generic License. The owner of this image does not endorse this blog.

 


Sources:

About the Grand Canyon Monitoring and Research Center, USGS: science for a changing world, http://www.gcmrc.gov/about/about_default.aspx (last updated Nov. 3, 2011).

Rec. of Decision: Operation of Glen Canyon Dam, U.S. Bureau of Reclamation, Appendix G–2 to G–4, G–10 to G–13 https://www.usbr.gov/uc/rm/amp/pdfs/sp_appndxG_ROD.pdf.

Badoni v. Higginson, 638 F.2d 172 (10th Cir. 1980).

November 2012 High Flow Experimental Release Frequently Asked Questions, U.S. Bureau of Reclamation, http://www.usbr.gov/uc/rm/gcdHFE/2012/pdfs/FAQ.pdf.

Endangered Humpback Chub Population Increases 50 Percent from 2001 to 2008, USGS: science for a changing world (April 27, 2009, 12:07 PM), http://www.usgs.gov/newsroom/article.asp?ID=2206#.VFbW_ovF-Ec.

Grand Canyon Nat’l Park Resources Benefit from 2008 High-Flow Experiment at Glen Canyon Dam, USGS: science for a changing world (Feb. 2, 2010, 9:45 AM), http://www.usgs.gov/newsroom/article.asp?ID=2400#.VFbXFIvF-Ec.

Salazar Announces Improvements to Glen Canyon Dam Operations to Restore High Flows and Native Fish in Grand Canyon, U.S. Department of the Interior (May 23, 2012), http://www.doi.gov/news/pressreleases/Salazar-Announces-Improvements-to-Glen-Canyon-Dam-Operations-to-Restore-High-Flows-and-Native-Fish-in-Grand-Canyon.cfm.

Hannah Holm, Water Lines: The Grand Canyon & Hydropower — a complicated relationship, Glenwood Springs Post Independent, Citizen Telegram, Grand Junction Free Press (Sept. 10, 2014), http://www.postindependent.com/news/grandjunction/12894137-113/dam-canyon-power-grand.

Glen Canyon Dam Adaptive Mgmt. Program, U.S. Dep’t of the Interior, http://www.usbr.gov/uc/rm/amp/background.html (last updated August 27, 2008).

Grand Canyon, glen canyon inst., http://www.glencanyon.org/glen_canyon/grand-canyon.

Bureau of Reclamation, U.S. Dep’t of the Interior, Operation of Glen Canyon Dam: Final Envtl. Statement 215-25 (March 1995), available at https://play.google.com/books/reader?id=iX0NKfMBp-kC&printsec=frontcover&output=reader&hl=en&pg=GBS.PA215.

Cultural Resources, USGS: science for a changing world http://www.gcmrc.gov/research_areas/cultural_resources/cultural_resources_default.aspx.


Background

The Colorado River is vital to the arid west. Over 40 million people depend on the river for their water supply. Since 2000, an ongoing drought has diminished the water levels in the river’s major reservoirs. In July 2014, water levels measured in Lake Mead reached their lowest point since the construction of the Hoover Dam in the 1930s. At 1,082 feet, the surface level of the lake is only seven feet above the level at which the U.S. Secretary of the Interior would declare a shortage on the river. The river level has dropped more than 125 feet in the past fourteen years alone.

A Bureau of Reclamation study projects water levels to drop at least nine percent by 2050. Lower Basin states, Arizona, Nevada, and California, already use their full apportionment of water and due to population growth demand is projected to increase. However the water supply on the river is projected to decrease because of hotter temperatures and drier conditions in the West. Agricultural and municipal interests in the use of the water will be in conflict with each other because of this imbalance between supply and demand. This will additionally affect the natural environment, leaving the health of the river fauna and wildlife at stake.

Plan for the Future

With the increasing probability of a shortage in the near future, Denver Water, Central Arizona Project, the Metropolitan Water District of Southern California, Southern Nevada Water Authority, and Bureau of Reclamation are providing up to $11 million to fund new water conservation projects. A declared shortage on the river would be the first in history and affect or suspend the “Law of the River.” The Law of the River is a collection of the laws, compacts, and court decisions that have governed the use and management of the river since 1922.

In the last decade, agricultural and municipal agencies in California have worked to reduce the state’s river use. The new project is aimed at creating basin-wide partnerships to expand conservation efforts among all Colorado River water users. “The goal of this unique program is to develop new conservation programs from municipal, industrial, and agricultural water users from across the seven states which share the river,” said Pam Pickard, Central Arizona Project Board President. “The program saves water in Lake Mead and Lake Powell for the benefit of all Colorado River water users and promotes a healthy river system.”

The project will boost declining reservoir levels and contribute to the health of the entire river by keeping conserved water within the river system. In order to do this, municipal agencies and the federal government agree that collaborative action is needed to reduce the risk to water supplies, hydropower production, water quality, agricultural output, recreational activities, and environmental resources across the entire Colorado River basin.

Current Plan of Action

The Bureau of Reclamation is soliciting project proposals from the Lower Basin states for 2015 and 2016 funding allocations until November 17, 2014. Following these proposals, the Bureau will solicit further proposals from Upper Basin states. Jim Lochhead, CEO of Denver Water, hopes to also have the Colorado Cattlemen’s Association, Colorado Farm Bureau, Colorado River District, Southwestern Water Conservation District, The Nature Conservancy, and Trout Unlimited involved in the conservation efforts very soon. These partners will be working together to identify and fund pilot programs that will demonstrate the viability of cooperative, voluntary means to reduce water demand.

After this two-year period, the Bureau will examine the effectiveness of conservation efforts that this project funds and determine whether the successful programs can be expanded or extended to provide a greater protection of the river.

 

The title image features the Colorado River near Page, AZ and is licensed under the Creative Commons Attribution Share-Alike 3.0 Unported license. The owner does not endorse this blog.


Sources:

Jim Trotter, Mega Water Utilities Join to Fund Colorado River Conservation Projects, Rocky Mountain PBS, (Oct. 23, 2014), http://inewsnetwork.org/2014/10/23/mega-water-utilities-join-to-fund-colorado-river-conservation-projects/.

Rose Davis, U.S. Department of the Interior and Western municipal water suppliers developing water conservation projects as part of a landmark collaborative agreement, Bureau of Reclamation, (Oct. 8, 2014), http://www.usbr.gov/newsroom/newsrelease/detail.cfm?RecordID=48006.

Ken Dewey, Western drought brings Lake Mead to lowest level since it was built, NOAA, (Sept. 4, 2014), http://www.climate.gov/news-features/featured-images/western-drought-brings-lake-mead-lowest-level-it-was-built.

Rose Davis, Colorado River Basin Supply and Demand Study Interim Report Available, Bureau of Reclamation, (June 6, 2011), http://www.usbr.gov/newsroom/newsrelease/detail.cfm?RecordID=36482.

About the Colorado River Basin, Environmental Defense Fund, http://www.coloradoriverbasin.org/about-the-colorado-river-basin/ (last visited Nov. 2, 2014).

Sean Crowley, 1st Part of Colorado River Water Supply and Demand Study Praised for Climate Impact Focus, http://www.edf.org/news/1st-part-colorado-river-basin-water-supply-demand-study-praised-climate-impact-focus (last visited Nov. 2, 2014).


Background

In 1883, the Colorado water court first decreed the diversion from the West Plum creek in northeastern Colorado. An alternate diversion point was later decreed primarily for irrigation purposes from the Stephen Sump No. 1. In 1986, the Colorado water court held that Owens Brothers Concrete Co. (“Owens Concrete”) had a 27.1% interest in the combined Ball Ditch/Stephen Sump No. 1 Water Right (“water right”) for irrigation of 8.1 acres. The determined average historical consumptive use was 13 acre-feet of water per year. In addition, the court held that the purposes of use extended to municipal, industrial, commercial, and augmentation in addition to irrigation. Finally, the court approved Owens Concrete’s augmentation plan for depletions from an undeveloped well. However, the proposed well drill site ultimately provided less than the anticipated capacity for withdrawal of groundwater and Owens Concrete left the augmentation plan unused for approximately 40 years.

Sedalia Water and Sanitation District (“Sedalia”) later acquired the water right from Owens Concrete. Sedalia, a water provider to municipal and industrial customers, now seeks to utilize the Owens Concrete augmentation plan to replace out-of-priority depletions from its well pumping elsewhere. However, the Sedalia wells are located along a different section of Plum Creek from where the original augmentation plan anticipated a well.

Presently, Opposer-Appellants, the Colorado State and Division Engineers (“Engineers”), argue that Sedalia’s water right must be re-quantified to include over 40 years of non-use. They also argue that the junior appropriators using the same water supply have come to rely on the amounts available due to period of non-use. As a result, they contend that Sedalia’s impending use will severely disadvantage them.

Sedalia contends that the current case cannot be heard because this issue was already decided in a previous dispute. However, absent this bar on rehearing this issue, Sedalia contends that the non-use period of the water right should not bear on the current provisions of the water right.

The Colorado water court recently held that this case met all four issue preclusion factors set out in In re Water Rights of Elk Dance Colorado, LLC. See 139 P.3d 660, 667 (Colo. 2006). Accordingly, issue preclusion prevents the rehearing of this dispute as it relates to re-quantification of Sedalia’s water right because it has already been heard and decided. Moreover, the court held that the issue of non-use was not a proper inquiry in the scope of re-quantification. Instead, the court stated that the inquiry was relevant in the scope of abandonment.

Accordingly, the parties were instructed that the issue could be raised in the proper scope in oral arguments before the Colorado Supreme Court. Order Re: Sedalia’s Motion for Summary Judgment and the State and Division Engineers’ Cross Motion for Summary Judgment, Case No. 2010CW261.

Oral Arguments

In arguments before the Colorado Supreme Court, Engineers contended that Sedalia’s period of non-use warrants re-quantification of its historical consumptive use and that it is proper to include the 40-years of non-use in doing so. Failing to do so, the Engineers argued, would undermine the general policy goals of water rights — that is, promoting beneficial use of water under a water right.

Engineers contended that undermining this policy goal in two different, but similar situations would subject water rights holders to disparate treatments in which the full historical consumptive use is not utilized: instances of 1) some use and of 2) non-use. First, when a water right holder fails to use the full amount of its water right but does use some — no matter the amount — engineers argued the result would be a re-quantification of the historical consumptive use. Second, when a water right holder fails to utilize the water right entirely for a period of time, the result would be abandonment. The burden of proving abandonment, the Engineers noted, is necessarily a much higher bar requiring 1) proof of intent to abandon and 2) abandonment. Because this burden of proof is significantly more difficult to satisfy, according to Engineers, the full failure to use a water right would amount to a “free pass.” Ultimately this provides disincentives for putting the water right to any beneficial use.

In contrast, Sedalia contended that the 40 year period of non-use was not, in fact, non-use in light of the fact that the water was designated to fulfill an augmentation plan, which uses the water only on an as-needed basis. Sedalia argued that, during this 40-year period, the water was simply not needed. Accordingly, the water was still in use under the augmentation plan as it could have been drawn from at any moment, though circumstances never required doing so.

Regarding the concern raised by Engineers of junior water appropriators who have come to rely on the amount of water available through the 40-year non-use period, Sedalia emphasized the fact that this is the very nature of having ownership of a junior appropriation. The amount of water available to a junior appropriator is subject to the use or non-use of senior appropriators. Accordingly, to avoid a converse undermining of general water rights policy goals, Sedalia contended that the junior appropriators’ reliance on the additional water resulting from its non-use is not a sufficient justification for re-quantification.

At the close of arguments, the Court signaled that it would take both arguments into consideration and issue a ruling in accordance shortly.

 

The title image features West Plum Creek in Northeastern Colorado and is made available under the Creative Commons CCo 1.0 Universal Public Domain Dedication.

 


Although contemporary societies rely heavily on mined resources to produce a broad range of manufactured goods and many individuals rely upon mining as a source of economic opportunity, the mining of minerals and metals carries with it the potential to cause considerable harm to the natural environment and nearby communities. In response to this problem, various stakeholders in the supply chain for metals and minerals—including mining companies, jewelry retailers, NGOs and various trade associations— created the Initiative for Responsible Mining Assurance (“IRMA”). These stakeholders envision a “world in which the mining industry respects human rights and the aspirations of affected communities; provides safe, healthy and respectful workplaces; avoids or minimizes harm to the environment; and leaves positive legacies.”

A Comprehensive Model of International Best Practices

In pursuit of this vision, IRMA extensively reviewed and evaluated several existing models of international best practices and created one comprehensive set of principles applicable to industrial-scale mining of metals and minerals. On July 22, 2014, IRMA released its initial Draft Standard for Responsible Mining. The IRMA Standard considers a wide range of environmental and social concerns, establishes an independent third-party verification program, and provides support tools to facilitate compliance with the IRMA certification program.

In addition to numerous other environmental impacts, metal and mineral mining operations can significantly affect regional water sources. Therefore, the IRMA Standard establishes protections for water resources within Chapter 3, which contemplates environmental responsibility, and Chapter 4, which addresses mine closure and reclamation projects.

Water Quality

Chapter 3.1 of the IRMA Standard considers water quality. The purpose of this chapter is to minimize pollution from mine sites to ground and surface water. The seepage of mine water can result in significant water pollution and can be extremely costly to mitigate. IRMA therefore requires that mine operators actively monitor the quality of surface and groundwater resources. To comply with the IRMA standard, mine operators must evaluate water quality at a number of trigger and compliance sampling points, including points of mine water discharge, the facility boundary, and mixing zones. This water quality data must be compared to baseline data collected at least every two years from these locations. IRMA also requires operators to monitor contaminants contained within storm-water discharges.

The IRMA Standard will provide numerical standards for each contaminant, so that mine operator compliance can be evaluated. However, governmentally protected waters and high-quality waters, where “most contaminants do not exceed IRMA water quality criteria” as a result of prior human activities, may not be degraded above the pre-existing baseline water quality.

Water Quantity

Chapter 3.2 of the IRMA Standard speaks to water quantity. Mines often use a great deal of water and may critically deplete water resources, especially in arid regions where water is already scarce. Mine dewatering may also deplete water resources in humid areas where mine operators must divert water in order to develop the mine. The purpose of this chapter is to ensure that mining projects minimize consumptive water use, prevent dewatering impacts, and leave enough water in streams to maintain environmental flows.

The IRMA Standard requires mine operators to establish minimum in-stream flows to support sites affected by mining projects and protect aquatic organisms. IRMA also requires that groundwater pumping not create a significant deficit within local aquifers or affect nearby streams for thirty days. Further, if discharging or disposing of de-watering water, the mine operator must: use it as production water, use it to replace water to local water users, or return it to the aquifer or basin from which it was removed.

Mine Waste Management

Chapter 3.3 considers mine waste management and seeks to eliminate offsite contamination and ensure that mine facilities are left in a condition creating the least risk to the environment and future land uses. Modeling the U.S. Environmental Protection Agency’s Toxics Release Inventory Program, IRMA requires annual reporting of toxic chemicals—such as metals, cyanide, and nitrogen compounds—generated or released as a result of mining operations.

The IRMA Standard prohibits the disposal of mine waste into rivers and streams, requires tailings facilities to be lined with materials minimizing seepage of contaminants into the environment, and requires tailings dams designed to withstand Maximum Credible Earthquakes (“MCE”) and Probable Maximum Precipitation (“PMP”) events. The MCE, calculated based upon seismological and geologic data, represents the largest earthquake that could reasonably be generated by a particular seismic source. PMP is the greatest theoretical depth of precipitation possible over a certain time period, in a given area, and at a particular time of year.

Mine Closure and Reclamation

Chapter 4.1 addresses mine closure and reclamation. The goals of this section are to ensure that mine operators analyze and address the long-term environmental and social implications of a mining project and ensure that mine closure and reclamation costs are borne by the mine’s beneficiaries and not the public. IRMA requires mine operators to develop a mine closure and reclamation plan “compatible with the protection of human health and the environment, and other beneficial uses.” If the mineral exploration phase has the potential to inflict significant damage, IRMA extends reclamation requirements to pre-mining mineral exploration as well. Reclamation plans must include, among other things, backfilling of open pits, salvage and replacement of topsoil, stormwater management, re-vegetation of affected lands, and water treatment plans. Where impacts to wetlands cannot be avoided, reclamation plans must also provide for wetlands to be replaced.

Chapter 4.1 also outlines requirements for financial surety and establishing communications with local communities. Mine operators must provide financial surety to support reclamation projects in the event that they do not complete reclamation. Financial surety instruments must be “independently guaranteed, reliable, and readily liquid.” Self-bonding and corporate guarantees are not deemed sufficient for the purposes of IRMA. Further, mine operators must have surety instruments reviewed by an independent third-party. Mine operators must make their reclamation plans and independent surety reviews available to the public. The reclamation plan and surety reviews are subject to public review and a thirty-day comment period. The reclamation project is subject to another thirty-day public comment period, “prior to release of part or all of the financial surety,” to address the adequacy and completion of the project.

Improving Social and Environmental Performance

It is IRMA’s mission “to establish a multi-stakeholder and independently verified responsible mining assurance system that improves social and environmental performance.” Through its mining and reclamation guidelines, IRMA hopes to limit the geographic and temporal scope of metal and mineral mining impacts.   Operator compliance with these guidelines can mitigate harm to local communities and the resources they depend upon. It may also form the basis for improved relationships between mine operators and local communities.

IRMA covers a broad range of social and environmental issues related to the mining of metals and minerals and provides a well-founded comprehensive set of guidelines to promote compliance with internationally recognized best practices. The comment period for the first draft of IRMA’s Standard for Responsible Mining closed on October 22, 2014. After conducting field-testing, IRMA plans to release a second draft of its Standard for Responsible Mining in early 2015, after which it will open a second comment period.

 

The title image features the Antamina Tailings pond at the Antamina Mine in Peru. This is just one example of how waste water and surface water mix. This image is licensed under the Creative Commons Attribution Share Alike 2.0 Generic license and the owner does not endorse this blog.


Sources:

Initiative for Responsible Mining Assurance, Standard for Responsible Mining, Draft v1.0 (July 2014), http://www.responsiblemining.net/images/uploads/IRMA_Standard_Draft_v1.0%2807-14%29.pdf.

Initiative for Responsible Mining Assurance, http://www.responsiblemining.net/ (last visited Oct. 25, 2014).

Initiative for Responsible Mining Assurance, Earthworks, http://www.earthworksaction.org/change_corporations/initiative_for_responsible_mining_assurance (last visited Oct. 25, 2014).

IRMA Webinar: Protecting Water Resources, Initiative for Responsible Mining Assurance, http://www.responsiblemining.net/the-irma-process/stakeholder-feedback/webinars/ (follow “Protecting Water Resources” hyperlink).