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).


Background

On August 4, 2014, the tailings storage facility dyke collapsed at the Mount Polley gold and copper mine in British Columbia, Canada. The collapse released approximately 10.6 million cubic meters of water and 13.8 million cubic meters of tailings slurry. The amount of tailings released into the environment from this breach was approximately the size of New York’s Central Park. Imperial Metals Corporation owns the Mount Polley Mine and the mine is both an open pit and underground mining operation for copper and gold. The engineering company, Knight Piesold, designed and built the tailings storage facility throughout the 1990s.

Imperial Metals had many warning signs that not all was right with the tailings storage facility for the Mount Polley Mine. In 2010, an employee working at the tailings facility discovered a tension crack, but failed to report the crack to the engineering company. Two months later, Knight Piesold’s inspectors discovered the crack at the mine and recommended that the company perform a stability assessment to determine if the crack caused weakness in the dam wall. The crack was approximately 900 meters from the breach which occurred in August. However, it is not clear whether the tailings breached the storage facility because of the crack. Knight Piesold expressed other concerns regarding the Mount Polley Storage Facility. During its inspection in October, 2010, approximately 40 percent of the 92 instruments used to measure water pressure did not work. Also, the engineering company expressed concerns that the mining facility was operating over capacity. In response to these concerns, Mount Polley Mining Corporation, a wholly owned subsidiary of Imperial Metals, released a statement, on October 3, 2014, saying that it complied with the inspections and reports of the engineering company and no one raised any additional concerns.

In February, 2011, Knight Piesold refused to continue working with Imperial Metals at the Mount Polley Mine. Although there was no express reason why the engineering company stopped working at the storage facility, Knight Piesold, in a letter to Imperial Metals, indicated that the “overall tailings impoundment [were] getting large and [that it was] extremely important that [the tailings storage facility] be monitored, constructed and operated properly to prevent problems in the future.” In the letter, Knight Piesold refused to assume responsibility for further operations at the mine.

The breach of the tailings storage facility is one of the largest environmental disasters in mining history. Imperial Mines and the Canadian government will have to spend decades cleaning up the pollution from the tailings. Although the long-term effects of the breach are unclear, experts are speculating about the impact of the contamination of the tailings on the water, environment, society, and politics of Canada.

Environmental Impacts:

The damages from the breach at Mount Polley seem to be more physical in nature rather than chemical. The physical damages include the deposition of tailings, trees, and other debris in Polley Lake, Hazeltine Creek, and Quesnel Lake, which are all fresh water sources. These lakes and creek provide drinking water to local residents in the area surrounding the Mount Polley Mine.

When the tailings first breached the storage facility on August 4, 2014, the government of British Columbia imposed a drinking water ban. However, a week later on August 12, health officials and the British Columbian government mostly lifted the ban and stated that the fish in the area were safe to eat. The only areas where the government did not lift the ban was in areas that received drinking water from Polley Lake, which is adjacent to the tailings facility, Haseltine Creek, and a small portion of Quesnel Lake. On October 3, 2014, the Environmental Protection Division of the British Columbian government released a statement indicating that all the results for Quesnel Lake were below the drinking water guidelines with the exception of aluminum. Though the water had elevated levels of aluminum, according to Health Canada, there is no evidence that the elevated levels will cause adverse health effects.

Imperial Metals claims that there will not be much chemical damage to the surrounding landscape and water. Imperial Metals further asserts that water in the tailings pond was not toxic and was close to drinking water. According to Imperial Metals, much of the sediment released into the surrounding environment is composed of similar materials as the surrounding rocks formations. Further, the Imperial Metals owner and operator claims that the tailings are alkaline and not acid generating. Imperial Metals’ expert states that this means that the metals in the rock are less likely to be released due to acid erosion. The tailings that seep into the ground will cause contamination similar to that of glacial deposits of silt in the area. However there still may be long-term effects of leaving the tailings in the environment. Although the rocks will not erode as quickly because the tailings are not acid generating, eventually the tailings will start to weather and release metals into the environment.

Social and Political Impacts:

The breach of the mine has eroded the faith people have in the government of British Columbia because, in the last decade, the provincial government has heavily supported resource extraction. Politicians have developed close working relationships with the mining industry. For example, Imperial Metals has donated approximately $200,000 to the British Columbia majority party since 2005. Activists assert that the government’s relationship with extraction industries created a conflict of interest, which prevented inspectors from identifying and acting on the Mount Polley disaster potential.

Government inspections of mines have been cut in half since 2002. In 2010, the government’s geotechnical engineers only performed 3 inspections in British Columbia. The year before, in 2009, the engineers conducted 22 inspections. In 2011, engineers completed only 2 inspections. During 2010 and 2011, British Columbia’s engineers did not visit the Mount Polley Mine. However, inspectors did inspect the Mount Polley Mine tailings facility in September, 2013, and the engineers did not report any violations. It is too early for experts to discern whether there is a connection between the engineer’s missed inspections and the failure of the storage facility at Mount Polley Mine. However, the fact that the government did not diligently send geotechnical engineers to inspect mining sites calls into question the government’s ability to prevent a future disaster like Mount Polley.

Because of the tailings breach, the David Suzuki Foundation set-up a petition to institute a moratorium on new mines approvals. However, if British Columbia prevented new mines from opening, it could hurt a substantial part of its economy. Last year, mining accounted for more than 8 billion dollars in revenues and 10,000 jobs. Thus, because there is little information about what actually caused the Mount Polley Mine to collapse, it is premature to stop new mining operations altogether.

Next Steps:

The government, in order to regain the public’s trust, commissioned an independent engineering panel to assess and determine the reasons why the storage facility failed. The government appointed four geotechnical experts who have experience with tailings management facilities. Imperial Mines has set up community meetings with the surrounding residents immediately affected by the discharge of the tailings. The purpose of these meetings is to keep local residents apprised of what Imperial Metals plans to do during remediation and reclamation of the environment.

Imperial Metals has already developed plans to mitigate the effects of the tailing breach. However, these plans are theoretical and Imperial Metals has yet to implement such measures. The company plans to improve water quality in Quesnel Lake by providing water management structures. It plans to try to control the flows of the tailings and divert the tailings from Quesnel Lake into the Springer Pit, which is an open pit at the mine.

Further, despite the fact that the tailings are not acid generating, Imperial Metals will still have to continually test the water to ensure and reassure local residents that their drinking water has not been contaminated. If all of the damage is indeed physical, rather than chemical, Imperial Metals will have to reshape the landscape, reseed, and try to remove the tailings from the environment.

Conclusion

The long-term environmental and social effects of the tailings storage facility breach at the Mount Polley Mine are still unknown. It is also too early to estimate the total costs to Imperial Metals for environmental remediation and reclamation. However, Imperial Metals and the British Columbia government will have to work hard to regain the trust of the local residents and to develop an effective plan to address environmental damages caused by the release of the tailings into the surrounding terrain of the Mount Polley Mine. Although it is too early to estimate the costs of remediation and reclamation, Imperial Metals obtained $115 million in financing to cover environmental damage and mitigation alone.

 

The title picture features a map of the Mount Polley Mine site. This image is part of the public domain as it was created solely by NASA. NASA does not endorse this blog.


Sources:

Letter from Knight Piesold Consulting, to Brian Kynoch, Mount Polley Mining Corp., (Feb. 10, 2011) (regarding Mount Polley Tailings Storage Facility Engineer of Record), available at http://www.knightpiesold.com/en/assets/File/VA11-00298_Complete.pdf.

Press Release, Mount Polley Mining Corp., Mount Polley Responds to Vancouver Sun Article Published on September 26, 2014 (Oct. 3, 2014), available at http://www.imperialmetals.com/i/pdf/10-03-14-mount-polley-responds-to-sept-26-vancouver-sun-article-oct-3.pdf.

Lyn Anglin, Getting a Better Understanding of the Mount Polley Tailings, Resource Works, http://www.resourceworks.com/getting-a-better-understanding-of-the-mount-polley-tailings.html (last visited Oct. 14, 2014).

Announcement on Mt. Polley Inquiry This Week, Bennett Says, The Townsman (Aug. 12, 2014), http://www.dailytownsman.com/breaking_news/270905121.html.

Chronology of Major Tailings Dam Failures, Wise Uranium Project, http://www.wise-uranium.org/mdaf.html (last updated Sep. 4, 2014).

Kenneth P. Green, Beware Hasty, Unwise Policy Decisions After Mount Polley, Huffington Post (Aug. 12, 2014), http://www.huffingtonpost.ca/kenneth-p-green/first-investigate-then-ac_b_5670031.html.

Gordon Hoekstra, Imperial Metals Says It Addressed 2010 Concerns at Mount Polley Mine, The Vancouver Sun (Oct. 5, 2014), http://www.vancouversun.com/Imperial+Metals+says+addressed+2010+concerns+Mount+Polley+mine/10264841/story.htm.

Gordon Hoekstra, Mount Polley Mine Tailings Spill Nearly 70 Percent Bigger Than First Estimated, The Vancouver Sun (Sep. 3, 2014), http://www.vancouversun.com/Mount+Polley+mine+tailings+spill+nearly+cent+bigger+than+first+estimated/10172302/story.html.

Justine Hunter, B.C. Didn’t Inspect Mount Polley Mine in 2010, 2011, The Globe and Mail (Oct. 14, 2014), http://www.theglobeandmail.com/news/british-columbia/bc-didnt-inspect-mount-polley-mine-in-2010-2011/article21084272/.

Independent Expert Engineering Review Launched Following Mount Polley Dam Breach, British Columbia Newsroom (Aug. 18, 2014), http://www.newsroom.gov.bc.ca/2014/08/independent-expert-engineering-review-launched-following-mount-polley-dam-breach.html.

Peter Moskowitz, Mount Polley Mine Spill: A Hazard of Canada’s Industry-Friendly Attitude?, The Guardian (Aug. 13, 2014), http://www.theguardian.com/environment/2014/aug/13/mount-polley-mine-spill-british-columbia-canada.

Anna Mehler Paperny, What’s in Imperial Metals’ Mount Polley Tailings? Should you be Worried?, Global News (Aug. 5, 2014), http://globalnews.ca/news/1493012/whats-in-imperial-metals-mount-polley-tailings-should-you-be-worried/.

Tailings Breach Information, Imperial Metals, http://www.imperialmetals.com/s/Mt_Polley_Update.asp?ReportID=671041 (last visited Oct. 14, 2014).


Water and energy are vital to the U.S. economy. Hardly a portion of the national GDP is not tied to one or both of these critical resources because they depend heavily on one another. Energy is a key element in producing, processing, and distributing potable and wastewater. Likewise, water is a necessary feedstock to nearly all traditional electrical generation technologies, and is a primary component of hydraulic fracturing fluids, which are giving rise to the rebirth of the U.S. as an energy-producing nation.

The production and consumption of these resources are under increased pressure from population growth and climate change. As agricultural areas experience higher temperatures, evapotranspiration losses increase, resulting in the need for additional water supplies. Higher ground surface temperatures call for additional electrical production to meet air conditioning demands. Despite the critical, intertwined nature of these resources, policy makers have largely treated them separately.

Water for Energy

Nearly all traditional electricity generation technologies use water as both a working fluid and coolant. Thermoelectric power plants, such as those driven by coal or nuclear rely on the repeated boiling and condensing of steam to generate power. Thermodynamic considerations require that some of the input energy dissipate as waste heat, which is often accomplished with water-cooling. The U.S. Environmental Protection Agency (“EPA”) estimates that twenty-five gallons of water are withdrawn for each kilowatt-hour (“kWh”) of electricity produced. Much of this is returned to the water supply via once-through cooling systems, although two to eight kWh per gallon are lost due to evaporation. Since the late 1950s, environmental regulations have led to a decrease in the number of thermoelectric power generation systems employing once-through cooling, because of the negative environmental impacts of the associated thermal plumes. Closed-loop water-cooling systems, which use evaporative cooling, are largely taking the place of once-through systems. Although evaporative systems withdraw much less water from the environment, they actually consume more; once-through systems return nearly all their withdrawn water to the primary water source. Evaporative systems, in contrast, recirculate water, but require constant withdrawals to make up for evaporation losses. As of the end of 2012, evaporative systems made up approximately fifty-two percent of the thermoelectric cooling systems in operation in the U.S. generation fleet. However, since 2000, there has been a rise, albeit small, in the number of dry cooling systems deployed that use no water.

Recently, companies that provide water to hydraulic fracturing operations have begun to compete at auctions with Colorado farmers for water withdrawn from the Colorado River Basin via the Moffat Tunnel. This competition has given rise to concerns about the balance between energy and food production as beneficial uses of scarce water resources. Energy producers generally occupy a favorable economic position relative to farmers when bidding for water in the open market. The water needs of the hydraulic fracturing industry remain small, at about 0.1 percent of statewide water use. However, the industry expects its annual demand in Colorado to grow to 18,700 acre-feet by 2015. This reality has prompted some agriculture leaders to question how their business will fare in the face of more demand on a finite resource. On September 8th, Colorado Governor John Hickenlooper created the Task Force on State and Local Regulation of Oil and Gas Operations (“Task Force”). It remains to be seen whether the Task Force will address this issue with specific recommendations.

Energy for Water

Energy costs can account for as much as seventy-five percent of the total cost of providing municipal potable water, and accounts for approximately four percent of total U.S. energy consumption. In heavily agricultural states like California, that percentage may be much higher, for example, accounting for nineteen percent of electricity and thirty-two percent of natural gas consumed statewide. When water utilities must move water between basins, the cost of inter-basin pumping can be as high as 14,000 kWh per million gallons (4,700 kWh per acre-foot). By way of comparison, the average U.S. household uses approximately 11,000 kWh of electricity per year. Driven by population growth and higher water quality standards, national energy demand for water and wastewater treatment grew by over thirty percent from 1996 to 2013.

Mix of Regulations

Despite the critical nature of these deeply intertwined resources, most policy actions treat water and energy separately. On the federal level, three recent laws are highly influential on energy policy: the 2009 American Recovery and Reinvestment Act, the 2007 Energy Independence and Security Act, and the 2005 Energy Policy Act. These acts authorized additional energy development in the U.S., along with a variety of measures to promote energy efficiency and renewable fuels. Individual states have adopted a wide variety to renewable portfolio standards and goals, which promote changes in the energy mix, yet produce a patchwork of regulations.

Policy governing water resources is no less fractured. Important federal statutes regarding water include: the Clean Water Act, the Safe Drinking Water Act, the Reclamation Act, the Endangered Species Act, and the National Environmental Policy Act. The variety of state prior appropriation, riparian, and regulated riparian doctrines, along with international treaties complicates the situation further.

The additive effects of climate change and population growth will likely continue to stress the nation’s energy and water systems. In response to these challenges, the U.S. Department of Energy (“DOE”), in 2012, created the Water and Energy Tech Team (“WETT”) whose mission is to identify technology, data, analysis, and policy priorities in the Energy-Water space. WETT has identified six pillars as a foundation for its work including: (1) optimization of the freshwater efficiency of energy production and electricity generation technologies; (2) optimization of the energy efficiency of water treatment and distribution systems; (3) increased resilience of energy and water systems; (4) increased use of non-traditional water sources (e.g. brackish) for energy systems; (5) promotion of responsible energy operations with respect to water quality; and (6) exploration of synergies between water and energy technologies.

Regarding policy, WETT has highlighted successful regional efforts to integrate water and energy management, such as those of the Susquehanna River Basin Commission (“Commission”), for possible wider application across the nation. The Commission adapted early to increased water use for hydraulic fracturing in the Marcellus shale. It set all relevant regulatory thresholds to one gallon and promotes water sharing between companies, the reuse of flowback, and interbasin transfers of flowback. These efforts have resulted in an average flowback reuse per well of fourteen percent.

Recognition of the importance of the water-energy nexus to the economic and environmental security of the nation is beginning to take hold. Ample opportunities exist, both in the technology and policy spaces, to make these interconnected systems more robust, reliable, efficient, and secure.

The title image is of a geothermal power plant and has been released into the public domain. The original owner of this image does not endorse this blog. 


Sources:

American Geophysical Union, Water-Energy Nexus: Solutions to Meet a Growing Demand 10 (2012).

Bruce Finley, Fracking Bidders Top Farmers at Water Auction, Denver Post, Apr. 2, 2012.

Colo. Exec. Order No. B 2014 005 (Sep. 8, 2014).

Energy Information Administration, http://www.eia.gov/tools/faqs/faq.cfm?id=97&t=3.

Gary Klein, California Energy Commission, California’s Water-Energy Relationship 8 (2005).

Jim Richenderfer, National Capital Area Chapter U.S. Assoc. for Energy Economics Energy-Water Nexus 2, 9, 13 (Apr. 9, 2013), http://www.ncac-usaee.org/pdfs/2013_04Richenderfer.pdf.

Preeyaphorn Kosa, The Effect of Temperature on Actual Evapotranspiration based on Landsat 5 TM Satellite Imagery 225 (2011), http://cdn.intechopen.com/pdfs-wm/14187.pdf.

U.S. Department of Energy, The Water-Energy Nexus: Challenges and Opportunities v-x, 4, 18-19, 52-55, 87 (2014).

U.S. Energy Information Administration, Many Newer Power Plants Have Cooling Systems That Reuse Water, Today In Energy, Feb. 11, 2014, http://www.eia.gov/todayinenergy/detail.cfm?id=14971

U.S. Environmental Protection Agency, Water-Energy Connection, http://www.epa.gov/region9/waterinfrastructure/waterenergy.html (last visited October 11, 2014).


On September 30, 2014, Judge David Campbell of the U.S. District Court for the District of Arizona upheld the twenty year moratorium against new uranium mines in and around Grand Canyon National Park much to the dismay of the mining industry. Uranium mining has a long, storied history in the American Southwest, a region of iconic natural beauty and sparse water.

Environmental groups, tribal nations, and river rats are embracing Judge Campbell’s decision, much like they did former Interior Secretary Ken Salazar’s declaration of the moratorium in 2009.

The Process and Risks of Uranium Mining

Like any hard rock mining process, uranium extraction requires immense amounts of water and poses significant risks to the environment and human health. Depending on the quality and depth of the ore, several different extractive methods may be employed, but all use massive amounts of water and result in chemical contamination from extracting and processing the ore. (The proposed mines and exploratory sites around the Canyon involved in this litigation, for example, were predicted to use over 300 million gallons of water.) Uranium is a radioactive mineral known to cause cancer. Other metals and minerals, such as selenium, molybdenum, arsenic, and nickel, commonly coincide with uranium deposits. These metals all pose significant health risks, especially when disturbed and concentrated at the surface. Mining activities disturb these elements and concentrate them in waste rock, tailing ponds, and wastewater. Water’s exposure to radioactive ore and wastewater pose significant risks to human health and the surrounding natural environment, including vegetation and animals.

Uranium and Water in the Canyon

The Grand Canyon region is home to some of the richest uranium deposits in the United States, in formations called breccia pipes. These pipes, 300 to 500 feet in diameter, extend thousands of feet into the ground. The uranium deposits around the Canyon were already being explored when President Teddy Roosevelt listed the Grand Canyon as a national monument in 1908. The industry’s heyday corresponded with the Cold War when uranium prices skyrocketed. Hundreds of ill-regulated mines disturbed land around the Canyon, but operators later abandoned or suspended many smaller mines as market demand for uranium waned. Only four mines remain active to this day (the moratorium does not prevent these active mines, but rather prevents further development), but industry pushed to overturn the moratorium and increase new production, despite a fall in uranium prices following the Fukushima fallout. Just north of the Grand Canyon, Pinenut Mine continues to produce uranium, but at a steep environmental price. An abandoned shaft contains millions of gallons of water contaminated with uranium at eighty times the safe limit for human consumption. It is unknown if this water has contaminated surrounding aquifers. Open-air evaporation ponds of wastewater and tailings are a death trap for birds and other wildlife at the mine site.

Because there is so much dependence on the Colorado River, interest in its safety extends far beyond Arizona’s state border. Nearly thirty million people from seven states rely on water from the Colorado River basin for industrial, municipal, agricultural, and recreational uses. Water utilities of Arizona, California, and Nevada expressed concerns that mining waste could enter the Colorado River via runoff and endanger their claims to the Colorado River. Multiple American Indian tribes, including defendant-intervenors in the district court action, the Havasupai and Haulapai tribes, have significant cultural and religious connection to the Canyon and its surrounding water. One aquifer underlying an abandoned uranium mine where tests shows dangerously elevated levels of radiation and hard mineral contamination is the Havasupai peoples’ sole source of drinking water.

Canyon Water Endangered by Proposed Mines

While water contamination is certainly a concern in any community, it is of particular concern around the Canyon because of the existing geology. The dissolved rates of uranium and related metals are naturally higher the Canyon watershed because of the minerals’ presence in the area. Judge Campbell used a USGS report that found Canyon waters contaminated with unsafe levels of uranium, selenium, and arsenic, particularly at sample points near old or suspended mines and exploratory uranium sites to inform his decision. The report was unclear as to the cause of the contamination. Whether the increased levels of chemicals in the water are the result of natural runoff and flooding, or the result of past mining activity in the area is still uncertain. The plaintiffs, a consortium of companies who all seek to operate new uranium mines around the Canyon, argued Secretary Salazar and the Department of Interior took an “overly cautious” stance in reaction to the uncertainty of the source of contamination, and the removal of nearly one million acres of land from mining activity was inappropriate. Judge Campbell, however, rejected this argument and reasoned that while the source of contamination may be uncertain, the potential impacts of such contamination are too great to risk.

Water contamination is not the only concern with industrial uranium mining in the Grand Canyon. The Department of Interior’s study of mining impacts prior to Secretary Salazar’s moratorium predicted that seven hundred exploratory claims and twenty six new uranium mines could be developed, consuming 316 million gallons of water. Springs, aquifers, and potentially even the Colorado River itself would provide the water for such activities. This substantial use of already low supplies of water in the desert could deplete drinking water sources for canyon communities and endanger the environment in the midst of existing and predicted drought conditions. Judge Campbell held the stakes were simply too high for the Canyon.

The Grand Canyon is a world heritage site, a source of cultural pride for the American Southwest, and the sacred birthplace of the Havasupai and the Haulapi peoples. Judge Campbell’s decision protects the unique watershed of the Grand Canyon from drastic water extraction and potentially severe fallout of radiation contamination from large-scale uranium extraction.

 

The title picture features the Orphan Mine in Grand Canyon National Park. This is just one abandoned copper-uranium mines in the park. The image is licensed under the Creative Commons Attribution 2.0 License to Alan Levine, who does not endorse this blog. 


Sources:

Chrissy Pepino, Protecting the Grand Canyon against Uranium Mining, Earthjustice (2012), http://earthjustice.org/features/protecting-the-grand-canyon-against-uranium-mining.

Dana S. Ulmer-Scholle, Uranium – How is it Mined?, New Mexico Bureau of Geology and Mineral Res. (Aug. 4, 2014), https://geoinfo.nmt.edu/resources/uranium/mining.html.

Press Release, Center for Biological Diversity, Feds urged to Suspend Grand Canyon Uranium Mine to Protect Water, Wildlife and People: BLM Fails to Respond to Groundwater Contamination at Pinenute Mine, (Aug. 4, 2014) available at http://www.biologicaldiversity.org/news/press_releases/2014/grand_canyon_uranium-08-04-2014.html.

Press Release, Earthjustice, Court Upholds Grand Canyon Uranium Mining Ban, (Sept. 30, 2014) available at http://earthjustice.org/news/press/2014/court-upholds-grand-canyon-uranium-mining-ban.

Donald J. Bills, et. al., Breccia-Pipe Uranium Mining in Northern Arizona – Estimate of Resources and Assessment of Historical Effects, United states geological survey (Jan. 2011), available at http://pubs.usgs.gov/fs/2010/3050/fs2010-3050.pdf.

Yount v. Salazar, No. CV11-8171 DGC (Ariz. Dist. September 30, 2014), available at http://earthjustice.org/sites/default/files/files/FINAL%20ORder%20-%20Grand%20Canyon%20withdrawal.pdf.


California’s lakes and rivers were the first to display the current drought with their growing banks and plunging surface area, but the state’s hidden groundwater is also losing volume and feeling the effects of the drought. California relies on groundwater for forty percent of all fresh-water consumed in California. Recently, Governor Jerry Brown signed legislation, the first of this kind in California history, regarding groundwater. The Governor stated that the severity of the drought is what allowed this legislation to pass in the legislature and onto him to be signed; policy about water is of utmost concern in the state.

The passage of this trio of bills about groundwater use and management solidifies California’s status as the last Western state to regulate groundwater. This new legislation turns the state away from its previous system of landowners being able to pump as much groundwater as they please, which has been in place since the gold rush. Rather, this new legislation moves to emulate other Western states in considering groundwater a shared resource that must be managed by state agencies.

The three bills: Senate Bill (SB) 1168, Assembly Bill (AB) 1739, and Senate Bill 1319 are the foundation for the new regulatory plan. SB 1168 instructs local agencies to develop management plans. AB 1739 creates the possibility for state intervention when local agencies do not do a satisfactory job at managing. SB 1319 postpones state action for areas where surface water has been depleted previously by the pumping of groundwater. Many urban and coastal legislators supported the bills, but the agricultural communities opposed the bills because they fear property value loss and heavy water restrictions. SB 1319 was introduced to alleviate the concerns posed by legislators from agriculture-heavy districts. While SB 1319 was an attempt at finding a common ground, voting for the bills still displayed a regional divide.

This legislation arises out of concern that an ever-drying California is over-pumping groundwater; the results of which could be quite detrimental. Over-pumping can compress rocks and soil to the point that it permanently reduces the storage capacity for groundwater. The compression of soil and rocks can also lead to sinking and shifting land, which can damage infrastructure like roads, canals, and building foundations.

While environmentalists and water managers are excited for the new legislation, many involved in agriculture have large concerns with the new bills. Agricultural groups, like the California Farm Bureau, fear the bills will infringe upon private property rights and farmers ability to get adequate amounts of water. The President of the California Farm Bureau, Paul Wegner, said the bill could potentially become “historic” for all the wrong reasons, such as by destroying California’s ability to be a world-leader in food production.

These new bills will not create any type of immediate relief, nor will they be implemented quickly. It will take years for the state to create, introduce, and oversee local management plans. Local planners have until 2017 to create or choose a groundwater agency. Those agencies then have until 2020 or 2022, based on how dire their groundwater situation is, to create sustainability plans. California will not feel the effects of these sustainability plans and recovery of the over-pumped basins until at least 2040, creating a long wait for a state amid a historical drought.

 

The title picture is a depiction of a dried out California riverbed. This image is in the public domain because it contains materials that originally came from the U.S. National Oceanic and Atmospheric Administration, taken or made as part of an employee’s official duties. The U.S. National Oceanic and Atmospheric Administration does not endorse this blog.

 


Sources:

Melanie Mason, Brown signs bill to regulate pumping of underground water, The Los Angeles Times, http://www.latimes.com/local/politics/la-me-pol-water-brown-20140917-story.html (last visited September 20, 2014).

The Associated Press, Things to know about California groundwater law, http://www.washingtontimes.com/news/2014/sep/16/things-to-know-about-california-groundwater-law/ (last visited September 20, 2014).

David Siders, Jerry Brown signs groundwater legislation, The Sacramento Bee, http://www.sacbee.com/2014/09/16/6711717/video-jerry-brown-signs-groundwater.html (last visited September 20, 2014).

Dairy Today Editors, California Farm Bureau Will ‘Actively Monitor’ Implementation of State’s New Groundwater Law, http://www.agweb.com/article/california_farm_bureau_will_%E2%80%98actively_monitor_implementation_of_states_new_groundwater_law_NAA_Dairy_Today_Editors/ (last visited September 20, 2014).


Lake Mead, the primary upstream reservoir for the state of Arizona, is currently estimated to contain approximately 39 percent of its total water capacity. In the month of July, the water level of the lake was at its lowest documented level since 1937. However, unlike today, in 1937 the low levels resulted from the completion of the Hoover dam on the Colorado River that was intended to collect water and form the nation’s largest man-made reservoir. As a result of the receding water level, multiple boat landings and marinas found on Lake Mead have either had to relocate or shut down operations entirely. The businesses that decide to continue operating encounter severe costs associated with transporting or reconstructing the mandatory electrical, fuel, water, and sewer lines.

If Colorado River Basin States do not develop methods to reduce water consumption while simultaneously surviving the extreme drought, Arizona could be forced to cut water deliveries to cities such as Phoenix and Tucson. Presently, Lake Mead supplies approximately half of Phoenix’s total water needs, while Tucson obtains nearly all of its water from the lake.

Specifically, if Arizona cannot reduce its water consumption, water delivery cutbacks could become necessary by the year 2019. Also, depending on future drought conditions, the potential for water cutbacks could be as high as 29 percent by the year 2026.  Officials from the Central Arizona Project (“CAP”), which manages the 336-mile water system, believe that cities could possibly make accommodations for the water reductions by obtaining water from other surface water sources, such as lakes and rivers.

Although the limited water supply is not by any means a new concern to states in the Southwest, the prospective water shortage in Arizona’s cities is being raised publicly for the first time. If states located in the upstream portion of the Colorado River Basin cannot provide for the water shortage, with water obtained from snow melt or rain fall, Lake Mead’s surface level is projected to reach 1,000 feet above sea level by the year 2020, which is nearly 220 feet below its water level capacity.

Despite the potential of a near, worst-case scenario, CAP officials continue to maintain a relatively positive attitude for the organization’s plan of action. First, officials believe that such water shortages should not affect Arizona cities for at least 10 to 15 years. In 2007, the Secretary of the Interior adopted guidelines that quantify the reductions at various water surface elevations of Lake Mead. CAP officials ensure that the maximum reduction under the guidelines is still enough water to supply all of the municipal demands. Second, the predicted water shortages by 2017 will mainly affect central Arizona’s agricultural system, which is already preparing for reductions in water supply. Finally, the Arizona Water Banking Authority stores excess water in underground aquifers and has done so since the organization’s creation in 1995.

Lake Mead’s receding water level presents a grave concern for lower Colorado River Basin States such as Arizona. However, a “key shortage declaration,” which is only initiated if Lake Mead’s water level reaches 1,075 feet, is unlikely to be made either this year or in 2015.

 

The title picture is of Lake Mead, straddling the Nevada-Arizona border.This file is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license. The owner of this picture does not endorse the DU WLR.


Sources:

Michael Wines, Arizona Cities Could Face Cutbacks in Water From Colorado River, Officials Say, The New York Times, http://www.nytimes.com/2014/06/18/us/arizona-cities-could-face-cutbacks-in-water-from-colorado-river-officials-say.html?_r=0 (last visited July 25, 2014).

Pamela Pickard, The Facts About Arizona’s Water Supplies, Central Arizona Project http://www.cap-az.com/index.php/public/blog/468-the-facts-about-arizonas-water-supplies (last visited July 26, 2014).

William M. Welch, West’s water worries rise as Lake Mead falls, USA Today http://www.usatoday.com/story/news/nation/2014/07/26/lake-mead-falling-in-sign-of-drought/13079009/  (last visited July 28, 2014).

The Associated Press, Water Levels at Nevada’s Lake Mead drop to new low, http://www.azcentral.com/story/news/arizona/2014/07/08/water-levels-at-nevadas-lake-mead-drop-to-new-low/12392335/ (last visited July 28, 2014).


How does “pebble” transform into a giant boulder? When it is followed by the word “mine.” Pebble Limited Partnership (“PLP”), a U.S. subsidiary of Canada’s Northern Dynasty Minerals Ltd., is seeking to develop its mineral claims and operate “Pebble Mine” in southwest Alaska. Conceivably, Pebble Mine could be the largest open pit copper mine in North America and one of the largest such mines in the world. Pebble Mine could have a significant economic impact on Alaska and the lower 48 states. Yet, Alaska Natives, fishermen, hunters, recreationalists, environmental advocates, trade associations, and various other groups contend the mine could have significant and irreversible negative impacts on the Bristol Bay watershed (“Watershed”), specifically the fish and wildlife that nurture therein and the Native Alaskan cultures that live and work therein.

Paramount amongst these interests is the world’s largest salmon hatchery.  Salmon, however, are not tolerant of copper. The U.S. Environmental Protection Agency (“EPA”) agrees with the salmon and, pursuant to authority apparently granted it by the Clean Water Act (“CWA”), is taking bold steps to possibly preclude the issuance of discharge permits before PLP even applies.  PLP responded by filing suit against the EPA, asking a federal judge to enjoin the EPA from exceeding its authority.  In short, it’s copper versus salmon, with salmon in the early lead in what could be a very, very long race.

THE STAGE

First discovered in 1988, the Pebble Deposit is located exclusively on remote, state-owned land about 200 air miles southwest of Anchorage in the Bristol Bay watershed (the “Watershed”). The Watershed is comprised of six major watersheds and a series of smaller watersheds draining from the North Alaska Peninsula.  Pebble Mine would sit just 17 miles north of Lake Iliamna, the largest incubator of salmon in North America, and within a few miles of major fault lines causing historic seismic activity.

With a total population near 4,337, twenty-five Native Alaskan communities have lived and sustained their culture for 4,000 years in the Watershed. Subsistence hunting, fishing and gathering is nearly mandatory in the region. Due to its isolation, the region boasts few businesses and a high cost of living.

Government supplies the only substantial year-round employment. Fishing (commercial, sport and subsistence), hunting (sport and subsistence), and non-consumptive recreation (wildlife viewing and tourism) comprise the three largest non-government sectors, providing employment for 14,000 full and part-time workers and generating nearly $480 million in direct economic expenditures (i.e., money spent by these workers) annually.

While copper would like to be king in the Watershed, the wild sockeye salmon (“sockeye”) sits atop the throne. The Watershed produces an average of 37.5 million sockeye each year, nearly 50% of the world’s sockeye population. Harvesting over 27 million sockeye annually, Bristol Bay’s commercial salmon fishery is responsible for nearly 63% of jobs and 82% of annual expenditures in the non-government sector. The Watershed also supports four other species of Pacific salmon and is home to thirty-five other fish species (including some of the most renowned rainbow trout in the world), 190 bird species, and more than forty terrestrial mammal species, including caribou, moose, bears, and wolves.

Attempting to coexist with these desirable resources, the area also contains significant wealth in a variety of minerals.  In addition to Pebble Mine, other mining companies have claimed over 1,000 acres.

PEBBLE MINE – ITS POTENTIAL FOOTPRINT AND ECONOMICS

Pebble Mine is estimated to contain 81 billion pounds of copper, 5.5 billion pounds of molybdenum, 107 million ounces of gold, and significant amounts of other minerals. PLP estimates the deposit contains enough copper to meet approximately 33% of the U.S. annual copper needs for many years.

If built and operated to its maximum potential, Pebble Mine project could cover twenty-eight square miles. Within this area, the mine’s open pit would cover about seven square miles and extend three-quarters of a mile into the earth. The “tailings facility,” the containment area for the materials left over after processing the ore, could have nine miles of 740-foot high dams. Pebble Mine could produce over ten billion tons of “waste rock,” the material that is displaced during the process of mining but is not processed for ore.  This amount of waste rock would fill 108 million rail cars sixty-five feet in length — enough rail cars to circle the Earth at its equator over fifty times.  Approximately 70% of Pebble Mine’s waste rock would be “acid-generating,” that is, capable of oxidizing and leaching acids into the water supply for as many as 100 years.  Although PLP refers to Pebble Mine as merely “an idea,” over $720 million has been spent developing the idea thus far.

In May 2013, IHS Global Insight (“IHS”), headquartered in Englewood, Colorado, produced a detailed, sixty-nine page report addressing the potential contributions a conceptual Pebble Mine could have on the economies of Alaska and the United States. IHS based the report on a conceptual mine because, according to the report, “PLP does not have a definitive, approved, and permitted development plan in place.” During each year of an estimated five years of mine construction (the “construction phase”), IHS estimates that Pebble Mine could support over 16,000 jobs in Alaska and the lower forty-eight states, contribute $400 million to Alaska’s gross state product (“GSP”) and $1.6 billion to U.S. gross domestic product (“GDP”), and generate state and federal revenues of $323 million. For each of the initial twenty years during which minerals are produced (the “production phase”), IHS estimates the project could support 15,000 jobs in Alaska and the lower 48 states, contribute $1.1 billion to Alaska GSP and $2.4 billion to U.S. GDP, and generate over $670 million in state and federal revenues.

EPA’s SCIENTIFIC ASSESSMENT

In May 2012, the EPA undertook to perform a scientific assessment of the impacts of mining on salmon and those relying upon salmon in Bristol Bay, purportedly in response to concerns raised by nine federally recognized tribes and other stakeholders and consistent with the EPA’s authority under Sections 104(a) and 104(b) of the CWA. The EPA compiled the assessment using a scientific team with expertise in varying disciplines such as fisheries biology, mining, geochemistry, anthropology. After considering comments from the public and scientists, the EPA submitted another draft for comment and review in April 2013. In January 2014, the EPA submitted a 630 page report titled, An Assessment of Potential Mining Impacts on Salmon Ecosystems of Bristol Bay, Alaska (Final Report) (“Final Report”).

Just as IHS did not have a definitive, approved, and permitted development plan on which to base its economic opinion for Pebble Mine, the EPA had no final plans on which to base its scientific opinion. In lieu thereof, the EPA developed three “foreseeable” scenarios with a range of mine sizes and operating conditions. The Final Report focused on the Nushagak and Kvichak River watersheds in Bristol Bay, the major river watersheds closest to the Pebble Mine. Within these watersheds, the EPA further focused on the potential impacts to salmon and how these impacts might affect indigenous subsistence cultures and wildlife. Taking into account traditional operations and foreseeable failures of its hypothetical mines, the EPA concluded that mining in the Bristol Bay will have substantial, and perhaps irreversible, impacts on salmon, other fishes, fish habitats, wildlife, and Native Alaskan cultures.

THE EPA WIELDS ITS MIGHTY SWORD

On February 28, 2014, the EPA Region 10 gave notice to PLP, the State of Alaska, and the U.S. Army Corps of Engineers (“Corps”) that it is “proceed[ing] under its Clean Water Act section 404(c) regulations to review potential adverse environmental effects of discharges of dredged and fill material associated with mining the Pebble deposit in southwest Alaska.” In its February 28th letter, the EPA outlined a four-step process under Section 404(c): (i) to consult with the owners, the State of Alaska, and the Corps (collectively, the “stakeholders”), (ii) publish a Proposed Determination, (iii) receive public comments and develop a Recommended Determination, and (iv) consult with the stakeholders again. The EPA set an April 29, 2014, deadline to satisfy step one.

REACTIONS TO THE EPA’s ACTIONS

The reactions to the EPA’s assessment and actions have been wide and diverse. Naturally, the mining industry takes issue with the EPA’s Final Report, specifically arguing that the EPA’s hypothetical mining scenarios do not reflect reality, are biased, and violate the Due Process rights of the Pebble Deposit’s claimants.  Proponents of mining, and others with an interest in Section 404(b) permitting, are referring to EPA’s action as a “preemptive veto” of discharge permits for which PLP has yet to apply.

In May 2014, PLP filed suit against EPA in the United States District Court for the District of Alaska seeking to enjoin it from preemptively denying its prospective permits.  PLP’s CEO referred to the EPA’s action as a “massive federal overreach” and said, “Litigation is necessary in order to get the Agency’s attention and bring some rational perspective back to the US permitting process.”  The State of Alaska filed a motion to intervene in the suit as a co-plaintiff to “prevent the EPA from taking land by prematurely limiting development before the state’s permitting processes have a chance to work.”

Numerous politicians have also chimed in. The U.S. House Oversight and Government Reform Committee (“House Oversight”) has initiated an investigation into allegations of “political motivation and unfair bias.” According to documents already obtained by House Oversight, the EPA may have been considering a preemptive veto as early as 2010, perhaps even before federal tribes and others began asking EPA to assess the risks of Pebble Mine.

On March 26, 2014, Senators David Vitter (R-Louisiana) and Sen. Joe Manchin (D-West Virginia) introduced the “Regulatory Fairness Act of 2014” (“RFA”).  If passed, the RFA would prohibit the EPA from preemptively or retroactively vetoing a permit issued under Section 404 of the CWA.

On the other side of the coin, many individuals, businesses, environmentalists, and public interest groups are overjoyed by the EPA’s actions. According to one such group, the Wild Salmon Center, “There is too much at stake to conduct an experiment of this scale with a resource of Bristol Bay’s economic, ecological, and cultural value.” Trout Unlimited proclaims that pollution from Pebble Mine is a “virtual certainty” and represents “an epic threat to the region’s fish, jobs and a way of life for thousands of Alaska Natives.”  In another entity’s opinion, if mining development begins in the Watershed, “the scope of the disaster is the only question.”

Investors have also bailed on Pebble Mine.  Northern Dynasty’s original partner, Anglo American, pulled out of the project in September 2013, taking a $300 million hit in the process.  In April 2014, Rio Tinto donated its 19.8% interest in Northern Dynasty Minerals to the Bristol Bay Native Corporation (“BBNC”) Education Foundation and the Alaska Community Foundation.  Upon receipt, the BBNC publicly thanked Rio Tinto for its donation but admonished that “BBNC’s opposition to the proposed Pebble Mine has not changed.”  In June 2014, BBNC sold its stock for $6.48 million and plans to use the funds for scholarships and a cultural heritage program.

In November 2014, barring court order otherwise, the issue will be put to Alaska voters.  If passed, the “Bristol Bay Forever” initiative would “require legislative approval of any large-scale metallic sulfide mining operation within the Bristol Bay Fisheries Reserve, or which has the potential to adversely affect any anadromous waters within the reserve.”

THE FUTURE OF PEBBLE MINE

No mine has ever failed to get permitting in Alaska.  But no previous mine has ever cast a shadow the size of Pebble Mine.  Although Pebble Mine’s executives (and lawyers) remain hopeful, the anti-Pebble Mine groups will certainly continue to vigorously oppose mining in the Watershed.  For now, the dispositive issue is whether and under what circumstances the EPA can pre-empt the ordinary process and summarily conclude that, based upon known science, there are no circumstances under which discharge permits could ever be issued to PLP under the CWA. Only time, politics, and, most certainly, years of litigation will determine the fates of Pebble Mine, the salmon, and everything the salmon represents.

 

The title picture is of Lake Iliamna in Alaska. The lake is the largest incubator for salmon in Bristol Bay Watershed. This file is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license. Subject to disclaimers and Alaska Trekker does no endorse this blog.


Sources:

Clean Water Act, 33 U.S.C. § 1254(a)-(b) (2012).

Clean Water Act, 33 U.S.C. § 1444(b)-(c) (2012).

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Ana Komnenic, Northern Dynasty tanks as EPA blocks issuance of key permit, Mining.com (Feb. 28, 2014), http://www.mining.com/northern-dynasty-tanks-as-epa-blocks-pebble-mine-permitting-28247/.

An Assessment of Potential Mining Impacts on Salmon Ecosystems of Bristol Bay, Alaska: Executive Summary, EPA (Jan. 2014), available at http://www.epa.gov/ncea/pdfs/bristolbay/bristol_bay_assessment_final_2014_ES.pdf (last visited Apr. 6, 2014).

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IHS Global Insight, The Economic and Employment Contributions of a Conceptual Pebble Mine to the Alaska and United States Economies (May 2013), available at http://corporate.pebblepartnership.com/files/documents/study.pdf (prepared for the Pebble Limited Partnership).

IHS Global Insight, The Pebble Project: Economics and Employment, Visual Capitalist http://www.visualcapitalist.com/the-pebble-project-economics-and-employment (last visited Apr. 13, 2014).

Letter from Dennis J. McLerran, Regional Administrator, U.S. Environmental Protection Agency, Region 10, to Thomas Collier, Chief Executive Officer, Pebble Limited Partnership, Joe Balash, Commissioner, Alaska Department of Natural Resources, &  Col. Christopher D. Lestochi, Commander, U.S. Army Corps of Engineers (Feb. 28, 2014), available at http://www2.epa.gov/sites/production/files/2014-02/documents/bristol-bay-15day-letter-2-28-2014.pdf.

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Press Release, U.S. Senate Comm. on Environment & Public Works, Vitter, Manchin Introduce Bill to Stop EPA’s Preemptive, Retroactive Vetoes of Water Permits (Mar. 25, 2014), available at http://www.epw.senate.gov/public/index.cfm?FuseAction=Minority.PressReleases&ContentRecord_id=cc41ea2b-c8bc-ebb8-9ef7-46805692c73e.

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The Pebble Limited Partnership, Why Mine?, http://www.pebblepartnership.com/why.html (last visited Apr. 13, 2014).

The Pebble Limited Partnership, Location, http://www.pebblepartnership.com/location.html (last visited Apr. 13, 2014).

The Pebble Limited Partnership: People, http://www.pebblepartnership.com/people.html (last visited Apr. 13, 2014).

The Pebble Mine Report: Bristol Bay’s Wild Salmon Ecosystems and the Pebble Mine: Key Considerations for a Large-Scale Mine Proposal, Wild Salmon Center, http://www.wildsalmoncenter.org/programs/north_america/pebblemine.php (last visited Apr. 13, 2014).

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