The Uncompahgre Watershed Partnership, a grassroots coalition of citizens, nonprofits, local and regional governments, and federal and state agencies dedicated to understanding the Uncompahgre Watershed, would like to do something about this caustic problem child. Red Mountain Creek is, after all, a tributary of the Uncompahgre River, and one of the main reasons why the southernmost portion of the river is deemed “impaired” – or, as some would say, dead, because it cannot support aquatic life.
The coalition has recently identified its top priority as improving water quality so as to remove impaired segments of the Uncompahgre River from the State of Colorado’s list of impaired streams.
Thus, Przeszlowska is watching with interest current efforts headed up by U.S. Senator Mark Udall (D-Colo.) to find a way to allow so-called Good Samaritans (ranging from individuals to citizen groups like UWP to governmental and nongovernmental agencies) to take on projects to improve water quality in areas where there are abandoned mines, without fear of incurring liability under the Clean Water Act.
Reclamation experts have found plenty of ways to shore up leaky old mines and reduce acid mine drainage flowing into impaired watersheds. These range from simple fixes, like reducing the amount of water entering into the mine by building plugs or diverting the water around old workings, to treating drainage with settling ponds, wetlands, limestone drains, or some other form of passive or active treatment.
But certain provisions in the federal Clean Water Act create major stumbling blocks to such efforts. The Clean Water Act likes big, perfect fixes – like permanent water treatment pants that cost millions to build and millions more annually to operate, and which convert toxic water into potable stuff that fish can cruise around in.
So-called Good Samaritans have had to walk away from more modest mine cleanup projects for fear that if they don’t bring the discharge water all the way up to CWA standards, they may be sued by a third-party citizen or even another environmental group.
Pat Willits, the executive director of the Ridgway-based Trust for Land Restoration, which helps communities deal with a myriad of issues related to abandoned mining, explains the liability problem like this: “Good Samaritans are spooked by the ‘citizen suit’ provision of the Clean Water Act, which says that if someone suspects a violation of the Clean Water Act, a citizen may begin a legal action and if successful, the defending party will have to pay all of the legal expenses of the citizen’s group. If they are unsuccessful, the defendant does not have recourse to countersue.”[…]
Two decades’ worth of efforts to shield would-be Good Samaritans legislatively by creating a new provision in the Clean Water Act (including, most recently, U.S. Senator Mark Udall’s Good Samaritan Cleanup of Abandoned Hardrock Mines Act of 2009), have floundered in Congress, due to fears from environmentalists about opening up the Clean Water Act, even for such benign and altruistic purposes as protecting Good Samaritans…
Fed up with past efforts, Udall is now taking a new approach. He believes that updating, or even simply clarifying, Environmental Protection Agency policy may accomplish pretty much the same thing as legislation in terms of affording legal protection to Good Samaritans.
The agency already has some existing guidance that encourages potential Good Samaritans to enter into voluntary agreements with EPA or federal land management agencies that helps to facilitate certain kinds of Good Samaritan cleanups.
As they stand, these protections are considered good enough protection for Good Samaritans to undertake reclamation projects that do not include direct attempts to improve water quality beyond, for example, rerouting a stream so it does not flow through a mining waste dump, or preventing water from flowing into old mine workings.