Asarco wants the Union Pacific Railroad Co. to pay for part of the cleanup of a Superfund site where arsenic leached into Denver groundwater from rail tracks.
A lawsuit before the 10th U.S. Circuit Court of Appeals says Union Pacific should reimburse Asarco for some of the $1.5 million environmental cleanup of 4 square miles near Vasquez Boulevard and Interstate 70 known as the Vasquez site, where gold, zinc, lead and other metals were smelted.
Asarco, a Phoenix-based mining and refinery company, has paid a total of $1.8 billion at 20 Superfund sites around the country, including the much larger Globeville site in north Denver.
In its lawsuit, Asarco claims that Union Pacific used mine tailings in rail beds traversing the Vasquez site. The tailings used to support the rail lines leached into surface and groundwater, resulting in elevated levels of arsenic and lead, the lawsuit says.
But Union Pacific met all of its financial obligations related to the Vasquez site in a court-approved June 2009 settlement between the railroad, the government and Asarco, said attorney Carolyn McIntosh, who represents the railroad.
“It was a full resolution,” McIntosh told a panel of three circuit court judges in Denver on Wednesday morning.
Pepsi-Cola Metropolitan Bottling Co., a New Jersey company that owns some of the property on the Vasquez site, also is named as a defendant in the lawsuit, which was filed in December 2012.
Asarco attorney Gregory Evans said the Vasquez site is just one of many around the country that Union Pacific polluted. He estimated that cleanup costs for all the sites would be in the hundreds of millions of dollars. “Union Pacific has negatively impacted human health and the environment through its use and abandonment of mining waste along (railroad tracks),” Evans said Wednesday.
Federal District Magistrate Judge Michael Watanabe previously has ruled that Asarco failed to file its lawsuit within the statute of limitations.
Asarco attorney Duncan Getchell said Watanabe erred because the effective date of the settlement involving Union Pacific and Pepsi-Cola is Dec. 9, 2012, when Asarco’s bankruptcy was finalized.
The Colorado River met the sea Thursday for the first time in at least 16 years. But it was just as much a case of the Gulf of California flowing upstream to meet the river as it was of the river reaching the gulf. High tides from the gulf traveled 16 miles upstream of the river’s mouth to meet the river’s artificially induced “pulse flow” at around 3 to 3:15 p.m. Thursday, said Francisco Zamora, Colorado River Delta program director for the Sonoran Institute. Zamora said he witnessed and photographed the event from a small aircraft, about 1,200 to 1,500 feet up. The jet was piloted by LightHawk Inc., an environmentally oriented flying service…
Here are some questions and answers on Thursday’s event. They were put to Zamora; Karl Flessa, a University of Arizona geosciences professor and co-director of the Delta environmental monitoring effort; and Jennifer Pitt, director of the Environmental Defense Fund’s Colorado River Project. Also interviewed was Karen Schlatter, project manager for the institute’s delta program.
Q. Why does this event matter?
Flessa: It may turn out that the volumes that reached the sea are so small that they will have limited ecological benefits. The symbolic value is great — as a reward for everybody’s efforts, and as a reminder that a river reaching the sea is a newsworthy event these days.
Zamora: The difference is that you have fresh water there. The water from the pulse flow will be mixing with seawater brought by the tides. The tides come with marine life, plankton. They can bring larvae of shrimp, even fish.
The tides bring sediments, also. You will have to do some on-the-ground work and remove some of the sediments in the river so the tides can meet the river more often and so the river can travel more downstream.
Q. What about the groundwater levels near the river and the cottonwood and willow seedlings planted in restoration areas?
Flessa: We know that the pulse flow has raised the water table. We know that it reached the prime restoration areas. We know that native vegetation has germinated in those areas (and elsewhere). We know that we have and will have learned a lot. Remember, it’s an experiment: about how we can use water efficiently for Colorado Delta restoration.
Zamora: At our Laguna Grande restoration site, 40 to 50 miles downstream of the dam, we have seen the germination of cottonwoods and willows. They may be an inch, an inch and a half or a couple inches in height. We have got 350 acres that are benefiting from the combination of pulse flow and on-the-ground restoration efforts.
Q. How are the trees doing compared with what you expected? Are they OK with the pulse flow now receding?
Zamora: Three weeks ago, our soil moisture sensor data showed there was more inundation of the soil than we had expected.
Schlatter: With cottonwood and willow seedlings, as the water recedes, the root of that plant can grow fast enough. … We’ve had a slow enough recession of the pulse flow that the seedlings will survive until we can deliver more water to them.
I was just at the site (Thursday), and I did see some plants that look like they’ve grown since the last time I’ve seen them three weeks ago. And there’s more. The water levels are now going down in the river, but the germination is happening. We have a bunch of volunteers coming out (today) to plant 5,000 more trees.
Q. How will these seedlings make it through the summer?
Zamora: We have water rights to lesser, base flows in the river that will start delivery next week to the delta. The base flow has two components. The water has to irrigate trees we plant, and the water is sent to meander on the river to enhance them.
Schlatter: In just one summer, both cottonwoods and willows can grow up to a meter. In two years, they can grow up to 2 to 3 meters (or a little over 6 to 9 feet). In other restoration sites we have on the delta, we sprayed a mix of seed and water onto 5 acres of prepared land two years ago and 3 acres this year. The ones we did two years ago are 5 meters tall now.
Q. Jennifer, your group struggled for years to get this done. How do you feel?
Pitt: Well, right now there’s no water flowing below Morelos Dam. It’s not like you can say the river is continuously flowing to the gulf. But to the extent that people have had an interest in it, it’s something that feels inherently right about a river reaching the sea.
I can’t tell you if there’s great ecological value represented in this. I don’t expect this is going to have a substantive impact on commercial fisheries or estuary habitat. It’s significant in the cultural understanding of the river reaching its destination. We’ve been missing that connection for a long time.
The question was when. The pulse would last for less than two months, peaking in late March and gradually ramping down until May 18. But timing a trip to the delta was like playing a game of chicken with the water table. Go too soon when the pulse was highest, you’d risk out-paddling the water as it sank into parched ground. But go too late, after the groundwater had a chance to recharge, and you’d risk not having enough release to ride on.
In the end, it was never possible to ride the pulse in one fell swoop. When I arrived on May 8 the upper section was already dry. The ground proved too thirsty for even the 130 million cubic meters (105,000 acre-feet) of released water, and those directing the pulse decided to bypass the worst “hole” in the water table by diverting water roughly 60 miles down the canal system and releasing it into the lower stretch of river.
So our group of five paddlers, brought together for this trip by Canoe & Kayak magazine, launched our boats at Vado de Carranza, a road crossing some 40 miles above the tidal channel where the old Colorado River channel meets the sea.
More Minute 319 coverage here. More Colorado River Basin coverage here.
Drought has been on the tongues of many water managers for the last few years, but 2014 brought some relief, at least to Grand County.
That relief comes from a high snowpack, which last month was 44 percent above average according to information from the National Resource Conservation Office in Kremmling. According to officials who spoke at the Grand County State of the River meeting on Tuesday, May 13, that means Middle Park residents should expect to see reservoirs easily fill to capacity. It’s also likely less water will need to be piped to the Front Range. Farther downstream, however, drought still plagues the West.
“If it’s north of Glenwood Springs and east, it’s going to fill and spill. If it’s south and west, it’s not,” said Eric Kuhn, general manager of the Colorado River District, at the meeting.
According to Don Meyer, operator of Wolford Mountain Reservoir for the Colorado River District, that doesn’t mean locals should worry about flooding.
“We’re not going to see a 2011 year in terms of runoff and flooding,” he said. “Instead, 1997 is more a comparable year to this year in terms of snow.”
The 2010 and 2011 winter season brought epic conditions for skiers and snowboarders, but its high snowpack also brought a lot of flooding fears. As the snow melted, the Colorado River near Kremmling ran several times above 9,000 cubic feet per second, Meyer said. The 1997 season, however, only peaked at around 8,000 cfs once during the runoff period…
With the Colorado-Big Thompson Project, Andrew Gilmore with the Bureau of Reclamation also expects plenty of runoff. His agency manages Lake Granby and Shadow Mountain Reservoir, pumping Colorado River water through Grand Lake to the Front Range.
“We’re above average, but it’s nothing like 2011,” he said. “Cold weather will likely slow the runoff down.”
Still, Gilmore noted recent snowstorms have likely built up the snowpack even more. While he expects Lake Granby to fill without spilling, he said a spill isn’t out of the question.
Jeff Drager with Northern Colorado Water Conservancy District, which jointly operates the C-BT with the Bureau of Reclamation, agreed that it’s too early to predict how runoff will influence Lake Granby.
“It’s a flip of a coin whether going to spill or not,” Drager said.
Gilmore also noted the need for water managers to address runoff issues in a warming global climate.
“Spring runoff is happening earlier in Colorado,” he said. “It’s one of the changes to our global climate season.”
Denver Water is predicting plenty of runoff on the East Slope as well. According to Bob Steger, a manager with Denver Water, they’ll be trying to fill Gross Reservoir with water from South Boulder Creek. That could mean supplements from the Moffat Collection System, which pipes water east from the Fraser River, will be minimal. About a fourth of Denver’s water comes from the Moffat Collection System in typical years.
“We don’t know how much of the South Boulder Creek Water we’re going to get to store, but we’re optimistic we’ll be able to store a lot of it, because there is a lot of snow on the east side of the Divide,” he said.
Denver Water will also be trying to store water from peak flows in Williams Fork Reservoir, which is used to supplement downstream water rights calls.
Those downstream needs are likely to be significant, as drought still plagues much of the southwest. California is facing its worse drought on record, causing its governor to declare a state of emergency this winter. The Colorado River, which feeds six other states besides Colorado as well as Mexico, is becoming a symbol of dwindling water in the West. Water levels on the river’s two largest reservoirs, Lake Powell and Lake Mead, have dropped drastically to historic lows, threatening water and electricity supplies for millions. Even as Colorado breathes a sigh of relief with its plentiful snow, Kuhn with the Colorado River District stressed the need for continued conservation.
From the Cortez Journal (Jim Mimiaga) via The Dolores Star:
The problem is a looming concern for reservoirs in the Colorado River basin upstream from Lake Powell. Those reservoir managers face the possibility of having to deliver water downstream to boost levels and avert a shutdown of the plant. Local reservoirs, including McPhee, Lake Nighthorse, Navajo, and Blue Mesa, could potentially be tapped for additional water under the “call” system if conditions don’t improve in the next one to two years, water officials report. Now is the time to have the discussion of how to deal with the situation unfolding at Lake Powell, said Mike Preston, general manager for the Dolores Water Conservancy District, which operates McPhee Reservoir at Dolores.
“If Powell becomes too low to operate, it would trigger a crisis, so we need to decide early on how we would deal with that,” Preston said during a meeting about reservoir operations in Dolores last week.
According to a February memorandum from the Colorado Water Conservation Board, Lake Powell (of the Upper Colorado Basin) and Lake Mead (of the Lower Colorado Basin) could soon become too low to operate their hydropower plants if conditions don’t improve…
According to the simulation, as early as 2015, Lake Powell could drop to, or below, the minimum power-pool level required to operate the hydroelectric generators. If the pattern materializes, the level would stay below the power pool for years and by 2020 still not have recovered to power-producing levels.
Allowing Lake Powell to fall below the minimum power pool has numerous dire consequences, according to the CWCB memo:
It would result in dramatically higher electric costs for cities, towns and farms throughout much of Colorado, increasing rates two to four times. The Dolores Project relies on power generated from Glen Canyon sold at a discounted rate.
Funding for irrigation projects derived from power-plant revenues would dry up.
Reduced capacity to make releases from Glen Canyon Dam threatens compliance with Colorado River Compact obligations. The result could be litigation and curtailment of water use within the Upper Basin states, which includes Colorado.
“In light of these real and immediate threats, the governor’s Colorado River representative directed a group of Colorado water advisers to engage six Colorado River Basin states in confidential brainstorming and system modeling for the purpose of developing an emergency response plan,” the memo states.
Solutions to prevent a shutdown of power plants at Lake Mead and Lake Powell may involve delivering more water downstream, the memo states. That could impact storage yields from upstream reservoirs on the Green, Gunnison, San Juan, Animas and Dolores Rivers, among others. Implementing demand-management programs to bolster Lake Powell could also involve voluntary lease-fallowing or deficit irrigation.
“The water-management world cannot be in denial about drought, and we have to be mindful and adaptable,” Preston said. “There is already talk about making contributions to bring Powell up. It could be sooner rather than later where we are forced to confront demands larger than our basin.”
The frustration surrounding Lake Nighthorse found a fresh voice Thursday as Sens. Mark Udall and Michael Bennet wrote to the U.S. Bureau of Reclamation asking the agency to issue a plan for opening the reservoir for recreation soon. The letter says recreation on Lake Nighthorse could bring in up to $12 million each year to the local economy.
“The completed Lake Nighthorse reservoir is conveniently located two miles from downtown Durango and presents a significant opportunity for a new public amenity,” the two Democrats wrote.
The reservoir was filled in June 2011, but the parties involved, after years of talks, have yet to agree on major issues. However, bureau spokeswoman Justyn Hock said they seem to be close to finalizing the agreements. The agency plans a public meeting in June to update residents on negotiations.
“We feel like the end is in sight,” Hock said. “We’re getting really close to having an agreement in place.”
Lake Nighthorse is a reservoir with 1,500 surface acres created in Ridges Basin southwest of Durango by the U.S. Bureau of Reclamation to provide water for Native American tribes, cities and water districts in Colorado and New Mexico. Southwestern Water Conservation District owns the water rights. The water is allocated, but not owned, through project contracts to the Southern Ute Indian Tribe, the Ute Mountain Ute Tribe, the Navajo Nation, the Animas-La Plata Conservancy District, the state of Colorado, the San Juan Water Commission and the La Plata Conservancy District. The entities formed the Animas-La Plata Operation, Maintenance and Replacement Association in 2009, which fronted money in anticipation of water purchases by the city of Durango and the Animas-La Plata Water Conservancy.
Calls to several Animas-La Plata Operation, Maintenance and Replacement Association stakeholders were not returned.
There are three agreements under negotiation: an annexation agreement, a lease agreement and memorandum of understanding.
The city of Durango has offered to operate the park but wants to annex the area to provide police protection. The Utes have said annexation is unacceptable. There’s been conflict about who should run the park and be involved in making decisions. The Utes also have said they must be able to exercise Brunot Treaty rights to hunt on ancestral land.
In a statement, the Southern Utes said important issues need to be addressed, including tribal treaty rights, protection of historic cultural resources, and operation of the project for the specific purposes for which it was built.
“We’re working with the tribes in particular to make sure that we’re protecting their cultural resources,” Hock said…
“While use of the lake for recreational purposes was contemplated during the reservoir planning process, it is not a specific project purpose,” said a Southern Ute Tribal Council statement from last year.
Irrigation was cut because of environmental problems. Southwestern Water Conservation District was awarded the water rights to the A-LP project in a 1966 State District Water Court decree that allowed irrigation and recreation as water uses.
“Unfortunately, the need to comply with applicable laws is not always well understood by those unfamiliar with these laws,” the Tribal Council statement said.
The reservoir was filled in June 2011 but stayed closed while those involved bickered and delayed. But Cathy Metz, parks and recreation director, also believes progress is being made. After the lease agreement is signed, an inspection station and decontamination area needs to be built. The Animas-La Plata Operation, Maintenance and Replacement Association received grant funding for the construction. The city also has received some grant funding from the state for some improvements to the park. The earliest it could open would be 2015.
More Animas-La Plata Project coverage here and here.