#Animas River: Congress wades into Colorado #GoldKingMine spill

A “get well soon” balloon floats in the contaminated waters of the Animas River flowing through Durango on Monday afternoon August 10, 2015 -- photo The Durango Herald, Shane Benjamin
A “get well soon” balloon floats in the contaminated waters of the Animas River flowing through Durango on Monday afternoon August 10, 2015 — photo The Durango Herald, Shane Benjamin

From the Associated Press via the Fort Collins Coloradoan:

Leading House and Senate Republicans said EPA officials were frustrating their attempts to investigate the spill.

They want documents released explaining how a government cleanup team doing excavation work triggered the release of 3 million gallons of rust-colored sludge from the inactive Gold King Mine near Silverton, Colorado.

U.S. Rep. Lamar Smith of Texas suggested the hearings offer the agency a chance to dispel growing suspicions over its actions.

Meanwhile, some Democrats are pursuing a proposal for companies to pay for the cleanup of thousands of abandoned mines across the U.S.

From The Grand Junction Daily Sentinel (Charles Ashby):

Though he meant no pun, Gov. John Hickenlooper said there may be a silver lining to the recent spill of heavy metals from an abandoned Silverton mine into the Animas River earlier this month.

The incident has sparked a serious debate about the numerous hazardous mines left unremediated by private mining companies throughout the West, the governor said at a Club 20 roundtable discussion in Grand Junction on Thursday that touched on topics important to the Western Slope, from the sage grouse to severance taxes.

Hickenlooper said he’s spoken several times about the spill and mine issues in general with Gina McCarthy, the head of the U.S. Environmental Protection Agency, which is responsible for overseeing cleanup of all the abandoned mines.

“However much you hate the EPA, she’s the one who overruled her people and said, ‘We’re going to take responsibility and own up,’ ” Hickenlooper said. “Can you imagine what her lawyers said? She has been very clear, and never backed away, saying, ‘We’re going to do everything we can to make every raft operator, every fishing guide, we’re going to make everyone whole.”

The governor said as a result of the spill, the EPA is now talking about creating a broader water-treatment plan to protect the entire region from possible future environmental disasters, saying the Gold King Mine that led to the current situation is minor by comparison to what environmental damage other mines in the area could leave in their wake.

“If we end up getting a treatment plant out of this, which would be multi-millions of dollars, it might be a pretty good silver lining,” he said. “Getting water treatment there would be a big step in solving this. The Animas River after this disaster is going to come out better than it was before.

From the Associated Press via The Pueblo Chieftain:

Navajo Nation President Russell Begaye is asking the Federal Emergency Management Agency for help in the tribe’s recovery from a mine spill.

In a letter Tuesday, Begaye asks FEMA to appoint a recovery coordinator to the tribe, saying the agency is best positioned to assess the short- and long-term impacts, determine priorities and support recovery.

Click here for press releases and updates for Gold King Mine Response from the EPA

El Niño expected to be strong

From the Glenwood Springs Post Independent (Scott Condon):

Joe Ramey, a meteorologist with the National Weather Service in Grand Junction, said some of the hype makes him cringe. An El Niño pattern — caused by warmer than average water temperatures in the Pacific Ocean — will definitely affect the weather in western Colorado this winter, but it’s still impossible to forecast with certainty what it will mean for specific locations in the mountains, he said. He has examined the 23 El Niño winters since 1950 to see how they affected Aspen, Steamboat Springs, Crested Butte, Telluride, Silverton and other Colorado ski resorts.

What he found for Aspen was “early snow, late snow but not in the heart of winter.”

Conditions have tended to be drier and warmer than average during December, January and February.

“What El Niño tends to do is produce snow outside of that window,” he said…

One factor that could make its mark on this winter is the El Niño is forecast to be strong to very strong. Ramey took a look at Aspen weather over the last two very strong El Niños — in 1982-83 and 1997-98 — to see what they produced. The 1982-83 winter was the sixth snowiest on record, based on data collected at the Aspen Water Plant, he said. Weather data has been collected there since 1979.

The snowfall was even more prodigious on the slopes. Old-timers say it was one of the best winters ever.

Snowfall was also above average for Aspen in 1997-98, Ramey said, with a particularly wet February, March and April.

However, Aspen’s snowiest winters since 1979 didn’t come during the strong El Niño years. The most snow fall October through May came in 1993-94 and 2006-07…

“It’s not easy to encapsulate what El Niño means,” he said.

From The Denver Post (Bruce Finley):

Forecasters have nicknamed the current El Niño “Bruce Lee” and say it is already the second-strongest on record for this time of year. The Weather Service says it could be the biggest they’ve seen in 50 years.

The World Meteorological Organization says it appears Bruce Lee will strengthen before the year ends. And according to the Weather Service’s climate prediction center, temperature and precipitation impacts could last into 2016.

“There is a greater than 90 percent chance that El Niño will continue through Northern Hemisphere winter 2015-16,” the prediction center said in an El Niño advisory. “And around an 85 percent chance it will last into early spring 2016.”[…]

“The biggest correlation we see is many of our bigger storms and stronger storms have occurred in El Niño years,” Meier said. “As far as above-normal precipitation and below-normal precipitation (in Colorado), we haven’t seen any correlation.”

Cucharas Dam: Two Rivers Water & Farming Company fails to meet deadline from the State Engineer

Cucharas Dam via The Pueblo Chieftain
Cucharas Dam via The Pueblo Chieftain

From The Pueblo Chieftain (Chris Woodka):

A legal battle has sprung up over the status of the Cucharas Dam, located on the Cucharas River in Huerfano County south of Pueblo.

The state wants the dam taken out, while the owner wants more time to fix it.
State Engineer Dick Wolfe issued an order to Two Rivers Water & Farming Co. to breach the dam in February, giving the company until the end of June to show 30 percent design work toward removal of the dam.

In a July 27 letter, Wolfe informed Two Rivers that he would file a civil action in Huerfano County District Court seeking $500 per day penalties since June 30 until an acceptable plan to breach the dam is filed.

Two Rivers responded on Aug. 7 with a complaint against Wolfe, Division Engineer Steve Witte and the Welton Land and Water Co. arguing that the Huerfano-Cucharas river system has not been properly administered.

Engineering reports submitted to Division 2 water court attempt to prove that the Welton Ditch on the Huerfano River east of Pueblo has expanded its use and is using water inefficiently. The state will ask for dismissal of those claims.

Two Rivers CEO John McKowen declined to be interviewed for this story.

Two Rivers, a company formed by Denver businessman McKowen, purchased the dam site, along with the rest of the Huerfano-Cucharas Ditch system southeast of Pueblo in 2010. Since then, the company has branched out into farming on the Bessemer Ditch and building greenhouses for marijuana growers through its subsidiary GrowCo.

The company also toyed with projects to supply El Paso County cities with water and to build a reservoir on the Excelsior Ditch east of Pueblo. Those have been abandoned. Two Rivers also got in a tussle with the Lower Arkansas Valley Water Conservancy District over the terms of a conservation easement on one of its Bessemer Ditch properties.

But its first project was taking over the Cucharas Reservoir, which has been under state storage restrictions since 1987, when water began leaking. McKowen at the time said he planned to bring the Huerfano-Cucharas Ditch system back into production and, in fact, harvested several crops.

Two Rivers subsequently purchased other reservoirs and ditches in Huerfano County. McKowen received, then gave back, a $10 million loan from the Colorado Water Conservation Board to renovate Cucharas Dam and eventually build a new dam just downstream.

The Colorado Division of Water Resources agreed to a compliance plan in August 2013, but in February issued a breach order, meaning the dam would have to be removed.

“I think the complaint is trying to slow down the breach order,” Witte said.

“Over the years, Two Rivers has done some work on the dam, but never enough to remove the storage restrictions. . . .

The time for talking about plans is over and it’s time to act on those plans, because it’s unsafe.”

A new EPA rule to regulate US waterways has provoked a pile of lawsuits — The High Country News

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From the High Country News (Jodi Peterson):

The legal pushback is hardly surprising. The attempt to better define the scope of federal control over wetlands, streams and ponds has long been controversial – “It’s been litigated all the way to the Supreme Court three times already,” says Holly Doremus, a professor of environmental regulation at UC Berkeley, “and it might well go to the Supreme Court again.”

On August 28, Judge Ralph Erickson of the District Court for the District of North Dakota placed a preliminary injunction on the rule, stating that the Environmental Protection Agency had probably exceeded its authority in expanding the definition of waters subject to the Clean Water Act, and that the agency didn’t appear to have followed certain procedural requirements in promulgating the rule. While several other district courts had considered similar lawsuits, North Dakota was the only one to actually grant an injunction. The state is viewed as a “friendly jurisdiction for opponents of federal regulations, including the oil and gas industry,” says Doremus.

The rule, the 13 states argue, will “irreparably diminish” their control over their waters. But the increase in federal scope isn’t much – the EPA describes the rule as a “clarification” rather than an expansion of which small waterways fall under its jurisdiction. Statistically speaking, according to Judge Erickson, only between 2.8 and 4.6 percent more of the country’s intrastate waters would come under federal control than currently do.

Regardless of the legislative limbo, the EPA and the Army Corps of Engineers plan to forge ahead. The agencies say the “waters of the United States” rule, which has been in the works for years, now applies in every state except the 13 (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, North Dakota, South Dakota, Wyoming and New Mexico).

The North Dakota case is just one of at least 10 lawsuits seeking to block the new rule. Those suits involve parties from 29 states, the energy industry, agricultural interests and developers, and have been filed in various federal district courts and appeals courts. (Another lawsuit, from an environmental group, argues that the rule is too weak.) The EPA is trying to consolidate cases and get them transferred to the district court in Washington, D.C. “They don’t want to have to litigate in multiple forums on the same issues,” Doremus says, and because the D.C. circuit court is more familiar with administrative law issues and the extent of agency authority, it’s more likely to decide in favor of the EPA. On October 1, a judicial panel will consider whether to consolidate the multi-jurisdictional cases at a New York City hearing.

Although the challenges to the Clean Water Act have typically been framed as a “federal control vs. state control” issue, it’s important to note that seven states (Connecticut, Hawaii, Massachusetts, New York, Oregon, Vermont and Washington) plus the District of Columbia, favor the EPA’s new rule. They plan to intervene in support of it in appeals cases. That split in state support was not lost on Judge Erickson, who today denied a request from the 13 litigating states to extend the injunction nationally, citing the fact that other states do support the rule.

Larimer County commissioners to Corps: We back NISP — BizWest

Map of the Northern Integrated Supply Project via Northern Water
Map of the Northern Integrated Supply Project via Northern Water

From BizWest (Dallas Heltzell):

Larimer County commissioners on Tuesday voted to forward a citizens’ advisory board’s list of critical comments about a controversial water-storage proposal to the U.S. Army Corps of Engineers — but added their own letter supporting the project.

The commission had asked the all-volunteer Environmental and Science Advisory Board to review a Supplemental Draft Environmental Impact Statement on the proposed Northern Integrated Supply Project, which the Corps released in June. The ESAB report, dated Aug. 18, blasted what it called the SDEIS’ lack of detail on key issues and included a long list of concerns about NISP’s effect on such things as flows, fish habitat and water quality in the Cache la Poudre River as well as plans to mitigate the problems.

The county commissioners voted 3-0 to send the ESAB report to the Corps — accompanied by a letter from the commissioners saying that Larimer County is not opposed to NISP and believes the ESAB concerns can be addressed sufficiently. The commissioners’ letter lays out why it believes NISP to be very important to the future of Northern Colorado.

Fort Collins’ city staff also was critical of the impact statement for leaving key questions unanswered, and recommended last week that the Fort Collins City Council vote to express conditional opposition to NISP. The city council will consider that recommendation at Tuesday night’s regular session, which will be broadcast on cable Channel 14.

The Northern Colorado Water Conservancy District would build NISP if it receives a federal permit.

From email from the Northern Colorado Water Conservancy District (Brian Werner):

Earlier this week, Larimer County commissioners submitted a letter supporting NISP to the U.S. Army Corps of Engineers. It is the third county board to endorse NISP, following earlier endorsements from Morgan and Weld County commissioners.

All three commissioners have voiced their support of the project to build Glade and Galeton reservoirs. Utilizing these reservoirs, the project will provide water entities with approximately 40,000 acre-feet of new, reliable water supply each year.

NISP has the support from every newspaper representing project partners including: BizWest, Longmont Times-Call, Fort Morgan Times, Greeley Tribune, Carbon Valley Independent, Erie Review, Lafayette News, Lost Creek Guide, Louisville Times, Loveland Reporter Herald and the Coloradoan. This link contains the complete list of NISP supporters/endorsers.

Reasons for support are broad, but there is a shared view that NISP needs to be built has soon as possible to capture and store water in wet years for the needs of current and future generations in all years.

During the July 2 NISP rally, State Sen. Jerry Sonnenberg summarized what NISP will achieve for the 15 northern Front Range water providers. Sonnenberg said, “There’s been a lot of talk about using rain barrels this year. Well, we’ve got to find a way to keep Colorado’s water in Colorado. We have the ultimate rain barrel, ready to be filled, right up the road here.”

Another common theme among NISP supporters is that water conservation alone cannot meet the water needs of Northern Colorado. Several regional newspapers have made this point including the Ft. Collins Coloradoan, Loveland Reporter-Herald and Longmont Times-Call.

The Coloradoan editorial board editorial “NISP Needed to Solve Region’s Water Problem” pointed out: “The future of water in Northern Colorado – and our state as a whole – is now.” It also stated, “Our state – and Northern Colorado – faces a water shortage as the population grows. The Northern Integrated Water Supply project, in tandem with other efforts, is key to solving that problem.”

The Loveland Reporter-Herald/Longmont Times-Call editorial was entitled “Water Conservation Needed, and so is NISP.”

The U.S. Army Corps of Engineers extended the public comment period an additional 30 days.The comment period ended Thursday, September 3.

From the Fort Collins Coloradoan (Jacy Marmaduke):

The end of the public comment period signals an important step in a lengthy review process of a project that would transform the future of water use for Northern Colorado. Northern Water began petitioning more than a decade ago for the project, which would draw from the Poudre and South Platte rivers to supply 40,000 acre feet of water a year to 15 participating communities and water districts.

So, what’s next?

The Corps will review the comments and prepare a Final Environmental Impact Statement by next summer. At this point, no public comment period is planned for the final statement, project manager John Urbanic said Thursday.

After the final EIS, the Corps has to issue a record of decision – a final decision on whether it will grant Northern Water the federal permit necessary to carry out the project. That decision can be challenged in court.

The Corps’ final EIS will include additional analysis of how the project would influence water quality in the Poudre River. NISP opponents argue the Corps’ omission of that analysis in past environmental impact statements constitutes a violation of federal law, which requires the Corps to thoroughly analyze all potential environmental impacts of a proposed project.

Urbanic said the Corps may allow for public comments on the water quality data even if there’s no official public comment period for the final EIS…

Northern Water spokesman Brian Werner said he’s as excited to see the SDEIS comments as anyone else – but he’s not expecting any big surprises.

“I don’t think we’re gonna see a lot we haven’t already heard,” he said.

Northern Water is continuing to work on its plan to mitigate the project’s environmental impacts and developing another mitigation plan in communion with the Colorado parks and wildlife department.

Werner said he’s confident the Corps’ next report will unearth “good information” about NISP’s potential influence on Colorado’s environment.

“It’s not going to erase all questions and doubts, but it’ll do a great deal,” he said. “There’s nothing like good quality data to back up what you’re saying.”