#AnimasRiver: #Colorado AG Coffman weighing options for lawsuit

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 Denver Post (Jesse Paul):

Colorado’s top prosecutor said Tuesday that litigation in the wake of the Gold King Mine spill is an option she’s hoping to avoid as the state works to negotiate compensation after the August disaster.

But Attorney General Cynthia Coffman explained all options are still on the table as fallout continues to unfold, and that the site’s current and previous owners, as well as the owner of a nearby mine, are all potential defendants if a lawsuit is filed.

“I think we have to look at everyone involved in order to do a good job representing the state of Colorado,” she said in an interview with The Denver Post. “We look to everyone who has a piece of the puzzle and was part of the story.”

Coffman has been weighing legal action against the Environmental Protection Agency since its contractors triggered the 3 million-gallon disaster, but now appears to be taking a broader assessment of those with links to the incident.

A team of 10 attorneys in her office has been looking into the possibility of filing a lawsuit and working on possible defenses to threats of legal action against the state…

“I would say we are still in the initial phases of the process,” she said of investigating whether to take any legal action. “For the first few months, this was really the governor’s project and responsibility… We were in a holding pattern in terms of litigation.”


The attorney general’s office is reviewing the history of the Gold King and the nearby American Tunnel and Sunnyside Mine — both owned by the Canada-based conglomerate Kinross — as part of their process.

Coffman said engineered plugs in the American Tunnel, installed to limit heavy metal drainage, likely were a factor in the Gold King’s contaminated water buildup and eventual release.

Kinross said it has no role or responsibility in the spill despite claims from the Gold King’s owner, Todd Hennis, who has implicated them in the disaster.

“We will vigorously defend ourselves from any potential legal action,” said Louie Diaz, a Kinross spokesman.

Hennis bought the Gold King in 2005 after it went into foreclosure and then allowed the EPA to work on remediating the site. Agency contractors were excavating the mine’s collapsed opening when they accidentally triggered the disaster.

Hennis declined to comment on any potential legal proceedings.

Coffman said her staff has been in close contact with Gov. John Hickenlooper’s office over any Gold King legal action and that their interactions have been productive.

Coffman and Hickenlooper battled in the state’s highest court over her decision to join a lawsuit challenging the EPA’s Clean Power Plan, with the attorney general coming out at the victor.

Since then, Coffman said, their relationship has improved, making Gold King work easier.

“The EPA admitted responsibility, agreed to hold themselves to the same high standards they would any private business, and they were going to make good on any damages,” Hickenlooper said Tuesday. “Let’s see how well they live up to that commitment before we jump into litigation.”

Coffman said that while she still thinks the EPA could have been more transparent and accountable after the spill, it has made good strides in its response.

Now, as far is she is concerned, is time to investigate the disaster and weigh the appropriate next steps.

“This is a classic who did it,” she said. “Who is the most responsible and what are they going to pay?”

Gold King Mine circa 1899 via The Silverton Standard
Gold King Mine circa 1899 via The Silverton Standard

#ColoradoRiver: Trout Unlimited praises river protections in 401 permit for Windy Gap project #COriver

Ike enjoying the Fraser River back in the day
Ike enjoying the Fraser River back in the day

Here’s the release from Colorado Trout Unlimited (Randy Schofield):

TU praises river protections in Windy Gap project permit
Says 401 permit conditions put threatened river and fishery on road to

(Denver)-The Colorado Department of Public Health and Environment this week released its final 401 water quality certification for the proposed Windy Gap Firming Project (WGFP), which would divert additional water from the Upper Colorado River to northern Front Range communities. Trout Unlimited praised the 401 permit conditions for reaffirming the health of the Upper Colorado River and its world-class trout fishery.

“We firmly believe these permit conditions establish a strong health insurance policy for the Upper Colorado River,” said Mely Whiting, counsel for Trout Unlimited.

For years, Front Range water diversions have removed about 60 percent of the native flows of the Colorado headwaters, severely impacting fish and other aquatic life that depend on healthy flows to clean cobble and prevent the buildup of habitat-choking algae and sediment. The proposed Windy Gap expansion would further reduce native flows.

TU said the conditions included in the 401 permit for WGFP address critical fish habitat and water quality needs by:

* preventing stream temperature impacts during low flows in the summer.
* providing periodic “flushing flows” to cleanse the river during runoff.
* requiring ongoing monitoring and response if degraded conditions are detected.

The 401 permit conditions largely incorporate the protections included in earlier agreements involving the WGFP sponsor, the Municipal Subdistrict of the Northern Colorado Water Conservancy District (Subdistrict) and its project participants, and other stakeholders, including Grand County, Trout Unlimited, and the Upper Colorado River Alliance.

Under the 401 permit, the Subdistrict is required to monitor specifically for stream temperature, key nutrients, and aquatic life and submit results with an annual report that identifies any evidence of impairment (standards not met). If impairment is identified, the Subdistrict has to investigate to determine whether WGFP is causing or contributing to the impairment. If WGFP is found to play a role, then the Subdistrict is required to come up with a plan to solve the problem, consistent with state water quality laws.

“This long-term monitoring and flexibility of response is called ‘adaptive management’-and it’s a critical feature of the permit requirements,” said Whiting. “Adaptive management recognizes that stakeholders can’t foresee every problem, and it provides a process for ongoing monitoring and mitigation of river problems as they arise.”

TU noted that the permit builds on years of hard work, negotiations and collaboration. “We wouldn’t be at this point without the leadership of Grand County and their persistent efforts to improve the health of the Colorado River,” said Kirk Klancke, president of TU’s Colorado River Headwaters chapter. “And the Northern subdistrict also deserves credit for listening to our concerns and working with all stakeholders to find solutions.”

“This permit is another step toward fulfilling the Windy Gap Firming Project’s potential to be part of a balanced water supply strategy for Colorado’s Front Range,” said Drew Peternell, director of TU’s Colorado Water and Habitat Project. “Through a balanced portfolio-including responsible supply projects like WGFP, along with stronger conservation and reuse programs and ag-urban water-sharing-Colorado can meet its diverse water needs, from municipal needs to recreation, while keeping our rivers healthy.”

Under Section 401 of the federal Clean Water Act, the state of Colorado must provide the U.S. Army Corps of Engineers with a permit certifying that the project will comply with federal water quality standards. The remaining regulatory hurdle for the Windy Gap Firming Project is the final 404 wetlands permit by the Army Corps of Engineers, which the Corps could issue in 2016.

Issuance of all permits for the project will release resources, including money needed for the design and construction of the Windy Gap Reservoir Bypass to create a new river channel and reconnect the river and its fisheries upstream and downstream of the reservoir.

“It’s been a long and arduous process,” said Whiting of the WGFP permitting process, which has taken over 10 years. “It is time to roll up our sleeves and go to work for the river.”

EPA tightens controls for work at West’s blowout-prone old mines — @DenverPost

From The Denver Post (Bruce Finley):

EPA chiefs are ordering extra headquarters reviews of all plans for work at blowout-prone old mines — policy tightening aimed at avoiding a repeat of the Gold King disaster.

And Environmental Protection Agency officials on Thursday declared testing is done for a better early-warning system that would alert communities to surges of toxic mine muck.

Separately, the EPA’s internal inspector concluded an investigation finding deficiencies in securing financial guarantees from companies that hurt the EPA’s ability to complete cleanups…

The boosted review reflects efforts to increase work at hundreds of inactive mines contaminating waterways, work that EPA Administrator Gina McCarthy partially suspended in the aftermath of the Aug. 5 Gold King disaster. An EPA crew botched work at the Gold King Mine above Silverton, trying to drain it but triggering a 3 million-gallon torrent of acidic metals-laced mine water that turned the Animas River mustard-yellow…

An EPA inventory, unveiled Thursday, listed some of the worst potential hazard sites — among an estimated 500,000 inactive mines in the West — including four in Colorado. The inventory lists 20 more sites around Colorado where toxic muck is known to be backed up yet the hazard has not adequately been assessed. It lists another 115 inactive mine sites, including 26 in California and more in Arizona, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington and Wyoming.

The new rules require EPA crews to follow best practices to try to ensure that experts with the right engineering and other skills are involved. EPA crews also must give headquarters supervisors a technical assessment of blowout potential before beginning work, written documentation of talks with state and tribal officials and verification that emergency response plans are in place with satellite phones and other equipment available.

At sites where states or tribes lead cleanup, regional EPA officials must define their support roles and, if landowners deemed responsible are involved, document owner willingness to handle emergency response.

“No impactful delays are expected,” EPA spokeswoman Nancy Grantham said.

The EPA this week completed final drills aimed at improving a system for notifying downstream communities ahead of blowouts via e-mail and phones. Improved early-warning plans were done to address concerns after the Gold King disaster raised by people living along the Animas in Colorado, New Mexico, Utah and tribal nations.

The EPA’s Inspector General probe found environmental and financial risks resulting from a failure to collect accurate and complete data from companies responsible for contamination. The report said “data quality deficiencies and a lack of internal controls prevent the EPA from properly overseeing and managing its financial assurance program” — which is designed to ease the burden on taxpayers in dealing with environmental disasters.

“If the EPA cannot determine if it has secured valid and sufficient financial assurance instruments from those private parties, taxpayers are at risk for paying significant amounts of those parties’ financial obligations,” the report said. “Public health protections may be delayed or deferred,” it said. And while the EPA is aware of the risks “it has not taken meaningful steps to address the problem” or disclosed this vulnerability.

This image was taken during the peak outflow from the Gold King Mine spill at 10:57 a.m. Aug. 5. The waste-rock dump can be seen eroding on the right. Federal investigators placed blame for the blowout squarely on engineering errors made by the Environmental Protection Agency’s-contracted company in a 132-page report released Thursday [October 22, 2015]
This image was taken during the peak outflow from the Gold King Mine spill at 10:57 a.m. Aug. 5. The waste-rock dump can be seen eroding on the right. Federal investigators placed blame for the blowout squarely on engineering errors made by the Environmental Protection Agency’s-contracted company in a 132-page report released Thursday [October 22, 2015]

Gardner Announces USDA Grant for Flood Restoration and Mitigation Projects in Colorado

Here’s the release from US Senator Cory Gardner’s office:

Senator Cory Gardner (R-CO) today announced the United States Department of Agriculture (USDA) Emergency Watershed Protection (EWP) program will make $10,240,800 available to Colorado Springs and Manitou Springs for the purposes of restoration and flood mitigation after severe weather impacted the region last year. Gardner sent a letter on July 10, 2015 to President Obama requesting federal assistance for several counties in Colorado impacted by significant weather events.

“I am pleased the Department of Agriculture has recognized Colorado’s need for federal assistance that will be used to restore the region and make infrastructure improvements to protect local communities from future flooding,” said Gardner. “Colorado Springs and Manitou Springs experienced recent flooding that devastated these localities. The impacts from the Waldo Canyon fire only made the problem worse. Western communities need flexibility to cope with the unique challenges they face, and I am pleased this grant provides local officials the necessary funds to address flooding as they see fit.”

A rock slide just west of Manitou Springs has closed the exit off U.S. 24, Memorial Day morning, May 25, 2015. (Colorado State Patrol via Twitter)
A rock slide just west of Manitou Springs has closed the exit off U.S. 24, Memorial Day morning, May 25, 2015. (Colorado State Patrol via Twitter)

#Snowpack news: #ElNiño still around

Westwide SNOTEL map March 31, 2016 via the NRCS.
Westwide SNOTEL map March 31, 2016 via the NRCS.

From the Sky-Hi Daily News:

The month of March has been the 7th snowiest March in recorded resort history and the snowiest since 114 inches fell in March 2003, according to a news release from the resort. Since Friday March 26, they have picked up 20 inches of snow in the prior three days, 64 inches since March 15, and 83.5 inches (almost seven feet) in the entire month, putting Winter Park at over 300 inches of snow for the season.

From the Mountain Town News (Allen Best):

Winter got off to a good start high in the Rocky Mountains, but mid-winter was sluggish. Ketchum, for example, got just one inch of snow in February.

Meteorologists last autumn had warned to expect just this sort of El Niño pattern. They also said to expect lots of moisture beginning in March and continuing until May.

That’s still the prediction of Aspen-based Ryan Boudreau and his partner, Cory Gates, who own a micro-forecasting service called Aspen Weather. They told The Aspen Times they expect another 125 to 130 inches of snowfall on local ski slopes through the third week of April. The precedent Boudreau recalls is 1983, another El Niño year.

That 1982-83 winter had also started strong, then turned ho-hum after Christmas. As the ski slopes began closing, the storms arrived one after another in Winter Park and other mountain towns. There was so much spring snow that Vail reopened for Memorial Day Weekend in late May.

Then it got hot in June—and the snow vanished. Rivers roared. Downstream in the desert of Utah, managers of Glen Canyon Dam began to worry. Lake Powell, the second largest reservoir in the United States, can hold nearly one and a half times the annual, average flow of the Colorado River.

This was not a normal year, though. Spillways were opened, but the volume was greater than ever experienced. The whole dam began to shake violently. Plywood was installed atop the dam, so that the reservoir could hold more water. It looked to be a lost cause, but then in mid-July the volume of inflow into Lake Powell began to slow. Calamity was averted—but narrowly.

A relatively new and highly-regarded book called “The Emerald Mile” tells the story of that calamitous summer and a thrilling [boat] ride on the crest of those flood waters through the Grand Canyon.

Can we expect that again? Not likely, as Lake Powell was only 46 percent full as of early March, so there’s lots of room.

1983 - Color photo of Glen Canyon Dam spillway failure from cavitation, via OnTheColorado.com
1983 – Color photo of Glen Canyon Dam spillway failure from cavitation, via OnTheColorado.com

2016 #coleg: HB16-1005 (Rain barrels) passes initial Sen. vote

Photo from the Colorado Independent.
Photo from the Colorado Independent.

From The Grand Junction Daily Sentinel (Charles Ashby):

Though many homeowners already do it, Colorado residents soon could be able to use rain barrels — legally — to collect water from their rooftops under a bill that won preliminary approval in the Colorado Senate on Thursday…

Sen. Michael Merrifield, D-Manitou Springs, who sponsored the bill in the Senate, said the measure has been altered to address as many concerns as possible to comply with Colorado’s complicated water laws, including making it clear that the use of rain barrels does not constitute a water right.

Merrifield said a chief benefit of the bill is it will help educate Colorado residents about the importance of water, and how it is the life-blood of the state.

“It allows urban residents to connect themselves to the water system of our state,” he said. “We are not blessed with a huge amount of water. The more our urban residents understand the system, the better for all users.”

Under the bill, rain collection is limited to above-ground barrels and only for rooftops of single-family homes. It also bars homeowners’ associations from banning such barrels, although they are allowed to make rules governing the appearance of the barrels that are used.

While no one spoke out against the bill when it won a voice vote on the floor of the Senate, Sen. Jerry Sonnenberg, R-Sterling, expressed his opposition to the measure when it cleared the Senate Agriculture, Natural Resources & Energy Committee on Wednesday.

“My concern here is that if indeed we have rain barrels that may cause depletions out of order of priority storage … the next person in line would be the one curtailed,” Sonnenberg said. “That’s a concern for me, given that agriculture has 85 percent of the water.”

To help address that issue, the bill was amended to require the State Engineer’s Office to report to the Legislature by 2019 whether there is any evidence that the use of rain barrels has caused injury to downstream users.

Also opposing the measure in committee were Sens. Ray Scott, R-Grand Junction, and Randy Baumgardner, R-Hot Sulphur Springs. Supporting it from the Western Slope included Sens. Kerry Donovan, D-Vail, and Ellen Roberts, R-Durango.

The bill requires a final Senate vote before it heads to the governor’s office. It passed the House last month on a 63-1 vote.

#Colorado and the Feds meet to update abandoned mines inventory

Colorado abandoned mines
Colorado abandoned mines

From The Denver Post (Bruce Finley):

The Colorado Department of Public Health and Environment estimates that acidic metals-laced mine water contaminates more than 1,600 miles of streams and rivers. There are an estimated 23,000 inactive mines in Colorado — 22,000 on federally managed public land — that companies have abandoned. These are a main source of harm to waterways that affects human health and ecosystems.

While multiple federal and state agencies hold information on inactive mines, there’s no comprehensive data hub that could be used to assess impacts, risks and costs for cleanup.

Government officials from the CDPHE, Colorado Geological Survey, Colorado Department of Natural Resources, U.S. Forest Service, Bureau of Land Management and Environmental Protection Agency met Wednesday at the regional Forest Service headquarters to focus on how best to share data and identify gaps.

CDPHE and the CGS are leading a $300,000 inventory initiative.

“I don’t think we really know what the cumulative impacts of all these are,” CGS director Karen Berry said.

Colorado officials also advocate legal changes to encourage voluntary cleanups. So-called “good Samaritan” legislation, introduced in Congress, would let companies and conservation groups launch projects to reduce contamination in streams without being liable, under the Clean Water Act, for remaining contamination, state abandoned mines program director Bruce Stover said.

Such a change would make a difference, Stover said, and volunteer groups wouldn’t be held liable if well-intentioned cleanup work causes spills, such as the Aug. 5 Gold Mine incident where a 3-million-gallon torrent turned the Animas River mustard-yellow.

Lawmakers also are considering reform of the nation’s 1872 mining law to charge hard-rock mining companies fees to create a fund that could be used to help deal with drainage from inactive mines.

Gov. John Hickenlooper has met with fellow western governors and federal agency chiefs and found that a consensus has emerged to make cleanup of old mines a priority. At least 230 are known to be draining into Colorado waterways with 148 largely unaddressed — not visited since the 1990s.

State officials say natural resources crews aim to visit those sites and test water this year to assess the harm.

2016 #coleg: HB16-1392 (Water Banks Administration) update

From The Pueblo Chieftain (Chris Woodka):

A water banking bill being considered in the state Legislature would help farmers keep their water rights while increasing the range of uses.

“Farmers always get the short end of the stick. The state likes to pick on farmers,” said Jay Winner, general manager of the Lower Arkansas Valley Water Conservancy District.

Farms face a policy of “use it or lose it” that means if water can’t be used on a specific parcel of land, it flows downstream. Water banking could mean about 5-10 percent more water could be put to use each year, according to some estimates.

“Once a farmer deposits the water in this water bank, he can use it in any way within the Arkansas Valley,” Winner explained.

The bill, HB16-1392, is sponsored by Reps. Jeni Arndt, D-Fort Collins, and Ed Vigil, D-Fort Garland, and Sen. Larry Crowder, R-Alamosa. The Lower Ark district is backing the bill as a way of improving on the 2013 legislation, HB1248, that established a pilot program now being used by the Arkansas Valley Super Ditch.

Winner spoke about the bill Thursday with The Pueblo Chieftain editorial board.

Winner expects the water bank to succeed where others have failed because it will be useful to farmers. It allows for short-term leases, either to cities or other farms, that are now possible, but expensive and complicated to execute. No change in water right is required, since the leases would be made under administrative rules under the supervision of the Colorado Water Conservation Board.

“This is a way to bring some land back into production,” Winner said. “The water rights decree never changes, but it provides more options to the farmers.”

The legislation also could advance concepts such as deficit crop irrigation, supplementing sprinklers or well and or partial irrigation of a parcel.

Farmers would be limited to putting water into the “bank” every three years in 10 or using no more than 30 percent of the total consumptive use water supply over that time. Water would not be able to leave its basin of origin. [ed. emphasis mine]

“It makes the water more valuable to farmers,” Winner said

Straight line diagram of the Lower Arkansas Valley ditches via Headwaters
Straight line diagram of the Lower Arkansas Valley ditches via Headwaters