In a lawsuit filed earlier this year in U.S. District Court of New Mexico, the tribe named Sunnyside Gold Corp. as a responsible party for the spill on Aug. 5, 2015.
The lawsuit also names the U.S. Environmental Protection Agency, Environmental Restoration LLC, Harrison Western Corp., Gold King Mines Corp., Kinross Gold Corp., Kinross Gold USA Inc. and John Does 1-10.
Sunnyside filed a motion on Oct. 17 to dismiss its involvement in the lawsuit, and the tribe filed its response on Monday.
In the tribe’s response to Sunnyside’s motion, it called the company a “key contributor” to the toxic water buildup at the Gold King Mine near Silverton, Colo.
The buildup led to a blowout, triggering the release of more than 3 million gallons of toxic wastewater into the Animas and San Juan rivers.
“It knew that its actions in bulk heading its mine would shift the flow of contaminated water to other mines in the Upper Animas Watershed and pose a substantial threat of a future blowout into downstream communities,” the response states…
Sunnyside argued the state of Colorado should be named in the lawsuit since the mine and associated activities at the mine site are within the state.
In the tribe’s response, it stated the federal court can provide “complete relief” for damages incurred as a result of the spill among the defendants already named in the lawsuit. It adds that Colorado’s role as a mine regulator is of “no consequence” because the tribe is not challenging how the state regulates mining nor is it asking for an injunction only the state could provide.
Sunnyside also argued for a dismissal using a section of the Comprehensive Environmental Response, Compensation and Liability Act, which is commonly known as the Superfund Act.
The section Sunnyside cited states that no federal court has jurisdiction to review any challenges when remedial action is taking place at a Superfund site.
In response, the tribe argues Sunnyside cannot use that section of the Superfund Act because the Bonita Peak Mining District, which includes the Gold King Mine, was designated a Superfund site only after the mine spill.
The EPA declared the area a Superfund site in September.
The Wyoming Water Development Commission voted against the Sublette Creek Reservoir, citing concerns by the Wyoming Game and Fish Department that too much water would be diverted, harming the Smiths Fork fishery.
“Their concern was that the water levels are being diminished in Smiths Fork, and that it would cause the temperatures to rise in late summer, and if those temperatures exceed a certain threshold, then you have the potential for a fish kill,” said commission director Harry LaBonde.
After the vote in a joint meeting of the commission and the Legislature’s Select Water Committee, Demont Grandy of the Cokeville Development Company said they were not planning to further pursue the project.
“As far as I’m concerned, it’s over,” Grandy said, noting area irrigators had been looking at it for nearly 35 years.
Siting problems have long plagued the undertaking. About $1 million in studies have been conducted and three potential locations rejected.
Another issue that raised concern was the project’s financial viability. In reports to the commission, the development company said its members could pay for operations and maintenance but not the dam itself.
Water storage rates would be between $17 and $178 per acre-foot, depending on the district’s financing costs and varying reservoir volumes. The small irrigation district said its members could afford to pay around $4 per acre-foot for water.
Commissioner Floyd Canfield has been a strong proponent of the project. The 4,100-acre-foot reservoir would help provide protection during times of drought should Wyoming ever need to supplement water flowing downstream under the Colorado River Compact, he said.
“What we’re trying to do is we’re trying to find a way to use a pre-compact water right. That’s the objective,” Canfield said. “It’s a very hard place to do that.”
State water officials suggested that enough data had been collected on the project’s drainage area that, should another potential site be located, the sponsors could start with a ‘Level II, Stage II’ study, rather than beginning from scratch.
The commission supported that recommendation in the motion to deny project funding.
“So, to me, I think that I would go for the motion, and hope that between the state engineer’s office and the agency, we could continue to work with the sponsor on a couple of spots,” said commissioner David Evans.
Even if another site is located, the timing of the rejection could affect its prospects. The state is facing significant revenue declines stemming from the energy downturn, and the commission is already set to approve projects that would commit about two-thirds of the $158 million in the Level III construction account.
“I think we have to start prioritizing things, and limiting how much money we use in studying sites,” Canfield said. “It’s the state of Wyoming’s money, citizens’ money, and maybe spend it a little more judiciously. That’s my feeling.”
About 68 percent of Colorado is “abnormally dry,” while 31 percent is in moderate drought, according to the U.S. Drought Monitor. The Front Range and plains are getting the worst of it, with a drought spreading across the greater metro area for about the last month.
Moderate drought can damage crops and pastures and may begin to affect water supplies, according to the federal agency. However, Denver may not need to panic about water restrictions just yet.
“Right now, Denver Water’s water supply is in good shape,”wrote Travis Thompson, spokesperson for Denver Water, in an email.
“Systemwide, our reservoirs are at higher-than-normal levels for this time of year at 88 percent. Typically, they are around 85 percent right now. But, we are definitely keeping a close eye on the current conditions and hoping for some much needed moisture to help begin building that snowpack for 2017.”
Forecasting models had shown a change in the weather next week to both lower temperatures and bring some snow to the Front Range, but that is looking less likely.
That incoming weather may still drop some amount of snow on the mountains, but it’s still too early to tell much, according to Noah Brauer, a meteorologist who contributes to Weather5280.
The U.S. Drought Monitor report, released Thursday, says 98.4 percent of Colorado is abnormally dry. Additionally, 30.84 percent of the state — including extreme western portions of Weld and much of the Front Range — is experiencing moderate drought, a more severe condition than abnormal dryness.
These numbers come in the wake of several weeks of unseasonably high temperatures and a lack of precipitation. In fact, a week ago, 91.1 percent of the state was abnormally dry and 24.31 percent was experiencing moderate drought. Last year at this time, only 20.09 percent of the state was abnormally dry and none of the state was experiencing drought.
Weld saw .72 inches of precipitation in October. The average for October is .89 inches. Temperatures were well above normal much of the month and have remained above normal in November.
Arapahoe Basin remains the only resort open in the state, and Loveland Ski Area will open Thursday after a multi-week delay. Both can thank manmade snow because Mother Nature hasn’t been of much help.
Snow-making wizardry aside, it has to be cold enough outside for the flakes to stick, and overnight temperatures remained stubbornly warm through most of October, Loveland Ski Area spokesman John Sellers said.
“Our patience has really been tested this year,” he said.
Staff started making snow Oct. 3, and it usually takes just a couple of weeks to open after snow-making begins. Overnight temperatures only recently have dropped enough to schedule Opening Day for Thursday.
Copper Mountain Resort cited unseasonable warmth when it pushed its Opening Day back a week, from Friday to Nov. 18.
“The decision to delay Opening Day is always difficult and is not one we make lightly,” said Gary Rodgers, Copper Mountain’s president and general manager, in a press release. “Our teams have been working around the clock to prepare the mountain for the upcoming season, but we do need a little more cooperation from Mother Nature.”
Keystone Resort also pushed back its opening from Nov. 4 to a tentative Friday because of warm weather.
The economic impact of a delayed opening is not good but “not huge,” Sellers said. Bad weather or roads later in the season would be a bigger economic threat, he said.
Last year, Colorado slopes saw 13 million skier visits.
The National Weather Service’s Climate Prediction Center predicts warmer-than-normal temperatures through the rest of fall, but a lack of early fall snow doesn’t necessarily correlate with a lack of winter snow.
The lawsuit was filed Wednesday in U.S. District Court in Denver by the EPA and the Colorado Department of Public Health and Environment against the city of Colorado Springs.
The lawsuit alleges that discharges into the creek from the city’s stormwater sewage system violate the federal Clean Water Act and the state Water Quality Control Act.
“It’s time Colorado Springs be held accountable for its continued violations of discharge limits into Fountain Creek,” said Jay Winner, general manager of the Lower Arkansas district. Its mission is to protect water resources of the Lower Arkansas River Valley.
“We’ve been trying to get the Springs to recognize their responsibility to Pueblo and the Lower Arkansas Valley for the past 12 years, but there has been close to zero progress when it comes to cleaning up the mess on Fountain Creek,” Winner said.
He said the Oct. 28 letter expressed concerns with Colorado Springs’ 2016 Stormwater Program Implementation Plan. The letter was part of the district’s long-standing complaints about the city’s discharges into the creek.
The lawsuit seeks:
A court order requiring Colorado Springs “to take all steps necessary to redress or mitigate the impact of its violations.”
A court order requiring the city “to develop, implement and enforce” its stormwater management program, as required by permits the government has issued. The federal and state laws invoked by the lawsuit regulate the discharges.
Imposition of monetary penalties on Colorado Springs for the violations.
“This is an historic day for Pueblo, which has been waiting decades for Colorado Springs to clean up Fountain Creek,” Anthony Nunez, a former Pueblo County commissioner who sits on the Lower Ark board, said in a statement issued by the district.
Melissa Esquibel, another Pueblo County member of the district’s board, said the board intends to discuss the lawsuit at its Wednesday meeting in Rocky Ford. The district encompasses Bent, Crowley, Otero, Prowers and Pueblo counties.
The Gazette newspaper in Colorado Springs reported Thursday that the city’s mayor, John Suthers, expressed frustration that the EPA and state environmental agency filed the lawsuit rather than recognize recent strides the city has made to deal with its storm sewer discharges.
“They know they have a mayor and City Council that recognize the problem, understand the problem and are intent on fixing the problem,” the mayor said. “Rather than working with us to get this done, they file a lawsuit.
“Every single dime going to litigate this thing and pay fines should be going into fixing the problem,” Suthers said.
The district sees it differently.
“They’ve dumped on Pueblo in the past, and it looks like they’ll keep on dumping,” Winner said. “We’ve seen nothing to convince us they have changed their attitude that Fountain Creek can be used as an open sewer.”
The lawsuit seeks a court order requiring Colorado Springs “to take all steps necessary to redress or mitigate the impact of its violations.”
Colorado Springs’ discharge from its storm sewer system of toxic pollutants into Fountain Creek has long been a cause of distrust and bad relations between Pueblo and its upstream neighbor.
The lawsuit was filed Wednesday in U.S. District Court in Denver.
The U.S. Department of Justice filed the lawsuit at the request of the Environmental Protection Agency. The Colorado Attorney General’s office filed the lawsuit at the request of the Colorado Department of Public Health and Environment.
The lawsuit claims that polluted discharges from Colorado Springs’ stormwater system violate the federal Clean Water Act and the state Water Quality Control Act.
The 51-page lawsuit states that the discharges flow into Monument Creek, Camp Creek, Cheyenne Creek and Shooks Run, as well as into Fountain Creek.
The lawsuit also seeks a court order to require Colorado Springs “to develop, implement and enforce” its stormwater management program, as required by permits the government has issued. The federal and state laws invoked by the lawsuit regulate the discharges.
The lawsuit also asks a judge to impose monetary penalties on Colorado Springs for the violations.
Water runoff from streets, parking lots and other surfaces picks up pollutants that drain into the stormwater sewage system, which discharges it into the creeks.
Pollutants include accumulated debris, chemicals and sediment. They “can adversely affect water quality, erode stream banks, destroy needed habitat for fish and other aquatic life, and make it more difficult and expensive for downstream users to effectively use the water,” the lawsuit states.
Under federal courts rules, the city is required to respond to the lawsuit after it is served on a city official. In their responses filed at the court, defendants typically state their position on the allegations and claims against them.