The Navajo Nation filed a lawsuit on Monday against the U.S. EPA and the U.S. Army Corps of Engineers in the U.S. District Court for the District of New Mexico, arguing that the recent 2020 Waters of the United States rule significantly diminishes the number and extent of Navajo waters protected by the Clean Water Act in violation of the Administrative Procedure Act. The new rule could also adversely impact the amount of federal funding that the Navajo Nation Environmental Protection Agency receives for its water programs.
“At this point in time, with climate change occurring around the world, it’s more prudent than ever to protect our land, water and air. We, as Diné People, have a duty to preserve and conserve our natural resources to ensure that our future generations have access to clean water, air and land. The previous 2015 Waters of the United States rule provided clarity in protecting our Nation’s waters. Therefore, we strongly oppose and disagree with the revised WOTUS,” said President Nez.
The Nez-Lizer Administration is proposing to use $300 million from the CARES Act funding that the Navajo Nation received for water infrastructure and agriculture projects, which will require clean water resources to development and construct.
“Our Navajo people always say that water is life, and that’s very true. When we plan for any type of water projects, we are planning for future generations, not just for today or tomorrow. Clean water is a necessity for life,” said Vice President Myron Lizer.
“Clean water should be protected not only by the Clean Water Act, but also by the Navajo Nation’s treaty rights. It is a necessity of life that is vital to preservation of Navajo culture and tradition,” added Navajo Nation Attorney General Doreen N. McPaul.
Department Manager for Navajo Nation Environmental Protection Agency’s water programs Ronnie Ben said, “Since the inception of the Navajo Nation Environmental Protection Agency’s water programs, our main purpose and goal has always been to protect our Nation’s water sources. However, our job becomes difficult when the federal government rolls back environmental regulations in favor of polluters. We currently have organizations on the Navajo Nation who are not in compliance with Navajo Nation and Federal environmental laws and laxing Waters of the United States doesn’t help bring these companies into compliance.”
President Nez and Vice President Lizer thank Navajo Nation Attorney General Doreen N. McPaul, Navajo Nation Department of Justice Attorney Michael Daughtry, Contract Attorney Jill Grant, and Navajo Nation Environmental Protection Agency water program personnel for their efforts in bringing this suit on behalf of the Navajo people.
Utah Rivers map via Geology.com
New Mexico Lakes, Rivers and Water Resources via Geology.com.
We will intervene, again, in the FERC preliminary permit process, but you can help too.
As we wrote in October, a Phoenix-based developer has proposed to build a pumped hydropower facility on and above the Little Colorado River in Arizona, one of the major tributaries to the Colorado River in the Grand Canyon. Because this is an energy-related project, the Federal Energy Regulatory Commission (FERC) is the federal agency that would permit the project. The developer, Pumped Hydro Storage, LLC, actually applied for preliminary permits for two complete projects within the canyon, holding their place in line for two possible locations in the same area.
In November, we filed our comments with FERC, opposing the projects on a number of grounds. First and foremost, the idea of building new dams, reservoirs, and other related infrastructure (imagine the pipes, wires, roads, and other structures needed for such a facility) on such a major tributary of the Colorado River would be a destructive, resource intensive, and in all likelihood, impossible, endeavor. Secondly, the facilities would be situated firmly within the Navajo Nation, on Navajo land – yet the Navajo were barely even consulted on the project prior to the permit applications being submitted to FERC, and have since come out strongly against the projects being built on their lands, and very close to one of the most significant cultural sites to the Hopi as well. Lastly, the Little Colorado River is home to a major humpback chub recovery project, a fish on the brink of being down-listed from Endangered to Threatened due to the success of the program.
Including from American Rivers, the proposal generated a wide body of opposition from sources who don’t often speak out against projects like this, such as the Bureau of Reclamation and Department of Interior, multiple Tribal Nations and the two local Navajo Chapters in the area, multiple conservation groups, and even Arizona’s Department of Game and Fish. Basically, nobody outside of the developer feels that these projects are warranted, or even a very good idea, let alone feasible.
Now, Pumped Hydro Storage has applied for a new project with FERC (Permit 15024-000), which would be located not within the Little Colorado River, but in Big Canyon, a tributary to the Little Colorado about 23 miles west of Tuba City, Arizona. Unlike the original proposal, in this new one Pumped Hydro Storage is proposing to extract groundwater, bring it to the surface where it would rest in three different surface reservoirs, and build a fourth, lower reservoir and a variety of pipes and penstocks and other infrastructure to generate electricity. Here is how it is described in the permit application:
The proposed project would be located entirely on Navajo Nation land and consist of the following new facilities:
A 450-foot-long, 200-foot-high concrete arch dam (Upper West Dam)
A 1,000-foot-long, 150-foot-high earth filled dam (Middle Dam)
A 10,000-foot-long, 200-foot-high concrete arch dam (Upper East Dam)
each of which would impound three separate upper reservoirs with a combined surface area of 400 acres and a total storage capacity of 29,000 acre-feet of water
A 600-foot-long, 400-foot-high concrete arch dam (Lower Dam) that would impound a lower reservoir with a surface area of 260 acres and a total storage capacity of 44,000 acre-feet of water
Three 10,000-foot-long, 30-foot-diameter reinforced concrete penstocks;
An 1,100-foot-long, 160-foot-wide, 140-foot-high reinforced concrete powerhouse housing nine 400-kilowatt pump-turbine generators
And a whole lot more associated infrastructure, including a new 15-mile paved road, powerlines, a 30-ft diameter tunnel, and more.
Finally, an additional twist, as reported in a recent Associated Press article, the developer concedes that there was overwhelming opposition to his original proposal, and that he would consider pulling the proposals in the Little Colorado River if this Big Canyon proposal were allowed to move forward. From the article:
The article then goes on to say:
Many of the reasons that Pumped Hydro Storage, LLC’s initial proposal shouldn’t move forward apply to this new proposal as well; namely that the project would be built on Navajo Nation lands, and neither the local Chapter, nor the Navajo Nation government, have given their permission to construct the project on their lands. Second, the idea of pumping significant volumes of groundwater from one of the most arid regions of the country to profit from cheap electricity is misguided, at best. And just like the first round of proposals, destruction of significant Hopi holy sites, as well as threatening critical humpback chub and other fish habitat, through the massive extraction of local groundwater, is simply not acceptable.
In addition to how environmentally destructive and wasteful these projects are, this proposal is especially tone-deaf and exploitive at this moment in our history. The Navajo Nation is grappling with some of the highest number of cases, and deaths per capita, from the novel Coronavirus pandemic. One of the reasons why the outbreak has impacted the Navajo so heavily is the lack of readily available clean water. In fact, in the western Navajo Nation, the lack of basic infrastructure to deliver water to people’s homes is sorely lacking, and most of the people in that area have to haul water themselves many miles to have any at all. The idea of building expansive infrastructure to extract scarce groundwater for a hydropower project that extracts the resource and the capital from it, when people around the project who lack that access to that very resource are working hard to defend their communities against a deadly virus, could not be more misguided.
It is important to understand that a preliminary permit only allows the developer to hold a location for a potential future proposal. It is not a license application. In fact, a preliminary permit is not even required to submit a license application or receive a Federal Energy Regulatory Commission (FERC) hydropower license. To learn more about hydropower licensing, visit the Hydropower Reform Coalition’s website.
We will intervene, again, in the FERC preliminary permit process, but you too can help by taking action here.