#Animas River: Feds seek dismissal of #NM and Navajo Nation #GoldKingMine lawsuits

The orange plume flows through the Animas across the Colorado/New Mexico state line the afternoon of Aug. 7, 2015. (Photo by Melissa May, San Juan Soil and Conservation District)
The orange plume flows through the Animas across the Colorado/New Mexico state line the afternoon of Aug. 7, 2015. (Photo by Melissa May, San Juan Soil and Conservation District)

From the Associated Press (Susan Montoya Bryan) via The Durango Herald:

The Justice Department filed its motion Monday, following up on arguments first made by the Obama administration that the U.S. Environmental Protection Agency is protected by sovereign immunity.

The federal government contends the agency doesn’t fit the definition of a liable party.

New Mexico was first to sue over the mine spill, alleging that the agency had not taken full responsibility for triggering the spill of 3 million gallons of toxic wastewater from the mine near Silverton. The plume coursed through the Animas and San Juan rivers in Colorado, New Mexico and Utah.

New Mexico officials say the government’s motion was expected.

February 2017 Water Information Program newsletter

Pagosa Skyrocket via Native Ecosystems
Pagosa Skyrocket via Native Ecosystems

Click here to read the newsletter. Here’s an excerpt:

Justin Ramsey Takes Over as PAWSD Manager

In January 2017 the PAWSD Board of Directors promoted Justin Ramsey to District Manager, replacing Renee Lewis. Mr. Ramsey had served as the District Engineer since May 2015. He has over twenty years of water and wastewater design and construction administration experience. Mr. Ramsey has a Bachelor’s of Science degree in Environmental Engineering and a Masters of Engineering in Civil Engineering both from Northern Arizona University. He is a registered professional engineer in four states and has designed and overseen the construction of water and wastewater treatment, conveyance and disposal facilities throughout the southwest.

Prior to coming to PAWSD, Mr. Ramsey lived and worked in Arizona and sat on the City of Flagstaff’s Water Commission where he reviewed and provided recommendations on a variety of utility assessments including capital improvement project budgets, inflow and infiltration studies, water leakage studies, rate studies and energy audits. Mr. Ramsey has also consulted with multiple regulatory agencies to provide training, develop regulations and represent agencies in a variety of venues. Congratulations, and welcome!

Southwestern Water Conservation District board shuffled

San Juan wildflowers.

From The Durango Herald (Jessica Pace):

Board President John Porter and Vice President Steve Fearn, representatives of Montezuma and San Juan counties, respectively, were voted off the board by commissioners in their respective counties.

Fearn, a prominent longtime coordinator of the Animas River Stakeholders Group, has represented San Juan County on the water conservation board since 1990 and served as vice president since 2007.

But San Juan County commissioners said Fearn’s representation no longer reflects county values, which have changed significantly since Silverton’s mining days to include more recreational interests with respect to water, county attorney Paul Sunderland said…

Commissioners voted to appoint Charlie Smith, part-time Silverton resident and eight-year general manager of the Lake Durango Water Authority, as Fearn’s replacement.

“Commissioners thought Charlie Smith would better represent San Juan County,” Sunderland said. “He has a lot of water expertise, and he’s probably more in tune with the wants of the current board. Historically, San Juan County has been largely dominated by mining interests, and Steve Fearn is very much associated with those interests, but the board’s interests have shifted more toward recreation.”

The fact that the state of New Mexico named Fearn in a lawsuit as a “potentially responsible party” for mine pollution in the Gladstone area was noted in the county’s decision, Sunderland said.

“It’s definitely something we’re aware of, given his ownership interests around Gladstone,” he said…

The board consists of nine members representing Archuleta, Dolores, Hinsdale, La Plata, Mineral, Montezuma, Montrose, San Juan and San Miguel counties. Board directors can serve an unlimited number of three-year terms.

“I want to make sure the county’s views are represented,” Smith told The Durango Herald. “I have an understanding of their water rights, and a lot of work needs to be done to secure those rights and make sure the uses align with what the county envisions.”

Montezuma County commissioners selected Don Schwindt to replace Porter, who was general manager of the Dolores Water Conservancy District for 22 years and a Southwestern board director for 26.

Schwindt is a director on the Dolores Water Conservancy District board and a critic of the Dolores National Conservation Area, a controversial proposal in Montezuma County to congressionally protect land and water along the lower Dolores…

Porter thinks the proposal, criticized by Montezuma County commissioners, influenced his removal. Under Porter’s leadership, Southwestern Water Conservation District contributed funds to hire a water attorney to rewrite draft National Conservation Area legislation, which Porter thinks was perceived as support for the bill.

“I perceived the funding as an effort so everyone involved knew all the problems, the facts on both sides and could intelligently make a decision,” Porter said. “I think Southwestern’s involvement was perceived by others that we were very much in favor of the NCA legislation. That had something to do with it, and the fact that I’m 80-plus, and my 26 years on the board.”

Montezuma County Commissioner Larry Suckla said the commission chose Schwindt because of his water knowledge, and the conservation area proposal did not play a part in the decision.

“Don has shown ways that he would save water and retain water for farmers and ranchers,” Suckla said. “John Porter is an icon for Montezuma County. He was involved in the management of the lake (McPhee Reservoir), and all the benefits the county has received from that is because of the work he did, but it felt like it was time for new eyes.”

When Porter joined the board in 1990, he said water storage and dam construction were the district’s primary focus, including such projects as Lake Nighthorse. But gradually, the focus broadened to consider recreational water use and water quality.

Porter refers to his tenure as a career highlight, and said the importance of inter-basin relations and dialogue will only increase as time goes on, water supply dwindles and population grows.

“You’re asking someone who’s biased, but I’ve always felt that the Southwestern board tried its very best to represent all interests,” Porter said. “True, the majority of the members, including myself, were and still are agriculture-oriented. Yet to me, as Colorado’s population grows, it’s inevitable that our water supply will be drying up agriculture. And that’s not in our best interest, but I don’t see a way of satisfying municipal needs that we’re going to have without drying up some ag use. Irrigation takes a lot of water, and just that amount converted to municipal use will take care of a lot of families in an urban situation.”

Southern Ute tribe seeks to manage reservation water quality — The Durango Herald

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From The Durango Herald:

Governments, agencies and organizations have until Feb. 3 to submit comments to the EPA, which will be considered as the agency makes a decision.

La Plata County commissioners plan to submit comments and discuss the matter in a 3 p.m. Monday work session and again in a special meeting at 10 a.m. Tuesday.

Tribes can ask the EPA to be treated as a state, which allows them to adopt and administer water quality standards. Under the Clean Water Act, a state can determine the level of purity and quality of its own waters. The Southern Utes have no such standards under the Clean Water Act.

There are eight river basins in La Plata County over which the tribe has some jurisdiction, and standards adopted by the tribe would influence upstream discharge permit holders near these waterways, including the city of Durango, town of Bayfield, the Durango-La Plata County Airport and South Durango Sanitation District.

It is unclear whether, if the EPA approves the request, the tribe’s standards would be equal to or more stringent than regulations governing areas upstream, and if the process would be transparent.

The Southern Utes have considered this action for years.

If the EPA approves the application, which details the tribe’s ability to effectively govern a water quality program, the agency would then consider approval for a set of standards as a separate action, which could take years…

The application can be found at epa.gov.

@WaterCenterCMU webinar: “River Health and Riparian Resilience” January 25, 2017

Click here to register. From the website:

The rivers that roll past our cities, towns, homes, and highways are reflections of all things that happen upstream and uphill. In this lecture, we will learn to see rivers as a sum of their parts, learning the roles, forms and functions of water, sediment, and vegetation. Blue, the role of water, mobilizing and shaping; Brown, the role of sediment, filling, re-routing and building; and Green, growing, holding and slowing all things mobile. From this context, we will launch into discussions of river health, riparian resilience in the face of climate change, and what we can do to protect habitats critical to fish and wildlife and our riverside communities. We’ll see river cameos of the hard-working Dolores, the now-famous Animas, and the unfettered wildness of the Yampa.

Presented by Dr. Chris Rasmussen of EcoMainstream Contracting, and hosted by Abby Burk of Audubon Rockies.

#AnimasRiver: @EPA — Implementation of the #GoldKingMine After-Action Review

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

Click here to read the report. Here’s an excerpt:

In November 2015, the U.S. Environmental Protection Agency’s Chief of Staff, Matt Fritz, established an agency team to conduct an After-Action Review of EPA’s response to the Gold King Mine (GKM) release that occurred on August 5, 2015. The team, comprised of employees from across the agency, interviewed over a hundred people and reviewed a large volume of documents to identify lessons learned and develop recommendations for the Administrator’s consideration. Among the documents reviewed were after-action reports from previous emergency responses, which showed that some of the issues identified at Gold King Mine were not new. On December 21, 2015, the After-Action Review Team submitted its report detailing ten specific recommendations to improve how the agency responds to emergency incidents and to ensure a highly effective EPA Emergency Response Program that can adapt quickly to dynamic, unpredictable situations. These recommendations, shown in Appendix A, were:

  • Recommendation 1: Establish a National Incident Management Assistance Team (IMAT) at EPA.
  • Recommendation 2: Institute Senior Official training plan.
  • Recommendation 3: Institute ICS key leadership training plan.
  • Recommendation 4: Establish an agency data and information management team.
  • Recommendation 5: Improve data and information posting and communications.
  • Recommendation 6: Establish Communications Strike Teams and broaden data training for PIOs and public affairs staff.
  • Recommendation 7: Invest in data resources and clarify roles/responsibilities.
  • Recommendation 8: Build capacity for rapid data collection, interpretation, and dissemination.
  • Recommendation 9: Align public affairs resources and update communications procedures.
  • Recommendation 10: Improve notification procedures, plans, and equipment.
  • From The Durango Herald (Mary Shinn):

    The EPA outlined its efforts in a report posted on its website late Friday afternoon called “In the Rearview Mirror: Implementation of the Gold King Mine After-Action Review.”

    The EPA’s chief of staff announced the changes in February 2016, after the agency took responsibility for the release of metal-laden water from the Gold King Mine on Aug. 5, 2015.

    The changes were based on a December 2015 after-action report that made 10 recommendations focused on improving its emergency response and communications that the EPA has worked on, the review stated. The original after-action report did not seem to have been posted on the EPA’s website when it was finished. EPA officials did not immediately respond to request for comment on the review Saturday.

    The review recommended the agency continue funding emergency management training and positions created as a result of the changes. But it did not list specific budget expenses.

    A national emergency response team was trained by December 2016 and it will be deployed to mine spills or releases that the EPA has caused or is directly involved in, or when an event involves multiple EPA regions.

    “Quick and effective response to incidents reduces the risk to public safety, environmental damage and potential legal liability,” the report said.

    To improve communications, the EPA plans to develop three teams of six that will assist with breaking down complex and technical information. When a team is deployed, they will not communicate with the public but will work behind the scenes.

    Assistant County Manager Joanne Spina could not comment on the report, but she acknowledged that there were challenges with EPA communications after the Gold King Mine spill.

    “We tried to work through those as situations arose,” she said.

    During emergencies, the EPA also plans work with federal, state, local, tribal, trust territory and other partners on development and release of all materials.

    Effectively communicating data with the public was another focus of the EPA, and it calls for eliminating the time lag between the EPA receiving data and communicating it to the public.

    Residents and local officials were frustrated with the slow pace of metals sampling and interpretation of the data.

    This data was needed to determine whether the river could be reopened and used for drinking, agriculture and recreation.

    Distrust of the EPA’s data led some residents of the Navajo Nation to keep their irrigation ditches closed, causing lost crops, because they didn’t want to risk using the contaminated water.

    The Office of Emergency Management has hired a coordinator to help the EPA with data, and the review solicits funding for training and workshops.

    Agency workers also updated their contact lists for tribal governments and plan to update those lists annually.

    The agency also updated training for senior leadership on what their role is during an emergency. Satellite communications systems were also upgraded for those working in the field.

    After the spill, the EPA team was trapped without cellphone service or a satellite phone and this delayed communications with the state by almost two hours.

    #AnimasRiver: @EPA cites “sovereign immunity” — $1.2 billion in claims set aside

    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]

    From The Farmington Daily Times (Magdalena Wegrzyn , Leigh Black Irvin , Joshua Kellogg and Noel Lyn Smith):

    Federal lawmakers, tribal leaders and state and local officials presented a rare unified front today as they vehemently denounced the U.S. Environmental Protection Agency’s announcement that it will not pay more than $1.2 billion in claims filed against it in response to the Gold King Mine spill.

    The EPA said the Federal Tort Claims Act prevents the agency from paying claims that result from “discretionary” government actions. Congress passed the law to allow government agencies — and in this case, contractors working on their behalf — to act “without the fear of paying damages in the event something went wrong while taking the action,” according to a press release from the EPA.

    Three federal lawmakers representing New Mexico denounced the news in a joint statement, calling the agency’s reasoning a “shameful legal interpretation of liability.” Meanwhile, Navajo Nation officials questioned who would take responsibility for reimbursing tribal members hurt by the spill, which on Aug. 5, 2015, released more than three million gallons of toxic wastewater into a tributary that feeds the Animas River, which flows into the San Juan River, ultimately emptying into Lake Powell.

    The EPA said the work contractors conducted at the mine near Silverton, Colo., is considered a “discretionary function” under the law.

    Sens. Tom Udall and Martin Heinrich, New Mexico Democrats, and Rep. Ben Ray Luján, D-N.M., issued a statement saying they would continue pushing for legislation to hold the EPA accountable. They also said it would be up to the courts to determine whether the EPA’s defense is legitimate.

    Heinrich said in a phone interview that he intends to introduce legislation to ensure the EPA pays claims that have already been filed, as well as future claims.

    “I’m going to speak to all of the senators from Colorado and Arizona, and we’re going to introduce legislation to do this right,” he said.

    An EPA agency official said paying the claims would discourage cleanup efforts — such as the one being conducted at the Gold King Mine when it was breached — in the future…

    Navajo Nation President Russell Begaye said the tribe will continue pursuing its lawsuit against the EPA and several other entities. He said the tribe plans to work with president-elect Donald J. Trump’s administration to address claims tied to the spill.

    “It doesn’t stop here,” Begaye said shortly after attending an inauguration ceremony in Shiprock for recently elected Northern Agency chapter officials. “This is one step, and we will continue taking the next step and if we have to, we’ll take it all the way to the Supreme Court.”

    […]

    An EPA official said 73 claims related to the mine spill were filed under the Federal Tort Claims Act. Four were from governmental agencies and the rest were from individuals and companies…

    Joe Ben Jr. served as the Shiprock Chapter’s farm board member when the spill occurred. Ben, a farmer himself, said he did not file a claim but knows several other farmers who submitted claims for lost crops and revenue…

    The orange plume flows through the Animas across the Colorado/New Mexico state line the afternoon of Aug. 7, 2015. (Photo by Melissa May, San Juan Soil and Conservation District)
    The orange plume flows through the Animas across the Colorado/New Mexico state line the afternoon of Aug. 7, 2015. (Photo by Melissa May, San Juan Soil and Conservation District)

    … collecting compensation doesn’t weigh heavily on [Earl] Yazzie. Instead, the farmer said he’s more concerned about whether to plant crops this spring and if he’ll irrigate with water from the San Juan River…

    Included in the $1.2 billion is about $154 million in tort claims that are part of a lawsuit filed by the state of New Mexico, according to the EPA official. She said the EPA’s defense will be used in court to deny payment of those claims…

    The EPA official acknowledged the announcement was slow in coming, adding “we spent a lot of time trying to see if there was any other way to address this because this is obviously an answer that leaves a lot of people unhappy who have been hurt.”

    From the Associated Press (Dan Elliott):

    The EPA said the claims could be refiled in federal court, or Congress could authorize payments.

    But attorneys for the EPA and the Justice Department concluded the EPA is barred from paying the claims because of sovereign immunity, which prohibits most lawsuits against the government.

    “The agency worked hard to find a way in which it could pay individuals for damages due to the incident, but unfortunately, our hands are tied,” EPA spokeswoman Nancy Grantham said.

    The EPA said it has spent more than $31.3 million on the spill, including remediation work, water testing and payments to state, local and tribal agencies.