Between a Rock and a Hard Place: The Battle to Stop Strip Mining in the Colorado River Basin

DENVER – A massive oil shale project is being planned on the border between Colorado and Utah that would take a lot of water out of the Colorado River Basin. The proposal by a European company, was authorized to proceed by the federal government; however, it may now find itself between a rock and a hard place because of a lawsuit recently filed by eight environmental organizations.

Nearly three-quarters of the world’s oil shale reserves are in the Green River Formation, where Colorado, Utah, and Wyoming meet, according to the website for Enefit, an energy company. Enefit is a subsidiary of a state-owned company located in the Baltic Sea country of Estonia, and it wants to strip mine about 27,000 of its acres in Utah to access the oil in the rock that’s at the surface, or just below. The rock would be heated to high temperatures to release crude oil, which would then be ready to be refined into gasoline, diesel, and jet fuel.

The mine would be located in a remote and rugged part of Utah about 40 miles from of Dinosaur National Monument in the Uintah Basin. It would be the first of its kind in the U.S. However, on May 16, eight different environmental groups represented by attorneys at Earthjustice banded together and sued the federal government to stop it.

Michael Toll, an attorney with the Grand Canyon Trust, one of the groups suing, said that the Bureau of Land Management did a completely inadequate analysis of the massive impacts of the planned oil shale development.

The Sierra Club and the Center for Biological Diversity joined with the Grand Canyon Trust and five other conservation groups claiming that, in issuing its permit, the BLM and the U.S. Fish and Wildlife Service did not fully analyze issues like the impacts on wildlife and particularly water depletions from the Green River, an important tributary in the already stressed Colorado River Basin. Instead, the agencies looked only at the limited effects of a 14-mile water pipeline—not the whole operation.

Toll said that it’s difficult to identify the most significant impact of the proposed operation. He said that it’s a unique project with several impacts that are so egregious it is hard to pick just one. The project’s water consumption stands out because the region is so arid and, obviously, all through the West water is such a precious commodity. The mine would take about 11,000 acre-feet of water per year from the Green River. Toll said he thinks the company wants to take the water from the Green because that amount is oftentimes more than the entire flow of the nearby White River, another tributary in the basin. In a statement, Earthjustice said that depletions from the Green would harm critical habitat for endangered fish, including the Colorado pikeminnow and the razorback sucker.

In addition to the effects on water and wildlife, the environmental groups say the government needs to consider the enormous amounts of carbon emissions from burning the more than 500 million barrels of oil produced from the mining. A release by the Grand Canyon Trust says that oil shale is one of world’s most carbon-polluting fuels, with lifecycle carbon emissions up to 75 percent higher than those of conventional fuels.

And, there is the problem of the region’s air quality. The process of baking the rock to get the oil will emit huge amounts of ozone precursors, according to Earthjustice. Toll said that the Uintah Basin, where the mining operations could be located, was recently designated as out-of-attainment with the U.S. Environmental Protection Agency’s ozone standards. He said there are many days when the air in the basin is unsafe to breathe, and it would be dramatically degraded by the mining.

In addition, the sheer size of the project will have huge impacts. According to the Grand Canyon Trust, Enefit is proposing to dig out more that 28 million tons of oil shale per year for 30 years or more. Rains would potentially cause salts and other pollutants to infiltrate into ground water and nearby surface waters, affecting various species. The amount of ground disturbance from the mine itself is another significant impact, according to Toll.

The plaintiffs in the case filed in Federal District Court in Salt Lake City want the court to order the Trump administration to do a comprehensive analysis of all the impacts for the proposed operation, instead of only considering a small feature of the project—a utility corridor including a water pipeline.

Enefit responded by email to a request for comment from H2O Radio. Ryan Clerico, the CEO of Enefit American Oil, said that the company is still conducting engineering and permitting in advance of commencing commercial operations. He also said that the government’s approval is only about a corridor for utilities and not for the project itself, which would be done by other state and federal agencies.

For now, the environmental groups have not asked the court to stop the project because the company has not started to dig up any ground, but if they get wind of that happening they will ask the court to halt it.

This story was first published by H20Radio.org on May 22, 2019. Read the original report here.

Change to Clean Water Act Would Have Repercussions, Even in the Arid West

TONTO NATIONAL FOREST – Nathan Rees and Beau, his German shorthaired pointer, took this reporter off-trail to hike along Dude Creek in Tonto National Forest, northeast of Phoenix. We were looking for an ephemeral stream: a channel that may be dry now but clearly carries water occasionally.

We found one.

“(It’s) probably not mapped (because of) how small it is,” Rees said as Beau explores the banks of Dude Creek. “But this contributes to Dude Creek that we’re standing in right now that has water in it.”

Rees works for the Arizona chapter of Trout Unlimited, the sportsman’s group. It favors federal protection over ephemeral streams, so industries would need a certain federal permit to build around them or discharge anything into them.

Trout Unlimited says three-quarters of Arizona’s streams are classified as ephemeral, which in legal terms means waterways that flow in response to precipitation.

“If there was a mining operation even a mile upstream from where the confluence is, and tailings are being dumped into this, you know, dry washbed, when those heavy rains come, it’s going to push all those tailings downstream,” Rees warned.

“It’s going to get pushed out into Dude Creek, which is going to go into the East Verde, into the Verde, into the Salt, down to the Phoenix valley.”

Big Arizona waterways like the Salt River fall under the federal Clean Water Act, as do some of their tributaries. But exactly which tributaries are covered by the act has led to many legal fights since it was passed in 1972.

Earlier this year, the Environmental Protection Agency and the Army Corps of Engineers said ephemeral streams do not fall under federal jurisdiction under the Clean Water Act. The proposed change would be from rules finalized by those same agencies in 2015 under the Obama administration. The public comment period on the change ends Monday.

“The hook is ‘Waters of the United States.’ Those are the jurisdictional waters,” said Bethany Sullivan, a law professor at the University of Arizona. “Well, what does that mean? That definition has evolved tremendously over time.”

Sullivan said the Clean Water Act has a long and complicated history. The Obama rules came after a Supreme Court case from 2006 left no clear directive, giving each side of the issue a legal argument to make. After studying the issue, the Obama-era EPA and Army Corps of Engineers went with what Justice Anthony Kennedy had written in a separate opinion.

“The idea that waters that have a ‘significant nexus’ with traditionally navigable waters should fall within the scope of the act,” Sullivan said.

One example would be a wetland or desert wash whose hydrology significantly affected a more permanent waterway, even if the surface water in those wetlands or washes did not physically touch the main waterway.

The Obama administration rule is unpopular with mining and development companies.

Adam Hawkins, who consults for mining companies with the firm Global External Relations, said the 2015 rule only added “additional, unnecessary time and analysis to the process with, in my opinion, no additional protection to the environment” because other environmental laws also are in effect.

EPA and Army Corps of Engineers officials under President Donald Trump are using a different, narrower definition of Waters of the U.S., this one from Justice Antonin Scalia. Ephemeral streams would not be covered under the current proposal.

Spencer Kamps, with the Home Builders Association of Central Arizona, is happy with the proposed revision.

“The purpose and goal of the Clean Water Act was to protect water,” he said. “If water doesn’t remain there, (what) is the need for a federal footprint to regulate that system?”

Getting a federal permit under the Clean Water Act, Kamps said, can cost hundreds of thousands of dollars in engineering and legal services. And he added that having less federal oversight does not mean no oversight. In other words, the state can step in.

After early signs the Trump administration would change the rule, Arizona Gov. Doug Ducey wrote to the EPA and said the state would have to “evaluate how to protect waters that no longer fall under the Clean Water Act.”

The state is still finishing its comments on the proposed change, and the Department of Environmental Quality declined an interview.

Melinda Kassen, an attorney with the Theodore Roosevelt Conservation Partnership, a sportsman group out of Colorado, does not see states filling the breach left by the federal government. She argued state Legislatures will be reluctant to pass any fee increases needed to improve regulation.

“We have the Clean Water Act, in part, because the states had the authority to do this before and they weren’t getting the job done and the Cuyahoga River burned and other things happened,” she said. The Cuyahoga River in northeastern Ohio famously caught fire in the late 1960s, precipitating the Clean Water Act.

Kassen also sees the Trump EPA as going further than a rollback of Obama administration rules in saying interstate waters – those that flow in two or more states – are not automatically considered under federal jurisdiction.

“It’s a rollback of fundamental principles that have been on the books, in place, enforced, implemented since 1972,” she said.

Permanent Ban on Uranium Mining near Grand Canyon Draws Mixed Reaction

GRAND CANYON – Rep. Raúl Grijalva’s bill enacting a permanent ban on uranium mining drew praise this week from Havasupai leaders and criticism from the mining industry, as well as from a Republican member of Arizona’s congressional delegation.

“Havasupai means people of the blue green water, and we have been living here for over thousands of years,” Havasupai Tribal Council Member Claudius Putesoy said.

Hundreds of Havasupai live at the bottom of the Grand Canyon. They want to protect the future of their tribe and the sacred water.

Havasupai Tribal Council Member Claudius Putesoy says contaminated water affects his day to day life. “I’m a rancher and I hike a lot of cattle up here and it affects most of the water down there in Supai.” (Photo by Lillian Donahue / Cronkite News)

Matthew Putesoy, the vice chairman of the Havasupai Tribe said native communities in northern Arizona have expressed their concerns for decades over uranium mining near their ancestral lands.

“We have a sacred duty to protect the land and the Grand Canyon from further desecration,” he said.

Grijalva, the Democratic chairman of the House Natural Resources Committee, introduced the Grand Canyon Centennial Protection Act on Tuesday, the 100th anniversary of Grand Canyon National Park. The legislation would bar more than 1 million acres of land around the canyon from uranium mining.

The Arizona Mining Association was quick to condemn the bill, arguing that the call for a permanent ban is misleading and undermines the domestic supply of clean fuel sources.

“This is a disingenuous attack on the public’s desire for clean energy, a healthy economy without reliance on questionable imports of these critical materials, environmental stewardship and land use autonomy,” Steve Trussell, the association’s executive director, said in a statement sent to Cronkite News.

Uranium is one of 35 mineral commodities deemed critical to the security and economic prosperity of the United States, according to the Department of the Interior. Uranium is abundant in and around the canyon.

Arizona Rep. Raúl Grijalva, a Democrat, spoke about challenges he expects to face with his proposed ban on uranium mining. “The mining industry is not going to go quietly in the night,” Grijalva said. “I think the majesty of the Grand Canyon can overwhelm that and that’s why we’re confident.” (Photo by Lillian Donahue / Cronkite News)

Currently, a moratorium set by the Obama administration in 2012 prohibits new mining claims in the area till 2032, but Grijalva said he wants to make that ban permanent.

“When you deal with this issue purely in academic terms and say, ‘Well, it’s just a little bit of mining, it’s just a little bit of uranium mining, what can that affect?’” Grijalva said. “Well, we have a litany , a history of that affect and it’s been negative”

The history of uranium mining in the area has left a mixed legacy. Multiple inactive mines line Grand Canyon National Park. The government has investigated high radiation levels and cleaned up contamination from the century-old Orphan Mine, which is near Grand Canyon Village on the South Rim.

The Canyon Mine, 6 miles south of the rim, which is still considered active, was exempt from the 2012 moratorium. The mine’s parent company, Energy Fuels, had to remove more than 1 million gallons of contaminated water from the mine site when it flooded in 2017.

The Grand Canyon Trust, a nonprofit environmental group, argues that tourism is more valuable to the local economy than mineral extraction.

“Uranium mining threatens these economic drivers while possessing little capacity to support the regional economy,” it said in a recent report.

“Facts are that the risks associated with uranium mining dramatically outweigh the benefits to this region or to this nation,” said Ethan Aumack, the trust’s executive director.

– Video by Lillian Donahue

The National Park Service reported that the more than 6 million visitors to the Grand Canyon National Park in 2017 supported 9,423 jobs and had a cumulative benefit of $938 million to the local economy.

Rep. Paul Gosar, R-Ariz., released a statement opposing the bill.

“Rep. Grijalva is pursuing his misguided quest to permanently lockup more than a million acres in Northern Arizona, harm education, kill jobs, infringe on private property rights and undermine American energy security,” Gosar said.

During his visit to the Grand Canyon on Saturday, Grijalva said he expects pushback on the initiative, but he has a message for his colleagues on Capitol Hill.

“To think of the Grand Canyon not in terms of a piece of federal land that they should open up as a commodity for drilling, for mining or for extraction,” Grijalva said. “They should think of it as a treasure that they need to comfort and take care of.”

After 11 years, legal battles over proposed open-pit copper mine continue

WASHINGTON – A proposal for a massive open-pit copper mine in the Santa Rita Mountains an hour south of Tucson, Arizona, will be back in court this month as opponents challenge permits for the project, the latest twist in an 11-year battle over the Rosemont Mine.

The fight pits supporters – who say the mine has been studied to death and will bring much-needed jobs to the region – against opponents, who see a flawed review process on a mine in “the absolute worst place” for environmental and public health threats.

The proposed open-pit copper mine would be about 6,500 by 6,000 feet – more than a mile wide in each direction – with a final depth up to 2,900 feet, according to the Forest Service’s final environmental impact statement on the Rosemont project. Of the 1.96 billion tons that would be excavated from the site, about 700 million tons would be ore and the remaining 1.2 billion tons would be waste rock.

Arizona is the largest producer of copper in the United States.

The legal challenges come as Hudbay Minerals awaits approval of what could be the final step in getting approval for the mine, the Army Corps of Engineers’ issuance of a Section 404 permit. That permit is named for a section of the Clean Water Act regulating the discharge of fill material into waterways.

“The regulatory process that we have is, from the outside, very time-consuming,” said Mike Petersen, public affairs officer for the South Pacific Division of the Corps, but it’s necessary to make a decision that balances “reasonable development of commerce” with water quality.

“There’s a lot of information and a lot of considerations we have to take into account,” Petersen said. “We want to make the most informed decision that we can stand behind.”

But while that decision is pending, at least three lawsuits are proceeding that attack earlier environmental permits issued for the mine.

Those suits – one by the Center for Biological Diversity, one by a group called Save the Scenic Santa Ritas and one by the Pascua Yaqui, the Tohono O’odham and the Hopi tribes – are expected to be in court this fall. They charge that earlier reviews by the Forest Service and the Fish and Wildlife Service did not adequately consider the mine’s likely impact on environmental and cultural resources.

Stu Gillespie, a staff attorney with Earthjustice, which is representing the tribes in their suit against the Forest Service, said the service’s recommendation did not go far enough.

“One of our main arguments is that final environmental impact statement and the record of decision by the forest supervisor is that he failed to adequately analyze alternatives,” Gillespie said.

In an emailed statement, Hudbay said the “project has been going through a thorough evaluation” and that the Forest Service set “specific mitigation and monitoring requirements” to ensure the impacts of the mine are measured.

“Any questions asked about the Final EIS impact analysis are a moot point at this time as they have been managed and responded to by the agencies responsible,” said a Hudbay spokeswoman. “The Rosemont Project has gone through this review under the … highest level of review required by the federal government.”

The Department of the Interior, Office of Surface Mining, Bureau of Land Management, the Forest Service and Fish and Wildlife Service would not comment on the status of the mine. Tribal officials also did not respond to requests for comment.

The mine would be in operation from 24 to 30 years, generating an estimated $136.7 million in state and local taxes while creating a projected 434 direct jobs and 1,260 indirect jobs per year in Pima County alone, the Forest Service report said.

“It would just be a shame if projects as consequential as this were to take on some sort of partisan coloring,” said Garrick Taylor, the senior vice president for government and communications at the Arizona Chamber of Commerce.

He noted that 17 government agencies have a hand in approval of the permit.

“We believe it’s still a worthwhile project and will do tremendous good for the region and the state,” Taylor said. “Copper mining is incredibly important to the legacy of the state.”

But critics say no amount of economic benefit can outweigh the potential environmental damage of the mine.

“It is the absolute worst place you could pick to put an open-pit copper mine in terms of all the impacts to endangered species, threats to Tucson’s water supply and all these other issues,” said Randy Serraglio, a conservation advocate with the Center for Biological Diversity.

Rep. Raul Grijalva, D-Tucson, said that while Hudbay talks about the economic benefits of the mine, “it ignores its negative environmental impacts that will cause irreparable damage to wildlife habitats, water quality, and land.”

“The health, well-being, and cultural needs of Southern Arizona’s residents should always come before the profits of a mining company,” Grijalva said in an emailed statement.

Fred Palmer, a senior fellow at the Heartland Institute, said he believes that the pros of the mine outweigh its cons on this site, which is federal land sitting on a “terrific” copper deposit.

“It’s inherently within the public interest that this deposit be developed, notwithstanding the protestations from the tribes, who I deeply respect and the environmental community,” he said.

The Lavender copper mine, which operated in Bisbee, Arizona is an open pit mine, like the proposed Rosemont mine. Credit: Matthew Kowal, Flickr Creative Commons

But Gayle Hartmann, president of Save the Scenic Santa Ritas, said the value of the Coronado National Forest, where the mine would be located, is too great to risk.

“This is a beautiful place that has natural attributes … including streams, wildlife, beautiful oak trees, places to camp, a scenic route along the eastern side of the Santa Rita Mountains that people in southern Arizona have enjoyed for centuries,” Hartmann said.

“That value is much, much greater than anything that could come from an open-pit mine,” she said.