Chapter 1
THE WORTH OF WATER

When the well's dry, we know the worth of water.
-- Benjamin Franklin

The cliffs of Black Mesa rise 3,000 feet above the Navajo reservation of northeast Arizona and from there run south into Hopi country, taking the shape of a hand. A tall rim covered with pine extends across the wrist; along the fingers further south lie the headwaters of the Polacca, Wepo, Oraibi, and Blue Canyon basins, where Hopi villages can be found. Walpi, Hano (or Tewa), and Sichomovi were built along the finger called First Mesa; Shongopavi, Mishongnovi, and Shipaulovi along Second Mesa; and Hotevilla, Bacavi, Kykotsmovi, and Oraibi along Third Mesa; Moenkopi was built along the thumb. All these villages lie near springs whose water has seeped down through the mesa's porous sandstone. The permanent supply of drinking water helps account for their remarkable longevity.

Until the mid-thirteenth century, the major cultural influence in Arizona's Four Corners region was the Kayenta Anasazi, who are perhaps best known for the elaborate cities they constructed along the shelves of cliffs.^[1] The Anasazi mysteriously abandoned the area around 1250, but the settlements some of them formed in western New Mexico and eastern Arizona would ultimately become the first Hopi pueblos.^[2] The Third Mesa village of Oraibi, for example, founded hundreds of years before the Spanish arrived, is believed to be the oldest continuously inhabited settlement in North America.^[3] By the end of the sixteenth century, a number of peoples had established themselves in the region. Small, scattered bands of Navajo, also known as the Diné, had made their way from far north, entering the upper Rio Grande and Cimarron River basins between 1525 and 1590.^[4] Today their reservation surrounds the Hopi reservation.

Tuba City, the area's largest Navajo town, receives only seven inches of rainfall each year.^[5] To survive in this arid environment, its 8,000 residents (along with everyone else in the region) have had to make careful use of what water the ground itself provides. Fortunately, the cliffs of Black Mesa comprise the region's largest and most productive watershed, a resource that both Hopi and Navajo have relied on for centuries and, indeed, have honored in their religions. The mesa's natural springs, or paahu, play a crucial role in the Hopi ceremonial cycle, as sites of observance and pilgrimage and as sources for the water, clay, reeds, and spruce branches used ritually to attract the water spirit's life-giving power.^[6]

Over the last few decades, however, Black Mesa and its springs have turned increasingly dry.

THE AQUIFER AND THE COAL MINE

Approximately 40 percent of Arizona's water comes from underground sources like the ones that support the people of Black Mesa -- natural reservoirs known as aquifers that have built up enormous stores of water over millions of years.^[7] Contrary to popular belief, aquifers are not subterranean rivers or lakes. They are more like sponges, holding their groundwater in sediment or in tiny pores, fissures, and fractures of rock such as sandstone and limestone. Water trickles through these spaces, pulled from high pressure areas to areas of lower pressure, but compared with surface water its flow is imperceptible: it moves just a few inches or feet in the course of a year. Beneath Black Mesa, water first flows south from the exposed Shonto plateau, then divides, a portion heading west toward the Moenkopi Wash and the remainder bending east and northeast toward Laguna Creek. After many centuries, some of this rainwater resurfaces through one of the mesa's natural springs.^[8]

Black Mesa is host to several aquifers, positioned one on top of the next. The topmost Wepo-Toreva aquifer provides water to several of the Hopi villages, which have dug shallow wells to tap it, but its water is of low quality and its levels seem to be dropping, possibly as a result of local coal mining.^[9] The Dakota Sandstone aquifer, or D-aquifer, which forms the next groundwater layer, is more productive, but its water -- of low quality to begin with -- has been contaminated by the area's natural pockets of uranium and cannot be used for human consumption.^[10] The vast Coconino Aquifer (C-aquifer) lies at the bottom of the pack. For communities outside the region, it constitutes an important source of water, but its great depth and poor water quality in northeastern Arizona impede its becoming a viable source for residents of Black Mesa.^[11] That leaves the Navajo aquifer, or N-aquifer, situated between the Dakota and the Coconino and protected from contamination by low-permeability barriers, to fill the needs of the reservations.

The N-aquifer's purity is what makes it so valuable. According to Hopi hydrologists, concentrations of total dissolved solids (TDS) in unfiltered N-aquifer water are generally less than 400 milligrams per liter (mg/l), well below the standard for drinking water (500 mg/l) established by the Environmental Protection Agency.^[12] In the neighboring aquifers water quality is much worse, with TDS concentrations generally exceeding 1,000 mg/l.^[13] The N-aquifer is thus the sole dependable source of drinking water in the Black Mesa area.^[14]

Inadequate infrastructure on both reservations adds to this dependency. According to tribal specialists, four of the 12 Hopi villages that lie near the mesa have no water system to speak of and can't import water from other sources; of the remaining eight, half have very basic plumbing facilities and half rely entirely on common village wells to meet their water needs.^[15] New homes on the reservation are usually linked to the limited water systems already in place, in order to meet stipulations of the Environmental Protection Agency and the Department of Housing and Urban Development.^[16] Because so few Hopi residences have running water, the majority of residents must obtain their daily supply through their own physical labor, hauling their N-aquifer water from village pumps or water houses in five-gallon buckets. (As one bucketful weighs more than 40 pounds, residents are careful to use their water wisely. Even in areas with basic plumbing, the average rate of water use on the Hopi reservation does not exceed one-fifth the U.S. average of 40 gallons per person per day.^[17])

The Navajo towns of Kayenta and Tuba City are served by the water system of the Navajo Tribal Utility Authority, whose seven wells operate near capacity. Together, the Hopi and Navajo tribes are forced to rely on the confined portion of the N-aquifer to the amount of nearly 500 million gallons of water each year.^[18] Some expect this figure to double in the next decade, with long-overdue improvements in infrastructure.^[19] At present, however, there is a much larger consumer of confined N-aquifer water, whose use is almost three times that of the tribes: the Peabody Black Mesa mine.

Peabody Group is the largest private producer of coal in the world, and its Black Mesa-Kayenta mining complex, which straddles the Hopi and Navajo reservations, is among the most extensive strip-mining operations in the United States.^[20] Coal in both the Black Mesa and Kayenta mines is contained within a sedimentary layer known as the Wepo shale formation, which lies close to the surface. Here and there a ribbon of coal will peek from under the mesa's sandstone coat (Black Mesa got its name from the sight of such ribbons), though in most areas the mineral is buried in shale and rock up to 250 feet deep. ^[21] To reach it, the overlying material, known as overburden, is stripped away; then the coal itself is removed and taken to a nearby processing center.^[22] During fiscal year 1998, Peabody Western Coal Company (a subsidiary of Peabody Group) removed just under 11.8 million tons of coal from its Arizona mines.^[23] All of this raw fuel is destined for the Navajo Generating Station near Page, Arizona, and Mojave Generating Station near Laughlin, Nevada, which produce electricity for distant Phoenix, Las Vegas, and Los Angeles.^[24]

Coal from the Kayenta mine is shipped along the Black Mesa & Lake Powell Railroad, but Black Mesa coal is sent by less conventional means. It is channeled through the Black Mesa pipeline, an eighteen-inch steel tube laid in 1970 and currently managed by Black Mesa Pipeline, Inc., that runs directly from the mesa to the Mojave power station some 270 miles away. ^[25] The problem for the region's groundwater is that, to negotiate the pipeline, coal must first be liquified. Conveyors move the coal to elevated storage silos at a special preparation plant, where it is pulverized and combined with water to form a substance called slurry, about half-coal and half-water by weight; only then is it pumped into the pipeline. The slurry mixture dips underground to a depth of three feet, traverses rough, sometimes mountainous terrain, and resurfaces near the Mojave power station three days later. Large centrifuges there extract the coal, leaving the water to cool the plant's generators.^[26] Nearly all the water used in this process is extracted from the pristine N-aquifer through 3,500-foot wells operated by Peabody.^[27] In a given year, the pipeline may receive 5 million tons of coal -- and drain the N-aquifer of hundreds of millions of gallons of water.^[28]

Slurry pipelines are neither a new nor a particularly popular technology. The first working model was built in France in 1880 and ceased operations around the turn of the century. Consolidated Coal Company operated a 108-mile pipeline in Ohio until 1963, when competition from railroads forced it to close.^[29] Today, when approximately 60 percent of American coal is transported by railroad and barges and trucks pick up most of the rest, the pipeline at Black Mesa stands as perhaps the only one of its kind left in the United States.^[30] The decline of this technology can be attributed in part to the copious amount of water required. In the late 1970s, the U.S. Office of Technology Assessment and several private researchers identified water scarcity as the principal obstacle to slurry pipelines, and recommended their use only in areas with abundant water resources.^[31]

To slurry its coal, Peabody must use immense quantities of water, and because historically it has failed to clean its coal of debris before liquifying it -- a choice that results in a heavier solid -- it has been obliged to use even more than is strictly necessary.^[35] With the pipeline taking up to 43,000 tons of slurried coal per day, the company pumps as much as 120,000 gallons of water per hour.^[36] That amounts to an average of 4,000 acre-feet of pristine drinking water each year, almost 70 percent more than the 2,400 acre-feet Peabody Western anticipated using when pumping began.^[37] What do these measurements mean? One acre-foot of water is 325,851 gallons, enough liquid to fill a football field one foot deep.^[38] Four thousand acre-feet comes to more than 1.3 billion gallons of water, an amount the annual water needs of the entire Hopi reservation will not approach for three decades.^[39]

All this is beginning to affect the tribes' use of water. For more than a decade now Hopi elders have insisted that springs along the mesa's southern rim -- the ones used in rites of consecration and regeneration, which are essential to the tribe's religious practice -- have appreciably declined.^[40] Hopi farmers and Navajo herders have been disturbed by Peabody's impoundments, which capture surface runoff in some of the mesa's most productive washes.^[41] And, as time passes, declines in groundwater levels will result in smaller yields from tribal wells, increased electricity and equipment costs due to higher pumping lifts, and perhaps even well failure.^[42] The N-aquifer is experiencing what experts call "drawdown": the water pressure it has taken countless years to build is falling, threatening the aquifer's long-term health and the tribes' traditional and future water needs. Just how deep the problem goes has been the duty of the U.S. Department of the Interior to determine.

SIGNS OF DECLINE

The Interior Department's Office of Surface Mining Reclamation and Enforcement (OSMRE), which was charged by Congress with regulating surface mining on Native American lands, formally began to concern itself with the long-term health of the N-aquifer in 1989. A few years earlier, the Peabody Company had applied for a life-of-the-mine permit, which, if approved, would have authorized the company's pumping operations well into the twenty-first century. Before it could grant the permit, however, OSMRE was required by law to prepare a Cumulative Hydrologic Impact Assessment (or CHIA), an "assessment of the probable cumulative impact of all anticipated mining . . . on the [area's] hydrologic balance."^[43] The CHIA, according to OSMRE, "is a means of keeping the big picture of hydrologic impacts before the regulatory authority at all times, so that if the accumulated impacts reach potentially damaging magnitudes, they can be dealt with in a timely manner." If the potential for damage is significant, the CHIA can result in the "denial or delay" of the mining permit itself.^[44]

At the heart of the Black Mesa CHIA is a set of four material damage criteria, four standards for assessing the N-aquifer's structural stability, its water quality, and its discharge to both springs and washes through 2052.^[45] To apply these standards, scientists ran the aquifer through a computer modeling program that simulated 60 years of environmental impacts, including Peabody's pumping of groundwater. Had any of the four criteria been exceeded by Peabody's withdrawals during the simulation, material damage would have been indicated and Peabody's life-of-the-mine permit thrown into question.^[46] But OSMRE concluded and has subsequently maintained that no material damage has occurred or is likely to occur -- a result that has more to do with deficiencies in the government's criteria, gaps in its monitoring program, and excesses in its use of outdated modeling than with the actual data it has compiled. The data themselves, which are based on reports from Peabody and from the U.S. Geological Survey (a sister agency of OSMRE's within the Interior Department), do not support OSMRE's conclusion. On the contrary, signs of decline can already be seen in the mesa's faltering springs and washes, in the lower water levels of the mesa's wells. According to the government's own criteria, the N-aquifer may already have suffered material harm.^[47]

CHIA criterion one: Structural stability. An aquifer's integrity depends upon its internal water pressure. Should pressure drop below a certain point, the tiny sedimentary pores that retain water in the aquifer can start to compact, forever losing their capacity for storage. Black Mesa's N-aquifer is chiefly composed of cemented sandstone, a less elastic, more stable form than most; compaction is far less likely than if, say, the aquifer were composed of unconsolidated gravel. But since structural damage remains possible, OSMRE "as an added insurance" established a standard for protecting the N-aquifer's stability. The government's standard is based upon a measure of water pressure known as potentiometric head, the height to which confined liquid will rise when tapped by a well. With a little kitchen science, you can simulate the formation of potentiometric head on a smaller scale: just tap a juicebox with a narrow straw and watch as pressure shoots the contents up and out. According to the government's standard, the N-aquifer's potentiometric head should rise at least 100 feet above the aquifer's top; if it falls below this level anywhere, material damage could occur.^[48]

The U.S. Geological Survey monitors 15 community and government observation wells in what it identifies as the confined portion of the N-aquifer, where an impermeable upper layer keeps the groundwater under pressure; of these 15 wells, six (Rough Rock, 10T-258, 10R-111, Sweetwater Mesa, BM3, and Kayenta West) have potentiometric heads that fall within 100 feet of the aquifer surface. Even if the first four sites are discounted for their proximity to the aquifer's unconfined portion, that leaves two (BM3 and Kayenta West) whose heads fall not only within the signal 100 feet, but near the top of the aquifer itself (see Table 2 below). OSMRE has acknowledged that the BM3 well, at least, fails the government's first criterion (there is no mention of Kayenta West), yet it summarily dismisses the danger. The water level in BM3, it says, was only 99 feet above the aquifer surface when the well opened in 1959 -- and so presumably we are expected to ignore the decline of nearly 100 feet that has taken place since then.^[49] Given the results at these two wells, it is clear that CHIA Criterion One has been exceeded. OSMRE's finding that no material damage has occurred is without foundation.

CHIA criterion two: Water quality. Although some natural leakage is known to occur, migration of poor-quality water from the D-aquifer into the pristine N-aquifer is limited by geology. The two basins are separated by about 300 feet of mudstone and silty sandstone known as the lower Entrada Sandstone and Carmel Formation. These combine to form a low-permeable barrier that impedes the downward flow of D-aquifer water.^[50] But Peabody's operations create opportunities for leakage. The company uses wells that tap both aquifers, allowing D-aquifer water to pass into the N-aquifer when the wells are inactive. More important, by pumping water from the lower aquifer, the company is upsetting the balance of pressures between them; the pressure gradient that results could pull water down from the D-aquifer through fissures and other wells.^[51]

The government's second criterion suggests that water quality is compromised when the "value of leakage from the D-aquifer [exceeds] 10 percent from mine-related withdrawals."^[52] Since data necessary for direct measurements are lacking, monitors have sought to gauge the magnitude of leakage from the D-aquifer by the amount of inorganic compounds, or total dissolved solids (TDS), in N-aquifer water.^[53] Each of the government's progress reports concludes that increases in TDS are insignificant and that material damage has not occurred. Yet the last ten years have seen some dramatic localized increases, such as a spike in sulfate concentrations in a Chilchinbito well and a climb in TDS in a well at Forest Lake. All have been discounted, whether for sampling error, mislabeling, failure of individual well seals, or changes in pumping methods.^[54] Other measures of water quality have not been attempted.

A measure that might be used to supplement TDS sampling -- one that was proposed by the Office of Surface Mining in 1988, but bumped from the CHIA's final version -- is water level. Under the proposed criterion, the aquifer's potentiometric head would be monitored for decline against a baseline altitude, which represents how high its water would have climbed before Peabody's operations began; should its head drop below 100 feet of this baseline -- suggesting a sharp fall in water pressure and the formation of a pressure gradient strong enough to pull lower-quality water from above -- material damage would be indicated.^[55] (By contrast, under the first CHIA criterion discussed above, potentiometric head is monitored for its proximity to the aquifer's surface, not to a predetermined baseline, and material damage is indicated where the head drops within 100 feet of the aquifer itself.) If this proposed criterion were in place now, there could be little question that water quality is threatened: already, levels in two of the 11 monitored wells in the N-aquifer's confined portion (Pinon and Keams Canyon) have dropped below the hundred-foot mark and four additional wells (BM2, BM3, BM5, and BM6) are on the verge of crossing over (see Table 2 below).

CHIA criterion three: Discharge to springs. Peabody's pumping operation may also be responsible for declines in the springs that dot the southern margins of Black Mesa. A 1993 study conducted with the aid of Hopi elders found that the outflow from springs sacred to the tribe had been dropping significantly. Little Burro Spring and Burro Spring, sources of water for Hopi Grey Flute Society ceremonies, were depleted, as were the springs at Rock Ledge, Moenkopi, and Pasture Canyon.^[56] Rock Coyote Spring, marked by a commemorative shrine, was "virtually dried up, although water could be seen in the bottom of the original impoundment structure."^[57]

OSMRE designed its third criterion to assess damage to the springs, finding that damage was indicated if discharge fell by 10 percent or more as a result of Peabody's withdrawals. Unfortunately, it linked this criterion to a computer model of groundwater flow that is both outdated and inappropriate for the purpose of evaluation, and that hardly reflects the on-site data its colleagues at the U.S. Geological Survey are reporting.^[58] According to the Survey, seven of nine monitored springs have lost at least 30 percent of their outflow since mining began, three times the government's threshold; of these, five are trickling with less than half their original force^[59] (see Table 3 below). OSMRE's conclusion that no material damage has occurred as a result of Peabody's pumping is strongly challenged by the data.

Impacts on the springs of Black Mesa and, by extension, on Hopi tradition, are not quickly reversible. Precipitation enters the N-aquifer near Shonto in the northwestern portion of the Navajo reservation and descends to the confined portion 3,000 feet below, heading south and southeast all the while. But as the N-aquifer narrows, the flow diverges; most of the groundwater winds up heading northeast and southwest.^[60] It is theorized that Peabody's billion-gallon withdrawals only exaggerate these natural conditions, drawing up what young water enters from the northwest, creating a large, inverted cone of depression that impedes flow toward the southern Hopi springs. Given the length of time precipitation takes to cycle through the aquifer, original conditions will not return immediately even if Peabody's pumping ceases entirely.^[61]

CHIA criterion four: Discharge to washes. According to OSMRE, material damage is indicated when discharge to the N-aquifer's washes declines by 10 percent as a result of groundwater pumping; yet evaluation of this fourth criterion, like evaluation of the third, has been hampered by overreliance on outdated modeling and neglect of data gathering. Baseline data from the early 1980s exist for only two streams, Moenkopi Wash and Laguna Creek -- and the monitoring station for Laguna Creek has since been moved, making assessment difficult, if not impossible.^[62] (An additional monitoring station was set in Dinnebito Wash seven years ago.) The station at Moenkopi Wash has been in place for more than 20 years, but works under a margin of error large enough to exceed the government's criterion. Still, Moenkopi should be a cause for concern: records from the U.S. Geological Survey show it has declined by about 25 percent since the early 1980s, an amount that notwithstanding the large margin of error is indicative of material damage; the 1993 study that involved Hopi elders reported it had "dwindled to a small percentage of the prior flow rate."^[63] OSMRE's response has been to fall back on its modeling projections, which suggest the wash has declined by less than 1 percent as a result of Peabody's pumping.^[64] But here, too, material damage may already have occurred.

MONITORS AND MODELERS

In 1989, when its Cumulative Hydrologic Impact Assessment was issued, OSMRE anticipated that pumping of the N-aquifer would continue at least through 2011 and perhaps be extended to 2032.^[65] Assuming that the 2011 date of closure is correct and that withdrawals remain at current levels, more than 13 billion gallons of water will be siphoned to slurry Black Mesa coal before Peabody's operations wind down -- and this volume could double or triple if mining continues beyond 2011. To protect the aquifer's "hydrologic balance" during this period, OSMRE compiles data (the same data we have been discussing) from the U.S. Geological Survey and Peabody Western Coal Company, plugs them into its model of groundwater flow, and periodically evaluates them according to the criteria established in the CHIA. The monitoring program includes "continuous and periodic measurements of (1) ground-water pumpage from the confined and unconfined parts of the aquifer, (2) ground-water levels in the confined and unconfined parts of the aquifer, (3) surface-water discharge, (4) flowmeter tests, and (5) ground-water and surface-water chemistry."^[66] Much depends on the thoroughness, consistency, and accuracy of these data, and on the precision of the government's model.

If OSMRE has failed to acknowledge evidence of material damage, this is at least partly because of deficiencies in its Black Mesa program: in the quality of data it compiles, the frequency with which it makes assessments, and the reliability of the model it applies. To begin with, gaps in the government's data complicate its evaluation of the aquifer's health. For instance, it is difficult to determine from Geological Survey records whether discharges to most of the washes along the southern ridge of Black Mesa have appreciably diminished since mining began, even though Hopi observers have often reported a decline; for, as we have already noted, baseline data exists for only one wash (the Moenkopi) and subsequent measurements have a margin of error well above the government's own standard for damage.^[67] And it is hard to determine whether low-quality water has leaked into the aquifer, for, despite its criterion on water quality, the government does not measure leakage directly.^[68] (Thus, OSMRE can conclude that the aquifer's water quality has not been materially compromised, even through -- according to the Geological Survey -- "dissolved-ion concentrations, ratios of dissolved ions, dissolved gas concentrations, C-14 data, and tritium data indicate that the overlying D-aquifer could be leaking into the N-aquifer.")^[69] In private correspondence, officials who have reviewed the monitoring program are sensitive to its shortcomings. The program, one hydrogeologist observed, "is at best an early warning system in that it is indicative rather than deterministic and is not set up to specifically address many of the criterion [sic]. . . . The bottom line is that . . . we need to tailor the current monitoring program in such a way as to more specifically address the above criteria and in a deterministic fashion."^[70]

Another deficiency in the Black Mesa program has to do with the infrequency of assessment. Although the Interior Department agreed in 1991 to publish new data and assess the N-aquifer's health every 12 months, presumably to prevent the accumulation of serious material damage, so far it has issued only five reports and run its model only twice.^[71]

But perhaps the principal deficiency in the government's program is its overreliance on modeling projections, which tend to obscure such on-site evidence of material damage as we have described. The third of OSMRE's four material damage criteria, which assesses the aquifer's discharge to springs, depends entirely upon modeling, regardless of what actual data may show; simulations have also been used in application of criteria two and four, partly to distinguish Peabody's impacts on water quality and washes from those of the tribes, although results there, too, fail to correspond with on-site trends or explain their divergence.^[72] Critically, the underlying model was first formulated in 1983 by researchers from the Geological Survey who had limited data at their disposal; it was not intended for making actual assessments of drawdown and material damage over a sixty-year period, as the Office of Surface Mining has done. Predictions would be most accurate, a researcher noted, if used "to compare the effects of different development plans rather than to estimate the actual future water levels and water-budget components" -- that is, for qualitative not quantitative analysis -- yet OSMRE's impact assessment is predicated on the latter.^[73] Relying in this way on a limited model, OSMRE can find that material damage to Black Mesa's springs has not occurred, noting how simulated flows "decreased [due to Peabody's withdrawals] by less than 1 percent under all pumpage scenarios," even though seven of nine monitored sites have already exhibited flow reductions well in excess of the government's 10 percent ceiling.^[74] And it can find that material damage to the Moenkopi Wash has not occurred, citing simulations in which outflow from the wash "decreased by less than 1 percent [due to Peabody's withdrawals]," while, according to field data, the decline has been substantial enough to overcome a 15 percent margin of error and still approach the government's 10 percent criterion.^[75]

The official model, besides being misapplied, is based on assumptions about recharge and other hydrogeological features that have since been called into question. Recharge is the process by which aquifers are replenished with water, as rainfall infiltrates the ground and percolates downward. The physical characteristics of the soil, the extent of plant cover, the moistness of surface materials, the intensity of rainfall, the slope of the landscape, and the presence and depth of confining layers and storage basins can all influence the recharge rate of an aquifer, making calculation difficult. Back in the early 1980s, the U.S. Geological Survey fixed the recharge rate of the N-aquifer at about 13,000 acre-feet per year; several later studies, including the crucial Cumulative Hydrologic Impact Assessment completed in 1989, relied on this estimate in formulating their conclusions.^[76] But there were problems. The original researchers failed to provide full discussion or documentation of the aquifer's hydrodynamics, begging basic questions about the integrity of the model, and they overestimated the region's annual precipitation, which colored the results.^[77] Four years ago, in response to an internal critique of the model, the Geological Survey took steps to revise its original estimate: recharge to the exposed Shonto region at the northern end of Black Mesa, the region believed to account for much of the N-aquifer's recharge, has been downgraded on the basis of detailed geochemical and isotopic measurements to between 2,500 and 3,500 acre-feet per year, suggesting that actual recharge to the aquifer is but a fraction of the government's original estimate.^[78] If this revised figure is correct, then Peabody's current withdrawals from the N-aquifer most likely surpass what hydrogeologists would call the aquifer's "safe yield," the difference between its annual rates of recharge and discharge.^[79] Safe yield is like a surplus in an accounting book, the amount left after all the year's credits (recharge) and debits (discharge) have been logged. What happens to an aquifer when its safe yield is exceeded? As the great hydrologist C.V. Theis wrote in 1940, "a new state of dynamic equilibrium is reached only by an increase in recharge, a decrease in discharge, or a combination of the two."^[80] If an increase in recharge is not forthcoming, a decrease in discharge to the washes and springs is what we can expect.

Other criticisms of the original model have been made. For example, since a complete water budget (or allocation scheme) for the N-aquifer could not be calculated from available field data, researchers had relied upon estimates in their original study; though revisions were made in subsequent years, fundamentals of this water budget were not reconsidered and related assumptions went unexplained.^[81] As has also been noted, conclusions regarding the levels of potential leakage from the overlying D-aquifer are likewise based on insubstantial evidence.^[82]

In light of these findings, it is surprising that the Interior Department (which includes OSMRE and the U.S. Geological Survey) has not revised its model, revisited its material damage criteria, improved its monitoring, or reopened its 1989 Cumulative Hydrologic Impact Assessment, all of which were intended to prevent material damage to the aquifer. Officials within the department are aware that revision is long overdue. In 1998, three months after issuing a sanguine report on the health of the aquifer, the director of OSMRE wrote to the acting director of the Geological Survey, requesting the Survey's assistance in "updating and recalibrating" the model. "The existing N-aquifer model," she observed, "is based on knowledge and geologic/hydrologic understanding of the N-aquifer system that is 20 or more years old. We believe it should be updated with current information and technology. Because the development of a new model may take some years, I believe it is important that we proceed quickly with the technical evaluations needed to assure that impacts to the N-aquifer will be reliably predicted and minimized."^[83] Although funds for "evaluating [the] existing computer model, or developing a new model" have been proposed for the 2001 fiscal year, the work that OSMRE called for has not begun.^[84]

Nor has the Interior Department endeavored to complete the three-phase study of coal transport options it began in the early 1990s, considering alternatives to current practice as the Environmental Protection Agency and Bureau of Indian Affairs recommended when reviewing Peabody's permit application more than ten years ago. (Phase II was published in the fall of 1993; Phase III never appeared.)^[85] Should the company replace its pipeline with some less damaging form of transportation? Or should it retain the pipeline, but find alternatives for its slurry mixture, as by substituting the water-based slurry now used in the mix with a "closed-loop methanol-based slurry," or by tapping some of the region's low-grade water instead of the N-aquifer's pristine drinking water? Should the company adopt reclamation technologies to reduce the total amount of water needed, regardless of the source? Perhaps it should use a combination of approaches.^[86] Regardless, the time has come to act.

STANDARDS OF PROOF

Since mining began on Black Mesa three decades ago, close to 40 billion gallons of pristine groundwater have been pumped from the N-aquifer to feed the Peabody pipeline. As we have observed, data collected by the government often contravene the government's own conclusion that material damage has not occurred. And yet, aided by flaws in the Interior Department's criteria, holes in its monitoring program, and basic deficiencies in its hydrogeologic model, Peabody has been able to allege that the present use of water for slurry will not adversely affect the aquifer and those who depend on it. The company says it uses less than one-tenth of 1 percent of the total water stored in the aquifer and claims the aquifer is being recharged at a rate that exceeds withdrawals by industrial and municipal users, all the while dismissing recent studies undertaken by the U.S. Geological Survey and others that describe a very different situation.^[87] The company also notes that the observed effects of drawdown, such as decreased discharge from springs, may reflect broader precipitation trends in the region or increased pumping for municipal drinking water. According to Peabody, the data do not prove that its operations are damaging the aquifer.

Absolute proof, of course, can rarely if ever be furnished, and for Peabody to insist on it here, when the use of drinking water for industrial purposes has generally been discredited and when the importance of N-aquifer water to the Hopi and Navajo communities has been established beyond dispute, is only to beg the question of what standard of proof should apply. Fixing an appropriate standard is essential where, as here, the inherent complexity of the issue provides fuel for potentially endless debate. In general, public policy requires the government to apply the precautionary principle, a fundamental rule to ensure "that a substance or activity posing a threat to the environment is prevented from adversely affecting the environment, even if there is no conclusive scientific proof linking that particular substance or activity to environmental damage" (to quote from recent scholarship).^[88] Such margins of safety are essential to the nation's environmental and public health laws, from the statutes that protect our water and air to those that supervise the safe development of foods and drugs, and they are central to the hydrologic assessment provisions we have been discussing.^[89] Here, where material damage may be present, there should be no question that the precautionary standard demands action.

In this case, however, the federal government has an even more protective standard to uphold: the unique trust responsibility it bears toward Native American tribes, which obliges it to protect tribal resources as though they were its own. The history of this trust responsibility is rife with broken promises. As we will see in the next chapter, the government must take action if it is to fulfill its responsibility on Black Mesa.

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Notes

1. Peter P. Andrews, Robert Layhe, Deborah Nichols, and Shirley Powell, Excavations on Black Mesa, 1980: A Descriptive Report (Carbondale, Ill.: Southern Illinois University, 1982) (Southern Illinois University at Carbondale, Center for Archeological Investigations, Research Paper No. 24), pp. 40–48.

2. Ramon Gutierrez, When Jesus Came, the Corn Mothers Went Away (Palo Alto, Cal.: Stanford University Press, 1991), p. xxi; Emily Benedek, The Wind Won’t Know Me: A History of the Navajo-Hopi Land Dispute (New York: Alfred A. Knopf, 1992), p. 49; J.O. Brew, "Hopi Prehistory and History to 1850," in William C. Sturtevant, gen. ed., Handbook of North American Indians, vol. 9 (Washington, D.C.: Smithsonian Institute, 1979), p. 514.

3. Harry C. James, Pages from Hopi History (Tucson, Az.: University of Arizona Press, 1974), p. 13.

4. Richard O. Clemmer, Roads in the Sky: The Hopi Indians in a Century of Change (Boulder, Co.: Westview Press, 1995), p. 33.

5. Thomas J. Lopes and John P. Hoffmann, Geochemical Analyses of Ground-Water Ages, Recharge Rates, and Hydraulic Conductivity of the N Aquifer, Black Mesa Area, Arizona (1996) (U.S. Geological Survey Water-Resources Investigations Report 96-4190), p. 5.

6. Peter Whitely and Vernon Masayesva, "The Use and Abuse of Aquifers," in John M. Donahue and Barbara Rose Johnston, ed., Water, Culture, & Power: Local Struggles in a Global Context (Washington, D.C.: Island Press, 1998), pp. 13–18.

7. Arizona Department of Water Resources, Arizona’s Water Supplies and Water Demands (available at http://www.adwr.state.az.us/AZWaterInfo/statewide/supplyde.html as of Dec. 1999).

8. Lopes and Hoffmann, Geo-chemical Analyses, p. 5.

9. Interview with Ron Morgan, Water Rights Hydrologist, Hopi Tribe (Sept. 2, 1998). According to Morgan, although the aquifer is drying up, the causes remain unclear. However, OSMRE’s Final Environmental Impact Statement (FEIS) notes that Peabody’s mining the Wepo formation will affect the flow and availability of the layer’s water sources. See Office of Surface Mining Reclamation and Enforcement, Proposed Permit Application, Black Mesa-Kayenta Mine, Navajo and Hopi Indian Reservations, Arizona: Final Environmental Impact Statement, vol. 1 (1990), p. IV-20. Although the FEIS characterizes the Wepo formation as unimportant, OSMRE’s Cumulative Hydrologic Impact Assessment (CHIA) observes that in 1988 there were 54 wells and springs in the formation. See Office of Surface Mining Reclamation and Enforcement, Cumulative Hydrologic Impact Assessment of the Peabody Coal Company Black Mesa/Kayenta Mine (Apr. 1989), pp. 3–33 ("Table 3-12").

10. Lopes and Hoffman, Geo-chemical Analyses, p. 7. See also Ron Morgan, Alternative Transportation System for Delivery of Coal: Lake Powell MR&I Water Supply Pipeline (June 1993) (prepared for the Hopi tribe), p. 11; Levine-Fricke-Recon, Inc., Evaluation of Impacts of Groundwater Pumping from the N Aquifer, Black Mesa Area, Arizona (August 27, 1997) (prepared for NRDC), p. 2.

11. Office of Surface Mining Reclamation and Enforcement, Proposed Permit Application FEIS, vol. I, p. III-4. See also Morgan, Alternative Transportation System, p. 63.

12. Morgan, Alternative Transportation System, p. 40 (TDS in unfiltered N-aquifer water); Code of Federal Regulations 40 (2000): § 143.3 (EPA’s standard for TDS in drinking water).

13. D-aquifer water is generally very salty and alkaline, with an average pH of 9.5; TDS in the aquifer average 1,268 mg/l. C-aquifer water generally has a pH of 8.7, with TDS ranging from 403 to 7,750 mg/l, and averaging 2,049 mg/l. (It should be noted for comparison that neutral, pure water has a pH of 7.0.) Morgan, Alternative Transportation System, pp. 37, 63.

14. Levine-Fricke-Recon, Evaluation of Impacts, p. 3.

15. Interview with Ron Morgan, Water Rights Hydrologist (Sept. 2, 1998). See also Morgan, Alternative Transportation System, p. 12; Clemmer, Roads in the Sky, p. 277.

16. Interview with Ron Morgan, Water Rights Hydrologist (Sept. 2, 1998).

17. Margot Truini, B.M. Baum, G.R. Littin, and Gayl Shingoitewa-Honanie, Ground-Water, Surface-Water, and Water-Chemistry Data, Black Mesa Area, Northeastern Arizona -- 1998 (2000) (USGS Open-File Report 00-66), p. 13 (citing in part Arizona Department of Economic Security, Population Statistics of the Navajo and Hopi Reservations, 1990 Census (unpublished data, 1991)).

18. See ibid., p. 5 ("Table 1") (reporting municipal withdrawals from the confined portion of the aquifer as 1,440 acre-feet in 1998, the most recent data year).

19. Levine-Fricke-Recon, Evaluation of Impacts, pp. 6–7.

20. Peabody Group, Peabody Western Coal Company Fact Sheet (available at http://www.peabodygroup.com/info/pubPWCC.html as of Jan. 2000). Until recently, Peabody was part of The Energy Group PLC, a spin-off of the British multinational corporation Hanson Industries. It was purchased by Lehman Brothers Merchant Banking Partners for $2.8 billion in May 1998. See Peabody Group, "Peabody Is a Private Company," Pulse Magazine (Oct. 1998): p. 2.

21. Office of Surface Mining Reclamation and Enforcement, Proposed Permit Application FEIS, vol. I, p. III-2.

22. Ibid., p. I-5. Strip-mining, of course, can have significant, adverse environmental impacts. A recent white paper by PEER (Public Employees for Environmental Responsibility) takes OSMRE to task for its tolerance of these methods: "As a consequence of the agency management’s pattern of improper inaction, thousands of streams are polluted to the point of being biological dead zones. Hundreds of thousands of acres ranging from Appalachia to the Southwest deserts remain open pits, leaching acids and other toxins while posing a health and safety hazard . . ." PEER, Empty Promise: Twenty Years of Failure in Federal Strip Mining Regulation (Washington, D.C.: PEER, 1997), p. 1 (summary available at http://www.peer.org/publications/wp_empty.html as of Jan. 2000).

23. For total company revenues, see Peabody Group, Peabody Group Announces Fourth Quarter and Fiscal 1999 Results (May 19, 1999) (available at http://www.peabodygroup.com/info/releases/q499.pdf as of Jan. 2000), p. 2; for data on local coal extraction, see Peabody Group, Peabody Western Coal Company Fact Sheet.

24. Peabody Group, Peabody Western and Navajo Nation Reach Agreement on Increased Coal Royalty Rate (Sept. 30, 1998) (available at http://www.peabodygroup.com/info/archives/PWCC980930.htm as of Jan. 2000).

25. Black Mesa Pipeline, Inc., BMP Operations (available at http://www.blackmesapipeline.com as of Sept. 2000).

26. For further information on how slurry is created, transported, and dissolved, see Black Mesa Pipeline, Inc., BMP Operations; Office of Surface Mining Reclamation and Enforcement, Proposed Permit Application FEIS, Vol. I, p. D-6. See also Michael Barnett Rogozen, Coal Slurry Pipelines: The Water Issues (Ph.D. diss., University of California at Los Angeles, 1978), p. 10.

27. Depths of Peabody’s wells to the top of the N-aquifer are provided in Office of Surface Mining Reclamation and Enforcement Western Regional Coordinating Center, Report on Its Review and Analysis of Peabody Western Coal Company’s 1998 "Annual Hydrological Data Report" and the U.S. Geological Survey’s "Ground-Water, Surface-Water, and Water-Chemistry Data, Black Mesa Area, Northeastern Arizona -- 1998" (July 2000, corrected Aug. 2000), p. D-1 ("Table D-1"). See also Clemmer, Roads in the Sky, p. 255 (describing 3,650 ft. wells).

28. For statistics on N-aquifer withdrawal through 1998, see Office of Surface Mining Reclamation and Enforcement Western Regional Coordinating Center, Report on Its Review and Analysis (2000), p. C-1 ("Table C-1"). For the amount of coal transported, see Black Mesa Pipeline, Inc., BMP Operations.

29. Rogozen, Coal Slurry Pipelines, p. 10.

30. International Energy Agency, Moving Coal: A Study of Transport Systems by the Coal Industry Advisory Board (Paris: Organisation for Economic Cooperation and Development, 1985), p. 56–58.

31. See Office of Technology Assessment, A Technology Assessment of Coal Slurry Pipelines (Mar. 1978) (NTIS Order No. PB-27867), p. 4; Samir A. Desai, "Overview of Critical Issues in Coal Transportation Systems," in Maritime Transportation Research Board, Critical Issues in Coal Transportation Systems (Washington, D.C.: National Academy of Sciences, 1979), p. 43; Rogozen, Coal Slurry Pipelines, pp. 5, 8.

32. See letter from Henry J. Brolick, President of Black Mesa Pipeline, Inc., to Jeremy Johnstone, EPA Clean Water Act Compliance Officer (Aug. 24, 1998); and letters from Henry J. Brolick, President of Black Mesa Pipeline, Inc., to EPA Region IX’s Chief of Clean Water Compliance (June 29, 1999 and July 7, 1999). The pipeline was reported to have ruptured on the following dates, discharging the following quantities of coal: on April 1, 1996, discharge of approx. 450 tons of coal; on April 2, 1996, discharge of approx. 1,200 tons of coal; on April 4, 1996, discharge of approx. 500 tons of coal; on Dec. 8, 1997, no coal discharged into U.S. waters; on Dec. 11, 1997, discharge of an unknown quantity of coal; on Mar. 31, 1998, discharge of approx. 50 tons of coal; on Apr. 1, 1998, discharge of approx. 90 tons of coal; on June 28, 1999, discharge of an unknown quantity of coal; and on July 5 or 6, 1999, discharge of an unknown quantity of coal.

33. Letter from Alexis Strauss, Acting Director of EPA’s Water Division, to Henry J. Brolick, President of Black Mesa Pipeline, Inc. (May 7, 1998).

34. See letter from Black Mesa Pipeline, Inc. to U.S. Environmental Protection Agency (Aug. 24, 1998) (detailing three incidents of water discharge, averaging under 400,000 gallons each).

35. See Rogozen, Coal Slurry Pipelines, p. 12. According to OSMRE, Peabody’s Black Mesa and Kayenta mines use approximately 300 to 500 acre-feet of water per year, in addition to the water used for slurry. Office of Surface Mining Reclamation and Enforcement, Coal Slurry Pipeline (available at http://www.wrcc.osmre.gov/BlkMsaQ&A/coal_slurry_pipeline.htm as of Aug. 2000).

36. Suzanne Gordon, Black Mesa: The Angel of Death (New York: The John Day Company, 1973), p. 75 (coal transported); Peabody Western Coal Company, Mining Coal on Black Mesa (1970), p. 8 (water used).

37. Compare Peabody Coal Company, Mining Coal on Black Mesa (1970), p. 10 (original estimate) with Office of Surface Mining Reclamation and Enforcement Western Regional Coordinating Center, Report on Its Review and Analysis (2000), p. C-1 ("Table C-1") (withdrawals from N-aquifer through 1998). See also letter from Masud Uz Zaman, Director of Navajo Nation Water Management Department, to Mike Nelson, Staff Assistant, Office of the Chairman/Vice-Chairman (October 4, 1984) p. 1. Writing in 1984, when Peabody’s mean annual withdrawals from the N-aquifer were several hundred acre-feet lower than they since have been, Zaman observed: "Peabody designed, constructed, and operated its original seven (7) production wells without regard for recommendations by Stetson Engineers and others with respect to water quality control, protection of the aquifer, or long-term sustainable yields. As a result, Peabody has had to replace all seven wells, and is in fact pumping nearly 50% more per year than in their original estimates."

38. See Utah Division of Water Resources, Utah’s Water Supply (available at http://www.nr.state.ut.us/WTRRESC/brochures/uwf_broc.htm as of Jan. 2000).

39. Morgan, Alternative Transportation System, p. 14. The Hopi population is expected to grow to 26,851 by the year 2030, and use 4,007 acre-feet of water annually. By 2030, the Navajo population is expected to exceed 81,000 and use 12,208 acre-feet of water annually. In making these projections, the Hopi Water Resources Program relied on past rates of population growth and water use.

40. Foster Associates, Inc., Phase II Draft Report, Study of Alternatives to Transport Coal from the Black Mesa Mine to the Mohave Generating Station (May 24, 1993) (prepared for the U.S. Department of the Interior), app. E, pp. E-7, E-9.

41. Office of Surface Mining Reclamation and Enforcement, Cumulative Hydrologic Impact Assessment, p. 6-5. The CHIA states that the maximum probable impact that impoundments could have on discharge at Moenkopi Wash is a 13 percent reduction if the impoundments retained all water possible. However, as the margin for error is 15 percent at the USGS gauging station, there is no way to verify this claim. Office of Surface Mining Reclamation and Enforcement, Proposed Permit Application FEIS, vol. I, p. IV-12. Although the FEIS claims Peabody’s impoundments will have "minor impacts," many of the comments and petitions included in volume II of the FEIS express concern about these impoundments and their effects on Moenkopi Wash water levels, as observed by local inhabitants. See, e.g., Office of Surface Mining Reclamation and Enforcement, Proposed Permit Application FEIS, vol. II, pp. 384–85.

42. A list of areas whose wells may be affected by Peabody’s groundwater mining can be found in Office of Surface Mining Reclamation and Enforcement, Cumulative Hydrologic Impact Assessment, pp. 4-2 to 4-3.

43. United States Code 30 (1999): §§ 1257(b), 1260(b).

44. Office of Surface Mining Reclamation and Enforcement, Guidelines for Preparation of a Cumulative Hydrologic Impact Assessment (CHIA) [Draft] (Dec. 1985), p. II-1.

45. Office of Surface Mining Reclamation and Enforcement, Cumulative Hydrologic Impact Assessment, pp. 6-20 to 6-45, 7-3 to 7-5. According to draft OSMRE guidelines, material damage criteria are a sine qua non of the CHIA. See Office of Surface Mining Reclamation and Enforcement, Guidelines for Preparation of a Cumulative Hydrologic Impact Assessment, p. IV-22.

46. United States Code 30 (1999): § 1260(b) (requiring OSMRE or other regulatory authority to determine that the "proposed operation . . . has been designed to prevent material damage to hydrologic balance outside permit area").

47. The following discussion of material damage criteria is largely based on Levine-Fricke-Recon, Evaluation of Cumulative Hydrologic Impacts on N-Aquifer, Black Mesa Area, Arizona (Sept. 2000) (prepared for NRDC). This document is appended to the present report.

48. Office of Surface Mining Reclamation and Enforcement, Cumulative Hydrologic Impact Statement, p. 5-6, 5-11.

49. The most recent version of this argument can be found in Office of Surface Mining Reclamation and Enforcement Western Regional Coordinating Center, Report on Its Review and Analysis (2000), pp. 6, E-1 ("Table E-1").

50. See M.E. Cooley, J.W. Harshbarger, J.P. Akers, and W.F. Hardt, Regional Hydrogeology of the Navajo and Hopi Indian Reservations, Arizona, New Mexico, and Utah, with a Section on Vegetation (1969) (U.S. Geological Survey Professional Paper 521-A).

51. Levine-Fricke-Recon, "Evaluation of the Impacts of Groundwater Pumping from the N Aquifer, Black Mesa Area, Arizona" (August 27, 1997), p. 3. For a list of Peabody’s wells that are open to both aquifers, see Office of Surface Mining Reclamation and Enforcement Western Regional Coordinating Center, Report on Its Review and Analysis (2000), p. B-1 ("Table B-1").

52. Office of Surface Mining Reclamation and Enforcement, Cumulative Hydrologic Impact Statement, p. 5-11.

53. Ibid., p. 5-6.

54. For accounts of these events, see the following sections of OSMRE’s progress reports: Report on Its Review and Analysis (2000), pp. 7–9; Report on Its Review and Analysis of Peabody Western Coal Company’s "1996 Annual Hydrological Report -- Black Mesa and Kayenta Mines" and the U.S. Geological Survey’s "Groundwater, Surface-Water, and Water-Chemistry Data, Black Mesa Area, Northeastern Arizona -- 1996," "Groundwater, Surface-Water, and Water-Chemistry Data, Black Mesa Area, Northeastern Arizona -- 1995," "Results of Groundwater, Surface-Water, and Water-Chemistry Monitoring, Black Mesa Area, Northeastern Arizona -- 1994," "Results of Groundwater, Surface-Water, and Water-Quality Monitoring, Black Mesa Area, Northeastern Arizona -- 1992–93" (June 1998), pp. 7–9; Report on Its Review of Analysis of Peabody Western Coal Company’s 1992 "Hydrological Data Report" and the U.S. Geological Survey’s "Results of Groundwater, Surface-Water and Water-Quality Monitoring, Black Mesa Area, Northeastern Arizona -- 1991–92" (Mar. 1994), pp. 6–8; Report on Its Review and Analysis of Peabody Coal Company’s 1991 "Hydrological Data Report" and the U.S. Geological Survey’s "Results of Groundwater, Surface-Water, and Water-Quality Monitoring, Black Mesa Area, Northeastern Arizona -- 1990–91" (June 1993), pp. 6–8; Review and Analysis of Peabody Coal Company’s 1990 "Hydrological Data Report" and the U.S. Geological Survey’s "Results of Groundwater, Surface-Water, and Water-Quality Monitoring, Black Mesa Area, Northeastern Arizona -- 1989-90" (Dec. 1992), pp. 5–6.

55. Office of Surface Mining Reclamation and Enforcement, Cumulative Hydrologic Impact Assessment of the Peabody Coal Company Black Mesa/Kayenta Mine (Jan. 1988), p. 5-10 (draft version of CHIA).

56. Foster Associates, Inc., Study of Alternatives to Transport Coal, pp. E-7, E-9, E-12, E-14, E-15.

57. Ibid., p. E-13.

58. Office of Surface Mining Reclamation and Enforcement, Cumulative Hydrologic Impact Statement, pp. 5-6, 5-11.

59. Although monitored springs at Dennehotso and Hard Rocks are reported to have increased in flow, data in both cases are questionable. The baseline discharge of Hard Rocks Spring has only been estimated; discharge at Dennehotso has increased so dramatically that some extrinsic cause such as nearby construction is implied. For fuller treatment of these issues, see "Evaluation of Cumulative Hydrologic Impacts on the N-Aquifer," appended to this report.

60. Lopes and Hoffman, Geochemical Analyses, p. 1.

61. See the discussion of Black Mesa hydrogeology in "Evaluation of Cumulative Hydrologic Impacts on the N-Aquifer," appended to this report.

62. Ibid.

63. Ibid. (citing Survey records); Foster Associates, Inc., Study of Alternatives to Transport Coal, p. E-9 (reporting 1993 study).

64. OSMRE’s latest treatment of the issue can be found in Office of Surface Mining Reclamation and Enforcement Western Regional Coordinating Center, Report on Its Review and Analysis (2000), p. 10.

65. Office of Surface Mining Reclamation and Enforcement, Cumulative Hydrologic Impact Assessment, p. 1-1. See also Office of Surface Mining Reclamation and Enforcement, Proposed Permit Application FEIS, vol. I, Appendix D, pp. D-7 to D-8. The secretary of the Interior approved three new lease amendments between the Hopi and the Navajo Tribes and Peabody that would allow Peabody to remove an additional 270 million tons of coal from the existing lease area. That’s in addition to the 400 million tons authorized for removal in the original 1964 and 1966 leases. Assuming that the production rate of 12 million tons of coal remains the same, approval of the additional coal removals could extend mining operations until the year 2046. Due to a lack of site-specific data, however, a detailed analysis of the environmental impacts that the additional mining would cause was not included in the FEIS of 1990.

66. Truini et al., Ground-Water, Surface-Water, and Water-Chemistry Data -- 1998, p. 1.

67. See the discussion of "CHIA criterion 4: Discharge to washes" in "Signs of Decline," above (observing, inter alia, that the government’s margin of error of 15% exceeds its damage criterion of 10%). It should be noted as well that the Survey published its first set of data in 1978, several years after Peabody’s operations began. True "premining" baseline data are lacking. See U.S. Geological Survey, Progress Report on Black Mesa Monitoring Program -- 1978 (1978) (USGS Basic-Data Report).

68. See the discussion of "CHIA criterion 2: Water quality" in "Signs of Decline," above (noting the limitations of TDS sampling as a means of evaluation).

69. Compare Office of Surface Mining Reclamation and Enforcement Western Regional Coordinating Center, Report on Its Review and Analysis (2000), pp. 7–9 with U.S. Geological Survey Water Resources Division, Update and Recalibration of the USGS Model of Groundwater Flow in the N-Aquifer, Black Mesa Area, Arizona: A Preliminary Proposal (Jan. 23, 1996), p. 1 (appended to letter from Mark T. Anderson, Chief of Hydrologic Investigations and Research for USGS’ Water Resources Division, to Steve Parsons, Office of Surface Mining Reclamation and Enforcement (Jan. 26, 1996).

70. Draft Memorandum from Bob Hart, Supervisory Hydrologist in USGS’ Water Resources Division, to Greg Littin, Hydrologist in USGS’ Water Resources Division (Aug. 19, 1998), pp. 1, 3 ("Black Mesa Monitoring Program -- A New Focus").

71. This agreement, which was made on March 8, 1991 in accordance with a quasi-judicial administrative decision, is described in a letter from Raymond L. Lowrie, Assistant Director of OSMRE’s Western Support Center, to OSMRE’s Deputy Director for Operations and Technical Services (June 9, 1993) (appended to Office of Surface Mining Reclamation and Enforcement Western Regional Coordinating Center, Report on Its Review and Analysis 1993). For a list of the five reports, see n. 54.

72. Again, see our earlier discussion of OSMRE’s material damage criteria in "Signs of Decline," which appears in Chapter 1 of the present report, and Levine-Fricke-Recon’s Evaluation of Cumulative Hydrologic Impacts on N-Aquifer, which is appended.

73. Letter from William D. Nichols, USGS Water Resources Division in Carson City, Nevada, to Chief of the Office of Groundwater, USGS Water Resources Division in Reston, Virginia (Oct. 28, 1993), p. 3.

74. Compare Office of Surface Mining Reclamation and Enforcement Western Regional Coordinating Center, Report on Its Review and Analysis (2000), pp. 9–10 with Table 3 in the present report.

75. Compare Office of Surface Mining Reclamation and Enforcement Western Regional Coordinating Center, Report on Its Review and Analysis (2000), p. 10 with discussion of criterion 4 in Levine-Fricke-Recon’s "Evaluation of Cumulative Hydrologic Impacts on the N-Aquifer," which is appended to this report.

76. Office of Surface Mining Reclamation and Enforcement, Cumulative Hydrologic Impact Assessment, p. 3-36 (citing the USGS model as presented in J.H. Eychaner, Simulation of Five Ground-Water Withdrawal Projections for the Black Mesa Area, Navajo and Hopi Indian Reservations, Arizona (1983) (USGS Water Resources Investigations Report 83-4000)). The Final Environmental Impact Statement prepared for Peabody’s life-of-the-mine permit sets an even estimate of recharge: between 13,000 and 16,000 acre-feet per year. See Office of Surface Mining Reclamation and Enforcement, Proposed Permit Application FEIS, vol. I, p. III-4.

77. See letter from William D. Nichols to Chief of the Office of Groundwater (Oct. 28, 1993), pp. 3–4. Nichols notes that Brown and Eychaner, who conducted the initial studies of the N-aquifer, relied on estimates of precipitation levels of 18 inches in the Shonto area, and less than 12 inches in most outcrop areas. They then estimated recharge to be 3 percent of the 18 inches near Shonto, and 1 percent of the 12 inches elsewhere. As Nichols points out, however, a map of mean annual precipitation for 1931–1960 published by the State of Arizona shows that the maximum mean annual precipitation rate in the Shonto area is only 12–14 inches; and a more appropriate average for the outcrop areas would be 10 inches. Nichols also observed that the original model did not justify the percentage of precipitation it allocated to recharge. Ibid., p. 4.

78. Following a critique by William D. Nichols, of the USGS Water Resources Department, researchers Thomas J. Lopes and John P. Hoffman recalibrated the recharge rate for the all-important Shonto region. See letter from William D. Nichols to Chief of the Office of Groundwater (Oct. 28, 1993), pp. 2–4; Lopes and Hoffman, Geochemical Analyses, p. 30.

79. See Lopes and Hoffman, Geochemical Analyses, p. 7; Levine-Fricke-Recon, Evaluation of Impacts of Groundwater Pumping, p. 7.

80. C.V. Theis, "The Source of Water Derived from Wells: Essential Factors Controlling the response of an Aquifer to Development," Civil Engineering 10 (1940): p. 277.

81. Letter from William D. Nichols to Chief of the Office of Groundwater (Oct. 28, 1993), p. 3.

82. Ibid., p. 4.

83. Memorandum from OSMRE Director Kathy Karpan to USGS Acting Director Thomas J. Casadevall (Sept. 9, 1998), p. 2 ("Navajo-aquifer Model for Permit Decision on the Peabody Western Coal Company’s Black Mesa Mine").

84. See U.S. Geological Survey, FY 2001 Budget Justification [Draft], p. 4 (appended to memorandum from USGS Deputy Director Tom Casadevall to Interior Department Bureau Directors/Staff (Aug. 16, 1999) ("FY 2001 DOI Science Priorities - Budget Justification")). The exact amount of funding is not specified.

85. Phases I and II of the government’s study appear under the titles: Foster Associates, Inc., Errol Montgomery & Associates, and Ryley, Carlock & Applewhite, Phase I Final Report: Study of Alternatives to Transport Coal from the Black Mesa Mine to the Mohave Power Generating Station (Dec. 22, 1992) (literature review produced by consultants to the Interior Department); Phase II Final Report: Study of Alternatives to Transport Coal from the Black Mesa Mine to the Mohave Power Generating Station (Nov. 17, 1993) (first half of alternatives analysis produced by consultants to the Interior Department).

86. Environmental Protection Agency Region IX, EPA Comments: DEIS on Proposed Permit Application, Black Mesa-Kayenta Mine, Navajo and Hopi Indian Reservations, Arizona (Sept. 1989), pp. 2–3 (attached to letter from Deanna M. Wieman, Director of External Affairs for EPA Region IX, to Peter A. Rutledge, Chief of OSMRE’s Federal Programs Division (Sept. 14, 1989)). See also Bureau of Indian Affairs, Memorandum from BIA Acting Deputy to the Assistant Secretary of Indian Affairs to the Office of Surface Mining Reclamation and Enforcement’s Western Field Operations (Sept. 18, 1989), p. 1 (on the "Draft Environmental Impact Statement (DEIS) for the Proposed Permit Application, Black Mesa-Kayenta Mine, Navajo and Hopi Reservations, Arizona").

87. See, e.g., Peabody Group, FAQs - Coal and Environmental Stewardship (available at www.peabodygroup.com/info/faqs/enviro.html and www.peabodygroup.com/info/faqs/land.html as of February 7, 2000); Letter from Gary L. Melvin, Vice-President of Operations for Peabody Western, to Tanya Lee, Managing Editor of the Navajo-Hopi Observer (Mar. 10, 1998); Peabody Western Coal Company, Water and Mining on the Black Mesa: The Issues and the Facts (1994) (video). For a detailed discussion of the recharge issue, see "Modeling and Muddling" in Chapter 2 of the present report.

88. James Cameron and Julie Abouchar, "The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment," Boston College International and Comparative Law Review 14 (1995): p. 2.

89. See, e.g., United States Code 33 (1999): § 1317(a)(4) (Clean Water Act); United States Code 42 (1999): §§ 7409(b)(1), 7412(b) (Clean Air Act); United States Code 21 (1999): § 355 (Food, Drug, and Cosmetic Act); and, on hydrologic assessment, see United States Code 30 (1999): § 1260(b) (Surface Mining Control and Reclamation Act).