Chapter 3
RECLAIMING THE FUTURE

The West is defined  .  .  . by inadequate rainfall.  .  .  . We have water only between the time of its falling as rain or snow and the time when it slows or percolates back into the sea or the deep subsurface reservoirs of the earth. We can’t create water or increase the supply. We can only hold back and redistribute what there is.
-- Wallace Stegner

It is nothing short of remarkable that conditions which threaten the N-aquifer arose in Arizona, a state that claims to have one of the nation’s most aggressive policies in groundwater management; within the overlapping jurisdiction of the Hopi Tribe and Navajo Nation; and -- most disturbingly -- in full view of the Department of the Interior, which has a fundamental trust responsibility toward the tribes. The N-aquifer has proven difficult to manage. In this final chapter, we survey the regulatory landscape, discuss efforts the parties have recently made toward a comprehensive solution for Black Mesa, and make recommendations for protecting the aquifer, now and in the future.

Groundwater Regulation: Who’s Minding the Store?

In some respects, Arizona’s Groundwater Management Act, which was passed 20 years ago, is pioneering legislation. It empowers a single state agency to inventory groundwater, establish long-range goals for reducing groundwater use, and allocate deliveries to competing users; and it mandates a goal of safe yield (that is, no withdrawals beyond an aquifer’s net recharge) by the year 2025. ^[144] But the Arizona law was shaped in part by representatives of mining interests, the agricultural sector, and city governments -- all heavy users of groundwater. One of its primary aims is accommodating economic development and expansion. Residents of Tucson, for example, should not be surprised that prescriptions for attaining safe yield in their area are unrealistic, that few meaningful restrictions have been placed on future growth. ^[145] Only time will tell whether the state’s commitment to conservation will prevail. The practical limitations of Arizona’s law are only compounded by its inapplicability to tribal reservations, a necessary result given the state’s paramount duty to respect the sovereign interests of the tribes. ^[146] Safe yield may serve as a statement of acceptable practice, but it does not have the force of state law.

Regulations imposed by the Hopi and Navajo administrations have the force of law on tribal lands, but, like Arizona state law, neither the Hopi nor the Navajo water code directly controls the aquifer. According to some observers, tribal water regulations have often been slow to develop because of jurisdictional tensions between the state and federal agencies charged with resource management; such tensions are only exacerbated when, as with the N-aquifer, two tribes share a resource and the right to regulate its use. ^[147] Though there was movement in the late 1990s to establish an intertribal authority for the aquifer’s use and conservation, negotiations were never completed. ^[148] Neither tribe has formally adopted regulations to resolve current overdraft problems or to address ones that might arise in the future, as the tribes themselves grow and additional sources of water are needed.

To some degree, the lack of groundwater regulation on Black Mesa is symptomatic of a general problem. At midcentury there was relatively little concern over the allocation of groundwater. Supplies were considered abundant, and little was known about the nature of aquifers to shake this presumption. ^[149] Only in the last several decades have there been efforts to study and regulate groundwater use -- a direct result of increases in both depletion and pollution problems across the country. The N-aquifer is not the only system under stress or facing exhaustion. Farmers are withdrawing more than 14 million acre-feet of groundwater per year from the Ogallala aquifer in the central Plains, one of the largest and richest aquifers in the country, and many observers feel that it is destined for complete destruction. ^[150] Recent research on the Santa Fe aquifer system, which feeds Albuquerque, reveals not only that previous estimates of this aquifer’s supplies were exaggerated, but that significant drawdown has already occurred. ^[151] A survey conducted by the Council of State Governments in the late 1980s found that all 50 states deemed groundwater a threatened resource, with 65 percent ranking it the most endangered natural resource in their jurisdictions. ^[152] The most common "solution" as things stand now is to tap a neighbor’s supply.

If Arizona law and inchoate tribal regulatory programs have fallen short of protecting the aquifer, the Interior Department has, too -- and it is obligated to do more. As discussed in Chapter 2, the U.S. government has a fundamental trust responsibility to uphold, specific mandates under the Indian Mineral Development Act (and other laws) to obey, procedural duties under the Surface Mining Control and Reclamation Act to fulfill, and contractual authority to apply. Furthermore, it has at its disposal the resources of the U.S. Geological Survey, whose mission is, in part, to serve "the Nation by providing reliable scientific information to . . . manage water, biological, energy, and mineral resources." ^[153] The department’s approach to modeling and monitoring has done nothing to arrest declines in the aquifer’s water level, nor does it show any prospect of protecting the aquifer from further material damage.

THE STRUGGLE FOR SOLUTIONS: LITTLE COLORADO RIVER

Several years ago, in its search for a solution, the Interior Department tied the fate of the N-aquifer to an extraordinarily complex lawsuit now pending in Arizona state court: In Re: The General Adjudication of All Rights to Use of Water in the Little Colorado River System and Source, known in brief as Little Colorado River. ^[154]

That the controversy generated by Peabody’s pumping of the N-aquifer would be linked formally with Little Colorado River was not a foregone conclusion. The case is a sprawling adjudication with scores of parties: four tribes (the Hopi Tribe, the Navajo Nation, the Zuni Pueblo, and the San Juan Southern Paiute Tribe), the federal government, the state of Arizona, power companies such as Edison International, and numerous non-Native American water-rights claimants. ^[155] And viewed strictly from a legal perspective, extraction of water from an aquifer had little to do with the matters before the court, which concern rights to surface water, not groundwater, on the Colorado Plateau. Nevertheless, in 1994, Secretary of the Interior Bruce Babbitt, with the support of the Hopi Tribe and Navajo Nation, proposed that negotiations include the issue of Peabody’s groundwater mining. ^[156] His reasons were understandable. Because virtually every significant party with an interest in the N-aquifer was involved in Little Colorado River, the state case provided a procedural vehicle to reach agreement on Black Mesa’s groundwater problems, even if they were not formally at issue. There was a substantive connection as well, since the remedy favored by the Hopi involved importing surface water, which would then have to be apportioned.

During the late 1990s, there was hope that a solution along these lines could be engineered through negotiation, that a pipeline (to be cofunded by the federal government, the tribes, and various industrial interests) could be run from Lake Powell, Arizona, southeast to Black Mesa. The pipeline would provide fresh water for the Hopi and Navajo as well as for Peabody, which would use its share in place of ground-water to slurry coal; specific allocations would be settled through Little Colorado River. ^[157] There is little question that the Hopi and Navajo need additional water resources. Local communities in the Black Mesa region currently consume about 3,000 acre-feet of N-aquifer water each year -- 1,500 acre-feet from the aquifer’s confined portion -- but planned improvements to infrastructure combined with population growth (the tribes are growing by 2.5 percent annually, according to projections the Hopi have made using U.S. census data) may mean a substantial increase in demand. ^[158] For subsistence alone, the tribes’ collective use of ground-water could top 6,000 acre-feet by 2010, and commercial development will only add to the burden (see Figure 7). ^[159]

If these projections prove accurate, the proposed pipeline, even if unobjectionable from an environmental perspective, may still be inadequate as a long-term source of water. At 13 inches in diameter, the pipeline could deliver about 8,000 acre-feet of water annually -- a volume that, by Hopi estimates, would hardly be enough in 15 years to meet the tribes’ needs, let alone Peabody’s. ^[161] Suggestions have been made to double the pipe’s diameter (a 26-inch pipeline could carry over 25,000 acre-feet, more than three times as much water per year) but the federal government has balked at the cost and the state of Arizona at the allocation of water away from non-Indian cities in the south, whose usage rates have historically been extravagant. ^[162] Neither objection gets to the heart of the matter: whether the construction of a public work on the magnitude of a water pipeline is a meaningful, environmentally sound solution to N-aquifer depletion.

Thus far, the Little Colorado River negotiations have not borne fruit. Years of formal discussion have not produced an agreement over groundwater use, let alone over use of the region’s surface water, and in recent months they have ground to a halt over a separate lawsuit filed by the Navajo Nation in 1999 against Peabody and others and over the parties’ competing claims. (The Navajo suit seeks over $600 million in damages and alleges conspiracy to influence Interior Department officials to approve lower coal royalty payments due the Navajo.) ^[163] Litigation of tribal water rights is renowned for its Dickensian tortuousness. But this does not absolve the department from taking action now to revise its monitoring program and reduce Peabody’s withdrawals. The interim permit for groundwater mining that Interior issued in 1982 must not become de facto the life-of-the-mine permit that, ten years ago, Interior had been unwilling to give. ^[164]

RECOMMENDATIONS

To preserve the N-aquifer and the sacred springs and washes it feeds, NRDC concludes the following steps must be taken, either within the Little Colorado River framework or by other means:

Reduce Drawdown from the Peabody Mine

1. Peabody should cease groundwater pumping from the N-aquifer no later than 2005. There is ample evidence to suggest that Peabody’s annual withdrawal of more than a billion gallons of potable N-aquifer water (which no one defends in principle) is endangering the ability of the Hopi and the Navajo to draw on groundwater for subsistence and other needs. Given the substantial fall of water levels in the aquifer, mounting evidence that its recharge rates are substantially lower than originally forecast, evidence of water-quality degradation in at least some parts of the aquifer, declines in outflow from its springs, Peabody’s status as principal user, potential for severe, adverse consequences should pumping continue -- and the protective principles that underlie the government’s trust relationship with the tribes -- it should be the policy of the Department of the Interior that Peabody cease mining the N-aquifer no later than 2005, as contemplated by parties to the Little Colorado River negotiations.

2. In the interim, Peabody should be put on a water budget. Peabody currently uses more than 1 billion gallons of N-aquifer water annually in its operations, but not all of it is used to transport coal, its ostensible purpose, and more is used for coal transportation than is strictly necessary. As an initial step to securing the long-term health of the N-aquifer and the water needs of Native Americans in the Black Mesa area, and as the first phase of a complete phase-out of Peabody’s industrial use of the aquifer, the Department of the Interior should order the company to present a use-reduction plan no later than December 31, 2001. This plan, at a minimum, should require the company to:

• Identify each industrial and nonindustrial use it makes of water pumped from the N-aquifer (for example: injection into slurry, dust suppression, etc.) and specify how many gallons are consumed for each use;
  
  
• Identify actions needed to eliminate each use it makes of N-aquifer water other than the actual injection of N-aquifer water into the coal slurry;
  
  
• Identify actions needed to reduce, to the maximum extent, the amount of N-aquifer water in the slurry mixture; and
  
  
• Propose a timeline to accomplish these objectives by the close of 2002 and to completely phase out the company’s use of N-aquifer water by the close of 2005.

3. The Interior Department should renew its investigation of alternatives to the current pipeline system. The Department of the Interior should update Phases 1 and 2 and conduct Phase 3 of the three-part study on coal transport alternatives it began in the early 1990s. The Environmental Protection Agency identified a few of these alternatives in reviewing Peabody’s permit application ten years ago: replacing water-based coal slurry with a methanol-based slurry; substituting low-grade water for the pristine drinking water of the N-aquifer; using reclamation technologies to reduce the total amount of water needed, regardless of the source; and developing an alternative vehicle for coal transport. ^[174] It remains for the Interior Department to update and complete its comparative analysis and determine which of the available options, singly or in combination, are the most environmentally and economically sound.

Interior should consider, in addition, at least one alternative that has not yet been named: the use of reclaimed water from existing treatment facilities as a replacement for all or part of the pristine N-aquifer groundwater used in Peabody’s slurry. Recycling wastewater is generally considered to be sound environmental policy, supported by a wide range of interests in the southwestern United States, and NRDC’s investigation has determined that recycling in this case may be technically feasible, once the needs of local farmers are met. (See sidebar below, "A New Source for Slurry.") Not only would substituting wastewater for drinking water in Peabody’s pipeline conserve scarce, high-quality water on Black Mesa, it could also set the groundwork for wider uses of treated wastewater in Four Corners, Arizona. Because of the region’s extreme aridity and increasing demand for water, the Department of the Interior should actively encourage reuse and should make appropriate investments in infrastructure to support this partial solution for the region’s water needs.

Take Measures to Sustain the Aquifer in the Long Term

1. The Department of Interior should ensure, through implementation of one or more effective, environmentally sensitive alternatives, a viable long-term source of water for the Hopi tribe and the Navajo Nation. Elements of the Little Colorado River framework, including the proposed thirteen-inch pipeline from Lake Powell to the Black Mesa, should be compared with alternatives, including those recommended here; as much attention should be paid to environmental impacts as to project costs. It must be the policy of the United States to ensure that the projected future water needs of both tribes will be met. Solutions for short periods of ten or 20 years should be discouraged.

2. The Department of the Interior should adopt safe yield as its management goal. Under the standard known as safe yield, users of an aquifer cannot take more than the aquifer’s natural surplus: the difference between what the aquifer annually acquires through recharge and what it loses through discharge to springs and washes and other natural processes. Meeting this standard means developing policies and parameters that will ensure the availability of ground-water long into the future. Other standards, such as sustained yield, which sets a hundred-year parameter for an aquifer’s sustainability, provide neither a long-term solution to ground-water overdraft nor an appropriate way to ensure the viability of peoples that have inhabited the same land for many hundreds of years. With tribal consent, the Department of the Interior should adopt safe yield as its management goal for the N-aquifer.

3. The Department of the Interior should improve its monitoring of the N-aquifer. To ensure that safe yield standards are met and that washes, springs, community wells, and other features are protected in the long run, it is essential that the current monitoring regime be overhauled. The Interior Department should improve its metering of Moenkopi and other washes, take potentiometric measurements of the D- and N-aquifers for a more accurate assessment of contamination risk, and make whatever additional adjustments are necessary to address the potential impacts that OSMRE has identified. At the same time, it should open OSMRE’s material damage criteria, which help define the parameters of its monitoring program, to a public process of reexamination and revision.

4. The Department of the Interior should recalibrate its hydrogeologic model of the N-aquifer. Data compiled by OSMRE and a reassessment of the aquifer’s recharge rate undertaken by the U.S. Geological Survey suggest that the department’s existing model does not reflect actual conditions. The department should revise its model accordingly. Of course, making these revisions to its modeling and monitoring programs should not delay the department in taking the precautionary steps we have recommended.

5. With tribal consent, the Environmental Protection Agency should designate the N-aquifer a "sole source aquifer" pursuant to the Federal Sole Source Aquifer Protection Program. The federal Safe Drinking Water Act recognizes that sole sources of regional drinking water, whose contamination "would create a significant hazard to public health," require special protection to ensure their long-term viability. ^[175] Once an aquifer has officially been designated a sole source under the program, no federal funding can be committed to any project that may result in its contamination. With the tribes’ consent, the N-aquifer should receive this designation from the Environmental Protection Agency.

6. Tribal sovereignty must be respected, and federal and tribal governments should work cooperatively to manage aquifer resources. The federal government, and the Hopi and Navajo tribes must work together to develop a viable policy of groundwater management applicable to reservation lands and modeled on the safe yield standard of zero net withdrawals. Fundamental to the plan should be self-governance for the tribes with respect to groundwater management; enforceable limits on withdrawals from the N-aquifer, to ensure that progress associated with diminished industrial pumping is not offset or lost by increased pumping for other nonessential purposes; and regulations that recognize the environmental and cultural significance of the N-aquifer and the sacred springs it feeds. As the tribes make improvements to infrastructure in the coming decades, efforts should be made to incorporate acceptable usage levels into their water systems.

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Notes

144. The Act is codified at Arizona Revised Statutes 45 (2000): §§ 561–78. For an analysis of the Act’s goals and limitations, see, e.g., David Lewis Feldman, Water Resources Management: In Search of an Environmental Ethic (Baltimore: The Johns Hopkins University Press, 1991), pp. 64–65; William E. Martin, Helen M. Ingram, Dennis C. Cory, and Mary C. Wallace, "Toward Sustaining a Desert Metropolis: Water and Land Use in Tucson, Arizona," in Mohamed T. El-Ashry and Diana C. Gibbons, eds., Water and Arid Lands of the Western United States (New York: Cambridge, 1988), pp. 287–89.

145. Martin et al., "Toward Sustaining a Desert Metropolis," pp. 307–13. A recent audit conducted by the Arizona Auditor General concluded that the state’s groundwater supply would "continue to weaken" unless water restrictions were expanded. A lack of restrictions in rural areas, the audit reported, "could spur a future water crisis." Maureen O’Connell, Tucson Daily Star, April 27, 2000.

146. It is a general rule that the water rights reserved by tribes in the course of their treaty-making with the U.S. government are federal in nature and cannot normally be infringed by state law. Arizona v. California, United States Reporter 373 (1963): pp. 597–600; and see passim Winters v. United States, United States Reporter 207 (1908): p. 564ff.

147. Norris Hundley, Jr., "The Great American Desert Transformed," in Mohamed T. El-Ashry and Diana C. Gibbons, ed., Water and Arid Lands of the Western United States (New York: Cambridge, 1988), p. 70.

148. Interview with Vernon Masayesva, former Hopi Tribal Chairman (Sept. 2, 1998).

149. Feldman, Water Resources Management, p. 58.

150. Hundley, "The Great American Desert Transformed," pp. 69–70. Hundley’s estimate from 1988 states that farmers have been mining water at the rate of nearly 8 million acre-feet a year. See also Donald A. Wilhite, "The Ogallala Aquifer Depletion," in Michael H. Glantz, ed., Societal Responses to Regional Climatic Change: Forecasting by Analogy (Boulder, Colo.: Westview Press, 1988), pp. 1–3.

151. U.S. Geological Survey, U.S. Geological Survey Programs in New Mexico (1996) (USGS Fact Sheet FS-031-96) (available at http://water.usgs.gov/public/pubs/FS/FS-031-96/#HDR08 asof Mar. 1, 2000).

152. Ibid.

153. U.S. Geological Survey, Vision, Mission, and Strategic Direction (available at http://www.usgs.gov/bio/USGS/mission.html as of Mar. 1, 2000).

154. Superior Court No. 6417, Apache County, Arizona.

155. Ibid. The Little Colorado River Settlement Committee alone numbers twenty-seven parties.

156. Letter from Bruce Babbitt, Secretary of the Interior, to Ferrell H. Secakuku, Hopi Chairman (Aug. 22, 1994) (reprinted in "Secretary Babbitt Proposes Framework for Resolving Issues Involving Black Mesa Mining and Indian Water Claims," U.S. Newswire (Aug. 23, 1994)).

157. See Little Colorado River Settlement Committee, Settlement Agreement for the Resolution of Indian Water Rights Claims in the Little Colorado River Basin (Draft) (Feb. 18, 1998), pp. 1–3.

158. For current usage rates, see Truini et al., Ground-Water, Surface-Water, and Water-Chemistry Data -- 1998, p. 5. For projected rates, see Morgan, Alternative Transportation System, p. 14; Office of Surface Mining Reclamation and Enforcement, Proposed Permit Application FEIS, vol. I, pp. III-39 to III-40.

159. Morgan, Alternative Transportation System, p. 14.

160. Comments of Sanford Coochyouma, Leroy Shingoitewa, Mary Gilmore, and Vernon Masayesva (Aug. 1989), in Office of Surface Mining Reclamation and Enforcement, Proposed Permit Application FEIS, Vol. II, pp. 357, 417, 422–23, 460.

161. See Morgan, Alternative Transportation System, p. 14.

162. Interview with Ron Morgan, Water Rights Hydrologist (Sept. 2, 1998). For illustration of the extravagant use of water by Arizona cities, see Robert Gottlieb, A Life of Its Own: The Politics and Power of Water (San Diego: Harcourt Brace Jovanovich, 1988), pp. 145–49; Martin et al., "Toward Sustaining a Desert Metropolis," pp. 281–332.

163. The suit has been filed as The Navajo Nation v. Peabody Holding Company, Inc., et al., Case No. CA-99-0469-EGS (D.D.C.).

164. As the U.S. Claims Court has recognized, the government’s fiduciary duty may extend to protection of tribes in water-rights litigation. See Fort Mojave Indian Tribe v. United States, United States Claim Court Reporter 23 (1991): pp. 417ff.

165. These population figures are derived from the 1990 Census for Tuba City. Socioeconomic Data and Applications Center/Center for International Earth Science Information Network at Columbia University, 1990 Census Data Sheet (available at http://plue.sedac.ciesin.org/geocorr/htmls/placesAZ.html as of Feb. 2000).

166. See Environmental Protection Agency Region IX Water Management Division, NPDES Compliance Evaluation Inspection Report: Navajo Tribal Utility Authority, Tuba City Wastewater Treatment Facility, Tuba City, Arizona (Aug. 17, 1993), p. 1 (maximum daily flow); and see, e.g., S. Yard, Tuba City Effluent Reuse Preliminary Analysis (May 9, 1997) (handwritten notes, reporting average available effluent at 500,000 gpd).

167. Code of Federal Regulations 40 (2000): §§ 133.102.

168. See, e.g., J.E. Watson and R. Grumbles, Wastewater Reuse Options -- City of Kingman (Mar. 1987) (University of Arizona Cooperative Extension Service Report No. 8702) (assessing and recommending use of wastewater for variety of purposes); California Water Code (1999): §§ 13511, 13550 (authorizing use of recycled waste-water for agricultural and other purposes).

169. See Minutes, Little Colorado River Soil and Water Conservation District Groundwater Meeting (Feb. 9, 1993); S. Yard, Tuba City Effluent Reuse Preliminary Analysis (May 9, 1997).

170. James W. Moore, Project Completion Report: Water Quality Aspects of Coal Transportation (Fayetteville, Ark.: Arkansas Water Resources Research Center, University of Arkansas, 1980).

171. James W. Moore, Project Completion Report, pp. 7–8. See also Rogozen, Coal Slurry Pipelines, p. 187.

172. Michael Barnett Rogozen, Coal Slurry Pipelines, p. 165.

173. Environmental Protection Agency Region IX Water Management Division, NPDES Compliance Evaluation Inspection Report (Aug. 17, 1993) (on environmental impacts associated with plant operations).

174. See text above at nn. 85–86.

175. See United States Code 42 (1998): § 1424.