EXECUTIVE SUMMARY

From a plateau called Black Mesa, in the arid Four Corners region of Arizona, the Peabody Coal Company mines over 1 billion gallons of pristine, potable ground-water each year, mixes it with coal to form a substance called slurry, and pipes it to a power station in the Mojave desert, almost 300 miles away. But Peabody is not alone on Black Mesa. All of the Hopi and many of the Navajo who live there must take their water, which they use for drinking and subsistence farming and for religious purposes, from the same source. According to data compiled by the Department of the Interior, Peabody’s operations appear to be causing or contributing significantly to a range of groundwater-related problems, with profound environmental, cultural, and religious implications for the region’s tribal communities.

Two years ago, NRDC was approached by Vernon Masayesva, former chairman of the Hopi Tribe and current executive director of Black Mesa Trust, who, like many in his generation, has witnessed the signs of groundwater depletion at firsthand. He and others have been pressing the federal government for almost a decade to fulfill its historic responsibility toward the tribes and take action to safeguard their water, but the government has been slow even to acknowledge that a problem exists. Our purpose in this report is to assess the growing controversy on Black Mesa: to investigate its origin and history, evaluate the data, and consider what role the federal government ought to play in its resolution. The actions we recommend would help conserve Black Mesa’s water supply well into the new century.

THE DAMAGE OF DRAWDOWN

The groundwater in dispute occurs within an underground formation known as the Navajo Aquifer (or N-aquifer for short). Water that collects there slowly percolates from the northwest sector of the Navajo reservation into a set of shallow, fingerlike projections near the Hopi villages in the south, discharging after many years into a host of gentle washes and springs. The N-aquifer is the most significant water source in the region. Insulated by a barrier of mudstone and sandstone, it naturally satisfies EPA standards for drinking water -- unlike the region’s other aquifers, whose contents are brackish or contaminated by uranium or coal. And the springs it feeds along its southern front are sacred to the Hopi people and essential to their religious practice. Ultimately, the debate over Peabody’s use of N-aquifer water cuts to the sustainability of one of North America’s oldest cultures, the Hopi, and implicates many similar issues for the Hopi’s neighbors, the Navajo Nation.

Hydrogeologists at the Interior Department’s Office of Surface Mining Reclamation and Enforcement (OSMRE) have monitored the health of the N-aquifer since the late 1980s, and their records, together with data collected by the U.S. Geological Survey and the Peabody Coal Company itself, paint the picture of a system in decline. Since Peabody began using N-aquifer water for its coal slurry operations, pumping an average of 4,000 acre-feet -- more than 1.3 billion gallons -- each year, water levels have decreased by more than 100 feet in some wells and discharge has slackened by more than 50 percent in the majority of monitored springs. There are reports that washes along the mesa’s southern cliffs are losing outflow. And there are signs that the aquifer is being contaminated in places by low-quality water from overlying basins, which leaks down in response to the stress caused by pumping. These developments threaten the viability of the region’s primary water source.

Most disturbing, at least one OSMRE’s own criteria for material damage has been exceeded. These criteria were established in 1989 to help prevent damage to the aquifer and its water supply, as the Surface Mining Control and Reclamation Act requires; unfortunately, OSMRE’s efforts at applying them have been hampered by gaps in its groundwater monitoring program, delays in assessment, and overreliance on outdated models to the neglect of data collection in the field. In their public reports, officials insist that all is well with the N-aquifer. But the available evidence cannot support that conclusion; on the contrary, with perhaps decades of mining left to "draw down" the aquifer, to sap the water pressure that has taken many centuries to build, the aquifer may already have suffered material harm. There have been calls even within OSMRE for the government to take a harder look at the problem.

A DUTY TO ACT

The history of the current water crisis can be traced at least as far back as 1909, when the U.S. government first discovered coal beneath Black Mesa. The government’s finding drew intense interest from mineral companies, who soon launched their own explorations in the region. But it was not until the industrial boom of the 1950s and early 1960s, when pressure to tap the energy resources of the Colorado Plateau was strong enough to threaten even the Grand Canyon, that the mesa’s reserves were developed on a grand scale. Black Mesa coal came to be viewed as the engine that could power the Central Arizona Project (CAP), a massive network of aqueducts, tunnels, pumping plants, and pipelines designed to transport billions of gallons of water each year from the Colorado River to arid lands in the American southwest. In 1964, the Navajo Nation signed exploration agreements with the predecessor of Peabody Coal; the Hopi Tribe signed its mining lease two years later.

From the beginning, the annual withdrawal of more than a billion gallons of potable water for mining purposes caused concern. When Peabody negotiated its initial arrangement with the tribes in the mid-1960s, Secretary of the Interior Stewart Udall included an escape clause that could be triggered if Peabody’s pumping adversely affected the aquifer and its users. Yet despite numerous studies and now-obvious signs of negative impacts, the Department of the Interior has not exercised its contractual authority in the nearly 35 years since the original leases were signed. The case for further action is all the more compelling in light of the "trust responsibility" that the government owes the tribes. As courts have long recognized, this responsibility obligates the federal government to protect tribal interests, especially when the government exercises control over natural resources on tribal lands, as it does in this case; in such circumstances, its responsibility rises to the level of a fiduciary duty, similar to that which lawyers owe their clients or trustees their beneficiaries. The application of this duty in the context of Black Mesa requires that the United States restrain Peabody’s use of the N-aquifer and, more generally, assure an adequate supply of water to the tribes.

RECOMMENDATIONS

In the mid-1980s, Peabody applied for a permit that would cover the life of its Black Mesa mine, sparking debate among a host of parties, including the U.S. Interior Department, the Hopi Tribe, the Navajo Nation, Peabody Coal Company, and the state of Arizona, over the consequences for the N-aquifer. Within a few years, however, at the behest of the Interior Department, the debate was shunted into a wider series of negotiations on regional water rights; henceforth, the future of the N-aquifer would be linked to the resolution of a complex legal case, In Re: The General Adjudication of All Rights to Use Water in the Little Colorado River System and Source. The department had reasons for linking the two, but the surface-water issues at stake in Little Colorado River were not easily resolved. Throughout the 1990s, as the case dragged on, Peabody continued its operations under an indefinite, interim permit that OSMRE supplied. And so a practice of groundwater mining that virtually no one defends as an appropriate -- let alone the best -- use of a precious resource continues unabated. With each passing day, another 3 million gallons on average are pumped from the N-aquifer, mixed with a fine powder of pulverized coal, and piped to the Mojave.

To help solve this pressing problem, we offer the following recommendations:

• Peabody should cease groundwater pumping from the N-aquifer no later than 2005. There is sufficient evidence to demonstrate that Peabody’s yearly withdrawal of more than a billion gallons of potable water from the N-aquifer is endangering the ability of the Hopi and the Navajo to draw on groundwater for subsistence and other needs. The Department of the Interior should require that Peabody cease mining the aquifer no later than 2005, as contemplated by parties to the Little Colorado River negotiations.
  
  
• Peabody should immediately implement an N-aquifer use-reduction plan. Of the more than 1 billion gallons of N-aquifer water that Peabody pumps each year, a portion is used for reasons other than coal transport (its ostensible purpose) and a portion is used to compensate for inefficiencies in the transport system. As the first stage in a phase-out of industrial use, the Department of the Interior should order Peabody to produce and begin to implement a use-reduction plan no later than December 31, 2001.
  
  
• The Interior Department should complete the three-part study of coal transport alternatives that it began in the early 1990s. In parts one and two, the agency began to evaluate a number of alternative methods of transport and alternative sources for slurry; in addition to these, it should consider the use of reclaimed wastewater from facilities in Tuba City (once needs of local farmers are met), which could lay the groundwork for other reclamation projects in northeast Arizona.
  
  
• The Department of the Interior should recalibrate its model and improve its monitoring of the N-aquifer. The current hydrological model fails to reflect the best available scientific evidence, and the current monitoring program contains a number of significant gaps. These must be revised if the intent of the Surface Mining Control and Reclamation Act -- the prevention of material damage to the aquifer -- is to be fulfilled over the long term. Of course, making these revisions should not delay the department in taking the precautionary steps we have recommended and satisfying its fiduciary duties to the tribes.
  
  
• Through implementation of one or more effective, environmentally sensitive alternatives, the Department of the Interior should ensure a viable, stable, long-term supply of water for the Hopi and Navajo reservations. The government must consider a range of options and analyze their environmental impacts in order to fulfill its trust responsibility to the tribes.
  
  
• The Department of the Interior should adopt "safe yield" as its management goal for Black Mesa. Safe yield concepts, which are already encoded in Arizona law, require effective policies and parameters to ensure the availability of groundwater long into the future.
  
  
• 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.
  
  
• Finally, tribal sovereignty must be respected, and federal and tribal governments should work cooperatively to manage aquifer resources. Fundamental to any management plan should be self-governance for the tribes, enforceable limits on withdrawals from the N-aquifer, and regulations that recognize the environmental and cultural significance of the N-aquifer and the sacred springs it feeds.

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