A few days ago, State Engineer Elizabeth Anderson denied Tulla Resources Group’s application to transfer water rights from near the Texas border to New Mexico Copper Corporation’s (NMCC’s) wells near Animas Creek in order to reopen Copper Flat Mine. (Tulla Resources Group owns Themac Resources Group which owns New Mexico Copper Corporation.) The application was protested by a large group of local residents banded together in the Percha-Animas Watershed Association (PAWA), for which I serve as researcher and board president.
PAWA was joined by Turner Ranch, the Sierra Club, Pitchfork Ranch, the New Mexico Interstate Commission, Elephant Butte Irrigation District, Camino Real Regional Utility Authority, and Santa Teresa Land. The administrative hearing on the protested application took place two years ago and was presided over by the State Engineer appointed Hearing Examiner, Sandra Skogen. For a five-part report of the hearing itself, see my series Water Hearing I-V in the Citizen. Last week, the Hearing Examiner issued her Report and Recommendation in the form of 338 Findings of Fact and 55 Conclusions of Law advising the State Engineer to deny the application.
New Mexico law requires the applicant to demonstrate that its use of the leased water will not impair the rights of other water users, that its use is consistent with the state’s principle of water conservation, and that its use will not harm public welfare. The Hearing Examiner concluded that Tulla satisfied only the requirement to demonstrate water conservation.
In her argument, the Hearing Examiner focused on the probable impairment to Animas Creek and the Rio Grande, noting also, and prominently, that NMCC did not have enough time to obtain all the needed permits and construct the mine before the terms of the water lease expired in 2029: the project was not feasible and the water was not going to be beneficially used, New Mexico’s constitutional definition of water use. If the Report stands, this demonstration of impairment makes unlikely all future attempts at mining Copper Flat Mine using the water intensive method of processing that NMCC had proposed.
However, NMCC — apparently in anticipation of the denial of its application — has already made gestures about changing its processing method. See Kathleen Sloan’s article on the mine’s turn to dry stack tailings: Copper Flat Mine to use much less water – Sierra County Citizen. Yet, in spite of the talk, it has formally not filed a revision of its mining plans with the Bureau of Land Management which must permit the mine’s operation.
It has presented plans for dry stack processing to the NM Environmental Department, but only because its wastewater disposal permit had expired and it needed a renewal going forward. This NMED review process will test the extent to which switching to dry stack will be a barrier in the permitting process.
The NMED may take as long as a year to evaluate the new information and formulate an appropriate permit. Since renewals of wastewater disposal permits are usually almost automatic, this delay would signal other long delays in the permitting process. Will it, for example, require more stringent review for an air pollution permit, one of the major environmental downsides to dry stack processing? And how does the mine fulfill its closure plan, which requires a “quick filling” of the mined out open pit with water to prevent oxidation of the exposed metals into acid. With water rights to about 1,000 acre feet of water a year, it will take almost three years for this “quick” fill. A wholly new closure plan would then kick in a very lengthy redo of its BLM mining permit. And, let us not forget that NM Mining and Minerals Division has not yet given its permission to mine.
Besides the regulatory difficulties that the State Engineer’s denial of Tulla’s application forces upon the mine, dry stack itself is not benign. Its costs are very high because it requires huge amounts of electricity, which generally takes huge amounts of water to produce. And, what if that electricity is not available? Will our local grid be able to handle this demand without blackouts for the rest of us? Rumor already has it that Sierra Electric is unable to supply the electricity NMCC will need.
I have been in a suit against the reopening of this mine for at least a decade. Our DROUGHT should have put a stop to this years ago. Thank you NM State Engineer’s Office. Now there will be more time and effort spent on it with their next application.
I sure hope Sierra Electric doesn’t suddenly say, “oh, we can provide the necessary electricity.” But it’s amazing how often our local orgs and entities turn their backs on the people time and time again.