Water Hearing V: Third Week
This was a short week in the State Engineer’s Hearing of Protests against the mine’s application to transfer water rights to its wells along Highway 152 to supply water for Copper Flat Mine. The Interstate Stream Commission (ISC) and the Water Rights Division (WRD) of the Office of the State Engineer presented their witnesses, and then the Hearing was over, a week earlier than expected.
On Monday, the testimonies were dense, and the attorney and hydrologists more argumentative than earlier.
For those who followed the Alta Gold attempt to reopen Copper Flat in the 90s, the arguments were familiar. At issue was anisotropy, whether the underground water flow goes from west to east or from north to south thereby distorting pumping drawdown. As a pump draws water up out of a well, it creates a cone of depression in the water level that leans one way or another depending on the flow of the water. In the first hydrologic study in the 90s of the mine’s wells, the drawdown was said to significantly reach Caballo Reservoir. A second study, however — that used for the 1999 Draft Environmental Impact Study – showed no impact on Caballo because it assumed that water flowed at the wells mostly from north to south, thus elongating the drawdown to the south. In an independent review of that study commissioned by the Mining and Minerals Division that assumption was severely criticized, the author favoring the traditional assumption that water flowed underground from the Black Range to the Rio Grande.
However, the mine’s very thorough and large hydrological study in 2014 — used by the BLM in its 2019 EIS on which the BLM based its permitting of the mine — proposed an ancient and huge north-south underground river from which the mine’s wells draw. That geological feature (called a graben) has been contested throughout this Hearing, and Monday saw the ISC hydrologist, Dr. Gilbert Barth, using a 2015 geological study of the area ignored by the mine, point by point restore the traditional view of eastward water flow.
As part of his conceptual model, he demonstrated how the conjunction of clay layers under Las Animas Creek could isolate parts of the shallow aquifer protecting the wells in that aquifer from being directly impacted by the deep mine wells nearby, as the mine has insisted. However, because the creek is crossed by several faults that are impervious to water, the creek in certain parts is fed by the water of the deep aquifer flowing east hitting these barriers and being pushed up into the shallow aquifer and into the stream. The Las Animas wells could be impacted by the mine’s use of water in spite of the clay layers.
Dr. Barth was followed by the WRD’s director of hydrology, Dr. Katie Zemlick, who, rerunning her calculations because of testimony during the Hearing, showed that 47 wells in Las Animas would be impaired, of which 17 would be critically impaired, and that 14 of these could not be deepened to restore production. Dr. Zemlick extended Dr. Barth’s explanation of interconnectivity between the shallow and deep aquifers along Las Animas by opining that the riparian forests of Las Animas could not be sustained by an isolated shallow aquifer.
Debate over these conclusions informed the cross examinations, with the mine’s attorneys challenging and the Ladder’s attorney supporting through citations of evidence as forms of argument. Curiously, the mine’s defense of its own hydrologic point of view seemed to this biased reporter to lack luster. Throughout the hearing, the mine has conservatively used the BLM’s EIS as ultimate authority, like a holy text, even as opponents point out that the EIS serves an entirely different purpose (to protect public lands) from this hearing on impairment, water conservation, and public welfare, that the EIS defers to the OSE on matters of water, that the EIS did not consider the newer studies available now, etc. On Monday, too, faced with critiques by two eminent hydrologists, the mine reverted to citing the outdated EIS.
On the following day, the WRD presented two witnesses to establish an administrative basis for denying the application. The WRD considers that benefits to the river system by stopping pumping near El Paso cannot mitigate the depletion of the system (including Seco, Las Animas, and the Percha creeks) near Caballo. Acquiring offsets for this depletion would be improbable given that all water rights in the system are being used and many right holders are protestants of this application. Water Resource Manager Cheryl Thacker, said that, having worked on over 450 applications, she had never seen so many protestants [75, of which over 60 were from PAWA members]. Offsets would also require complex management and monitoring, and the OSE has not the capacity to do that adequately.
The rest of the day was spent probing offset possibilities, even though the subject is far beyond the scope of this hearing since it entails an application and another procedure: can the mine drill wells to replace damaged wells, can the OSE force holders of surface water rights to change to well water rights that in fact are lesser rights, and, of course, how much offset will be needed (since how many rights are transferable in this application, how the mine can get other rights sufficient to mine, how long the pumping will last — the duration of mining which is indeterminate or the mine’s claim that it will mine 12 years or just the term of this application, which expires in six years) are all disputed.
At the end of the day, the mine had a chance for rebuttal witnesses, both of which were seriously undermined by the Ladder’s attorney, and then it was over.
We will have to wait some time for the outcome. The attorneys will submit their Findings of Fact, Conclusions of Law, and arguments on December 8 of this year and their Responses to those submissions by January 17, 2024. After that, the Hearing Office will take time to write her report to the State Engineer – a huge job given the thousands of pages entered into evidence — and only then will the State Engineer ponder his decision.
In this trial as in other water right trials, hydrology dominated, and the serious impairment of the springs and wells of the Pitchfork and Ladder Ranches and the threat to EBID water rights will be weighty considerations for the State Engineer. But the arguments this final week clearly showed that hydrology was primarily used in this hearing, unusually, to support the argument of public welfare. Neither the ISC nor the WRD owns water rights that can be impaired. This is also true for GRIP, the Sierra Club, CRRUA, Santa Teresa Land and its partners, Paseo del Norte and Westpark. All their arguments must focus on conservation and/or public welfare. Therefore, the decision in this hearing has a very real chance of being decided on public welfare as well as the private property issue of impairment. That would mean a major shift in water law and a validation of public, community good in our management of essential natural resources.
Thanks for the detailed report. Wonder if you could clarify the use of “traditional” in two places. How were the “traditional assumption” and the “traditional view” established as traditions — among whom are they traditions?
Mainly, I mean by “traditional” that geologists have for a long time described the formation of this area as a result of the thrust upwards of the Black Range. This upwards movement resulted in a tilting of the formations to the east. As the uplift deteriorated the debris rolled east forming the hills and eventually the stuff that filled the Rio Grande valley. So, both surface and underlying structure slope east, and similarly the water on the surface and in the ground flows east except for local disturbances. John Shomaker assumed that in his first 1990 study, but he has since changed his mind because of the theory of the graben (suggested originally by John Hawley, whom I understand may have second thoughts about it), and Mr. Shomaker is now responsible (or his company is) for the mine’s insistence that water for their wells is coming from the north. Since the valley also has a north-south slant to it, water in this area is said by hydrologists to be mainly moving east but also with a smaller southern flow. If I had my papers with me, I would have cited that study which criticized an excessive north-south supposition, but I have been covering the Hearing from miles away. Only a major feature like a graben could explain a deviation from what I call the traditional view. And that feature hasn’t been established.