Amigos Bravos

Because Water Matters — Since 1988

We have a vision of New Mexico’s rivers and streams running so clear and clean that you can bend a knee to the water, cup your hands, and drink without fear.

Menu

News & Events

GILA HICCUP

Former Interstate Stream Commission director says group violated the state Open Meetings Act

September 22, 2014, 4:55 pm
By Laura Paskus

 

"A former director of the New Mexico Interstate Stream Commission, Norman Gaume, announced Monday that he’s planning to sue that agency for alleged violations of the state’s Open Meetings Act, and the action might be enough to create a hiccup for a proposal to divert water from the Gila River.

In his letter to the commission that gives notice of the pending court action, Gaume says its Subcommittee on the Gila River Diversion Project has been meeting without giving public notice, without publishing its agendas, and without publishing its minutes."

- Read more here.

COURT SEEKS EPA RESPONSE TO CERCLA FINANCIAL ASSURANCE RULES' PETITION 

Earthworks article

A federal appellate court has ordered EPA to respond to a mandamus petition by environmentalists who are seeking a court mandate to require the agency to finalize long-stalled Superfund financial assurance rules for several industry sectors, moving the litigation past its first hurdle.

The move to require an EPA response signals the court sees some merit to the petition and means the environmental groups have "made a threshold showing" that there is a "real problem here," says an attorney with Earthjustice, which is representing the petitioners. It is "good news that the court is taking this seriously" because EPA is abdicating its responsibilities, the attorney alleges. Courts frequently deny petitions for writ of mandamus, the source explains.

The U.S. Court of Appeals for the District of Columbia Circuit Sept. 18 ordered EPA to file a response to the mandamus petition within 30 days. Following that filing, the court said the petitioners may file a reply within 14 days.

In the case, In re Idaho Conservation League, et al., a coalition of six environmental groups in August filed a petition for writ of mandamus, arguing the agency's extensive delay in promulgating Superfund financial assurance rules for four industry sectors qualifies as an unreasonable agency delay under the Administrative Procedure Act (APA).

"Although issuance of these rules is not subject to a date-certain deadline, under the APA, EPA must act within a reasonable time," the petition says. "Over thirty years have passed since Congress first directed EPA to issue such rules, and nearly five years have passed since EPA itself concluded such rules were necessary for at least four industries. While EPA continues to delay, scarce resources delay cleanups and prolong public exposure to known toxins."

The coalition is asking the court to order EPA to finalize the rules by Jan. 1, 2016.

Section 108(b) of the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA) requires EPA by 1983 to identify classes of facilities for which it will develop financial assurance requirements, and then is required to issue rules on those requirements.

Earlier Litigation

In earlier litigation, many of the same petitioners were successful in a 2008 lawsuit, where a federal district court held that EPA must designate industrial sectors that would be subject to the financial assurance rules. As a result, EPA in 2009 announced its intent to develop section 108(b) financial assurance rules to require hard rock mining companies to prove they can pay to clean up waste their mines might create. The companies would have to post surety bonds or a letter of credit before a permit for the mine is approved.

In 2010, EPA said it intended to issue similar rules for three additional sectors: chemical manufacturing; petroleum and coal products manufacturing; and electric power generation, transmission and distribution.

But the district court in its ruling found that the agency has discretion over when to issue the rules, as section 108(b) lacks a date-certain deadline for issuing the rules.

The petitioners say that the district court held that the D.C. Circuit court holds jurisdiction over any challenge to EPA's failure to promulgate the rules. It is true that EPA has some discretion, the petitioners' attorney says, but the agency has an obligation to act within the timeline envisioned by CERCLA. The source says under that timeline, the agency was supposed to begin issuing the rules in 1985.

The environmental groups acknowledge in their petition a 2000 D.C. Circuit ruling that indicated a writ of mandamus is reserved for only the "most transparent violations of a clear duty to act." The appellate court reviews unreasonable delay claims under six factors established in the 1984 D.C. Circuit decision in Telecommunications Research & Action Center v. Federal Communications Commission.

"Under these six factors, EPA's thirty-year delay is unreasonable," the petitioners argue.

EPA has repeatedly delayed its goal for finalizing the hard rock mining rule, currently set for August 2016, and has never proposed rules for the other three sectors.

Bruce Baizel
Director
Energy Program, Oil & Gas Accountability Project
Earthworks
970-903-5326 (mobile)
970-259-3353 (office)
bruce@earthworksaction.org
www.earthworksaction.org
www.ogap.org

NEW MEXICO MINING COMMISSION DENIES EFFORT TO WEAKEN PROTECTIONS IN MINING RULES

SANTA FE, N.M.— The New Mexico Mining Commission voted today to deny an effort by the humate mining industry to further weaken protections in the New Mexico Mining Act regulations. A September 17th decision by the Mining Commission allowed humate mines to disturb twice as many acres without doing the environmental review required for other mines this size under the Mining Act. Not satisfied with the ability to disturb twice as much land as other mines, the humate mining industry submitted a motion to reconsider the September decision. The Mining Commission denied their motion.

Amigos Bravos, represented by New Mexico Environmental Law Center (NMELC), opposed both the September rule change and today's motion to reconsider. Amigos Bravos and the NMELC argued that the humate mining industry had not provided either new evidence nor any reason why the Mining Commission’s earlier decision was defective.

“This is a victory for the environment” said Rachel Conn, Amigos Bravos Project Director. “Mining activities have the potential to cause substantial harm to water and wildlife and therefore environmental review is appropriate and necessary for large humate mines."

For the full press release, cick here.

Conservationists Applaud BLM’s Decision To Defer Oil & Gas Drilling Near Cebolla, New Mexico!

The Bureau of Land Management (“BLM”) Taos Field Office announced the deferral of 16 parcels encompassing 13,300 acres of public lands near Cebolla, New Mexico, from the October 2014 oil and gas lease sale, instead opting to conduct additional analysis.

The Western Environmental Law Center (WELC) and Amigos Bravos submitted extensive comments to the agency identifying serious detrimental impacts on the community’s drinking water, as well as to air quality and the climate if these public lands are fracked for oil and gas. The groups specifically noted the area’s critical role as headwaters to the Rio Grande, as well as the fact that the shale formation where the drilling would occur lies perilously above the groundwater aquifer.

For the full Press Release, please click here.

Gila Hiccup

The Gila River is New Mexico's last free-flowing river. A former director of the New Mexico Interstate Stream Commission, Norman Gaume, announced Monday that he’s planning to sue that agency for alleged violations of the state’s Open Meetings Act, and the action might be enough to create a hiccup for a proposal to divert water from the Gila River. - See more at: http://www.sfreporter.com/santafe/article-9228-gila-hiccup.html#sthash.30ojEGhJ.dpuf

Originating in America's first wilderness, the Gila is rich in biological diversity and cultural history. The Gila's natural flows support outstanding examples of southwest riparian forest, the highest concentrations of breeding birds in America including the endangered southwestern willow flycatcher, a nearly intact native fish community including the endangered loach minnow and spike dace, and the threatened Gila trout.

The Gila provides significant economic value to the region through outdoor recreation and wilderness experience.

In 2004, Congress passed the Arizona Water Settlements Act (AWSA) that authorized diversion of the Gila River if New Mexico agreed to buy water from Arizona to replace what we take out of the river. The AWSA provided $66M for community water projects to meet local water needs and a perverse incentive of up to $62M more if New Mexico elects to divert the Gila River.

Proposed Gila River diversion projects are estimated by the state to cost $349 million, leaving NM taxpayers responsible for the balance - $220 million or more.

A Gila River diversion project is unnecessary, expensive and will harm the Gila River.

An overwhelming majority of New Mexicans believe we should use our current water supplies more wisely and protect the Gila River for people, wildlife and future generations.

Southwestern New Mexico's future water needs can be met cost-effectively through non-diversion alternatives, such as municipal and agricultural conservation, sustainable groundwater management, effluent reuse and watershed restoration.

Tell Governor Susana Martinez to support cost effective, non-diversion alternatives to meet southwest New Mexico's future water needs.

Sign the petition at www.change.org/

For more information and to find out how you can help go to http://protectthegila.org/

NEW MEXICO SUPREME COURT UPHOLDS WATER QUALITY PROTECTIONS

The New Mexico Supreme Court has rejected an attempt by the New Mexico Cattle Growers Association to reverse historic water quality protections put in place by the state Water Quality Control Commission (WQCC) in December of 2010. The ruling puts to rest an extended legal battle over the WQCC’s decision to designate rivers and streams located in Wilderness Areas as Outstanding National Resource Waters (ONRWs). In their unanimous decision the court “quashed” the Cattle Growers last ditch legal maneuver to reverse the protections. The Court found that the cattle growers did not demonstrate “adverse harm” by the protections and thus did not have the standing to challenge the designation. For more information, please see the Press Release.

New Mexico’s Drinking Water Under Attack:
Help Us Defeat Proposed Water Quality Rules for the Copper Mining Industry

Update

The newly adopted Copper Rule is a flagrant attempt by industry and the current State Administration to circumvent the NM Water Quality Act, which prohibits discharges of pollutants to ground (drinking) water. Amigos Bravos believes that the copper rule is illegal under the Water Quality Act. In September the WQCC voted 9-1 to adopt the rules. Our Motion to Stay was denied and we expect that a decision by the Court of Appeals on the merits of the lawsuit could take two to three years. The litigation in this case is critical as the rule redefines the point of compliance for discharges to ground water. We expect that the NM Supreme Court will eventually decide the case. Amigos Bravos and the New Mexico Mining Act Network will be doing everything in its power to stop the implementation of the Copper Mining Rules and is prepared to take this case all the way to the NM Supreme Court.

Background

On October 10th, 2013, an appeal of the New Mexico Water Quality Control Commission’s (WQCC) adoption of copper mining groundwater regulations was filed by Gila Resources Information Project (GRIP) and Turner Ranch Properties, L.P., represented by New Mexico Environmental Law Center (NMELC), and Amigos Bravos represented by High Desert Energy + Environment Law Partners. The groups are challenging the adopted copper mining rules because they expressly allow water pollution rather than prevent it. Proposed by the New Mexico Environment Department and the global copper mining company, Freeport-McMoRan Copper and Gold, the rules mark the first time in 36 years that the WQCC has set aside its mandate to protect the quality of the state's scarce groundwater resources. For more information on this development, please see the Press Release.

On September 10, 2013, the New Mexico Water Quality Control Commission (WQCC) voted 9-1 to adopt the proposed water quality rules for the copper mining industry. Click here for the press release with more information. After an 8-month stakeholder process to develop a draft rule that would be protective of groundwater at copper mine sites and provide regulatory certainty to industry, NMED upper-level managers ignored the recommendations of their technical staff and NMED Advisory Committee and rewrote the proposed rule.

If allowed, the rule would:

  • Would give the mining industry the right to pollute.
  • Is in direct conflict with the State Water Quality Act that requires polluters to prevent groundwater contamination during their operations.
  • Would give the mining industry the right to pollute future drinking water supplies and impact the health of people and communities.
  • Could pave the way for other polluters to demand similar rollbacks in water quality safeguards. This would lower the cost of doing business for the polluter while transferring the cost of clean up and the cost to address public health outcomes to New Mexico taxpayers.

The Río Grande del Norte National Monument – established on March 25, 2013 by Presidential Proclamation.

For more information, visit the BLM website