U.S. Interior faces lawsuit over San Juan river pollution

A group of conservation and citizen organizations served a 60-day intent to sue yesterday to the U.S. Department of the Interior’s Office of Surface Mining for failing to conduct Endangered Species Act consultations prior to authorizing the renewal of an operating permit for the Navajo Coal Mine in northwest New Mexico.Their suit references a draft biological assessment prepared about the San Juan river, in preparation for a proposed coal fired power plant in the region.

The groups say the agency was required to consult with the U.S. Fish and Wildlife Service to avoid impacts to threatened and endangered species from the mining of coal at Navajo Mine, its combustion at Four Corners Power Plant and coal-combustion waste dumping.

The Center for Biological Diversity, Diné Citizens Against Ruining Our Environment (CARE) and San Juan Citizens Alliance filed the notice, represented by the Energy Minerals Law Center.

Interestingly, the group will use a draft Fish and Wildlife “biological opinion” for the proposed Desert Rock coal-fired power plant to substantiate their lawsuit. The biological assessment concludes that mercury and selenium pollution from regional coal combustion, including from Four Corners Power Plant, would be “likely to jeopardize the continued existence of the Colorado pike minnow and razorback sucker” — two highly endangered fish species in the San Juan River, a tributary to the Colorado.

“The draft biological opinion for Desert Rock provides solid evidence that San Juan River watershed and the continued viability of native species has been severely impaired in the San Juan River because of coal and other energy development,” said Mike Eisenfeld of SJCA said in a statement.

“The Department of the Interior cannot simply rubber-stamp the same lethal coal development that its own science says is causing fish extinctions.” said Taylor McKinnon with the Center for Biological Diversity, in a statement. “At stake are two species of fish, millions of people’s drinking water, and one of the West’s loveliest rivers.”

The statement released by the organizations announcing their lawsuit stated that the biological assessment conclusion was a “fatal blow” to the Desert Rock project, which many believe is dead:

In 2009 the Environmental Protection Agency withdrew its air-pollution permit for the Desert Rock Energy Project, citing the need for completion of Endangered Species Act consultations. The newly released biological opinion was prepared by Fish and Wildlife as part of that consultation, and its “jeopardy” determination is believed to have been a fatal blow to the future of the Desert Rock. Like the Four Corners Power Plant, Desert Rock, had it been built, would have burned coal from the Navajo Coal Mine.

That findings of that biological assessment should now be used to assess BHP’s Navajo Mine, the groups say.

“OSM’s decision to renew operations at BHP’s Navajo Mine without consulting with FWS and addressing the findings of the Desert Rock biological opinion violates the Endangered Species Act,” said Brad Bartlett, an attorney with the Energy Minerals Law Center.

“With the ESA consultation demanded by today’s notice letter, BHP’s Navajo Coal Mine will be faced with the same facts that Desert Rock faced in consultation — facts that led FWS to determine that species in San Juan River are in jeopardy because of the toxic legacy being left by the Four Corners’ coal industrial complex.”

“OSM’s permitting decision does not evaluate the hydrological impacts of BHP’s nearly half-century of permanent disposal of over a half-billion tons of CCW at the mine and contribution to mercury cycling in the San Juan environment,” said Anna Frazier, executive director of Diné CARE.

“Water is life, water is sacred to the Navajo (Diné) people living in the Four Corners area. Our survival has been dependent on the river for irrigation, for fishing, for watering animals, a place of prayer and offering. The legacy of coal development and waste disposal at the mine threatens our health, our plants and animals, and the very existence of the Diné.”

To download a copy of the  60-day notice letter, click here.
To download a copy of the draft biological opinion, click here.
To download a map of the coal facilities in the San Juan Basin, click here.

Here is background information provided in the statement by the organizations, about the Four Corners region:

The Four Corners region near the San Juan River is home to two of the largest and dirtiest coal-fired power plants in the United States — the Four Corners Power Plant and the San Juan Generating Station. A third coal-fired power plant originally proposed for the area, the Desert Rock Energy Project, is now on hold. The BHP Navajo Coal Company’s (BNCC) Navajo Coal Mine is located south of Fruitland, New Mexico. It supplies coal to Four Corners Power Plant and is intended to feed Desert Rock Energy Project if it’s constructed. This complex of coal facilities emits CO2, mercury, selenium and other heavy metals into the air and water, which threaten both human health and the survival and recovery of endangered species like the Colorado pikeminnow and razorback sucker.

Mercury accumulates in rivers through emissions, deposition and runoff. Fish are exposed to mercury through diet; mercury in the water column accumulates up the food chain and primarily affects top predators such as the Colorado pikeminnow. Mercury is a potent neurotoxin that impairs the reproductive health of fish via portions of the brain that regulate the production and timing of sex steroids; therefore it primarily affects survival of offspring rather than directly killing exposed individuals.

Selenium accumulates in rivers through erosion of selenium-rich soils, coal mining and energy development, and emissions and discharges from coal-fired power plants. Fish are exposed to selenium through a selenium-rich invertebrate diet. As with mercury, adult fish with diets high in selenium do not experience mortality themselves; instead, they deposit excess selenium in the yolks of developing eggs. Newly hatched fry from these eggs use the yolk as an energy and protein source; it is at this stage that developmental anomalies occur. The deformities are either lethal or cause the fry to be more susceptible to predators or other environmental stressors.

Fish and Wildlife’s draft biological opinion shows that 64 percent of Colorado pikeminnow in the San Juan River currently exceed mercury contamination thresholds for reproductive impairment; it predicts that number will rise to 72 percent by 2020 with additional pollution. The document also predicts that selenium pollution from agricultural discharges and ongoing coal combustion would cause 71 percent of those fishes’ offspring to be deformed in a way that harms growth, reproduction or survival. Similarly, the opinion predicts that 85 percent of razorback sucker offspring would be deformed by selenium pollution and notes 40 percent of razorback suckers in the San Juan River already meet contamination thresholds for those deformities.

BHP’s Navajo Mine is located on Navajo Nation lands within Chaco Wash, which is connected with Chaco Culture National Park. Beginning in 1971, BHP began accepting approximately 1.9 million cubic yard (“mcyd”) of coal combustion waste (“CCW”) from the Four Corners Power Plant annually for use as “minefill.” CCW consists of fly ash, scrubber sludge and bottom ash. According to the EPA, thousands of pounds of mercury are disposed of in the Navajo Mine annually as minefill.