The DAQ stonewalled a later and more convenient public hearing. So far the only public hearing is scheduled for Tuesday, Jan. 12, 2010. At the Magna Chamber of Commerce, 9145 W 2700 South, Magna, Ut. 7:00 pm.

Water Grab Opinion Piece

Poised to hold the coat of the Southern Nevada Water Authority (SNWA) while they pushed Utah off a cliff, Gov. Herbert has now taken one step back from the brink. To suggest that Utah continue tinkering with the fine print of the Snake Valley Water Agreement is like arguing over what tunes should the band play while the Titanic sinks. We offer ten reality checks.

1. The purpose of any agreement is to drain enormous volumes of water from Snake Valley to support real estate speculators and casino operators in Sin City. Over 70 years the water Utah would surrender to Nevada would fill a skyscraper 1 acre square, 471 miles high.

2. “Possession is 90% of the law.” Once Nevada has spent billions to make hundreds of thousands of people dependent on that water, no judge or court will turn off the tap regardless of the fine print in the Agreement, regardless of whether Snake Valley has become a ghost town or how much dust covers Temple Square. The saga of the notorious William Mulholland stealing Owens Valley water for Los Angeles is exactly what Utah can expect to be repeated.

3. Why does Herbert want an agreement and why have our entire Congressional delegation deserted us? Investigative journalists from the Las Vegas Sun, Los Angeles Times and Bloomberg News reveal that Sen. Harry Reid, financial benefactor of the project, has mixed a stew of blackmail, quid pro quo and, old fashioned influence peddling, by threatening to prevent the equally ill-advised Lake Powell pipeline if Utah doesn’t surrender the water in Snake Valley. Why settle for just one disaster when you can have two?

4. The Utah team has promoted the Agreement stating it “prohibits groundwater mining.” Yet Snake Valley ranchers, expert geologists, former SNWA hydrologists and biologists know there is no excess renewable water in the West Desert. This project is the very definition of groundwater mining.

5. The Agreement’s environmental safeguards are anything but. For an area the size of Vermont, the aquifers now provide the only lifeline for plants like the greasewood, the primary reason why the West Desert is not another Sahara Desert. Air quality monitoring will reveal nothing about the impending death of the greasewood plants, until it is irreversible. The routine dust storms in Owens Valley, Australia, Uzbekistan and the Middle East are evidence that in a desert, compensatory vegetation cannot be counted on to fill the void.

6. There are urban and rural economic threats. Ask any urban Utahn whether air pollution already impairs our quality of life. Quality of life issues become economic issues affecting real estate values, hurting existing businesses and suppressing new ones. Rural agricultural, tourism, and hunting and fishing economies will be depreciated and possibly destroyed. Additionally, development of alternative energy projects such as solar thermal will be prohibited.

7. Dust storms threaten not just our quality of life but life itself. The science is unequivocal. The particles inhaled cause the same kind of disease as those from tail pipes, smoke stacks and cigarettes. Within minutes blood pressure rises, vascular inflammation and clot formation begins, followed by increased numbers of heart attacks, strokes and deep vein thrombosis. Even if dust storms are short lived, their impact can last long after they are gone. Community mortality rates increase from even short term elevations in particle pollution and stay elevated for up to 30 days after the air has cleared.

New dust storms will harm all of us a little bit, thousands of us much more, and will certainly cause premature deaths. The additional threat that this dust is contaminated with mercury, radioactivity, fungi, and asbestos-like minerals continues to be ignored.

8. Utah’s negotiating team misrepresented Utah’s legal options. Our deputy attorney general stated publicly that if Utah brought a dispute to the Supreme Court we would have to prove current damages, not potential future damages. Not true, according to at least two U.S. Supreme Court cases and our legal counsel. Enough science already exists, and more is being done, that would solidify Utah’s case. The best chance to prevent this disaster is to stop it before it starts.

9. The only winners in any agreement are a handful of real estate speculators in Nevada and Southern Utah. Everyone else loses. Utah gets no money for the water surrendered. When Snake Valley runs dry even Nevada home owners will be at risk as SNWA searches for more rural communities to exploit.

10. Utahns must stop this. Call and write the governor to tell Harry Reid and the SNWA that Utah intends to win the “War on Water Terrorists.”

Brian Moench
President, Utah Physicians for a Healthy Environment

Terry Marasco
Snake Valley business owner

Currently the BLM is finalizing its draft EIS on the project and reportedly will include estimations about what the aquifer would look like 200 years after the diversion occurs. The models used to predict such estimations of drawdown don’t seem to have much promise in terms of accuracy. The sentiment from scientists is quite direct: “Any forecast 200 years into the future is bulls—,” said Tim Barnett, a physicist and researcher at the Scripps Institution of Oceanography at the University of California, San Diego. “You just can’t do that.” The bottom line is that there is simply no point in being in such a hurry to sign an agreement that is not based on any facts, and that even once the EIS is released it still won’t be much more clear how the aquifer will react to the proposed project. There certainly shouldn’t be a hurry in lieu of the fact that there wouldn’t be any diversion for another 40 years.

Critical to the maintenance of National Air Quality Standards or NAAQS is the prevention of significant deterioration (PSD). In order to prevent PSD new sources are required to go through new source review. An application for a new source permit must show that the owner will construct the facility that utilizes the best available control technology (BACT). The applicant must undergo best available control technology review, and must utilize BACT unless its not achievable due to energy, envtl. or fiscal impacts. Also the applicant must perform a BACT analysis that analyzes pollution from the proposed facility and other pollution sources in the area to ensure they won’t cumulatively violate air qulaity standards or NAAQS. There is a ceiling on the total concentration of certain pollutants in the atmosphere. PSD increments allow or set a limitation on the amount of deterioration over time depending on what class the area is in…..basically class I areas allow the smallest amount of deterioration and includes National Park or wilderness areas.

Sierra Club challenged the Approval Order by DAQ through a Request for Agency Action alleging violation of the Federal Clean Air Act CAA, Utah Air Conservation Act, and portions of the Utah Administrative Code. Sierra Club’s issues were that the division failed to evaluate the emission of CO2 and other greenhouse gases in its Best Available Control Technology (BACT) analysis that the Division improperly excluded integrated gasification combined cycle technology as an available control technology, that the emission limits set as part of the BACT review were in error, that the Division wrongfully adopted significant impact levels policy for determining the cumulative impact of a new source on Class I areas, and the Division failed to adequately complete a Class I increment analysis for SO2.

A series of Summary Judgment motions were filed with the Board and Sierra Club lost several of these motions, but an evidentiary hearing was held on whether the BACT analysis was flawed based on consideration of the Integrated Gas Combined Cycle technology. After this hearing Sierra Club lost on all the issues. The standard of review was relatively favorable to Sierra Club, the S. Ct. holding they were reviewing the Division’s decision for “correctness” and granted little to no deference to the agency’s determination. The first issue addressed was whether the PSD federal rule, located in the C.F.R., was incorporated into the State Rule. Here the Court held the rule had not been incorporated since the rule appears to only apply in Utah to tribal lands. They also failed to hold that the state rule was not as stringent as the federal rule as the CAA requires.

There were 2 regulations that related to BACT including a 2005 and 2006 rule where the latter required analysis of all “air contaminants” and the former analysis was required for all “pollutants subject to regulation”. The Court held that the Division did not commit an error through application of the 2005 rule. The next issue carries great importance due to the U.S. Supreme Court’s ruling in Mass v. EPA since they held recently in 2007 that greenhouse gases such as CO2 could be regulated under the CAA. Raising the issue in this case whether the BACT analysis should include consideration of CO2. This Court pounced on the fact that although CO2 could be regulated currently there are no National Ambient Air Quality Standards (NAAQS) for it. Its unclear in other words what it means to be “regulated” under the CAA. The Court in this case adopted an interpretation of the Wyoming DEQ where a state agency would need to “regulate greenhouse gases…without the scientific and policy resources available to EPA and the US Congress”. In the end the Utah Supreme Court seemed concerned about the problems presented by CO2, but they did not want to “preempt ongoing Congressional and EPA efforts to formulate a CO2 emissions policy” by instituting an emission limitation as part of BACT review was reasonable. Longleaf Energy Assocs., LLC v. Friends of the Chattahoochee, Inc. 681 S.E. 2d 203, 207 (GA. Ct. App. 2009).

Turning to the issue where Sierra Club succeeded was whether consideration of Integrated Gasification Combined Cycle (IGCC) was required the Court held that it was based on the plain language of the Utah Administrative Code. Power Plant proponents pointed out that IGCC is a power generation technology as opposed to a emission control technology, however this fact did not exclude consideration of this technology from BACT review, IGCC can still act as an emission control technology, and can reduce the emission of criteria pollutants. The Court was attempting to balance the goal of BACT, which is to encourage use of new technologies without overburdening applicants through a complete redesign of proposed power plants that rely on advanced technologies that were never considered. In this case, since IGCC is a coal technology as opposed to say a wind generation technology it was required to consider this technology. They also rejected the proponents claims that IGCC is not an “available” technology since even though its relatively rare there are still 2 IGCC plants in the U.S., 14 worldwide, and more IGCC plants are being proposed in the U.S.

The next issue surrounding the nitrogen oxide pollutant where Sierra Club argued that the emission standard was not sufficiently stringent since other plants have achieved lower NO emission limitations. The Court agreed that there was insufficient evidence that the limitation in this case was the maximum reduction possible. In the end the Court upheld the Board’s decision in some parts but REVERSED AND REMANDED and ordered a new review so that the AO must encompass the most current control technology and must assign a reasonable deadline for the construction of the Company’s facility. The company must also conduct a new BACT analysis that considers IGCC.

A coalition of National and Utah environmental groups including SUWA, NRDC, and Sierra Club filed a petition against the proposed Coal Hollow Strip mine that would be located just west of Bryce National Park. The petition will follow a state process and was filed with the state agency Utah Division of Oil, Gas, and Mining. Obviously, there is worry that such a blight should not be located so close to a national treasure, but there are concerns the mine could foul air, water, and cultural resources in the area. The permit allows for mining of 2 million tons of coal per year for approximately three years. The permit was approved shortly after a meeting between the mine developer—Alton Coal Development—and Utah Governor Gary Herbert. Mining operations will require up to 300 coal truck trips per day traveling 110 miles oneway from Alton to Cedar City, which could result in one truck leaving the site every seven minutes. The coal-haul route would run through several small towns along State Highway 89, including Panguitch, a town recently placed on the National Register of Historic Places.

There is legitimate concern here that such a project would not only impact area towns and Bryce National Park due to the fact that the Park receives over 1.5 million visitors every year. Unfortunately, this project is actually just a small portion of a much larger proposal to strip mine an even greater area that would create one large contiguous strip mine area that would amount to around 46 million tons of coal to be mined over 15 years. This according to SUWA attorney Steve Bloch.

A 2006 memo states that Nevada threatened to take the matter to Congress to change the 2004 law requiring an agreement between the two states since they were dissatisfied with the pace of negotiations. Letters from 2007 indicate that Utah was hesitant to rely on a 50-50 agreement based on the USGS estimate for available aquifer water, which the federal agency said was only 67 percent reliable, and included water used by the plants that now keep Snake Valley soil from blowing straight to the Wasatch Front. At this point it doesn’t seem the state could sell this agreement to Utahns with a straight face. If the agreement were signed by Herbert it would prove that this agreement is about nothing but money and quid pro quo.