This morning at the Rocky Mountain Mineral Law Institute conference, I sat in on the session devoted to law, water, and mining. The issues discussed are convoluted, but here is my summary of what I heard–I promise only that I will read the papers and write in more detail about the fascinating issues each presentation raised.
Arlene Kwasniak of the University of Calgary surveyed water rights law in the west of the United States and Canada; she reviewed the impending shortages of water in these regions; and she noted that there are innovative technical and engineering ways to squeeze more water out of limited supplies. The problem she told us is that, at least in Alberta, where there is probably the greatest need for more water for mining than is available, the law is not up to the task. She proposed a whole-scale revision of Alberta water rights law, much like was done recently in Queensland to begin to address the impending water shortages that will impede profitable mining.
Stefen Larson of Papadopulos & Associates took us through a sentimental personal journey of the early days of solving groundwater problems with electric analogues, the early versions of MODFLOW, and upto the craziness today when millions are needed to compile groundwater models that produce results no more accurate than the old fashioned and simple mathematical equations we used to use. He neatly traced the reasons for this: lawyers are good at attacking groundwater models that by their very nature are never a full representation of reality. Hence the full employment act for groundwater modelers whose clients do not like to loose court cases. This is one paper that I definitely will go back to in order to report on more fully.
Finally Joan Drake of Mondrall et al. in Albuquerque, NM gave an engaging presentation on when a mine needs a 404 permit. At its simplest that is when you get involved with navigable waters of the United States. But does a mine that dumps ash in a remote arroyo in the far desert of New Mexico, hundreds of miles from the Rio Grande have to worry about the fact that no boat could float in the arroyo or the Rio Grande? As always in law, it is not that simple, and she presented with good humor a plethora of conflicting case law, inane Supreme Court decisions, agency formulations aimed at keeping power over polluters, and timid permit writers fearful of misinterpreting vague rules and worst court judgements. Seems there is a 180 day comment period in progress to say what you think of the Corp of Engineer’s most recent attempt to bring clarity to this fascinating mess. Take a look and comment pleases–seems it will be to the benefit of the mining industry to bring some sanity and clarity to this mess.
