The Keep Kanab Unspoiled citizens group never stopped working – right up until it was announced that Southern Red Sands, the frac sand company, had pulled out. The group continued throughout the day while waiting for confirmation ofthe rumors.
It was important to be prepared for the Kanab irrigation shareholders’ meeting that same evening. The protection of our water is essential to Keep Kanab Unspoiled’s mission, and we want to have persons on the board elected who will oppose the diversion of the irrigation water to other ill-conceived projects and the Kane County Water Conservancy District .
That being said, here is a summary of the information that was known prior to last Thursday, and where Keep Kanab Unspoiled stood with awaiting the next legal move…
The State of Legal Actions Involving Southern Red Sands
KKU has been looking to every possible legal channel to block Southern Red Sands (SRS) proposed frac sand mine. Here is the current situation with the relevant legal issues.
Kane County Conditional Use Permit
KKU was originally going to file an appeal of the issuance of a conditional use permit (CUP) by the county planning commission. We were going to contend that the commission had not adequately considered the impact of the proposed frac sand mine and had not required necessary measures to mitigate these impacts.
As far as a lack of proper consideration, the commission had not even known the number of silos that would be required. SRS had said that it would need two silos the night before at a council meeting. It was only at the planning commission meeting that it disclosed it would need six silos.
Best Friends Animal Society took over this appeal, saving KKU legal expenses. The appeal was dismissed by the hearing officer. The officer accepted the Kane County’s position that it had not actually issued a CUP since the proposed site is on SITLA land. Since SITLA is a state agency, the county argued that it has no jurisdiction and therefore it was not issuing an actual CUP, just a recommendation to SITLA.
This position has the problem that SITLA’s guidelines for sand and gravel mining explicitly say that it is necessary to “obtain a Conditional Use Permit and must comply with all filing and regulatory requirements of the County.” In other words, if we accept the claim that the county has not issued a CUP, then SRS is still not eligible to go ahead with its frac sand mine under Utah law.
We are trying to determine of there any legal channels through which we can act to ensure that SITLA complies with its own guidelines.
Bureau of Land Management Environmental Assessment
The frac sand mine would require the county to expand and improve a gravel road that is on land owned by the Bureau of Land Management (BLM). In order to make the necessary changes, BLM must do an environmental assessment (EA) of the impact of the road and the larger project.
While there are many potential environmental hazards of this project, one area of major concern is that the main habitat of the Kanab Amber Snail, which is on the endangered species list, lives in the lakes just below the proposed mine site. BLM should have to take this into consideration in its assessment.
A complicating factor is that the Kanab Amber Snail may be removed from the endangered species list. Recent research suggests that there is another population of the same species elsewhere. If it is delisted than this basis for opposing the road expansion will no longer be available.
We are still waiting to see the draft EA from BLM, which has been repeatedly delayed. There will be a public comment period following the issuance of the EA. If BLM gives approval to the road and ignores concerns raised in the public comment period, it would likely be contested in court. Both Center for Biological Diversity and the Southern Wildlife Alliance are following this issue, and jointly issued a lengthy comment in the initial period in which BLM solicited public input.
Water Diversion Protest
While the City of Kanab and the Kane County Water Conservancy District (KCWCD) both agreed to sell 600 acre feet a year to SRS for its mine, in order to actually make the sale the state’s water engineer must determine that there is enough water to cover this transfer. The water engineer has already determined that Kanab Irrigation Company (KIC), which was the source of water for the KCWCD’s proposed sale, has only 312 acre feet to sell, not the 600 acre feet requested.
The city filed its request for a diversion to SRS back in October. KKU, along with Best Friends, Kanab Irrigation Company, and many others protested this diversion. We contracted with Steve Clyde, one of the state’s top water attorney’s, to pursue this protest.
There have been several factors delaying any action on this protest. First, the state’s water engineer retired in December. He has a temporary replacement at the moment. More importantly, the Kanab Irrigation Company has not yet applied for a diversion. The water engineer will likely want to review both requests at the same time, so they are not likely to move forward until Kanab Irrigation Company has filed for a diversion and the thirty-day protest period has passed.
While we can’t know how the water engineer will decide the issue, Best Friends hired a very well respected hydrologist, Dr. Kenneth Kolm, to assess the area’s water supply. Dr. Kolm concluded that, if SRS used the full 1200 acre feet a year for which it contracted, it would be removing up to 22 percent of the water inflow to the aquifer each year. This is likely to seriously diminish the flow of water in creeks and lakes in the area and to jeopardize the supply of water in the wells of the city and others in the area.
At the moment, there are no publicly available analyses showing a more optimistic picture for the area’s water supply. If the water engineer accepts Dr. Kolm’s assessment, he is unlikely to approve the full diversion requested by the city and the KIC.