JEFFREY H. WOOD Acting Assistant Attorney Generalblogs2.law.columbia.edu/climate-change-litigation/wp... · 2019-02-05 · JEFFREY H. WOOD Acting Assistant Attorney General Environment

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JEFFREY H. WOODActing Assistant Attorney GeneralEnvironment & Natural Resources DivisionU.S. Department of JusticeANDREW A. SMITH (NM Bar 8341)Senior Trial AttorneyNatural Resources Sectionc/o United States Attorney’s Office201 Third Street, N.W., Suite 900P.O. Box 607Albuquerque, New Mexico 87103Phone: (505) [email protected] C. JONES (NM Bar 148098)Trial AttorneyNatural Resources Section601 D Street, NWWashington, D.C. 20004Phone: (202) 514-9859 (Jones)[email protected]

Attorneys for Federal Defendants

[Additional Party and Counsel on Signature Page]

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF ARIZONA

Center for Biological Diversity,

Plaintiff,v.

U.S. Fish and Wildlife Service, et al.,

Federal Defendants,

Rosemont Copper Co.,

Intervenor-Defendant.

))))))))))))))

No. 4:17-cv-00475-TUC-JAS (Lead)No. 4:17-cv-00576-TUC-JAS (C)No. 4:18-cv-00189-TUC-JAS (C)

FEDERAL DEFENDANTS’ ANDINTERVENOR-DEFENDANT’SJOINT SEPARATE STATEMENTOF FACTS IN SUPPORT OFMOTION FOR SUMMARYJUDGMENT IN No. 4:17-cv-00576-TUC-JAS

Case 4:17-cv-00475-JAS Document 130 Filed 10/26/18 Page 1 of 86

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TABLE OF CONTENTS

PAGE

NOTE ON ADMINISTRATIVE RECORD CITATIONS................................................iii

INTRODUCTION............................................................................................................... 1

STATEMENT OF FACTS.................................................................................................. 2

I. BACKGROUND ON THE ROSEMONT COPPER PROJECT............................. 2

A. Introduction ................................................................................................... 2

B. History of the Rosemont Deposit .................................................................. 5

C. Land Ownership and Mineral Rights ............................................................ 6

D. Rosemont’s Mining Operations .................................................................... 6

1. Overview ............................................................................................ 6

2. Pre-Production Activities, Access and Utilities................................. 8

3. Mineral Processing Activities ............................................................ 9

4. Dry-Stack Tailings and Waste Rock Facilities ................................ 10

5. Unique Characteristics of the Rosemont CopperDeposit ............................................................................................. 11

6. Stormwater Management ................................................................. 12

7. Perimeter and Security Fences ......................................................... 13

E. Reclamation Requirements ......................................................................... 13

F. Mitigation and Monitoring Requirements................................................... 14

G. Financial Assurance for Reclamation and Mine Closure............................ 17

H. Reporting and Evaluation Requirements .................................................... 18

II. PERMITS AND AUTHORIZATIONS NEEDED FOR THEPROJECT ............................................................................................................... 19

III. SUMMARY OF THE FOREST SERVICE’S NEPA PROCESS ......................... 23

A. Scoping and Related Public Involvement . . . . . . . . . . . ................................... 23

B. The Draft Environmental Impact Statement ............................................... 25

C. The Final Environmental Impact Statement and Draft ROD...................... 26

D. The Supplemental Information Reports ...................................................... 27


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E. The Final Record of Decision ..................................................................... 28

F. The Involvement of Other Agencies in the NEPA Process ........................ 28

IV. ADDITIONAL FACTS CONCERNING PROJECT IMPACTS TOWATER RESOURCES.......................................................................................... 30

A. Overview of the Forest Service’s Effects Analysis andMitigation Requirements Related to Water Resources ............................... 30

B. Groundwater Drawdown Impacts ............................................................... 33

1. Introduction ...................................................................................... 33

2. Groundwater Withdrawals in the Upper Santa CruzSubbasin ........................................................................................... 34

3. Groundwater Impacts in the DavidsonCanyon/Cienega Basin ..................................................................... 35

a. Introduction........................................................................... 35

b. The Groundwater Models Developed toAnalyze Mine Pit Impacts..................................................... 37

c. Efforts to Validate the Models and ReduceTheir Uncertainty .................................................................. 39

d. The Predicted Impacts on Springs, Stream andRiparian Areas....................................................................... 43

e. The Forest Service’s Refined Analysis ofImpacts on Aquatic and Riparian Resources inthe 2015 SIR.......................................................................... 48

C. Mine Pit Lake Water Quality ...................................................................... 52

1. Modeling of Mine Pit Lake Water Quality ...................................... 52

2. Mine Pit Lake Water Mitigation Measures...................................... 60

D. Surface Water Quality and ADEQ Clean Water Act Section401 Certification.......................................................................................... 62

V. THE SECTION 7 CONSULTATION REGARDING THEPROJECT ............................................................................................................... 65

A. The 2013 Biological Opinion...................................................................... 65

B. The 2016 Biological Opinion...................................................................... 70


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NOTE ON ADMINISTRATIVE RECORD CITATIONS

Federal Defendants have lodged multiple Administrative Records corresponding

to the various agency actions challenged in these consolidated cases. For this brief,

documents cited from the U.S. Fish and Wildlife Service (“FWS”) February 27, 2018

Administrative Record for the 2016 Biological Opinion are in the form “FWSxxxxxx,”

where “xxxxxx” is the unique six-digit Bates page number in the lower right hand

corner of each page. Because there are four folders in the FWS Administrative Record,

pages from documents in the “FWS_Email” folder are denoted with an “(E)” after the

citation, and pages from documents in the “FWS_References” folder are denoted with

an “(R)” after the citation. If there is no denotation after the citation, which is most

common, the document will be found in the “FWS_Documents” folder. Each folder

contains an index of documents in that folder, with a tab of the documents ordered by

Bates page number ranges for ease of location, with hyperlinks that open the document

once the Bates page number is found in the index.

Documents cited from the Forest Service March 16, 2018 (Corrected)

Administrative Record are in the form “FSxxxxxxx,” where “FS” signifies the Forest

Service Administrative Record and “xxxxxxx” is the unique seven-digit Bates page

number in the lower right hand corner of each page. The Forest Service Administrative

Record includes a locator tool into which the seven-digit Bates page number can be

entered to pull up the cited document. Additional instructions for using the Forest

Service Administrative Record are provided with that Record.


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INTRODUCTION

Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure and Rule 56.1(a)

of the Local Rules of Civil Procedure, Federal Defendants United States Forest Service

(hereinafter “Forest Service”), Kerwin S. Dewberry, Supervisor of the Coronado

National Forest, Calvin Joiner, Regional Forester, and United States of America

(hereinafter “Federal Defendants”), together with Intervenor-Defendant Rosemont

Copper Company (hereinafter “Rosemont”), by and through undersigned counsel of

record, hereby submit the following statement of undisputed material facts in support of

their respective motions for summary judgment on the claims raised in the First

Amended Complaint filed in Case 4:17-cv-00576 (ECF No. 24) by Plaintiffs Save the

Scenic Santa Ritas, Arizona Mining Law Reform Coalition, Center for Biological

Diversity, and Grand Canyon Chapter of the Sierra Club. These parties will hereinafter

be referred to as “SSSR” or simply as Plaintiffs.

Prefatory Note: Each of Plaintiffs’ claims against Federal Defendants U.S. Fish

and Wildlife Service (“FWS”) and U.S. Forest Service seeks judicial review of agency

actions pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. Judicial

review of federal agency actions under the APA does not call for this Court to make

factual findings on the merits or to determine the existence of genuine issues of disputed

material facts on summary judgment. Rather, the Court’s task is to review the

Administrative Records that were before the federal agencies at the time they made the

challenged decisions to determine whether, as a matter of law, those records support the

agencies’ decisions or whether the agencies’ decisions are arbitrary, capricious or

otherwise contrary to law. 5 U.S.C. § 706; see also Fla. Power & Light Co. v. Lorion,

470 U.S. 729, 743-44 (1985) (discussing judicial review under the APA and role of the

administrative record); San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581,

601-05 (9th Cir. 2014) (discussing the standard of review and scope of the record in

challenge to FWS biological opinion).

Because the Court need not, and may not, “find” underlying facts, there are no


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material facts essential to the Court’s resolution of this action. See, e.g., Celotex Corp.

v. Catrett, 477 U.S. 317, 322 (1986); Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883-

84 (1990). Thus, the “facts” necessary for resolution of this case on the pending cross-

motions for summary judgment are set forth in the Federal Defendants’ Administrative

Records before the Court. The statements of material facts submitted by the Parties in

support of their respective motions for summary judgment should be viewed as the

Parties’ summary and characterization of materials in the records that support their legal

arguments under the APA standard of review. Federal Defendants and Rosemont

therefore provide the following Statement of Facts to the Court to highlight significant

portions of the Administrative Records in support of their respective motions for

summary judgment.

STATEMENT OF FACTS

I. BACKGROUND ON THE ROSEMONT COPPER PROJECT

A. Introduction

1. Rosemont is developing an open-pit copper mine and mineral processing

facilities (hereinafter, the “Rosemont Project”). The Rosemont Project is located in the

Santa Rita Mountains, approximately 30 miles southeast of Tucson, Arizona. Figure 1,

on page 2 of the Forest Service’s Final Environmental Impact Statement (“FEIS”)

shows the general location of the Project. FEIS at 2, FS0236714.

2. Mining, mineral processing, and related activities associated with the

Rosemont Project will occur on a mixture of private land owned by Rosemont, National

Forest System (“NFS”) land within the Coronado National Forest and administered by

the Forest Service, and a small amount of land owned by the State of Arizona and

administered by the Arizona State Land Department. FEIS at vii-viii, FS0236647-48,

and at 1, FS0236713.

3. The mine and related facilities will be located on the eastern slope of the

Santa Rita Mountains. Groundcover in the Project area varies from desert brush in the

steep, rocky terrain of the eastern half of the project area to herbaceous and mountain


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brush on the western side, which is higher in elevation. Dense xeroriparian vegetation

consisting of trees and shrubs is found along the margins of washes and occurs within

flood plain areas, where moisture is stored in the alluvium. FEIS at 410, FS0237152.

This area is considered to be degraded from the historic climax plant community as a

result of historical fire suppression strategies, overgrazing by cattle, and other land uses.

FEIS at 189, FS0236931.

4. The Project area is drained by ephemeral watercourses that flow mainly in

a northeasterly direction toward larger drainages located at lower elevations on the basin

floor. Four major drainages occur in the primary area of disturbance: Wasp, McCleary,

Scholefield, and Barrel Canyons. Wasp, McCleary, and Scholefield Canyons drain into

Barrel Canyon, which then joins Davidson Canyon approximately 4 miles northeast of

the Project area. Perennial or nearly perennial water is limited to very small pools at

spring sites or to stock ponds for livestock. FEIS at 409-10, FS0237151-52.

5. Davidson Canyon wash flows northwesterly between the Santa Rita

Mountains and Empire Mountains and under Interstate 10 into Cienega Creek, which

becomes Pantano Wash downstream of Pantano Dam. The distance from the

confluence of Barrel and Davidson Canyons to the outlet of Davidson Canyon at

Cienega Creek is approximately 14 miles. FEIS at 409-10, FS0237151-52; see also

FEIS at 81, FS0236793 (Figure 17, depicting the Barrel Alternative footprint and

showing drainages), and at 399, FS0237141 (Figure 61, depicting the analysis area for

surface water quantity in FEIS). Most of Davidson Canyon downstream of Barrel

Canyon is ephemeral. See, e.g., FEIS at 490-91, FS0237232-33, (depicting stream

reaches of concern and their flow status); and at 523, FS0237265.

6. Cienega Creek is the main surface water drainage in a basin that flows

northwest into the Tucson area and covers an area containing about 605 square miles. It

is depicted on Figure 62, on page 411 of the FEIS, FS0237153. Portions of Upper

Cienega Creek (approximately 8 miles) have perennial and intermittent water as the

stream flows through the Las Cienegas National Conservation Area (“NCA”). Farther


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downstream, Cienega Creek passes through the Cienega Creek Natural Preserve, owned

by Pima County. Portions of Cienega Creek and a short reach of lower Davidson Canyon

approximately 11 miles downstream of the Project area have been designated an

Outstanding Arizona Water by the Arizona Department of Environmental Quality

(“ADEQ”) (Figure 62). These reaches are largely intermittent with some perennial water

in Cienega Creek. FEIS at 410-12, FS0237152-54, and at 490-91, FS0237232-33 (Figure

67 and description of stream reaches of concern).

7. Current watershed conditions in the area are considered to be satisfactory,

although several subwatersheds are considered to have been degraded. FEIS at 188-91,

FS0236930-33. Mining-related disturbance from previous mining and mineral

processing activities, such as mine dumps, road ballast and slag piles, is evident, but not

a dominant landscape feature. FEIS at 187-88, FS0236929-30.1

8. The majority of the NFS land surrounding the Project area is under permit

for livestock grazing. Rosemont has acquired and holds four Forest Service permits

authorizing livestock grazing on the Rosemont, Thurber, Greaterville, and Debaud

allotments. FEIS at 188, FS0236930; see also FEIS at 733, FS0237504 (Figure 78,

depicting locations of grazing allotments relative to Project site), and at 738, FS0237509

(Table 133, summary of current grazing activities within Project area). The majority of

the capable rangeland appears to be in fair to excellent condition based on recent range

transect studies. FEIS at 739-40, FS0237510-11.

9. In addition to livestock grazing, the area receives heavy recreational use.

Forest roads, routes, and trails in the area total 285 miles. Two off-highway vehicle

staging areas that see considerable use are located adjacent to the Project area.

Although travel is restricted to designated routes, some unauthorized motorized use

does occur. FEIS at 188, FS0236930; see also FEIS at 62, FS0236774 (Figure 8,

depicting existing roads, 46 kilovolt (“kV”) power line, and other Project area features).

1 Historic mining in the Rosemont Mining district is summarized below.


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B. History of the Rosemont Deposit

10. The area in which the Rosemont Project is located has a long history of

mining and mineral production. Mineral exploration in the Santa Rita Mountains began

in the mid-1800s, and by 1880, small underground mines and smelters were operating in

the area, at which time the Rosemont and Helvetia mining districts were established.

Mineral production continued until the 1950s. By that time, area mines had produced

approximately 227,000 tons of ore containing 17.3 million pounds of copper, 1.1

million pounds of zinc, and 181,000 ounces of silver. FEIS at 164, FS0236906.

11. Banner Mining Company, which had acquired most of the area’s mining

claims in the late 1950s, drilled the “discovery hole” that initially located the Rosemont

mineral deposit. In 1963, Anaconda Mining Company acquired the property and

conducted an extensive exploration program that identified the Rosemont deposit as a

major porphyry copper deposit. Other mining companies, including ANAMAX (a

partnership between Anaconda and AMAX) and ASARCO, subsequently acquired the

property and conducted additional exploration activities. Ultimately, Augusta

Resources acquired the property in 2005, and formed Rosemont Copper Company to

undertake development of the property’s mineral resources. FEIS at 154, FS0236896,

and at 164, FS0236906.

12. There is no dispute that the Rosemont deposit is a very large and valuable

mineral deposit. As reported in the Forest Service’s 2017 Record of Decision (the

“ROD”), the Rosemont Project is expected to produce an estimated 5.88 billion pounds

of copper, 194 million pounds of molybdenum, and 80 million ounces of silver. ROD at

4, FS0259730; see also FEIS at 32-33, FS0236744-45 (discussing Rosemont’s 2006,

2008, and 2011-2012 exploratory drilling programs and estimated mineral resources).2

2 Note that one number in the FEIS at page 33 was corrected through the April 2017Errata at 6 (FS0244720). The Errata to the FEIS is found in the Administrative Recordat FS0244715-756 (Doc. #049971) and was posted on the Forest Service’s website forthe Rosemont Project.


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C. Land Ownership and Mineral Rights

13. The core of the Rosemont Project area consists of 132 patented mining

claims, some of which predated statehood and the creation of the Coronado National

Forest. The most recent claims were patented in the 1990s. FEIS at 165, FS0236907.3

In addition to its patented mining claims and other private land holdings (see FEIS at

viii, FS0236648 (Fig. ES1)), Rosemont holds a large group of unpatented mining

claims, which cover the bulk of the NFS lands in the project area. FEIS at 165,

FS0236907; ROD at 80, FS0259806.4

14. Under the project alternative selected by the Forest Service, called the

Barrel Alternative, the Rosemont Project will disturb an estimated 5,431 acres of land,

consisting of 1,197 acres of land owned by Rosemont, 574 acres of land owned by the

State of Arizona, and 3,653 acres of land in the Coronado National Forest managed by

the Forest Service. FEIS at xxiv, FS0236664 (Table ES1); ROD at 33, FS0259759

(summary of selected action). Within the security fence, the total area of disturbance is

estimated to be 4,228 acres. ROD at 34, FS0259760 (Fig. ROD-3, depicting Barrel

Alternative footprint); FEIS at 121, FS0236833 (Table 11, providing land disturbance

for each alternative).

D. Rosemont’s Mining Operations

1. Overview

15. Rosemont’s mining and mineral processing operations are described in

3 A “patent,” in this context, is a term for a conveyance of legal title to a mining claimby the United States to a private individual pursuant to the Mining Law. See 30 U.S.C.§§ 29, 42(a); United States v. Shumway, 199 F.3d 1093, 1099 (9th Cir. 1999). Thus, apatented mining claim is land owned in fee simple, in which the United States retains nointerest.4 An unpatented mining claim is a parcel of land that has been claimed by an individualor entity under the Mining Law but which has not been patented. In that case, the claimowner has the right to use the claim for mining and mineral processing, but his rightsare subject to the United States’ paramount rights as title holder. See, e.g., Shumway,199 F.3d at 1098-1102 (summarizing the Mining Law).


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detail in the FEIS and ROD. See, e.g., FEIS at xv-xviii, FS0236655-58 (overview of

mining operations (note that several numbers were corrected, FS0244720)), at 30-51,

FS0236742-63 (same), at 78, FS0236790, and at 80-86, FS0236792-98 (description of

Barrel Alternative); ROD at 33-37, FS0259759-63 (summary of selected action),

Appendix A (at A-1–A-23, FS0259827-49) (detailed description of the selected action).

Rosemont’s operations are summarized below as background and for context in

responding to Plaintiffs’ claims.

16. As indicated, the Rosemont Project will consist of an open-pit mine and

mineral processing facilities, along with various infrastructure and improvements

needed to support Rosemont’s operations. E.g., FEIS at xv-xviii, FS0236655-58. In the

ROD, the Project is summarized as follows:

The selected action will develop [Rosemont’s] mineral deposit using open-pit mining techniques. The mine will consist of an open pit; plant site andsupport facilities; waste rock and tailings facilities; and ancillary facilities,including access and maintenance roads and electrical supply and watersupply lines.

ROD at 33, FS0259759 (footnote omitted). The mine life, including construction,

operation, reclamation and closure, is expected to be approximately 24.5 to 30 years.

FEIS at vii, FS0236647, and at 82, FS0236794 (Table 7, mine life and anticipated

production schedule); see also FS0244722-23 (correction of Table 7).

17. During its operations, the mine is expected to produce approximately 700

million tons of sulfide ore and 1.25 million tons of waste rock. FEIS at 82, FS0236794

(Table 7), see also FS0244722-23 (correction of Table 7). At the end of mine life, the

circular-shaped pit would measure between 6,000 and 6,500 feet in diameter and have a

final depth of 1,800 to 2,900 feet, depending on the elevation of the pit rim. FEIS at xv,

FS0236655. The pit will disturb a total of 995 acres, of which 590 acres would consist

of Rosemont’s patented mining claims (i.e., private land) and 365 acres would be NFS

land within the Coronado National Forest on which Rosemont holds mining claims.

FEIS at 31-32, FS0236743-44, and at 82, FS0236794 (Table 7, mine life and anticipated


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production schedule for the Barrel Alternative); see also FS0244722-23 (correction of

Table 7).

2. Pre-Production Activities, Access and Utilities

18. The initial pre-production phase of the Project is expected to take 18 to 24

months to complete. During this phase, Rosemont will construct access and haul roads,

the ore processing plant and related support facilities, and utility-related improvements,

and will install security and perimeter fencing around the Project site. In addition,

Rosemont will clear and grub the pit area and the areas where tailings and waste rock

will be placed during the early years of operation, and will begin construction of the

buttresses for the tailings and waste rock facilities. FEIS at xviii, FS0236658, and at 31,

FS0236743; ROD at 35, FS0259761.

19. Primary access to the Project will be from State Highway 83, which

connects to Interstate 10 approximately 12 miles north of the Project site. In addition, a

gravel road would be constructed from the plant site over Lopez Pass in the Santa Rita

Mountains to serve as an emergency access route and as a maintenance road for the

Project’s water and electric utility supply lines. Utility lines will generally extend east

from the Sahuarita area across private and State land to Lopez Pass, where they enter

the Coronado National Forest and travel a short distance to the Project site. FEIS at xv-

xvii, FS0236655-57, at 39-43, FS0236751-55, and at 81, FS0236793 (Figure 17,

depicting Barrel Alternative footprint). The route of the utility lines is shown in Figure

5, FEIS at 42, FS0236754.

20. Electricity will be provided by Tucson Electric Power Company, which

will construct a 138-kV power transmission line from a switchyard located near

Sahuarita to the Project. The transmission line has been reviewed and approved by the

Arizona Power Plant and Line Siting Committee and the Arizona Corporation

Commission. FEIS at 39-41, FS0236751-53, and at 42, FS0236754 (Figure 5); ROD at

6, FS0259732 (Figure ROD-2, depicting utility alignment).

21. The Project expects to use approximately 5,000 acre-feet of fresh water


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per year in connection with its mining operations. This water will be withdrawn from

four to six wells located on land owned or leased by Rosemont in the Sahuarita area,

west of the Santa Rita Mountains, and transported by a pipeline that will be constructed

within the power line corridor. Rosemont has obtained a permit from the Arizona

Department of Water Resources, which generally regulates water rights and uses in

Arizona, authorizing Rosemont to withdraw and use this groundwater for mining and

mineral processing pursuant to A.R.S. § 45-514. FEIS at xvii, FS0236657, and at 41-

43, FS0236753-55; ROD at 6, FS0259732 (Figure ROD-2, depicting utility alignment).

A much smaller amount of water will be obtained from stormwater that enters the mine

pit and, once the pit reaches sufficient depth to intersect the local groundwater table,

from pit dewatering. FEIS at xvii, FS0236657, and at 43, FS0236755.

22. Rosemont is required under an agreement with the Town of Sahuarita to

mitigate the impacts of its groundwater withdrawals, including the recharge of Central

Arizona Project (“CAP”) water in the vicinity of the company’s well field. Through

2009, Rosemont had already recharged more than 45,000 acre-feet of CAP water at the

Pima Mine Road and Avra Valley recharge facilities. FEIS at 359-60, FS0237101-02.

3. Mineral Processing Activities

23. The Rosemont mineral deposit is primarily sulfide ore with a cap of oxide

ore near the surface. FEIS at 32, FS0236744. Originally, Rosemont had proposed to

construct and operate a heap leach facility to process the oxide ore, but withdrew this

proposal from the Barrel Alternative in response to agency concerns about the impacts

of the facility and concerns about the economic feasibility of operating the facility under

the Barrel Alternative design. FEIS at 28-30, FS0236740-42, and at 78, FS0236790.

24. The sulfide ore will be crushed by a series of crushers and mills until it is

reduced to the size and consistency of sand. A flotation circuit will then be used to

separate the copper and molybdenum concentrates from the waste material. The

resulting copper and molybdenum concentrates will be dewatered, thickened, filtered,

and loaded for shipment off-site. FEIS at xvi, FS0236656, and at 33-34, FS0236745-46.


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Figure 2 on page 34 of the FEIS depicts the sulfide ore processing steps. As stated

above, primary access to the Project site will be accomplished via an improved two-lane

road from State Highway 83. Copper concentrates shipments will form the largest

number of routine truck shipments from the mine, with approximately 50 round trips per

day. Concentrates will not be smelted or refined at the project site. FEIS at xvi,

FS0236656, and at 50, FS0236762; ROD at A-17–A-18, FS0259843-44; see also

FS0244721. Rosemont has not specified where smelting will occur other than to state

that it would not be in the United States due to capacity limitations. FEIS at 33,

FS0236745. In addition, Rosemont has stated that there are no specific contracts or

plans yet in place for facilities to receive or distribute concentrates, and that, depending

on the structure of future contracts, Rosemont may not own the concentrates once they

are loaded into trucks and may not have control over delivery locations. FS0283140.

4. Dry-Stack Tailings and Waste Rock Facilities

25. The waste material that remains after ore processing, called tailings, will

be dewatered using large-capacity pressure filters, which will squeeze out the water to

create a dry cake with a moisture content of 12 to 18 percent. These filtered tailings

would be transported by a conveyor system to the Project’s “dry-stack” tailings facility,

while the water would be recycled for reuse. The tailings would then be spread and

compacted. FEIS at xvi, FS0236656, and at 36, FS0236748.

26. The use of dewatered, “dry-stack” tailings reduces total seepage from the

tailings to approximately 8 gallons per minute. While the geochemical modeling

predicts that the tailings seepage will not violate aquifer water quality standards, the

reduction in seepage further reduces any risk from tailings seepage, in addition to

conserving water. FEIS at 396, FS0237138.

27. Waste rock found at the Project site consists of chemically basic limestone

and other largely nonacid-generating rocks. This waste rock will be placed in areas

outside the open pit and will be used to construct buttresses that surround and encase the

dry-stack tailings. This will provide visual screening as well as containment and


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erosion control. Construction of the buttresses will begin during the pre-production

period and continue during production, allowing reclamation of the outer slopes to take

place immediately rather than being postponed until the conclusion of operations.

Ultimately, the tailings would be covered completely by a thick layer of waste rock.

FEIS at xvi, FS0236656, at 36, FS0236748, and at 397, FS0237139.

5. Unique Characteristics of the Rosemont Copper Deposit

28. Although the Rosemont ore body is a porphyry copper deposit, it has

unique characteristics that make it different from most copper deposits in the western

states. Specifically, the Rosemont deposit contains a very small percentage of

mineralized intrusive rock and a much larger percentage of carbonate rocks (e.g.,

limestone) compared to similar types of copper deposits. Consequently, there is less

risk that water quality problems will develop. The unique nature of the deposit is

further supported by geochemical testing, which shows that the Project possesses little

potential for acid generation. “As a whole, the percentage of waste rock mined that is

potentially acid generating is 10 percent, which is a mix of rock with likely acid-

generating potential (2 percent) and with uncertain acid-generating potential (8 percent)

(Williamson 2012). The remaining 90 percent is non-acid generating or acid

neutralizing.” FEIS at 383, FS0237125; see also FEIS at 468-70, FS0237210-12.

29. A materials testing program and waste rock segregation plan have been

incorporated into the design of the Project’s tailings and waste rock facilities, and is

included as a mitigation measure. Under this plan, waste rock will be continually

monitored and tested to determine its acid-generating potential as it is removed from the

mine and placed in the waste rock facility. Proper implementation of this plan will

identify and isolate rock with acid-generating potential, further reducing the possibility

of adverse impacts to surface and groundwater quality. FEIS at 393, FS0237135, at

396-97, FS0237138-39, and at 469-71, FS0237211-13; ROD at A-3 FS0259829.

30. Under the Aquifer Protection Permit for the Project, issued by ADEQ in

2012, potentially acid-generating rock cannot be used for the construction of the


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perimeter buttresses, tailings starter buttresses or any channel grading fills but would

instead be placed in the interior of the waste rock facility and would be encapsulated by

acid-neutralizing or nonacid-producing rock. FEIS at 371, FS0237113, and at 470-71,

FS0237212-13; ROD at A-3, FS0259829; see also FS0105210; FS0105213; and

FS0188606-612.

6. Stormwater Management

31. Rosemont’s discharge of surface water from the Project area is subject to

regulation by ADEQ under the Clean Water Act. Rosemont has obtained coverage

under ADEQ’s AZPDES Industrial Stormwater Mining Multi-Sector General Permit,

which governs Rosemont’s mining activities. FEIS at 449, FS0237191, and at 473-74,

FS0237215-16; ROD at A-11- A-12, FS0259837-38. Under this permit, Rosemont

must design and implement control measures and best management practices to ensure

that any discharge from the Project area meets applicable water quality standards. FEIS

at 449, FS0237191, and at 473-74, FS0237215-16. Stormwater that comes in contact

with the mine pit, ore processing facilities, or mine maintenance plant areas is

prohibited from surface discharge. Other stormwater will be collected in diversion

channels constructed around the mine pit and plant site and routed around the mine

facilities for discharge to lower Barrel Canyon, downstream of the project. Compliance

point dams would be located in lower Barrel Canyon to provide the final stormwater

discharge sampling locations for the project. FEIS at 45-46, FS0236757-58 (note page

46 correction, FS0244721), and at 84-85, FS0236796-97; ROD at A-11–A-14,

FS0259837-40. In addition, during active mining, runoff from tailings facilities would

be retained in various ways and not be allowed to discharge. FEIS at 45-46,

FS0236757-58 (note page 46 correction, FS0244721), and at 84-85, FS0236796-97.

32. Following reclamation and mine closure, no stormwater will be captured

and stored on the top or benches of the waste rock/tailings landform. Instead, the

facilities will be designed and constructed to shed runoff, allowing as much water as

possible to flow downstream in the area’s natural washes. FEIS at 46, FS0236758 (note


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page 46 correction, FS0244721), and at 84-85, FS0236796-97.

7. Perimeter and Security Fences

33. A perimeter fence will be constructed around the primary mining and ore

processing operations and facilities, excluding portions of the access roads and the

utility lines north of the mine area. The perimeter fence will consist of wildlife-friendly

four-strand barbed wire, in accordance with Bureau of Land Management (“BLM”) and

Arizona Game and Fish Standards. It will create a zone restricted from public access

and provide locations for environmental compliance monitoring. A security fence and

patrol road will be constructed inside the perimeter fence, approximately 750 feet from

the toe of the slope of the waste rock and tailings facilities. FEIS at 38-39, FS0236750-

51; ROD at A-8, FS0259834. The approximate locations of the perimeter fence and the

security fence are shown on Figure 17 of the FEIS, at page 81, FS0236793, which

depicts the Barrel Alternative.

34. At mine closure, both fences will be removed, allowing access to the

Project area. However, portions of the site, such as the mine pit, are likely to be fenced

off for safety reasons. FEIS at 39, FS0236751; ROD at A-8, FS0259834.

E. Reclamation Requirements

35. Extensive reclamation is required both during and after the completion of

active mining and mineral processing. Reclamation on NFS land will be administered

and regulated by the Forest Service and on Rosemont’s private land by the Arizona

State Mine Inspector pursuant to Arizona law. In addition, ADEQ regulates certain

aspects of reclamation pursuant to its permitting authority, including the Arizona

Aquifer Protection Program, A.R.S. §§ 49-241–49-252. FEIS at xviii, FS0236658, and

at 54-56, FS0236766-68; ROD at A-19, FS0259845, and at A-21–A-22 FS0259847-48.

36. The design of the Project includes elements that are intended to facilitate

reclamation, such as managing operations to minimize environmental impacts,

constraining disturbances to a minimum number of drainages to minimize downstream

hydrologic disturbance, and using appropriate technology to minimize the generation of


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impacted water. During active mining, concurrent reclamation will take place on the

outer slopes of the perimeter buttresses and waste rock facility as those surfaces are

completed. A large portion of the waste rock perimeter buttresses will be reclaimed by

year 10 of operations. FEIS at 54-55, FS0236766-67, and at 84, FS0236796.

37. Post-mining reclamation and mine closure includes a number of required

elements, including:

• Removal of all equipment and buildings;

• Capping the top of the tailings facility with waste rock upon closure;

• Final regrading and revegetation of the plant and mill site areas;

• Final regrading and revegetation of any access roads requiring closure;

• Removal of the electric supply line, the water supply line, and related

facilities from NFS land;

• Revegetation of utility corridors where removal causes soil disturbance;

• Final regrading and revegetation of the landform that encompasses the

waste rock and tailings facilities;

• Removal of perimeter and security fencing, and signing as needed;

• Construction of fencing and/or berms for safety considerations, including

around the open pit; and

• Reestablishment of downstream drainage and surface water flow.

FEIS at xviii, FS0236658, and at 54-56, FS0236766-68; ROD at A-21–A-22,

FS0259847-48.

F. Mitigation and Monitoring Requirements

38. Rosemont is required to implement or otherwise fund an extensive suite of

monitoring and mitigation requirements to avoid, minimize, or compensate for the

adverse impacts of the Project. Many of these requirements have been developed and

imposed by the Forest Service in connection with its review and approval of

Rosemont’s Mining Plan of Operations (the “MPO”), while other requirements have


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been imposed by other agencies with jurisdiction over aspects of the Project.5 FEIS at

93-95, FS0236805-07. In the FEIS, for example, the Forest Service explained:

Mitigation measures are integral components of the design of the proposedaction presented earlier in this chapter, as well as being integral to thedevelopment of alternatives to the proposed action. Additional measuresdesigned to mitigate or compensate for impacts have been identified from avariety of sources, including the ID [interdisciplinary team] team,cooperating agencies, Rosemont Copper, and public comments. . . .

The Coronado has developed a mitigation and monitoring plan that meetsthe guidance and direction specified by the CEQ [Council onEnvironmental Quality] and applicable laws and regulations (see appendixB of this FEIS). It is important to note that this NEPA analysis anddocumentation is being prepared prior to final design of the project andbefore a final MPO is prepared. The full suite of mitigation and monitoringrequirements will not be known until all required permits have been issued,as they contain measures required by resource agencies to avoid, reduce,and monitor environmental effects.

FEIS at 94, FS0236806.

39. The Forest Service’s mitigation and monitoring plan for the Rosemont

Project is set forth in Appendix B of the FEIS at B-3 through B-102, FS0238425-524.

The plan’s monitoring and mitigation requirements generally consist of requirements

imposed by the Forest Service, FWS through its Biological Opinions, or the Arizona

State Historic Preservation Office (“SHPO”) pursuant to the National Historic

Preservation Act (“NHPA”) and that statute’s implementing regulations. The appendix

also includes additional requirements imposed by other permitting agencies, including

ADEQ and the Arizona Department of Water Resources, as well as conservation and

mitigation measures that Rosemont has agreed to implement. FEIS at B-3–B-5,

FS0238425-27.

5 As discussed in more detail below, the MPO is issued by the Forest Service pursuantto its regulations at 36 C.F.R. Part 228 Subpart A. The MPO authorizes and regulatesRosemont’s use of NFS land for mining and mineral processing. See Shumway, 199F.3d at 1106-07.


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40. The Forest Service’s ROD sets forth extensive mitigation and monitoring

requirements for the Rosemont Project by resource type, and identifies the requirements

that will be incorporated into the Project’s MPO. These requirements include

mitigation and monitoring relating to impacts affecting groundwater quantity and

quality; surface water quantity and quality; seeps, springs and riparian areas; and

biological resources. These mitigation measures include:

• Purchase and use of surface water rights to mitigate for Project impactsin the Cienega Creek watershed (includes purchase of 1,122 acre-feet ofwater rights held by Del Lago Golf Course) (FS-SSR-01).

• Construction and maintenance of additional water features to offsetpotential impacts to wildlife and livestock from reduced flow in seeps,springs, surface waters, and groundwater (FS-BR-05), together withmonitoring of springs, seeps, and constructed/enhanced water features(FS-SSR-02).

• Acquisition and rehabilitation of Sonoita Creek Ranch (which includesacquisition of 1,580 acres of land adjoining Sonoita Creek, along with590 acre-feet of water rights from Monkey Springs) (FS-BR-08).

• Establishment of the $2,000,000 Cienega Creek WatershedConservation Fund, to be used for mitigation projects in the CienegaCreek watershed (FS-BR-16).

• Recordation of a restrictive covenant or conservation easement onprivate parcels in Davidson Canyon (includes 15.5 acres of ephemeraldrainages, three springs, 40 acres of riparian habitat, and 190 acres ofupland buffer habitat adjacent to riparian) (FS-BR-21).

• Monitoring to determine impacts from pit dewatering on downstreamsites in Barrel and Davidson Canyons (FS-BR-22).

• Periodic validation and rerunning of Tetra Tech groundwater modelthroughout the life of the mine (FS-BR-27).

• Harmful nonnative species management and removal program to protectand enhance habitat for native aquatic species in Cienega Creek and SanRafael-Santa Cruz River Watersheds (includes $3,000,000 in funding toagencies) (FS-BR-30).


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• Yellow-billed cuckoo and southwestern willow flycatcher habitatenhancement and management program (includes $1,250,000 in fundingto agencies) (FS-BR-31).

ROD at 43-61, FS0259769-0259787 (Mitigation and Monitoring Requirements); FEIS,

Appendix B at B-3–B-90, 0238425-512 (Mitigation and Monitoring Plan); FS0162965-

68 (summary of Rosemont’s Habitat Mitigation and Monitoring Plan and other aquatic

resource conservation measures).

41. Other permits and authorizations issued to Rosemont, such as the Aquifer

Protection Permit, the Air Quality Permit, FWS’s Biological Opinions, and the Army

Corps of Engineers Section 404 permit (which are discussed below) also include various

monitoring and mitigation requirements. FEIS at B-4–B-5, 0238426-27; ROD at 44,

FS0259770.

G. Financial Assurance for Reclamation and Mine Closure

42. To ensure that Rosemont performs the terms and conditions set forth in

the MPO, Rosemont must submit a reclamation performance bond or other financial

assurance, meeting the requirements of 36 C.F.R. § 228.13, in an amount acceptable to

the Forest Service and using an instrument acceptable to the Forest Service. The bond

will be maintained by Rosemont and may be increased or updated as deemed necessary

by the Forest Service. The reclamation bond/financial assurance covers various

reclamation and mine closure activities, such as removing structures, regrading and

recontouring the surface, replacing soil, revegetation, and long-term monitoring and

maintenance costs. ROD at 94-95, FS0259820-21; FEIS at 97-99, FS0236809-11.

43. Rosemont may not commence any action or activity located on NFS

lands, nor any action or activity that will impact National Forest resources, until such

time that the action or activity is properly bonded. This includes bonding for

monitoring associated with such actions or activities. ROD at 39, FS0259765.

44. In addition to the financial assurances provided to the Forest Service,

similar financial assurances must be provided to the Arizona State Mining Inspector for


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reclamation on private land, the Army Corps of Engineers for completion of mitigation

of impacts to jurisdictional “waters of the United States,” and ADEQ for facility closure

and groundwater protection. FEIS at 99, FS0236811; ROD at 95, FS0259821.

H. Reporting and Evaluation Requirements

45. To ensure that Rosemont properly complies with its permits and

authorizations, including the Project’s MPO, and to ensure that Rosemont properly

completes all required monitoring and mitigation, Rosemont must comply with a

number of monitoring and reporting requirements. See FEIS at 95-96, FS0236807-08;

ROD at 38-43, FS0259764-69, and at 62, FS0259788.

46. Rosemont will be required to provide an annual report summarizing

mining, reclamation, and monitoring activities for the coming year, and conduct an

annual review with the Forest Service to determine whether activities are in accordance

with the approved MPO and whether any changes to the approved MPO or financial

assurance are needed. The company also must designate an employee as the primary

contact with the Forest Service on permit compliance, monitoring, and mitigation.

ROD at 40, FS0259766; see also FEIS at 96, FS0236808 (summarizing reporting

requirements).

47. Monitoring and reporting frequencies are described for each applicable

mitigation and monitoring item in Appendix B of the FEIS. Rosemont will be required

to compile monitoring results into a monitoring report that is provided to the Forest

Service on a quarterly basis. In addition to quarterly monitoring reports, Rosemont

must submit an annual summary report of quarterly monitoring for the previous year to

the Forest Service, and set up a website that is accessible to the public at which the

monitoring reports will be posted. ROD at 41, FS0259767.

48. A multi-agency task group of federal and state agencies with permitting

authority over some aspect of the Rosemont Project will be formed by the Coronado

National Forest Supervisor to assist the Forest Service in overseeing Rosemont’s

various mitigation and monitoring activities. The task group will meet at least annually


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to review and evaluate monitoring results and make recommendations to the Forest

Supervisor. The task force also will be used as a forum to identify, develop, and

recommend actions that could be taken should monitoring indicate that impacts are

outside the bounds evaluated in the FEIS or applicable permit or authorization. FEIS at

96, FS0236808; ROD at 40, FS0259766, and at 62, FS0259788.

II. PERMITS AND AUTHORIZATIONS NEEDED FOR THE PROJECT

49. The Rosemont Project is heavily regulated and requires permits and

authorizations from a number of federal and state agencies, in addition to the Forest

Service. These agencies include the U.S. Army Corps of Engineers, the U.S.

Department of Transportation, the U.S. Environmental Protection Agency (“EPA”), the

Arizona Corporation Commission, the Arizona Department of Agriculture, ADEQ, the

Arizona Department of Transportation, the Arizona State Land Department, the Arizona

State Mine Inspector, the Arizona Department of Water Resources, and various Pima

County departments and agencies. A comprehensive list of permits and authorizations

applicable to the Project is provided in Table 3 of the FEIS, at pages 56-59, FS0236768-

71; see also ROD at 95-97, FS0259821-23 (listing other permits, licenses and

authorizations needed by Rosemont to operate).

50. In order to conduct mining and related activities on NFS land within the

Coronado National Forest, Rosemont must comply with the Forest Service’s regulations

governing the use of such lands for mining, which are codified at 36 C.F.R. Part 228,

Subpart A (§§ 228.1–228.15). See, e.g., FEIS at 10, FS0236722, and at 147,

FS0236889. Among other requirements, the mine operator must submit and obtain

approval of an MPO if his proposed operations are likely to cause a significant

disturbance of surface resources on NFS land. See 36 C.F.R. § 228.4(a)(3). The Forest

Service, therefore, has a primary role in approving and administering the Rosemont

Project. FEIS at 56, FS0236768.

51. Because of its role in approving and administering the project, the Forest

Service acted as the lead federal agency and was responsible for environmental review


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of the Rosemont Project pursuant to the National Environmental Policy Act (“NEPA”),

42 U.S.C. §§ 4321-4370dd, including the preparation of draft and final environmental

impact statements. FEIS at vii, FS0236647, and at 1, FS0236713.

52. The other federal agency that has an important role in approving and

administering aspects of the Rosemont Project is the Army Corps of Engineers (“the

Corps”). ROD at 96, 0259822; FEIS at 1, FS0236713, at 11-12, FS0236723-24, and at

56, FS0236768. The Corps issues permits authorizing the discharge of dredged or fill

material into waters of the United States under Section 404 of the Clean Water Act, 33

U.S.C. § 1344. In this case, certain drainage features in the Project area were

determined to potentially be waters of the United States. See FEIS at 451-53,

FS0237193-95; FEIS, Appendix A, at 4-5, FS0238257-58, and Figure 2, FS0238311

(depicting potential waters of the U.S.); ROD at 96, FS0259822.6 Consequently,

Rosemont has applied for an individual Section 404 permit. The Corps is a cooperating

agency and will rely on the Forest Service’s FEIS and related NEPA documentation, but

is expected to issue its own record of decision pursuant to NEPA. FEIS at 11-12,

FS0236723-24; ROD at 96, FS0259822.

53. As indicated above, ADEQ regulates various aspects of the Rosemont

Project and has issued permits to Rosemont. These permits include:

• Aquifer Protection Permit (issued April 3, 2012), which regulates direct or

indirect additions of pollutants to groundwater and establishes aquifer

6 The Clean Water Act regulates “the discharge of any pollutant” into “the waters of theUnited States.” 33 U.S.C. §§ 1311(a), 1362(7). Thus, if a landowner wishes to placefill material into a watercourse or drainage that may be a “water of the United States,”he must obtain a jurisdictional determination (“JD”) from the Corps. The JD may beeither “preliminary,” advising that such waters may be present, or “approved,” whichdefinitely determines whether such waters are present. See, e.g., U.S. Army Corps ofEng’rs v. Hawkes Co., Inc., __ U.S. __, 136 S.Ct. 1807, 1811-12 (2016) (discussing“waters of the United States” and JDs). In this case, Rosemont obtained a preliminaryJD, as discussed in Appendix A of the FEIS, that identifies potential waters of the U.S.in the Project area.


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water quality limits enforced at points of compliance specified for the

facility. The permit imposes monitoring, reporting, contingency planning,

and financial assurance requirements on Rosemont. FEIS at 57,

FS0236769, and at 371, FS0237113; ROD at 97, FS0259823; see also

FS0105183-229.

• AZPDES Multisector General Permit (authorized Feb. 7, 2013), which

regulates discharges of stormwater resulting from mining activities to

waters of the U.S. As a requirement of this permit, a Stormwater

Pollution Prevention Plan (“SWPPP”) must be developed and submitted

to ADEQ for review. ROD at 96, FS0259822; FEIS at 57-58,

FS0236769-70, and at 449, FS0237191; see also FS0105378-81 and

FS0197589-787.7

• Air Quality Class II Synthetic Minor Permit (issued Jan. 21, 2013), which

regulates air emissions from activities during operations. FEIS at 57,

FS0236769, and at 219, FS0236961; see also FS0105295-374.

In addition, ADEQ’s Hazardous Waste Management Program governs Rosemont’s

management of hazardous waste (including transport and disposal). FEIS at 58,

FS0236770; ROD at 97, FS0259823.

54. ADEQ issued a Certification under Section 401 of the Clean Water Act,

33 U.S.C. § 1341(a), on February 3, 2015 (the “Section 401 Certification” or the

“Certification”). ROD at 95, FS0259821; see also FS0106705-16. In the Section 401

7 Since 2002, the State of Arizona has had primacy over permitting under Section 402 ofthe Clean Water Act, which generally regulates discharges of pollutants, throughimplementation of the Arizona Pollutant Discharge Elimination System (“AZPDES”).See A.R.S. §§ 49-255-255.03. The AZPDES program regulates point sources ofdischarge. The most common source regulated is stormwater runoff from constructionactivities and industrial sites. Coverage under the AZPDES program may be obtainedeither through an individual permit or a general permit issued by ADEQ. See A.A.C.R18-9-A901–R18-9-C905.


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Certification, ADEQ determined that the activities proposed for the Rosemont Project

will not violate applicable surface water quality standards in the subject waterbodies

including McCleary, Wasp, Trail, Barrel and Davidson Canyons, and Cienega Creek.

FS0106707; see also FEIS at 449, FS0237191 (discussing State water quality

certification under Section 401), and FS0106477. The Certification imposes a number

of conditions on Rosemont, which must be incorporated into the Corps’ Section 404

permit. FS0106711-16. These conditions include Rosemont’s implementation of a

Surface Water Mitigation Plan that ADEQ approved in connection with issuing the

Certification. FS0106712; see also FS0106505-648.

55. Under the Forest Service’s ROD, Rosemont must obtain and comply with

all permits issued by the Corps, ADEQ, the Arizona Department of Water Resources,

the Arizona State Land Department, Pima County, and other permitting agencies, and as

well as any revised or supplemental permits in effect for the Project. ROD at 39,

FS0259765. If Rosemont has not received any required permits and authorizations,

Rosemont cannot conduct activities on NFS land. FEIS at 60, FS0236772. The Forest

Service also stated in the FEIS:

Compliance with the approved MPO is conditional and requires compliancewith the terms of the local, State, and Federal permits and authorizationswhich govern actions that could affect the surface resources on NFS lands.The Coronado and other local, State, and Federal agencies wouldcoordinate with one another to the extent possible with regard tocompliance with permits and authorizations. In addition, Rosemont Copperhas a legal obligation and financial interest in ensuring that the project isimplemented as described in its approved plans and permits.

FEIS at 61, FS0236773. Thus, the violation of a permit or authorization, such as an

ADEQ water quality permit or that agency’s Section 401 Certification, would subject

Rosemont to possible suspension or revocation of the Forest Service’s MPO.

56. For the purpose of monitoring and verifying Rosemont’s compliance with

the requirements imposed by other agency permits and authorizations, a system of self-

monitoring and quality assurance/quality control techniques is used. Rosemont must


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provide the Forest Service with a description of how environmental protection standards

contained in approved plans and permits issued by other agencies will be implemented.

Rosemont also must designate an employee to serve as the primary contact with the

Forest Service for permit compliance, monitoring and mitigation. ROD at 40,

FS0259766.

57. Rosemont must prepare a summary list of reports submitted to non-Forest

Service agencies for annual submission to the Forest Service. The Forest Service may

then require Rosemont to provide a copy of any report or other notification listed. In

addition, Rosemont must notify the Forest Service if the company is notified of non-

compliance by any permitting agency. ROD at 39, FS0259765.

III. SUMMARY OF THE FOREST SERVICE’S NEPA PROCESS

A. Scoping and Related Public Involvement

58. In July 2007, Rosemont submitted a proposed MPO and reclamation plan

to the Forest Service for the construction and operation of an open-pit mine, mineral

processing facilities, and related improvements in accordance with 36 C.F.R. Part 228,

Subpart A, and requested approval to construct and operate mining and related facilities

on and adjacent to NFS land within the Coronado National Forest. FS0115561; FEIS at

1, FS0236713; FS0139134-341.

59. On March 13, 2008, the Forest Service published a Notice of Intent to

Prepare an Environmental Impact Statement in the Federal Register. This scoping

notice summarized the Project, as it was then proposed, indicating that the purpose of

the proposed action is to grant permission to Rosemont to use NFS land for activities

related to the operation of an open-pit mine, described potential issues as identified by

Forest Service resource specialists, and indicated that the Forest Service was initiating

an analysis of the proposed action under NEPA. In this notice, the Forest Service also

announced that it was conducting open houses about the Rosemont Project at locations

in the general vicinity of the Project area, at which written and oral comments can be

submitted, and that, in addition, written comments can be provided directly to the


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Coronado National Forest. ROD at 70, FS0259796; see also FS0115561-63.

60. The Forest Service subsequently held six open houses between March 18,

2008, and April 23, 2008, in Tucson and other locations in the general vicinity of the

Project. Approximately 1,000 people attended the open houses. The agency solicited

oral and written comments about the Project at the meetings and accepted comments on

a toll-free telephone line and by mail, hand delivery, facsimile, and email throughout the

initial 30-day scoping period. ROD at 70, FS0259796; FEIS at 13, FS0236725.

61. On April 29, 2008, a “Revised Notice of Intent to Prepare an

Environmental Impact Statement” was published in the Federal Register. The notice

announced that the scoping comment period was extended to July 14, 2008, for a total

comment period of 120 days. In addition, the notice announced that three additional

public hearings would be held to solicit input on the Project from the public. These

public meetings were held between May 12, 2008, and June 30, 2008 in Tucson and two

other locations. A total of 860 people signed in at the public hearings, with 169 people

presenting formal oral comments about the Project. Written comments also were

collected. FS0116072; also see ROD at 70, FS0259796; FEIS at 13, FS0236725.

62. On June 27, 2008, in response to public concerns about constraints

limiting hearing attendance and participation, the Forest Service hosted a toll-free

telephone hotline for use by the public to provide comments on the Project. A total of

302 people left recorded comments, which were transcribed for the agency’s record.

ROD at 70, FS0259796; FEIS at 13, FS0236725.

63. Ultimately, the Forest Service received over 11,000 comment submittals

on the Project during the NEPA scoping period, including comments from government

officials, Indian tribes, various organizations, and federal, state and local agencies

(although about 70 percent of the comments were postcards, petitions, and form-letter

submittals). The Forest Service recorded and analyzed the comments, and identified

about 16,000 discrete comments. A systematic process called “content analysis” was

used to organize the contents of the submittals. ROD at 70, FS0259796; FEIS at 13,


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FS0236725.

64. Ultimately, 12 significant issues were identified by the Forest Service

based on its review and analysis of the scoping comments: Land Stability and Soil

Productivity; Air Quality; Water Resources; Seeps, Springs, and Riparian Vegetation;

Plants and Animals; Cultural Resources; Visual Resources; Dark Skies; Recreation;

Public Health and Safety; Social and Economic Resources; and Transportation and

Access. These issues were listed and discussed in the FEIS at 15-24, FS0236727-36,

and were listed and summarized again in the ROD at 7-12, FS0259733-38. These issues

were used by the Forest Service in connection with developing alternatives to the

proposed action, i.e., the mining project described in Rosemont’s preliminary MPO.

The issues were also used in developing the analyses of environmental impacts

discussed in the Forest Service’s Draft Environmental Impact Statement (“DEIS”) and

its FEIS. ROD at 70, FS0259796; FEIS at 14, FS0236726.

B. The Draft Environmental Impact Statement

65. On October 19, 2011, a Notice of Availability of Draft Environmental

Impact Statement for the Rosemont Project was published in the Federal Register,

which began a 90-day public comment period on the DEIS. (The comment period was

subsequently extended until January 31, 2012, due to a technical problem.) The Forest

Service also held seven public meetings on the DEIS between November 12, 2011, and

January 14, 2012, in Tucson and other locations in the general vicinity of the Project.

The first six meetings consisted of both an informational and an oral comment session.

The seventh meeting was an oral comment session. FS0116733-34; also see ROD at

71, FS0259797; FEIS at 14, FS0236726.

66. Oral and written comments were accepted by the Forest Service at the

public meetings and, in addition, by mail, email, hand-delivery, facsimile, and telephone


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recording, as well as through the Rosemont Project website8 throughout the public

comment period. In total, the Forest Service received more than 25,000 submissions.

Content analysis again was used to categorize the nature of comments received by issue

and concern. Appendix G of the FEIS contains Forest Service responses to comments

received on the DEIS. FEIS at G1 – G1544, FS0244132-675.9

67. In the ROD, the Forest Service explained that the comments on the DEIS

were carefully analyzed and helped to inform the decision on Rosemont’s MPO in a

number of ways. “Overall, changes and modifications made in response to comments

and information received during the DEIS comment process led to improved analysis

and disclosure of impacts that were taken into consideration in making my decision.

They also led to development of many mitigation measures that will reduce potential

environmental impacts and monitoring measures that will be used to ensure that the

project is implemented in accordance with this decision.” ROD at 71-72, FS0259797-

98.

C. The Final Environmental Impact Statement and Draft ROD

68. Ultimately, in late 2013, the Forest Service completed the FEIS. On

November 27, 2013, the agency issued a news release advising the public that the FEIS

had been completed and would be posted on its website for the Rosemont Project.

FS0119222. On December 13, 2103, notice of the availability of the FEIS was

published in the Federal Register. FS0275504. At that time, the Forest Service also

8 In conjunction with issuing the DEIS, the Coronado National Forest created anInternet website to support the NEPA process called “Rosemont Copper ProjectEnvironmental Impact Statement.” The website’s address ishttps://www.rosemonteis.us/. During the NEPA process, the Forest Service posted theNEPA documents and other public documents; numerous technical reports andbackground information supporting the discussion and analysis of impacts in the NEPAdocuments; public announcements and press releases; a list of the cooperating agencieson the website; and other information pertinent to the Forest Service’s administrativeprocess.9 Note that four corrections were made to Appendix G through the April 2017 Errata at29-39, FS0244743-53.


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issued its Draft Record of Decision for public review. FS0259619-714.

69. On December 15, 2013, the Forest Service caused a legal notice to be

published in the Arizona Daily Star, which gave formal notice that the 45-day objection

period began to run pursuant to the agency’s regulations at 36 C.F.R. Part 218, which

govern predecisional administrative review of proposed actions of the Forest Service.

FS0119234; also see ROD, Appendix B at B-1, FS0259851. By the close of the 45-day

objection period, the Forest Service had received 101 eligible letters objecting to

approval of the MPO for the Rosemont Project. ROD, Appendix B at B-1, FS0259851.

70. Review of the objections was conducted by the Regional Forester, who

issued his response letter to eligible objectors on June 13, 2014. In his response, the

Regional Forester explained his determination that the Rosemont Project is in

compliance with laws, regulations, policies, and the forest plan and directed the

Coronado Forest Supervisor to make certain clarifications and corrections in the final

Record of Decision or in the Errata being prepared for the FEIS. Appendix B of the

ROD discusses the Regional Forester’s decision and explains how the Forest Service

addressed each of the clarifications and corrections he identified. FS0033043-53; also

see ROD, Appendix B at B-1–B-6, FS0259851-56.

D. The Supplemental Information Reports

71. Following the publication of the FEIS and the Draft Record of Decision,

the Forest Service became aware of new information that it had not previously

considered during the NEPA process. The Forest Service conducted a review of this

information and documented the results in a Supplemental Information Report (“2015

SIR”), dated May 22, 2015. 2015 SIR at 1-813, FS0260487-1299; ROD at 1-2,

FS0259727-28. The Forest Service determined that the new information was within the

scope and range of effects considered in the original analysis in the FEIS. Therefore, no

significant new circumstances or information relevant to environmental concerns and

bearing on the Rosemont Project or its impacts were found that would require a

supplement or revision of the FEIS. 2015 SIR at 267, FS0260763; ROD at 2,


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FS0259728.

72. Additional new information was addressed in a Second Supplemental

Information Report (“2016 SIR”) in June 2016. This new information included the

Amended Final Reinitiated Biological and Conference Opinion for the Rosemont

Copper Mine, dated April 28, 2016 (discussed below), as well as certain documents and

other information submitted to FWS during preparation of that opinion. 2016 SIR at 1-

66, FS0261427-92.10 The Forest Service determined that while consideration of some

of the information resulted in changes to some baseline conditions and analysis

methodologies, it did not result in major changes to any of the conclusions concerning

the impacts disclosed in the FEIS. Consequently, the agency found that the scope and

range of effects considered in the analysis disclosed in the FEIS remained valid. 2016

SIR at 55, FS0261489; ROD at 2, FS0259728.

E. The Final Record of Decision

73. Ultimately, after a decade-long environmental review process, on June 6,

2017, the Coronado Forest Supervisor issued the ROD. ROD at 99, FS0259825. On

the following day, the Forest Service issued a news release announcing the issuance of

the ROD and advising the public that the final ROD is available on the agency’s

Rosemont Project website. FS0119256. Notice of the issuance of the final ROD was

also published in local newspapers. FS0119257, and FS0119258-59.

F. The Involvement of Other Agencies in the NEPA Process

74. Throughout the NEPA process, the Forest Service worked closely with

other federal agencies as well as state and local agencies. For example, the Forest

Service invited numerous federal agencies, state agencies, local governments and tribal

governments to participate in the NEPA process as cooperating agencies. A total of 33

agencies and other governmental entities were invited to become cooperating agencies,

10 As discussed below, the Forest Service’s final decision approving Rosemont’s MPOwas delayed due to the need to reinitiate consultation with FWS, which resulted in theissuance of an amended biological opinion.


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and 17 ultimately accepted.11 ROD at 73, FS0259799. The Forest Service held regular

meetings with cooperating agencies and solicited their input at key points of the

environmental review process, including review of preliminary drafts of the DEIS and

the FEIS. The Forest Service explained: “Information and suggestions provided by the

cooperating agencies was used to clarify aspects of the alternatives; modify analysis

methods to more accurately predict environmental impacts; develop mitigation and

monitoring measures; and better understand divergent scientific viewpoints regarding a

number of environmental issues.” ROD at 73 FS0259799.

75. The Forest Service also consulted on technical issues with numerous

federal agencies throughout the NEPA process, including EPA, the Corps, FWS, BLM,

the National Park Service, and the U.S. Geological Survey. Many of these agencies

reviewed the DEIS and provided comments. ROD at 73-74, FS0259799-800. For

example, the Forest Service collaborated with EPA concerning the potential impacts of

the Project on distant perennial waters, substantially modifying its analysis of those

impacts in the FEIS based on EPA’s input. FS0132032-44. After the FEIS was issued,

the Forest Service met with the EPA, FWS, BLM, and other agencies at least 29 times

in order to reduce uncertainty and refine the hydrologic analyses of potential impacts to

resources in the Las Cienegas National Conservation Area (“NCA”) and along Empire

Gulch and Cienega Creek. 2015 SIR at A-3, FS0260783. These exchanges brought

forward numerous documents, field data, and analyses not previously considered. The

Forest Service’s consideration of this additional information is documented in the 2015

SIR. See 2015 SIR at 1-3, FS0260497-99 (summarizing the review conducted and the

new or changed information considered), 2015 SIR at 138-140, 0260634-36 (summary

of findings for stream flow and standing pools). As stated, this information was not

considered significant, and did not require substantial changes in the Rosemont Project.

11 A table found on pages ix-x of the ROD shows the specific agencies that were invitedto participate in the NEPA process and whether they accepted or declined. FS0259725-26.


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ROD at 73-74, FS0259799-800. As discussed below, the new information on potential

impacts to resources in the Las Cienegas NCA and along Empire Gulch and Cienega

Creek was considered by FWS in its amended biological opinion.

IV. ADDITIONAL FACTS CONCERNING PROJECT IMPACTS TO WATER

RESOURCES

A. Overview of the Forest Service’s Effects Analysis and Mitigation

Requirements Related to Water Resources

76. In evaluating the effects of the Rosemont Project on the environment, the

Forest Service carefully considered the Project’s potential impacts on water resources.

A significant portion of the FEIS focuses on waters and water resources, including the

impacts of the action and mitigation for those impacts, as follows:

• Groundwater quantity. FEIS at 288-362, FS0237030-104.

• Groundwater quality and geochemistry. FEIS at 362-398, FS0237104-140.

• Surface water quantity. FEIS at 398-443, FS0237140-85.

• Surface water quality. FEIS at 443-485, FS0237185-227.

• Seeps, springs, and riparian areas. FEIS at 485-570, FS0237227-312.12

In total, the FEIS contains 282 pages of discussion relating to the effects of the Project

on water resources. The Forest Service’s analysis of potential impacts to water

resources, focusing on the impacts of groundwater drawdown caused by the mine pit

and on potential impacts to water quality, is described in more detail below.

77. In addition, an extensive group of mitigation and monitoring requirements

have been imposed by the Forest Service and other regulatory agencies with authority

over the Project (e.g., ADEQ) to address various aspects of the Project’s potential

impacts on water resources, including the following:

12 One of the major organizational changes made in the FEIS was to create a separatesection on seeps, springs, and riparian areas to assist readers in understanding thediscussion of potential impacts to those resources. FEIS at 485, FS0237227. Theseimpacts are discussed below.


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Groundwater Quality:

• Monitoring of waste rock for seepage (FS-GW-0113).

• Additional operational waste rock and tailings characterization (FS-GW-03).

• Periodic update and rerunning of pit lake geochemistry model throughout thelife of the Project (FS-GW-04).

• Equipment and methods to keep potentially contaminated water from beingreleased into the environment (OA-GW-03).

• Control and recycling of process water (OA-GW-04).

• Processing and placement of tailings to reduce their water content and overallfootprint (OA-GW-05).

• Groundwater quality and aquifer-level monitoring required by AquiferProtection Permit (OA-GW-06).

• Additional water quality monitoring beyond the point-of-compliance wellsrequired by ADEQ’s Aquifer Protection Permit (FS-GW-02).

Surface Water Quantity and Quality:

• Location, design, and operation of Project facilities and structures in order toroute stormwater around the mine and into downstream drainages, maintainingfuture surface water flows (FS-SW-01).

• Stormwater diversion for Barrel Alternative specifically designed to routemore stormwater into downstream drainages postclosure, maintaining surfacewater flows (FS-SW-02).

• Detention and testing the water quality of stormwater from perimeter wasterock buttress areas prior to flowing downstream of the mine site (OA-SW-01).

13 “FS-GW-01” is the mitigation requirement identifier used by the Forest Service forthis mitigation requirement in its Mitigation and Monitoring Plan, included in the FEISat Appendix B, FS0238423-512. Identifiers are included for each mitigationrequirement for ease of reference. See FEIS, Appendix B at B-3 B-5, FS0238425-27(discussing source and organization of mitigation and monitoring requirements).


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• Implementation of Stormwater Pollution Prevention Plan, other requirementsunder ADEQ’s Arizona Pollutant Discharge Elimination System Multi-SectorGeneral Permit (OA-SW-02).

Seeps, Springs and Riparian Areas:

• Purchase and use of surface water rights to mitigate for Project impacts in theCienega Creek watershed (includes purchase of 1,122 acre-feet of water rightsheld by Del Lago Golf Course) (FS-SSR-01).

• Construction and maintenance of additional water features to offset potentialimpacts to wildlife and livestock from reduced flow in seeps, springs, surfacewaters, and groundwater (FS-BR-05), together with monitoring of springs,seeps, and constructed/enhanced water features (FS-SSR-02).

• Acquisition and rehabilitation of Sonoita Creek Ranch (which includesacquisition of 1,580 acres of land adjoining Sonoita Creek, along with 590acre-feet of water rights from Monkey Springs) (FS-BR-08).

• Establishment of the $2,000,000 Cienega Creek Watershed Conservation Fund,to be used for mitigation projects in the Cienega Creek watershed (FS-BR-16).

• Recordation of a restrictive covenant or conservation easement on privateparcels in Davidson Canyon (includes 15.5 acres of ephemeral drainages, threesprings, 40 acres of riparian habitat, and 190 acres of upland buffer habitatadjacent to riparian) (FS-BR-21).

• Monitoring to determine impacts from pit dewatering on downstream sites inBarrel and Davidson Canyons (FS-BR-22).

• Periodic validation and rerunning of Tetra Tech groundwater model throughoutthe life of the mine (FS-BR-27).

• Harmful nonnative species management and removal program to protect andenhance habitat for native aquatic species in Cienega Creek and San Rafael-Santa Cruz River Watersheds (includes $3,000,000 in funding to agencies)(FS-BR-30).

• Yellow-billed cuckoo and southwestern willow flycatcher habitat enhancementand management program (includes $1,250,000 in funding to agencies) (FS-BR-31).


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ROD at 43-61, FS0259769-87 (Mitigation and Monitoring Requirements); FEIS,

Appendix B at B-3–B-90, 0238425-512 (Mitigation and Monitoring Plan); FS0162965-

68 (summary of Rosemont’s Habitat Mitigation and Monitoring Plan and other aquatic

resource conservation measures).

78. As indicated previously, there are a number of mitigation and monitoring

requirements that have been imposed by other agencies in connection with their

permitting and authorization processes. Many of these permits are related to water

resources, including the Army Corps of Engineers Section 404 Permit and related

Habitat Mitigation and Monitoring Plan; ADEQ’s Section 401 Water Quality

Certification; ADEQ’s Aquifer Protection Permit; ADEQ’s AZPDES Multisector

General Permit and related Stormwater Pollution Prevention Plan; and the Arizona

Department of Water Resources’ Mineral Extraction and Metallurgical Processing

Groundwater Withdrawal Permit. ROD at 95-97, FS0259821-23; FEIS, Appendix B at

B-4–B-5, FS0238426-27.

79. All mitigation and monitoring requirements in the Forest Service’s FEIS

and ROD are binding on Rosemont and its successors and assigns, including all

requirements in the FWS’s biological opinions, the Army Corps of Engineers’ Section

404 permit, ADEQ’s water quality permits, the Arizona Department of Water Quality’s

groundwater withdrawal permit, and other permits issued by any permitting agency,

including any revised or supplemented permits. ROD at 38-39, FS0259764-65.

Furthermore, the mitigation and monitoring requirements will be incorporated into the

final MPO issued to Rosemont. ROD at 43, FS0259769; see also ROD at 43-62,

FS0259769-88 (listing mitigation and monitoring requirements incorporated into the

MPO).

B. Groundwater Drawdown Impacts

1. Introduction

80. In analyzing the effects of the Rosemont Project, the Forest Service

carefully evaluated potential impacts to the local and regional groundwater table and


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related water resource impacts. See FEIS at 288-362, FS0237030-104 (impacts on

groundwater quantity, including groundwater modeling), and at 485-569, 0237227-312

(impacts on springs, seeps, streams and riparian areas). The Forest Service considered

two different areas of impact: the Upper Santa Cruz Subbasin, where water for mining

operations will be pumped from four to six wells pursuant to a permit from the Arizona

Department of Water Resources, and the Davidson Canyon/Cienega Creek Basin, where

the development of the mine pit is expected to cause local groundwater drawdown.

FEIS at 329-339, FS0237071-81 (impacts from mine water supply pumping in the

Upper Santa Cruz Subbasin), and at 339-357, FS0237081-99 (impacts resulting from

the mine pit in Davidson Canyon/Cienega Creek Basin).

2. Groundwater Withdrawals in the Upper Santa Cruz Subbasin

81. The Upper Santa Cruz Subbasin is bounded on the east by the Santa Rita

Mountains and on the west by the Sierrita Mountains, and is drained by the Santa Cruz

River and its tributaries. At the deepest points, the Upper Santa Cruz Subbasin contains

several thousand feet of alluvial materials. Groundwater withdrawals for agricultural

irrigation, mining, public water supplies, and golf course irrigation have resulted in

groundwater declines in the area. Major groundwater users include Farmers Investment

Company, ASARCO, Freeport-McMoRan, and several major public water providers.

FEIS at 321-24, FS0237063-66.

82. The impact of the mine supply wells on groundwater levels in the Upper

Santa Cruz Basin was modeled by Errol L. Montgomery and Associates

(“Montgomery”). The model was peer-reviewed, and was calibrated based on

groundwater level trends. FEIS at 302-305, FS0237044-47. As stated, the Project

expects to pump approximately 5,000 acre-feet of groundwater per year for use in

operations, or approximately 99,000 acre-feet of groundwater over the life of the

Project. FEIS at 320-321, FS0237062-63. Generally, groundwater drawdown is

estimated to be as great as 90 feet immediately adjacent to Rosemont’s wells and 10 feet

or less approximately three miles from the wells after 20 years of pumping. FEIS at


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330-331, FS0237072.

83. Groundwater withdrawal for the Project’s water supply is expected to

adversely affect other groundwater wells that are located near Rosemont’s wells by

reducing the groundwater level. It will also reduce overall groundwater availability in

the Upper Santa Cruz Subbasin. Rosemont’s groundwater pumping represents a 6-7

percent increase in pumping within the subbasin. Finally, the withdrawal of

groundwater would contribute to the overall groundwater withdrawal from the Sahuarita

area that has resulted in the land subsidence observed in the area. FEIS at 336-339,

FS0237078-81.

84. To mitigate the impacts of groundwater pumping in the Upper Santa Cruz

Subbasin, Rosemont will implement several measures, including recharge of available

Central Arizona Project Water. The location of recharge would be as close as possible

to Rosemont’s well field in the cone of depression. Through 2009, 45,000 acre-feet of

water have been recharged by Rosemont at the Pima Mine Road and Avra Valley

recharge facilities. Rosemont also has entered into an agreement with the Town of

Sahuarita to carry out recharge in the amount of 105 percent of the groundwater

withdrawn and requires that the recharge be carried out within the area of drawdown. In

addition, Rosemont has entered into an agreement with the United Sahuarita Well

Owners group to carry out a well protection program. FEIS at 359-60, FS0237101-02.

3. Groundwater Impacts in the Davidson Canyon/Cienega Basin

a. Introduction

85. Hydrogeology in the general Project area on the east side of the Santa Rita

Mountains, within Davidson Canyon and the Cienega Creek Basin, is fundamentally

different from the Santa Cruz Valley, which, as stated, is a deep alluvial valley.

Beginning in 2008, an intensive hydrogeologic investigation was undertaken, including

the installation of 30 wells and piezometers at 17 locations in the vicinity of the mine.

The wells were designed to characterize the near-pit hydrogeology, monitor

groundwater levels at multiple depths, characterize the hydrogeology throughout the


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upper Davidson Canyon watershed, including bedrock and alluvium, and install long-

term monitoring wells between 1 and 5 miles away from the proposed mine pit.

Monitoring has continued in these wells, as well as at various springs and seeps,

including aquifer testing, water-level and flow monitoring, and water quality sampling.

FEIS at 325, FS0237067.

86. Wells in the general vicinity of the Project are primarily used for domestic

and stock water uses and have sustainable well yields from less than 1 to 3 gallons per

minute. Estimates of groundwater use by wells within the Davidson Canyon/Cienega

Creek Basin are approximately 400 to 500 acre-feet per year, which is a small fraction

of the groundwater used in the Upper Santa Cruz Valley. Most of this groundwater use

occurs in the vicinity of Sonoita-Elgin, while a smaller proportion may occur in the

lower part of the Cienega Basin, including in the vicinity of the Project. FEIS at 327,

FS 0237069; see also FEIS at 322-23, FS0237064-65 (discussing groundwater

withdrawals in the Upper Santa Cruz Subbasin).

87. As discussed previously, Rosemont will mine ore containing copper and

other valuable minerals by means of open-pit methods. This will result in the creation

of a large, roughly circular mine pit. The mine pit at the end of mine life will be

between 6,000 and 6,500 feet in diameter and have a depth of up to 3,000 feet (3,050

feet above mean sea level). FEIS at 31, FS0236743; ROD at A-1, FS0259827.

88. During active mining, groundwater that enters the pit will be pumped

from the mine pit or from adjacent dewatering wells. This is expected to form a cone of

depression. After mining ceases, the pit would fill gradually with groundwater, forming

a pit lake. The pit lake would lose water through evaporation, which would be

perpetually replenished in large part by groundwater from the regional aquifer. As a

result, the mine pit lake is expected to act as a permanent regional hydraulic sink,

affecting the groundwater level near the mine. FEIS at 339, FS0237081.

89. Because the pit lake is expected to act as a hydraulic sink in perpetuity,

the cone of depression is expected to persist in perpetuity, with its boundaries slowly


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migrating outward over hundreds of years. Eventually, the cone of depression would

stop expanding, but the flow of groundwater toward the mine pit would be a permanent

feature of the regional aquifer. However, the cone of depression will not result in a

reversal of gradient or a change in the direction of groundwater flow. The area in which

groundwater flow is actually reversed is relatively close to the pit. FEIS at 339,

FS0237081.

90. Once the pit lake reaches equilibrium, the loss of water from the

surrounding aquifer due to the pit lake is estimated to be between 170 to 370 acre-feet

of water per year. This is estimated to be equal to approximately 3 percent of current

annual groundwater recharge within the Cienega Creek Basin. FEIS at 353,

FS0237095.

b. The Groundwater Models Developed to Analyze Mine

Pit Impacts

91. Because of the potential impacts of the mine pit on the regional aquifer

and the secondary impacts that groundwater drawdown may have on streams, springs,

and riparian areas in the Davidson Canyon/Cienega Creek Basin, the Forest Service

conducted a robust analysis of groundwater-drawdown impacts, using multiple

groundwater models and a range of sensitivity analyses to account for uncertainty, as

well as conducting independent peer review of the modeling. ROD at 75, FS0259801;

FEIS at 295-98, FS0237037-40, and at 305-15 FS0237047-57; see also FS0204026-66

(discussing the Forest Service’s efforts to analyze and resolve issues relating to water

resources, including the potential impacts of groundwater drawdown).

92. Rosemont commissioned two different consulting firms, Montgomery and

Tetra Tech, to develop groundwater flow models that could be used to analyze the

impacts of the Project on the regional groundwater table in the Davidson

Canyon/Cienega Creek Basin. FEIS at 296, FS0237038, and at 305-06, FS0237047-48;

see also FS0204030-31 (summarizing the groundwater modeling process).

Groundwater flow models are tools that attempt to mathematically simulate a real-world


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groundwater system, using available geologic and hydrologic data that have been

observed in the field. FEIS at 295-96, FS0237037-38.

93. The Montgomery Mine Site Model (hereinafter, the “Montgomery

Model”) predicts the impact on regional groundwater levels caused by active pumping

of groundwater during mining and from the formation of the pit lake, and is described in

the FEIS at pages 306-10, FS0237048-52. The Montgomery Model was calibrated to

real-world conditions and a sensitivity analysis was conducted.14 The model also was

subjected to independent peer review on two different occasions. Ultimately, the model

was determined to be appropriate and acceptable for use in the FEIS analysis. FEIS at

307-10, FS0237049-52; see also FS0204030-31.

94. The Tetra Tech Mine Site Model (hereinafter, the “Tetra Tech Model”)

was independently developed by the Tetra Tech firm to predict the impact on regional

groundwater levels caused by active pumping of groundwater during mining and from

the formation of the pit lake. FEIS at 311-14, FS0237053-56. The Tetra Tech Model

was calibrated and a sensitivity analysis was performed to analyze the appropriateness

of the model’s parameters. It was also peer reviewed and, following the submission of

additional data, was found to be appropriate and acceptable for use in the FEIS analysis.

FEIS at 312-14, FS0237054-56; see also FS0204030-31.

95. In addition, Dr. Tom Myers, a consultant retained by Pima County,

provided a third model that was considered by the Forest Service in estimating

groundwater drawdown impacts. FEIS at 314-15, FS0237056-57; see also FS0204030-

31. The Myers Model is similar in nature to the Montgomery and Tetra Tech Models,

14 Calibration is the process through which various model parameters are systematicallychanged, within reasonable bounds, in order to get the model results to match real-worldconditions (the calibration target). A sensitivity analysis is a systematic evaluation ofwhich model parameters have the largest effect on the model results and an evaluationof how uncertainty about each parameter will affect the accuracy and reliability of themodel. These methods are included in the standard modeling process to ensure theaccuracy of the model. FEIS at 295, FS0237037.


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but it utilized a smaller area and different boundary conditions. In addition, it is

uncertain whether this model was subjected to peer review by independent experts, in

contrast to the Montgomery and Tetra Tech Models. The Myers Model’s output was

similar to those models, however. FEIS at 315, FS0237057.

c. Efforts to Validate the Models and Reduce Their

Uncertainty

96. Forest Service specialists, their contracted experts, and the Forest Service

decision-maker determined that the groundwater flow models used in the FEIS were

valid, reasonable, and acceptable for predicting impacts related to the Rosemont Project.

FEIS at 290, FS0237032; ROD at 75, FS0259801. At same time, however, many of the

experts believed that the groundwater models do not have the ability to predict impacts

on distant waters, such as Cienega Creek and Davidson Canyon, where the impacts on

stream flow are the result of small groundwater changes—in many cases, less than 1

foot of predicted drawdown—occurring many decades or even much longer in the

future. FEIS at 290, FS0237032.

97. The Forest Service explained that a 5-foot drawdown contour was the

appropriate threshold for predicting impacts to groundwater levels. While the models

can mathematically predict groundwater drawdown to thousandths of a foot, in reality

this level of refinement is meaningless. The models were designed for the purpose of

predicting the inflow of groundwater to the mine pit and the general drawdown that

would occur in the regional aquifer. The farther the predictions are in terms of distance

from the mine pit and the farther out in time the predictions occur, the less certain they

become. FEIS at 294, FS0237036.

98. In addition to the uncertainty inherent in the models, groundwater levels

reported in the Davidson Canyon/Cienega Creek Basin naturally vary from year to year

and season to season. For example, two stock wells along Empire Gulch have been

monitored by the Arizona Department of Water Resources for several decades, and

water levels have varied between 4 and 5 feet. Similar stock wells along Cienega Creek


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show variation between 3 and 5 feet. Consequently, natural variability in the region’s

groundwater levels is already causing changes in the vicinity of sensitive surface waters,

such as Empire Gulch and upper Cienega Creek that approach or, in some cases, exceed

5 feet. FEIS at 294-95, FS0237036-37.

99. To address these uncertainties, in the FEIS the Forest Service presented

not only the model result that was the “best fit” to the observed real-world data, i.e., the

scenario considered most likely to occur based on observed conditions, but provided a

range of possible impacts based on the results of the sensitivity analyses for the

groundwater models. Therefore, while the model estimates were presented in the FEIS

for distant waters such as upper Cienega Creek and lower Davidson Canyon, and for

time periods extended long after mining has ended, the uncertainty involved was more

explicitly acknowledged in the FEIS by providing a range of potential impacts based on

the results of the model sensitivity analysis. FEIS at 290, FS0237032.15

100. In addition, the Forest Service used the results of three different

groundwater models, two of which were peer reviewed by independent experts, which

provided an additional range of potential impacts. FEIS at 293, FS0237035; and at 296-

98, FS0237038-40.

101. Table 61 in the FEIS at 347, FS0237089, provided the following

information concerning modeled groundwater drawdown 20 years after mine closure at

the springs in Upper Empire Gulch, at upper Cienega Creek near stream gage 09484550

(which is a perennial reach), at Cienega Creek near stream gage 09484560 (which is

15 As noted above, in conducting sensitivity analyses, ranges of values for different inputparameters are modeled in various combinations. Only reasonable values are selected forinclusion in the range of possible values. Thus, any of the sensitivity analyses can beconsidered a reasonable outcome of the modeling. However, while reasonable, thesensitivity analyses are not all equally likely to occur. Model calibration typically resultsin only one modeling run that is considered to “best fit” the available real-worldhydrologic data. For assessing impacts to stream flow, the estimate based on best-fitmodels represents the best calibrated modeling run from each of the Tetra Tech,Montgomery, and Myers Models. FEIS at 502, FS0237244.


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farther downstream and intermittent), and at the Davidson Canyon-Cienega Creek

confluence, which is approximately 14 miles north (downstream) of the Rosemont

Project area:

Predicted groundwater drawdown 20 years after mine closure

LocationPredicted

Drawdown (feet)from Montgomery

Model

PredictedDrawdown (feet)from Tetra Tech

Model

PredictedDrawdown (feet)

from Meyers Model

Upper Empire

Gulch Springs

<0.1(<0.1 to 0.1)

0.2(<0.1 to 0.5)

0

Cienega Creek nearstream gage09484550 (perennialreach)

<0.1(same)

<0.1(same)

0

Cienega Creek nearstream gage09484560(intermittent reach)

<0.1(same)

<0.1(same)

0

Davidson Canyon-Cienega CreekConfluence

<0.1(same)

<0.1(<0.1 to 0.15)

outside modeldomain

The drawdown result shown in bold is considered to best fit the available real-world

data, while the results shown in parentheses represent the possible range of drawdown

from the sensitivity analyses used to test the model. FEIS at 347, FS0237089 (footnote

to table); and at 502, FS0237244 (discussing difference between best-fit and sensitivity

analyses).

102. Table 62 of the FEIS at 347-348, FS0237089-90, provided the following






Project area:


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LocationPredicted

Drawdown (feet)from Montgomery

Model

PredictedDrawdown (feet)from Tetra Tech

Model

PredictedDrawdown (feet)

from Meyers Model

Upper EmpireGulch springs

<0.1(<0.1 to 0.5)

0.5(<0.1 to 1.8)

0.2

Cienega Creek nearstream gage09484550 (perennialreach)

<0.1(same)

<0.1(<0.1 to 0.15)

0

Cienega Creek nearstream gage09484560(intermittent reach)

<0.1(same)

<0.1(same)

0

Davidson Canyon-Cienega CreekConfluence

<0.1(same)

<0.1(<0.1 to 0.2)

outside modeldomain

The drawdown result shown in bold is considered to best fit the available real-world

data, while the results shown in parentheses represent the possible range of drawdown

from the sensitivity analyses used to test the model. FEIS at 347-48, FS0237089-90;

and at 502, FS0237244 (discussing difference between best-fit and sensitivity analyses).

103. Table 63 of the FEIS at 348-349, FS0237090-91, provided the following






Project area:


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Location

Predicted Drawdown

(feet) from

Montgomery Model

Predicted Drawdown

(feet) from Tetra Tech

Model

Predicted Drawdown

(feet) from Meyers

Model

Upper Empire Gulch

springs

0.3

(<0.1 to 1.4)

2.5

(0.5 to 5.0)

0.3

Cienega Creek near

stream gage 09484550

(perennial reach)

<0.1

(same)

0.25

(<0.1 to 0.35)

0

Cienega Creek near

stream gage 09484560

(intermittent reach)

<0.1

(same)

<0.1

(same)

0

Davidson Canyon-

Cienega Creek

Confluence

<0.1

(same)

<0.1

(<0.1 to 0.2)

outside model domain

The drawdown result shown in bold is considered to best fit the available real-

world data, while the results shown in parentheses represent the possible range of

drawdown from the sensitivity analyses used to test the model. FEIS at 348-49,

FS0237090-91; and at 502, FS0237244 (discussing difference between best-fit and

sensitivity analyses).

d. The Predicted Impacts on Springs, Stream and Riparian

Areas

104. Using the groundwater drawdown estimates produced by the models, the

Forest Service analyzed in detail the potential impacts on springs, streams, and riparian

areas in the Davidson Canyon/Cienega Creek Basin. This analysis included potential

impacts on local springs and seeps, perennial streams, wells, Outstanding Arizona


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Waters, and riparian vegetation along various streams and drainages. See ROD at 76,

FS0259802; FEIS at 485-565, FS0237227-307 (FEIS Section entitled “Seeps, Springs,

and Riparian Areas”); also see FS0204032 (summary of key process steps for assessing

impacts to aquatic and riparian resources).

105. In preparing the Seeps, Springs, and Riparian Areas section of the FEIS,

the Forest Service worked extensively with the EPA to refine its analysis of the impacts

of groundwater drawdown. ROD at 75-76, FS0259801-02. In July 2013, a Preliminary

Administrative FEIS was released to cooperating agencies for review and comment.

Over the next four months, EPA provided extensive oral and written comments

regarding the approach used to analyze riparian impacts, which led to the adoption of a

“risk assessment” approach in the final FEIS. Under this approach, a range of modeling

results were assessed (high, most likely, low) using all three groundwater models and

their sensitivity analyses. Actual impacts to streamflow were analyzed by

superimposing predicted groundwater drawdown on a conceptual cross-section of the

stream. The Forest Service also incorporated consideration of highly critical periods,

such as periods of extremely dry or low flow conditions, as opposed to simply

considering median or average stream conditions. FS0204491-94; also see FS0132032-

37.

106. As a result of the foregoing collaboration, the FEIS provided a robust,

quantitative analysis of potential impacts on aquatic and riparian resources that

incorporated a wide range of possible outcomes based on the groundwater models, as

well as a discussion about the importance of the riparian areas and the effect the

Rosemont Project might have on them. ROD at 75-76, FS0259801-02.

107. For example, Table 108 of the FEIS at 507-11, FS0237249-53, presents a

summary of the effects of the Rosemont Project on Empire Gulch, Cienega Creek,

Davidson Canyon and Gardner Canyon predicted to occur 50, 150, and 1,000 years after

mine closure, including changes in stream flow, impacts to stream segments designated

as “Outstanding Arizona Waters,” and acres of riparian vegetation disturbed. The “best


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fit” models were provided, but the low and high estimates were also provided for

context. FEIS at 507-11, FS0237249-53.

108. The Forest Service also provided narrative discussions of the predicted

impacts of groundwater drawdown on stream flow at key stream locations, including

portions of Empire Gulch, portions of Cienega Creek, portions of lower Davidson

Canyon upstream of the confluence with Cienega Creek, and portions of lower Gardner

Canyon upstream of the confluence with Cienega Creek. All of these stream segments

are considered intermittent or perennial. They are depicted on Figure 67 and

summarized in Table 106 of the FEIS. FEIS at 490-91, FS0237232-33, and at 524,

FS0237266.

109. The Forest Service again cautioned that this analysis “reflects predicted

impacts from relatively small amounts of groundwater drawdown, often fractions of a

foot, that are occurring decades, hundreds, or even a thousand years in the future. . . . It

is important to understand that the detailed predictions contained in this section are

meant to inform the decision and to show what could potentially happen if the model

predictions were to occur as modeled; however, this does not change the overall

uncertainty.” FEIS at 524-25, FS0237266-67; see also FEIS at 528-29, FS0237270-71

(discussing uncertainty associated with Empire Gulch impact analysis), and at 530,

FS0237272 (discussing uncertainty associated with upper Cienega Creek impact

analysis).

110. The impact of predicted groundwater drawdown at Empire Gulch varies

widely, depending on the groundwater model used. All of the models indicate that the

perennial segment of the drainage will eventually become ephemeral, but the rate at

which this would occur varies considerably between the models:

• The lowest estimates of drawdown (Montgomery) would not change the

perennial nature of the stream up to 150 years after mine closure

(approximately 180 years from now).

• Two of the best-fit models (Montgomery and Myers) indicate that the stream


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would shift from perennial to intermittent by 150 years after mine closure

(approximately 180 years from now). One of the best-fit models (Tetra Tech)

indicates that the stream would be intermittent by 50 years after mine closure

and ephemeral by 150 years after mine closure.

• The highest estimates of drawdown (Tetra Tech) indicate a change from a

perennial to an ephemeral stream by 50 years after mine closure

(approximately 180 years from now).

FEIS at 529-30, FS0237271-72, and at 539, FS0237281.

111. The impact of predicted groundwater drawdown at upper Cienega Creek

also varies from model to model. However, under all of the models, the predicted

impacts on stream flow at upper Cienega Creek are not as significant as Empire Gulch:

• The lowest estimates of drawdown would not change the perennial nature of

(approximately 180 years from now), even up to 1,000 years after mine

closure.

• The estimates of drawdown for the best-fit models are mixed. One best-fit

model (Montgomery) indicates that the perennial nature of Cienega Creek

would not change even up to 1,000 years after mine closure. One best-fit

model (Myer) indicates the stream would remain perennial up through 150

years after mine closure (approximately 180 years from now), but would

gradually become intermittent by 1,000 years after closure. The third best-fit

model (Tetra Tech) indicates the stream would remain perennial up through

50 years after mine closure (80 years from now), would gradually become

intermittent by 150 years after mine closure with dry periods averaging 1

month per year, and would become ephemeral by 1,000 years after mine

closure.

• The highest estimates of drawdown indicate no change in the perennial nature

of the stream through 50 years after mine closure (approximately 80 years

from now), but the stream would gradually become intermittent by 150 years


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after mine closure and would become ephemeral 1,000 years after mine

closure.

FEIS at 531-32, FS0237273-74, and at 539, FS0237281.

112. Analyses of the effects of groundwater drawdown also were provided in

this section of the FEIS for Gardner Canyon, located southeast of the Project area, the

lower portion of Davidson Canyon wash, including the wash’s two perennial springs,

and lower Cienega Creek. (As discussed, the latter two areas are designated as

Outstanding Arizona Waters.) The predicted long-term groundwater drawdown in these

areas is well below 1 foot (0.3 foot for Montgomery and 0.1 foot for Tetra Tech in

lower Davidson Canyon), and the expected environmental impacts from groundwater

drawdown associated with the Rosemont Project are minimal. FEIS at 533-38,

FS0237275-80, and at 539-40, FS0237281-82.

113. In addition, the available evidence indicates that the springs in lower

Davidson Canyon, which are the source of water for reach that has been designated as

Outstanding Arizona Waters, derive their water from ephemeral storm flows stored

locally in the shallow alluvial aquifer, rather than being connected to the regional

aquifer. Consequently, groundwater drawdown caused by the Rosemont mine pit will

not affect the springs. FEIS at 534-36, FS0237276-78.

114. The springs in lower Davidson Canyon may be affected by reductions in

surface flows caused by the Project, which have the potential to reduce recharge to the

shallow alluvial aquifer in lower Davidson Canyon. The modeled decrease in

stormwater runoff in lower Barrel Canyon (where it is crossed by State Route 83) is

approximately 17 to 46 percent, depending on the alternative, as a result of the capture

of runoff by mine facilities. Estimated reductions in runoff in lower Davidson Canyon,

approximately 12 miles downstream, range from 4.3 to 11.5 percent. However, the

surface water hydrology of the watershed suggests that the modeling likely overstates

the reduction in surface flow and, therefore, the impacts that may occur downstream.

FEIS at 535-36, FS0237277-78.


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115. The Forest Service also analyzed the indirect effect of potential changes in

stream flow and stormwater runoff on riparian vegetation. The Forest Service used the

groundwater drawdown predicted by the models and analyzed whether and to what

extent the changes in groundwater levels would affect vegetation. FEIS at 541-45,

FS0237283-87. The agency explained that relatively small changes in groundwater

levels occurring over an extended period are unlikely to cause significant changes in

riparian vegetation, but larger changes of several feet or more may cause significant

changes in vegetation, such as causing the conversion of a hydroriparian corridor (e.g.,

cottonwood-willow vegetation) to a xeroriparian corridor (e.g., mesquite and tamarisk).

FEIS at 541-43, FS0237283-85. The Forest Service also disclosed that its analysis has a

high degree of uncertainty as it was based on predicted impacts from relatively small

amounts of groundwater drawdown occurring decades, hundreds, or even 1,000 years

after mine closure. FEIS at 541, FS0237283.

116. In addition, the Forest Service evaluated indirect impacts on water quality

due to stream flow depletion. In this analysis, the Forest Service noted that the area’s

streams currently experience extremely low flow conditions, particularly during the

May-June time frame. As the amount of flow in the stream decreases, water

temperatures can increase, dissolved oxygen can become depleted, nutrient loads can

become more concentrated, and the assimilative capacity of the stream can be reduced.

These conditions may be exacerbated by groundwater drawdown caused by the Project

mine pit and the pit lake that is expected to form after mining ceases. FEIS at 540-41,

FS0237282-83.

e. The Forest Service’s Refined Analysis of Impacts on

Aquatic and Riparian Resources in the 2015 SIR

117. After publication of the FEIS and the Draft ROD in late 2013, the

Coronado National Forest received a substantial amount of new information, including

information relating to potential impacts on aquatic and riparian resources. ROD at 76,

FS0259802; see also 2015 SIR at 48-50, FS0260544-46, and at 1-3, FS0260497-99


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(summarizing new information triggering review and preparation of the report).

118. As a result of this new information the Coronado Forest Supervisor

directed that discussions be undertaken with EPA, FWS, BLM, the U.S. Geological

Survey, and other cooperating agencies to ensure that all pertinent information had been

obtained regarding baseline conditions on Las Cienegas NCA and other aquatic

resources affected by the Project. 2015 SIR at 3, FS0260499.

119. These circumstances led to renewed consideration of the impact of

groundwater drawdown on aquatic and riparian resources, which is documented in the

Forest Service’s 2015 SIR. ROD at 76, FS0259802; 2015 SIR at 1-3, FS0260497-99,

and at 59-60, FS0260555-56 (overview of refined analysis of aquatic impacts).

120. The Forest Service, working collaboratively with EPA, FWS and the other

federal agencies, refined the analysis of impacts to stream flow, using new information

to modify certain of the assumptions used in the FEIS. 2015 SIR at 60-63, FS0260556-

59. The Forest Service also conducted a new analysis of refugia pools within Cienega

Creek that may support aquatic species during periods of critical low-flow periods.

2015 SIR at 63-64, FS0260559-60. The Forest Service refined its analysis of impacts to

riparian vegetation, which considered additional literature and attempted to capture the

impact of smaller increments of drawdown. 2015 SIR at 64, FS0260560. Finally, the

Forest Service included a proxy for additional basin stresses, including climate change

and increased basin pumping, in its analysis by considering a scenario based on recent

drought conditions. 2015 SIR at 64, FS0260560, at 81-85, FS0260577-81, and at 85-86,

FS0260581-82; see also FS0204140-41. The agency acknowledged that this climate

stress scenario is highly uncertain, and considered its attempt to be a “rough estimate.”

2015 SIR at 86, FS0260582 (“It must be acknowledged that any attempt to quantify

climate change at the scale of an individual stream is next to impossible.”), 2015 SIR at

82, FS0260578.

121. The Forest Service continued to emphasize the uncertainty associated with

the predicted effects on stream flow and related resource conditions. See, e.g., 2015


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SIR at 60, FS0260556, and 2015 SIR at 89-90, FS0260585-86. To further address

uncertainty, the Forest Service refined its use of the groundwater models’ sensitivity

analyses to create a “95th percentile” range, in which a “low” drawdown value was

selected where only 2.5 percent of the model scenarios would predict a lower

drawdown, and a “high” drawdown value was selected where only 2.5 percent of the

model scenarios would predict a higher drawdown. This created a range of possible

outcomes that included 95 percent of all scenarios predicted by the groundwater models.

In addition, the Forest Service continued to consider the “best fit” model results. 2015

SIR at 89-90, FS0260585-86.

122. Based on the refined analysis of impacts on stream flow and refugia pools

presented in the 2015 SIR, the Forest Service concluded that for all key reaches of

Cienega Creek for 95 percent of all possible scenarios, mine drawdown would have

little or no effect on stream drying and would not change the status of the stream from

perennial. Similarly, mine-related drawdown does not affect the number of pools and

the pools would retain most of their original volume. If mine-related drawdown is

considered on top of the climate stress proxy, mine drawdown makes little difference.

2015 SIR at 138-139, FS0260634-35.

123. The Forest Service also concluded that Lower Empire Gulch and the

Cieneguita Wetlands show results similar to Cienega Creek, but with somewhat greater

expected impact to the number of days with low flow conditions and loss of refugia

pool volume. 2015 SIR at 139-140, FS0260635-36.

124. Upper Empire Gulch, which is closer to the Project site, continued to

experience the greatest predicted impact of all stream reaches analyzed, but this reach

also experienced the greatest variability in the degree of impact and its timing. The

Forest Service explained:

Upper Empire Gulch generally sees no or little changes through 20 yearsafter closure of the mine. At this point, the modeling scenarios divergeregarding the timing and magnitude of impacts. The high end of thesensitivity analyses indicates that reach EG1 would be ephemeral by 100


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years after mine closure. The Tetra Tech and Myers models both comeclose to ephemeral status by 150 years after mine closure, and reachephemeral status by 200 years after mine closure. The Montgomery modeldoes not reach ephemeral status by 300 years, but has shifted fromperennial to intermittent flow, as defined by this analysis. The low end ofthe sensiti[v]ity analyses shows no change in flow status even at 300 years.Adding the effects of climate change does not change the overall patterndescribed. Pools and periods of very low stream flow follow a similarpattern.

2015 SIR at 140, FS0260636.

125. With respect to impacts to riparian vegetation, in 95 percent of all possible

scenarios, the mine-related drawdown does not exceed 0.2 foot along Cienega Creek,

and therefore is not expected to lead to substantial shifts in vegetation. By contrast, the

Forest Service noted that Upper Empire Gulch is almost certain to experience major

shifts in vegetation, but it is uncertain when this might occur due to the wide divergence

in the model scenarios. 2015 SIR at 140, FS0260636.

126. The Forest Service also reevaluated potential impacts on the lower reach

of Davidson Canyon, which, as stated above, contains two perennial springs and has

been designated “Outstanding Arizona Waters.” The agency’s review of new

information on baseline conditions in Davidson and Barrel Canyons indicated that the

screening analysis used in the FEIS was not reasonable because stormwater quality in

Barrel Canyon, located near the top of the watershed, does not adequately represent

stormwater quality downstream in Davidson Canyon. The Forest Service explained that

“this information also highlights the infeasibility of estimating impacts 12 miles

downstream from the mine site, and does not suggest a better or more valid method of

estimating impacts.” The Forest Service also noted that since the FEIS was published,

ADEQ had issued its Section 401 Certification, finding that mine runoff is not expected

to violate surface water quality standards. 2015 SIR at 140, FS0260636. Thus, the

Forest Service determined that the overall conclusion reached in the FEIS that mine

runoff is unlikely to impact the downstream “Outstanding Arizona Waters” remains


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valid. 2015 SIR at 140, FS0260636.

127. Overall, the Forest Service’s review of the new information and use of the

refined approach to analyze the Rosemont Project’s potential impacts on aquatic and

riparian resources produced conclusions that were very similar to the conclusions

reached in the FEIS. In fact, in most cases, the impacts on aquatic and riparian

resources were somewhat less than those described in the FEIS. Thus, the Forest

Service concluded that the new information was within the scope and range of effects

considered in the original analysis in the FEIS. 2015 SIR at 141, FS0260637 (Summary

of Refined Aquatic Analysis and Comparison to FEIS Conclusions); and at 267,

FS0260763.

C. Mine Pit Lake Water Quality

1. Modeling of Mine Pit Lake Water Quality

128. As discussed above at paragraphs 87-90, the results of the groundwater

modeling in the Davidson Canyon/Cienega Basin indicate that the mine pit will cause a

permanent drawdown of the local water table, resulting in the formation of a pit lake.

The mine pit lake would be a dynamic system, gradually filling over a period of

approximately 700 years. In that time, the lake elevation would increase by

approximately 1,229 feet, rising from approximately 3,050 to 4,279 feet above mean sea

level. The final pit volume would be approximately 95,975 acre-feet, with a surface area

of approximately 213 acres.” FEIS at 387, FS0237129.

129. The geochemistry of the mine pit lake was analyzed as part of the NEPA

process. This analysis was based on a geochemical predictive model report prepared by

Tetra Tech. See Tetra Tech, Geochemical Pit Lake Predictive Model Revision 1,

Rosemont Copper Project (November 2010) (“Geochemical Modeling Report”),

FS0201570-687. The Geochemical Modeling Report was subjected to peer review by

the Forest Service’s consultant, SRK Consulting, which concluded that the modeling

results were reasonable for this study. FS0202526.

130. Regarding the groundwater modeling conducted in relation to the mine pit


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lake, the Geochemical Modeling Report states:

Once mining and mineral processing activities cease, dewatering of the pitwill be terminated. Tetra Tech produced a groundwater flow model whichyielded the following general conclusions:

A pit lake is expected to form in the bottom of the open pit; and

Based on the expected inflows to the pit lake (groundwater seepage andprecipitation) in relation to the annual evaporation from the pit lakesurface, the pit lake will be a hydraulic sink. The overall effect of thehydraulic sink will be to draw water into the system and not allow waterto exit the pit.

Geochemical Modeling Report at 1, FS0201575.

131. As explained in the Geochemical Modeling Report, the water sources that

report to the pit will carry with them dissolved chemical constituents, principally as a

result of water contacting local rock units. Producing a prediction of the chemical

concentrations in the projected pit lake requires summing the total chemical load

reporting to the pit lake from the various inflows and dividing it by the total volume of

water in the pit. Computer software was used to simulate the changing rate of inflow of

various water sources and to track the total chemical load associated with each source.


132. The Geochemical Modeling Report summarizes Tetra Tech’s

methodology for analyzing the expected chemical conditions as follows:

[T]he expected chemical conditions within the pit lake were analyzed byTetra Tech. This analysis included geochemical testing of non-ore rockexpected to comprise the final pit walls, and a comparison of the results ofthat geochemical testing to local groundwater quality. Tetra Techreplicated the water balance simulation of the regional groundwater flowmodel (mean case for the pit lake model) in order to track the chemicalmass associated with each hydrologic component of the water balance tocreate a geochemical pit lake predictive model.


133. In order to predict future concentrations of constituents in mine pit lake


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water, the Geochemical Modeling Report further explains that

Laboratory testing was conducted to determine the chemical loading termsrequired for the geochemical pit lake predictive model. Calculations wereperformed to provide low, average, and elevated chemical loading scenariosover the 1,000-year time-frame simulated in the model. This was done toprovide a sensitivity evaluation of the model. These geochemicalsensitivities were also coupled with a sensitivity analysis of the hydrologicinputs, thus providing a range of future water quality conditions in the pitlake.

…

Although water quality predictions were modeled to the 1,000-yearsimulation time-frame, these results should only be used for determiningoverall trends. Specific water quality predictions beyond the 200-year time-frame become excessively speculative based on the long simulationperiods.


134. The geochemical modeling results indicate that most of the water

reporting to the pit lake will come from local groundwater, with some water coming

from direct precipitation and runoff from the pit walls and other minor upgradient areas.


135. The results of the Geochemical Modeling Report are summarized, in part,

in Table 7.01 of the report, which shows a comparison of the modeled concentrations of

certain constituents at year 200 after mine closure under different chemical loading

scenarios to concentrations of those same constituents in ambient groundwater. A copy

of Table 7.01 and an introductory explanation of the table is provided below.

Table 7.01 shows a comparison of the average concentrations from the 200-year geochemically equilibrated pit lake model solutions to localgroundwater. This table also shows the model results obtained for theelevated and low chemical loading scenarios, which provide usefulbookends for the average chemical loading scenario. The average chemicalloading scenario represents an outcome that has the highest probability ofoccurring. The low and elevated scenarios represent outcomes that span therange of possibilities, but have lower probabilities of occurring. Overall, thevarious scenarios are intended to provide perspective on the average


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scenario and to represent a sensitivity consideration of the uncertaintyassociated with the average result.

……

Geochemical Modeling Report at 38-39, FS0201612-13.

136. The Geochemical Modeling Report further discusses Tetra Tech’s

analysis of trace elements, including trace metals, and the results reported in Table 7.01

of the report. It explains that given the “very, very low concentrations” of these

elements, the accuracy of the model results is limited. Moreover, the report notes that


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certain trace elements, including cadmium, were not detected in leach tests of non-ore

rock, and, therefore, the model results are based on evapoconcentration of values set at

one-half the laboratory detection limit. Specifically, the report states:

Approximate concentrations of most trace elements, those at concentrationsbelow one (1) part per million (ppm), were also obtained. However, giventhe very, very low concentrations of these constituents, the accuracyassociated with predictive modeling of trace elements in a system as largeas a pit lake is limited, especially over extended periods of time.Nonetheless, the modeled results do provide an indication of theapproximate trace metal concentrations, and show that the Rosemont pitlake is not anticipated (over the 200-year model period) to build up traceelement concentrations beyond one (1) ppm (for any given constituent).Note that the shaded rows in Table 7.01 correspond to constituents thatwere not detected in the leach tests of the non-ore rock and that theconcentrations shown are related only to the evapoconcentration of leachtest values being set to one-half the laboratory detection limit.

Geochemical Modeling Report at 40, FS0201614 (emphasis added).

137. Tetra Tech concluded that after 200 years of model simulation the quality

of pit lake water was only slightly changed from the existing local groundwater. Tetra

Tech further concluded that at the 200-year mark, the pH of the pit lake water is

anticipated to be 8, which is similar to local groundwater, and that development of an

acidic pit lake is not expected to occur, even beyond the 1,000-year modeling period.

Geochemical Modeling Report at 41, FS0201615. Geochemical experts working on

behalf of the Forest Service concurred that an acidic pit lake is not expected to occur.

FS0204789-93.

138. While the mine pit lake is not subject to water quality standards, the table

below shows that the predicted mine pit lake water quality at year 200 after mine

closure under the “average chemical loading” scenario is unlikely to exceed Arizona

Aquifer Water Quality Standards, Arizona Surface Water Quality Standards or even

National Primary Safe Drinking Water Standards promulgated by the EPA under the

Safe Drinking Water Act with a few limited exceptions (bolded in the table). A blank

entry in the table indicates that there is no numeric standard for that constituent and


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designated use.

Comparison of Geochemical Modeling Results to Water Quality Standards16

Parameter

Geochemical Model17 Ambient

Ground-Water18

ArizonaAquiferWQS19

SDWA(EPA)

20

Arizona Surface WQS21

Average

Loading

w/ Bolsa

QuartzsiteFBC22 PBC23 A&Ww24

Acute Chronic

Aluminum 0.197 0.357 <0.03

Antimony 0.003 0.003 <0.0004 0.006 0.006 0.747 0.747 0.088 0.03

Arsenic 0.005 0.003 0.0037 0.05 0.01 0.03 0.28 0.34 0.15

Barium NP25 NP 0.042 2 2 98 98

Beryllium 0.001 0.001 0.001 0.004 0.004 1.867 1.867

HCO3 36.2 36 187

Cadmium 0.002 0.002 <0.0001 0.005 0.005 0.7 0.7 .0168 .0057

Calcium 99.8 100.7 131

Chloride 11.1 11.1 8.36

Chromium 0.005 0.005 <0.01 0.1

Copper 0.004 0.163 <0.01 1.3 1.3 0.0443 0.0264

Flouride 1.2 1.2 0.85 4 140 140

Iron NP NP 0.554 1

16 Values reported in milligrams/liter.17 Geochemical Modeling Report at 39 (Table 7.01), FS0201613.18 Geochemical Modeling Report at 39 (Table 7.01), FS0201613.19 Arizona Aquifer Water Quality Standards, where applicable. Arizona AdministrativeCode (“A.A.C.”) R18-11, Article 4.20 National primary drinking water standards established by the EnvironmentalProtection Agency (“EPA”) under the Safe Drinking Water Act (codified generally as42 U.S.C. §§ 300f-300j), where applicable. 40 C.F.R. Part 141, Subpart G.21 Arizona Surface Water Quality Standards, where applicable. A.A.C. R18-11,Article 1.22 Arizona numeric water quality standard for full body contact. A.A.C. R18-11,Article 1, Appendix A, Table 1.23 Arizona numeric water quality standard for full body contact. A.A.C. R18-11,Article 1, Appendix A, Table 1.24 Arizona numeric water quality standards for aquatic and wildlife (warmwater).A.A.C. R18-11, Article 1, Appendix A, Table 1. Certain values were determined usingthe water hardness value of 355 mg/L (as calcium carbonate) applied in FEIS(FS0237131) and the Arizona Department of Environment Quality (“ADEQ”) InorganicSurface Water Exceedance Calculator, which is available on the ADEQ website athttps://azdeq.gov/programs/water-quality-programs/surface-water-monitoring-and-assessment.25 Not Present.


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Parameter

Geochemical Model17 Ambient

Ground-Water18

ArizonaAquiferWQS19

SDWA(EPA)

20

Arizona Surface WQS21

Average

Loading

w/ Bolsa

QuartzsiteFBC22 PBC23 A&Ww24

Acute Chronic

Lead 0.015 0.015 0.00092 0.05 0.015 0.015 0.015 0.2484 0.0097

Magnesium 25.7 25.6 20.5

Manganese 0.255 0.254 0.174 130.7 130.7

Mercury 0.001 NP <0.0002 0.002 0.002 0.28 0.28 0.0024 0.00001

Molyb-denum

0.15 0.154 0.121

Nickel 0.006 0.01 <0.01 0.1 28 28 1.368 0.1519

pH 8 8 7.6 / 8.226 6.5-9 6.5-9

Potassium 5.7 5.4 3.17

Selenium 0.014 0.014 0.00212 0.05 0.05 4.667 4.667 0.002

Silver 0.004 0.004 NA 0.14 4.667 4.667 0.02843

Sodium 35.9 35.3 26

SO4 374.1 375.8 300

Thallium 0.006 0.006 NA 0.002 0.002 0.075 0.075 0.7 0.15

TDS 589 590 581

Uranium 0.006 0.006 0.00419 0.03 2.8 2.8

Zinc 0.847 0.862 0.694 54 280 280 0.3428 0.3428

139. The acute and chronic exposure surface water quality standards are for

short-term and long-term exposure, respectively. ADEQ defines “acute toxicity” to

mean “toxicity involving stimulus severe enough to induce rapid response. In aquatic

toxicity tests, an effect observed in 96 hours or less is considered acute.” A.A.C. § R18-

11-101(1).

140. In the FEIS, the Forest Service acknowledged that the aquifer water

quality standards and surface water quality standards are inapplicable to the mine pit

lake, but conducted a qualitative comparison of predicted mine pit lake to those

standards for purposes of assessing potential impacts to wildlife species. The FEIS

states that none of the model scenarios create acidic pit lake conditions. It further

provides that water in the pit lake would not exceed Arizona Aquifer Quality Standards,

with the exception of thallium. FEIS at 389-90, FS0237131-32.

26 Field measurement followed by laboratory measurement average. See GeochemicalModeling Report at 39 (Table 7.01), FS0201613.


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141. In addition, taking into account the expected hardness of the mine pit lake

water (under Arizona regulations, the surface water quality standards for some metals

varies with hardness), the FEIS discusses that the geochemical modeling results

indicated that mine pit lake water might exceed numerical water quality standards for

aquatic and wildlife (warm water) for acute exposure for copper and zinc. Zinc

concentrations in ambient groundwater already exceed the acute standards, and copper

only exceeds the standard in the worst of four modeling scenarios considered. The FEIS

also discusses that the mine pit lake water might exceed standards for chronic exposure

for copper, zinc, cadmium, lead, mercury and selenium. FEIS at 389-90, FS0237131-

32. However, the Forest Service found that while indirect chronic exposure was

possible, direct chronic exposure of wildlife to these trace elements was unlikely. FEIS

at 390, FS0237132. For context: selenium and zinc concentrations in ambient

groundwater already exceed the chronic standards (FS0203870, FS0237122); cadmium

concentrations no longer exceed standards, which were revised by the state of Arizona

after publication of the FEIS; mercury was not present in 2 of the 4 modeling scenarios,

nor in most of the ambient groundwater samples (FS0203870, FS0237122); and lead

exceeded the chronic standard in three of four modeling scenarios (FS0203870). The

FEIS incorrectly reports that copper levels exceed the chronic standards for all four

model scenarios. FEIS at 390, FS0237132. In fact, copper levels only exceed the

chronic standard under the worst of the four modeling scenarios considered. Compare

paragraphs 136 and 138, above.

142. In addition to the change in surface water quality standards, it is important

to place the geochemical modeling results for these trace elements into context. As

noted above in Paragraph 136, the Geochemical Modeling Report states that the results

for trace elements is of limited accuracy, particularly over long periods of time.

Geochemical Modeling Report at 40, FS0201614. Furthermore, although the model

results no longer exceed the value of the aquatic and wildlife standards, cadmium was

not detected in leach tests of non-ore rock, and therefore, the model results are based on


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evapoconcentration of values set at one-half the laboratory detection limit.

Geochemical Modeling Report at 40, FS0201614. In addition, it is important to note

that the levels of selenium and zinc in ambient groundwater were found to already

exceed surface water quality standards for acute (zinc) or chronic (zinc and selenium)

exposure to warm water aquatic and wildlife species. FEIS at 390, FS0237132;

Geochemical Modeling Report at 38-39, FS0201612-13 (Table 7.01).

2. Mine Pit Lake Water Mitigation Measures

143. The Forest Service has imposed several monitoring and mitigation

measures relating to the mine pit lake. For example, the Forest Service mitigation

measures require continued modeling and monitoring of the hydrologic impacts from

the mine pit lake:

Monitoring to determine impacts from pit dewatering on downstreamsites in Barrel and Davidson Canyons (FS-BR-22). Monitoring would beconducted of surface water, alluvial groundwater, and deeper groundwaterat sites in Barrel and Davidson Canyons. Several locations have alreadybeen installed and are being actively monitored whereas other will requireaccess from landowners.…

Periodic validation and rerun of groundwater model throughout thelife of the mine (FS-BR-27). This measure would involve basic datacollection of water levels, meteorological data, and water balancecomponents, which would allow for the predictions of groundwater impactsto be revised based on actual hydrologic observations. Specific wells to bemonitored are listed in appendix B.

FEIS at 357-58, FS0237099-100.

144. The FEIS also includes several mitigation measures relating to mine pit

lake water quality:

Monitoring to determine impacts from pit dewatering on downstreamsites in Barrel and Davidson Canyons (FS-BR-22). Monitoring would beconducted of surface water, alluvial groundwater, and deeper groundwaterat sites in Barrel and Davidson Canyons. Several locations have alreadybeen installed and are being actively monitored, whereas others will requireaccess from landowners.


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…

Additional water quality monitoring of springs and wells (FS-GW-02).A suite of springs and wells, other than the point-of-compliance wellsrequired to be monitored under the aquifer protection permit, would bemonitored for water quality changes. These monitoring locations aresituated beyond the perimeter fence of the mine and are intended to providesurveillance of any water quality changes that may be triggered by thechanges in the hydrologic system. Specific springs and wells to bemonitored are listed in appendix B.…

Periodic update and rerunning of pit lake geochemistry modelthroughout life of mine (FS-GW-04). This measure requires that thegeochemistry model for the pit lake be rerun periodically, using the mostrecent geological and geochemical information obtained during operations.The model would be used to predict potential future water quality and, ifnecessary, inform potential mitigation measures upon closure.

Groundwater quality and aquifer level monitoring required by theaquifer protection permit (OA-GW-06). The aquifer protection permitrequires the construction and operation of point-of-compliance monitoringwells and institutes groundwater quality monitoring and sampling protocolsand reporting. These measures would ensure that water quality problems, ifpresent, would be identified and monitored.

FEIS at 395-96, FS0237137-38.

145. The FEIS text only includes a brief explanation of mitigation and

monitoring measure FS-GW-04. However, this measure is likely to provide protection

against potential future impacts to wildlife from the mine pit lake by requiring

Rosemont to recalibrate the geochemical model every five years during active mining

using actual geological data obtained as the mine pit is formed and to cooperate with the

Forest Service to develop management plans to protect wildlife, if impacts from pit lake

water quality are likely to occur. Mitigation measure FS-GW-04 is set forth in full in

Appendix B to the FEIS and provides as follows:


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FS-GW-04 – Periodic update and rerunning of pit lake geochemistry model throughout life of mine

Element Description

Description Periodic updating of the pit lake geochemistry model to incorporate the most recent and

pertinent geochemical results obtained through waste rock characterization efforts. The

purpose of this measure is to ensure that the most accurate prediction of mine pit lake water

quality is available at closure. At the time of closure, the results of the model would be

assessed and used to develop management plans for protection of wildlife if possible harm

exists from exposure to pit lake water quality.

Source Coronado ID team.

Purpose Predict postmining pit lake water quality in order to develop management plans for

protection of wildlife.

Location Mine pit.

Monitoring/Reporting

Action

Implementation and Effectiveness: Every 5 years, Rosemont Copper would use collected

geochemical data from waste rock characterization efforts, and any other pertinent

hydrologic, geological, or geochemical data to provide revised predictions of mine pit lake

water quality after closure. The pit lake model would be run for a period of 200 years to

match the duration of the current model. At closure, Rosemont Copper would produce a best

and final pit lake model and would coordinate with the Coronado to develop management

plans to protect wildlife, if impacts from pit lake water quality are likely to occur.

Performance Criteria Implementation and Effectiveness: Model update report would be provided every 5 years.

Responsible Party Implementation and Effectiveness: Rosemont Copper is responsible for performing all

modeling and providing sufficient documentation to the Forest Service. Forest Service is

responsible for review and approval of model. Rosemont Copper and Forest Service are

responsible for joint development of management plans for protection of wildlife.

Timing Implementation and Effectiveness: Active mining phase through closure.

Applicable Alternatives All action alternatives.

FEIS, Appendix B at B-21 to B-22, FS0238443-44.

D. Surface Water Quality and ADEQ Clean Water Act Section 401

Certification.

146. The FEIS includes an extensive analysis of the potential impacts of the

Rosemont Project to existing surface water resources in the analysis area. The analysis

area for surface water quality impacts, which is depicted in Figure 64 on page 445 of the

FEIS, included potentially navigable waters in the project area, including ephemeral

drainages associated with Barrel Canyon. The analysis area also included Davidson

Canyon and Lower Cienega Creek. FEIS at 443-445, FS0237185-87; FEIS at 451, ,

FS0237193.

147. Section 401 of the Clean Water Act requires an applicant for a federal

permit who proposes an activity that may result in a discharge to waters of the United


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States to obtain from the appropriate state a certification that the discharge will not

result in a violation of applicable surface water quality standards. 33 U.S.C. § 1341;

FEIS at 449, FS0237191 (discussing Clean Water Act Section 401 certification). In

Arizona, the ADEQ is the state agency designated for all purposes of the Clean Water

Act and is responsible for issuance of state certifications under Clean Water Act Section

401. A.R.S. § 49-202(A)-(H).

148. On February 3, 2015, ADEQ issued its Certification under Clean Water

Act Section 401, certifying that the activities proposed for the Rosemont Project would

not violate applicable surface water quality standards in the subject waterbodies

including McCleary, Wasp, Trail, Barrel and Davidson Canyons, and Cienega Creek in

the Santa Cruz River Watershed. FS0106495.

149. In support of its decision to issue the Clean Water Act Section 401

Certification for the Rosemont Project, ADEQ prepared a document entitled “Basis for

Section 401 Certification Decision Rosemont Copper Project” (“Basis for

Certification”). FS0106475-94. In the Basis for Certification, ADEQ discussed the

status of Cienega Creek and lower Davidson Canyon as Outstanding Arizona Waters

(“OAWs”), and explained that the scope of its review included consideration of whether

the Rosemont Project would result in a violation of the applicable antidegradation

provisions under Arizona’s surface water quality standards for those watercourses or

other watercourses within the scope of ADEQ’s review, e.g., Barrel Canyon.

FS0106476-77.

150. In explaining ADEQ’s conclusion that the Rosemont Project would not

cause a violation of surface water quality standards, ADEQ stated the following in the

Basis of Certification:

Existing ambient water quality in OAWs is high quality and generallymeets surface water quality standards. Ambient stormwater quality,representing background conditions pre-mining, exceeds surface waterquality standards for several parameters including copper, lease, and silver.Under current conditions, these exceedances do not appear to be impactingwater quality in downstream OAWs. Based on facility design, the use of


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proper stormwater control measures and the results of laboratory testing,ADEQ finds little potential for exceedances of surface water qualitystandards in runoff to receiving waters (e.g., Barrel Canyon) as a result ofthe proposed activities and therefore, no impact on the downstream OAWs.The Forest Service is requiring monitoring of surface water andgroundwater to determine impacts and installation of lysimeters in the[waste] rock and tailings piles to monitor for possible seepage fromfacilities. The 2010 AZPDES Mining Multi-Sector General Permit requiresstormwater monitoring and, should actual monitoring data show potentialdegradation, the 2010 Mining MSGP will require corrective actions toaddress the issues.

FS0106478 (emphasis added).

151. As part of its review, ADEQ determined that certain information in the

FEIS suggesting that potential seepage from waste rock facilities or tailings piles might

exceed surface water quality standards was incorrect. Specifically, in the Basis for

Certification, ADEQ determined:

While seepage is not expected to occur from the waste rock facility ortailings, seepage modeling was conducted in the laboratory and consisted ofsamples being leached through simulated material. While Table 105 in theFEIS shows potential exceedances of several parameters in the predictedtailings seepage water, the hardness values associated with those sampleresults are significantly lower than is regulatory observed in similar miningoperations and in ambient stormwater samples collected by Rosemont inBarrel Canyon (FEIS pages 475-477). In the event that seepage woulddaylight in downstream surface waters, it is unlikely that it would exceedsurface water quality standards for Barrel Canyon.

FS01206479.

152. ADEQ also determined that predictions in the FEIS that stormwater runoff

from waste rock into Barrel Canyon might exceed surface water quality standards for

dissolved silver were incorrect. FS0106480. ADEQ concluded that using the hardness

values obtained from collected stormwater samples, it is not “likely that dissolved silver

will exceed surface water quality standards in runoff from the waste rock facility.” Id.

at 7; FS0106481. In fact, ADEQ concluded that “it is unlikely that runoff from the

waste rock facility will exceed any surface water quality standard.” Id.


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V. THE SECTION 7 CONSULTATION REGARDING THE PROJECT

153. The Forest Service, as the lead federal agency, consulted with FWS on

two separate occasions regarding the effects of the Rosemont Project on species of fish,

wildlife and plants listed (i.e., protected) under the Endangered Species Act (“ESA”), 16

U.S.C. § 1531-1544, as well as areas designated or proposed as critical habitat for such

species. See Final Biological and Conference Opinion for the Rosemont Copper Mine,

Pima County, Arizona (Oct. 30, 2013) (“2013 BiOp”), at 1-506, FWS046292-797;

Amended Final Reinitiated Biological Opinion for the Rosemont Copper Mine, Pima

County, Arizona, (April 28, 2016) (“2016 BiOp”), at 1-434, FWS049327-760.

154. The agency action that was the subject of the consultation consisted of the

Forest Service’s approval of the MPO for the Rosemont Project and the Corps’ approval

of a permit under Section 404 of the Clean Water Act for the discharge of tailings and

waste rock into ephemeral drainages considered to be potential waters of the United

States. 2013 BiOp at 14, FWS046305; 2016 BiOp at 8, FWS049334. In both opinions,

FWS determined that the action is not likely to jeopardize the continued existence of

any listed species or result in the destruction of adverse modification of any critical

habitat proposed or designated for a listed species. See ROD at 85-87, FS0259811-13

(summarizing FWS’s findings in the 2016 BO).

A. The 2013 Biological Opinion

155. Discussions took place between the Forest Service and FWS beginning in

2009, when a meeting took place between representatives of the Forest Service, FWS,

Rosemont, and their consultants. 2013 BiOp at 13, FWS046304. As detailed in the

2013 BO, various meetings, site visits and other communications continued until July

20, 2012, at which time FWS transmitted a letter indicating that it had received all of the

information required to initiate formal consultation in accordance with the regulations

governing interagency consultation under the ESA at 50 C.F.R. § 402.14. 2013 BiOp at

10-12, FWS046301-03. In connection with consultation, the Forest Service provided an

extensive biological assessment along with supplements to FWS. See FWS053772-965


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(Biological Assessment, Rosemont Copper Company Project (June 2012));

FWS051733-805 (First Supplement to the Biological Assessment, Proposed Rosemont

Copper Mine (Oct. 2012)); FWS076707-71 (Second Supplement to the Biological

Assessment, Proposed Rosemont Copper Mine (Feb. 2013).

156. Consultation continued between FWS, the Forest Service and Rosemont

(as the permit applicant) through the remainder of 2012 and much of 2013. It ultimately

concluded on October 30, 2013, when the 2013 BiOp was issued. 2013 BiOp at 3-10,

FWS046294-301.

157. The “action area” considered by FWS during consultation included all

areas affected directly or indirectly by the proposed action and included over 146,000

acres. This included, for example, a large portion of the Las Cienegas NCA east of the

Rosemont Project site, Davidson Canyon, Upper Empire Gulch, and much of Cienega

Creek. A larger action area was used to ensure that all the impacts of the Project on

listed species and critical habitat, including artificial night lighting, groundwater

drawdown, and surface water alteration, were considered. 2013 BiOp at 63,

FWS046354; see also 2013 BiOp at 66, FWS046357 (Figure I-3, depicting the action

area for the Rosemont Project), and 7-8, FWS053790-91 (Biological Assessment,

description of “action area” and figure depicting area).

158. The 2013 BiOp contained a detailed summary of the proposed action,

based on the Barrel Alternative. 2013 BiOp at 14-45, FWS046305-36. In addition to

summarizing the key operational aspects of the Project, the opinion contains a

discussion of the various aspects of the Project that pertain to water control. This

includes control of on-site process water by means of facilities, including seepage and

leakage monitoring and recovery, that will meet or exceed the best available

demonstrated control technology criteria used by the ADEQ and will be regulated under

that agency’s Aquifer Protection Permit. Water control also includes activities to

protect and monitor groundwater quality, including the acid-rock drainage program, and

stormwater management, which is subject to regulation by ADEQ pursuant to the


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AZPDES program. 2013 BiOp at 22-24, FWS046313-15.

159. FWS also explained that the proposed action includes a number of

mitigation and monitoring requirements, which have been included in the mitigation and

monitoring plan that the Forest Service developed and incorporated into the FEIS as

Appendix B. 2013 BiOp at 37-38, FWS046328-29. These mitigation and monitoring

requirements address impacts to air quality; management of hazardous materials; land

impacts, including the use of dry-stacking tailings technology and other project design

features; noise management; a revised lighting plan and strategies to reduce light

pollution; requirements for site reclamation and closure, including revegetation of

disturbed areas; control of invasive plant species; a transportation plan for project-

related roads, including wildlife crossings and reclamation/closure requirements; special

project features to conserve water, such as using dry-stack tailings technology and

maximizing on-site water reuse; and regional groundwater recharge utilizing Central

Arizona Project water. 2013 BiOp at 38-43, FWS046329-34; see also, FWS053801-13

(discussion of mitigation measures incorporated into project design).

160. FWS also noted that mitigation and monitoring have been required by

ADEQ under Rosemont’s Aquifer Protection Permit and the Stormwater Pollution

Prevention Plan that Rosemont is required to implement under the AZPDES Multisector

General Permit, discussed above. 2013 BiOp at 43-44, FWS046334-35.

161. The proposed action also includes extensive monitoring and an evaluation

process to determine if the site-specific actions are completed as specified; if the

outcomes and effects of the actions are achieving or contributing to the desired

conditions; whether the key assumptions identified for monitoring remain valid; and

whether site-specific decisions need to be modified. As discussed above, these

monitoring and evaluation activities will be reviewed by a multi-agency task force.

2013 BiOp at 44-45, FWS046335-36.

162. In addition, the 2013 BiOp describes various conservation measures for

biological resources, including species listed under the ESA and their habitat, that


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Rosemont has agreed to implement as part of the proposed action. 2013 BiOp at 54-56,

FWS046345-47; see also FWS076745-60 (Second Supplement to Biological

Assessment (Feb. 2013), description of additional conservation measures incorporated

into proposed action).

163. In the 2013 BO, FWS evaluated the effects of the Rosemont Project

pursuant to Section 7 of the ESA and FWS’s regulations governing Section 7

consultation, including the various mitigation and monitoring requirements and the

conservations measures incorporated into the Project, on the following listed species:

a) Lesser long-nosed bat (no critical habitat designated or proposed). 2013

BiOp at 76-101, FWS046367-92.

b) Jaguar, with proposed critical habitat. 2013 BiOp at 101-166,

FWS046392-457.

c) Ocelot (no critical habitat designated or proposed). 2013 BiOp at 167-

182, FWS046458-73.

d) Pima pineapple cactus (no critical habitat designated or proposed). 2013

BiOp at 182-199, FWS046473-90.

e) Chiricahua leopard frog, with critical habitat. 2013 BiOp at 199-226,

FWS046490-517.

f) Gila chub, with critical habitat. 2013 BiOp at 242-278, FWS046533-69.

g) Gila topminnow (no critical habitat proposed or designated). 2013 BiOp

at 279- 298, FWS046570-89.

h) Huachuca water umbel, with critical habitat. 2013 BiOp at 298-311,

FWS046589-602.

i) Southwestern willow flycatcher, with critical habitat. 2013 BiOp at 321-

341, FWS046612-32.

With regard to each species, FWS found in the 2013 BiOp that the Rosemont Project is

not likely to jeopardize the continued existence of the species.

164. FWS also found, with regard to the critical habitat designated for the


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Chiricahua leopard frog, Gila chub, Huachuca water umbel, and southwestern willow

flycatcher, that the Project is not likely to result in the destruction or adverse

modification of such critical habitat. 2013 BiOp at 199-226, FWS046490-517, at 242-

278, FWS046533-69, at 310, FWS046601, and at 321-341, FWS046612-32. In

addition, FWS issued a conference opinion in which it found that the Project is not

likely to result in the destruction or adverse modification of the proposed critical habitat

for the jaguar. 2013 BiOp at 145-150, FWS046436-41.

165. In determining whether the Rosemont Project is likely to destroy or

adversely modify critical habitat designated for the Chiricahua leopard frog, Gila chub,

Huachuca water umbel, and southwestern willow flycatcher and proposed for the

jaguar, FWS did not rely on the regulatory definition of the term “destruction or adverse

modification” in 50 C.F.R. § 402.02 (2013 ed.). Instead, FWS relied on the definition

of the term in the ESA, guidance provided in the Consultation Handbook issued by

FWS and the National Marine Fisheries Service, and an opinion issued by the Ninth

Circuit Court of Appeals addressing the definition of the term “destruction or adverse

modification,” Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d

1059 (9th Cir.), modified 387 F.3d 968 (2004). 2013 BiOp at 2, FWS046293, and at

145-146, FWS046436-37 (discussing determination for proposed jaguar critical habitat).

166. FWS also determined in the 2013 BiOp that the Rosemont Project was

likely to take (i.e., kill or injure) individual members of certain of the fish and wildlife

species, but that these adverse impacts would not rise to the level of jeopardy to the

species’ continued existence. In these cases, FWS issued an incidental take statement

(“ITS”) in the BiOp authorizing the anticipated take. In each case, FWS specified the

amount or extent of take that was anticipated, and imposed reasonable and prudent

measures (“RPMs”) to minimize the impacts of the incidental take, together with certain

mandatory terms and conditions that implement the RPMs. The RPMs and the

mandatory terms and conditions imposed additional conservation measures on

Rosemont to benefit the species. 2013 BiOp at 94-100, FWS046385-91 (ITS for lesser


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long-nosed bat), at 150-155, FWS046441-46 (ITS for jaguar), at 221-225, FWS046512-

16 (ITS for Chiricahua leopard frog), at 271-277, FWS046562-68 (ITS for Gila chub),

and at 291-297, FWS046582-88 (ITS for Gila topminnow).

B. The 2016 Biological Opinion

167. As stated above, in December 2013, the Forest Service issued its FEIS and

its Draft ROD. See 2016 BO at 3, FWS049329. Following the issuance of the FEIS,

several events occurred that triggered the need for the Forest Service to reinitiate

Section 7 consultation with FWS, in accordance with the requirements of the 2013 BO.

See FS0106729-33 (letter from FWS requesting that the Forest Service reinitiate

consultation); see also 2016 BiOp at 3-5, FWS049329-31 (consultation history). These

events included the detection of a male ocelot in the Santa Rita Mountains. FS0106730.

In addition, FWS became aware that the FEIS, as finally drafted and released to the

public, contained a revised and more quantitative analysis of the potential impacts of

groundwater drawdown caused by the Rosemont Project on streams within the action

area. FWS was concerned that this new information may affect the analysis of the

effects of the Project on aquatic and riparian species. FS0106730-31.

168. By letter dated May 23, 2014, the Coronado Forest Supervisor indicated

to FWS that the Forest Service intended to reinitiate consultation. The letter also

indicated that the Forest Service intended to supplement the Biological Assessment to

provide FWS “with updates to the hydrological analysis and effects to the species

occurring in aquatic and riparian ecosystems.” FS0106816.

169. Over the next nine months, the Forest Service, in collaboration with

specialists from multiple Federal agencies, reviewed new information and refined the

analysis of the impacts of groundwater drawdown on aquatic and riparian areas,

including the Las Cienegas NCA, Cienega Creek, and Empire Gulch, as discussed

above. See, e.g., ROD at 76, FS0259802. The Forest Service’s analysis of new

information and the refined analysis of the impacts of groundwater drawdown is

described in the 2015 SIR. See, e.g., 2015 SIR at 1-3, FS0260497-99. As stated


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previously, the conclusions resulting from analyzing the new information were very

similar to those originally published in the FEIS. In most cases, the conclusions reached

in the 2015 SIR showed slightly less impact than the FEIS. 2015 SIR at 138-141,

FS0260634-37 (summary of findings and comparison to FEIS conclusions).

170. In May 2015, the Forest Service sent FWS a letter requesting the

reinitiation of formal consultation on the Rosemont Project (including the Section 404

permit being sought by Rosemont from the Corps). FWS066640-41. The request was

accompanied by the Third Supplement to the Biological Assessment (“May 2015

SBA”), which was prepared by the Forest Service to address the new information and

other changes that had become available since the 2013 BiOp was issued, including the

refined analysis of impacts of aquatic impacts discussed in the SIR. May 2015 SBA at

1-1053, FS0162952-4004. The following month, FWS transmitted a letter to the Forest

Service, confirming that FWS had received sufficient information to initiate formal

consultation. 2016 BiOp at 5, FWS049331.

171. The reinitiated consultation continued over the next 10 months,

culminating in the 2016 BO, which was issued on April 28, 2016. 2016 BiOp at 5-8,

FWS049331-34. The opinion stated that it was based on the Forest Service’s May 2015

SBA and the 2015 SIR, in addition to FWS’s 2013 BO, the Forest Service’s FEIS and

prior biological assessment, and other information. 2016 BiOp at 2, FWS0493228.

172. Much of the information that changed after FWS issued the 2013 BiOp

was related to changes in the on-the-ground and/or listing status for threatened and

endangered species under the ESA, including the yellow-billed cuckoo (listed in

October 2014), northern Mexican gartersnake (listed in July 2014), Chiricahua leopard

frog (new information on the species’ status in the action area), jaguar (critical habitat

finalized in March 2014), and ocelot (sighting of an animal). 2016 BiOp at 7-8,

FWS049330-31, and at 10, FWS049336.

173. In describing the proposed action, FWS relied on the Rosemont Project

description, based on the Barrel Alternative, provided in the 2013 BO, which was


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incorporated into the 2016 BiOp by reference. FWS also explained that the

conservation measures Rosemont will implement, as described in the 2013 BO, remain

part of the proposed action and were incorporated by reference, except as specifically

noted or as they were modified by a RPM and term and condition in an incidental take

statement. 2016 BiOp at 9, FWS049335, and at 11, FWS049337.

174. Changes were made to the Sonoita Creek Ranch mitigation component in

Rosemont’s updated Habitat Mitigation and Monitoring Plan, provided to the Army

Corps of Engineers in connection with Rosemont’s pending application for a permit

from that agency. The acreage to be renovated was increased from 1,200 acres to 1,580

acres. In addition, a detailed restoration plan was prepared, describing the various

actions that will be taken to restore and enhance the property, including the renovation

of two ponds that are supplied with water from Monkey Springs and enhancement of

over 700 acres of floodplain through native plant seeding and mesquite planting. 2016

BiOp at 11-15, FWS049337-41.

175. Fullerton Ranch was added as an additional conservation measure. Under

that measure, Rosemont will protect and enhance the Fullerton Ranch property, which

consists of 1,763 acres of private land, located approximately 23 miles west of the

Project site, and contains potential habitat for Chiricahua leopard frogs and northern

Mexican gartersnakes. 2016 BiOp at 15-16, FWS049341-42.

176. Additional details were provided on the protection and management of the

Davidson Canyon parcels (approximately 545 acres of private land) and the Helvetia

Ranch parcels (approximately 939 acres of private land) and are summarized in the

opinion. 2016 BiOp at 17-19, FWS049343-45. FWS also noted that the various aquatic

resource conservation measures had not changed substantially and remained part of the

proposed action. 2016 BiOp at 19, FWS049345.

177. Other conservation measures were revised to address certain terms and

conditions associated with the effects analyses for the aquatic and riparian species

considered in the 2016 BO: Gila chub, Gila topminnow, desert pupfish, Chiricahua


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leopard frog, northern Mexican gartersnake, yellow-billed cuckoo, and southwestern

willow flycatcher. These revised conservation measures included the Harmful

Nonnative Species Management and Removal Program as well as the Yellow-Billed

Cuckoo and Southwestern Willow Flycatcher Habitat Enhancement and Monitoring,

Surveying, and Conservation Property Management Program. 2016 BiOp at 19-22,

FWS049345-48; see also ROD at 51-54, FS0259777-80 (describing the conservation

measures).

178. The 2016 BO includes a new section discussing the effects of the

proposed action on the action area’s aquatic ecosystem, which revised and replaced the

section on that topic in the 2013 BO. 2016 BiOp at 23-71, FWS049349-97. FWS

explained that the analysis of groundwater drawdown and related impacts in the Forest

Service’s FEIS differed from the approaches that FWS used in its 2013 BO, which was

issued before the FEIS was finalized. FWS also explained that the Forest Service had

conducted a reanalysis of the Rosemont Project’s groundwater and surface water

impacts in 2014, and that a more refined analysis of impacts to the aquatic environment

had been provided in the 2015 SIR as well as in the Forest Service’s May 2015 SBA.

2016 BiOp at 24-25, FWS049350-51.

179. To address the uncertainty associated with the impacts of groundwater

drawdown, particularly with respect to locations such as Upper Empire Gulch that have

a very wide range of modeled results, FWS elected to use the upper end of the Forest

Service’s 95th percentile analysis in the 2015 SIR. This approach was extremely

conservative, as it relied on the scenario in which 97.5 percent of the other possible

modeled outcomes have less impact on aquatic resources than the impact analyzed in

the BO. FWS acknowledged that the best-fit models represent the situation that is most

likely to occur. But the agency explained that it instead used a cautious approach to

ensure that the amended BiOp satisfies the ESA’s requirements. 2016 BiOp at 29-31,

FWS049355-57.

180. FWS adopted Forest Service’s focus on “key” stream reaches of Cienega


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Creek and its tributaries, as used in the 2015 SIR. FWS explained that these key

reaches represent “core areas of biological importance” and “serve[] as a reasonable

benchmark by which to evaluate effects to threatened and endangered species because

the reaches are distributed throughout the affected portions of Cienega Creek and

Empire Gulch where those species and critical habitats exist.” 2016 BiOp at 34-35,

FWS049360-61; see also 2016 BiOp at 33, FWS049359 (Figure A-1, map depicting key

reaches).

181. Applying the foregoing analytical approaches, FWS used the data from

the 2015 SIR and May 2015 SBA, as well as the FEIS, to estimate the impacts of

groundwater drawdown on stream flow and standing pools in each of the key stream

reaches. FWS also considered the climate stress scenario discussed in the 2015 SIR.

2016 BiOp at 35-60, FWS049361-86. In discussing the impacts, FWS again noted that

Upper Empire Gulch exhibits widely divergent results for the potential effects caused by

groundwater drawdown. The effects range from no measurable effect to complete

dewatering at later time-steps. FWS elected to use the higher-impact scenario,

explaining: “Precaution again dictates the analysis of the worst-case scenario for Empire

Gulch.” 2016 BiOp at 38, FWS049364.

182. The data presented in the foregoing sections of the 2016 BiOp was then

used to analyze the effects of the Rosemont Project on the Gila chub, Gila topminnow,

desert pupfish, Huachuca water umbel, Chiricahua leopard frog, northern Mexican

gartersnake, which are aquatic species found in Cienega Creek and other portions of the

action area, and the yellow-billed cuckoo, and southwestern willow flycatcher, which

use riparian habitat adjoining Cienega Creek and its tributaries in the action area. FWS

again noted that its emphasis on the upper end of the modeled predictions was

precautionary and did not represent the most probable outcome caused by groundwater

drawdown from the mine. 2016 BiOp at 60-61, FWS049386-87.

183. FWS also revised its analysis of the impact of the Project on riparian

ecosystems based on the information considered in the 2015 SIR. FWS noted that the


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southwestern willow flycatcher is an obligate riparian bird, the western yellow-billed

cuckoo is strongly associated with riparian and adjoining upland areas, the northern

Mexican gartersnake is strongly aquatic (although it does range well into upland areas

when foraging), and the Huachuca water umbel is a semi-aquatic plant that occurs in

streams and riparian areas. The Project’s impacts on the groundwater table may affect

riparian vegetation as substantial changes in the depth to groundwater may result in

substantial changes in a given site’s riparian community. 2016 BiOp at 61-64,

FWS049387-90.

184. Little change is expected for the riparian vegetation communities along

Cienega Creek due to the very small predicted groundwater drawdown associated with

the Rosemont Project. However, some loss in plant vigor, recruitment and retention is

anticipated. FWS also expressed concern about the potential for lateral contraction of

vegetation bordering the stream if the lateral extent of the wetted perimeter of the

stream contracts due to groundwater drawdown. 2016 BiOp at 69-71, FWS049395-97.

185. By contrast, Upper Empire Gulch is almost certain to experience major

shifts in vegetation due to groundwater drawdown from the mine. Again, however, the

predicted impacts under the modeled scenarios vary widely. As a consequence, FWS

elected to emphasize the higher-range values of the 95th percentile analyses as a

precautionary approach. This results in a rapid onset of adverse effects (10 years post-

mining) followed by a steady progression through drying conditions until total

dewatering (zero flow) occurs at 150 years post-mining. 2016 BiOp at 69, FWS049395.

186. Based on the new analysis of the effects of the proposed action on aquatic

and riparian ecosystems in the action area, and on the additional information provided

by the Forest Service in the 2015 SIR and the Third SBA, FWS again evaluated the

effects of the Rosemont Project pursuant to Section 7 of the ESA and FWS’s

regulations, including the various conservation measures and mitigation and monitoring

requirements incorporated into the Project, on the following listed species:


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a) Gila chub, with critical habitat. 2016 BiOp at 72-107, FWS049398-433.27

b) Gila topminnow (no critical habitat). 2016 BiOp at 108-120, FWS049434-

46.

c) Desert pupfish (no critical habitat). 2016 BiOp at 121-139, FWS049447-

65.

d) Chiricahua leopard frog, with critical habitat. 2016 BiOp at 140-164,

FWS049466-90.

e) Northern Mexican gartersnake, with proposed critical habitat. 2016 BiOp

165-195, FWS094491-521.

f) Huachuca water umbel, with critical habitat. 2016 BiOp at 196-223,

FWS049522-49.

g) Yellow-billed cuckoo, with proposed critical habitat. 2016 BiOp at 224-

264, FWS049550-90.

h) Southwestern willow flycatcher, with critical habitat. 2016 BiOp at 265-

288, FWS049591-614.

i) Jaguar, with critical habitat. 2016 BiOp at 289-322, FWS049615-48.

j) Ocelot (no critical habitat). 2016 BiOp at 323-334, FWS049649-60.

k) Lesser-long nosed bat (no critical habitat). 2016 BiOp 335-359,

FWS049661-85.28

27 Rosemont statement: In 2017, after the 2016 BiOp was issued, FWS determined,based on its review of the best scientific and commercial information that the Gila chub(Gila intermedia) is not a discrete taxonomic entity and, therefore, is not recognized as aseparate species. Instead, the Gila chub, along with another fish, the headwater chub(Gila nigra), is now recognized as being a different taxonomic species, the roundtailchub (Gila robusta). See Threatened Species Status for the Headwater Chub andRoundtail Chub Distinct Population Segment; Withdrawal of Proposed Rule, 82 Fed.Reg. 16,981 (April 7, 2017).28 FWS issued a rule removing the lesser long-nosed bat from the federal list ofendangered and threatened species due to the species’ recovery. Removal of the LesserLong-Nosed Bat From the List of Endangered and Threatened Wildlife; Final Rule, 83


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l) Pima pineapple cactus (no critical habitat). 2016 BiOp at 360-371,

FWS049686-97.

With regard to each species, FWS found in the 2013 BiOp that the Rosemont Project is

not likely to jeopardize the continued existence of the species. Id.

187. FWS also found, with regard to the critical habitat designated for the Gila

chub, Chiricahua leopard frog, Huachuca water umbel, southwestern willow flycatcher,

and jaguar that the Project is not likely to result in the destruction or adverse

modification of such critical habitat. 2016 BiOp at 97-98, FWS09423-24 (Gila chub);

2016 BiOp at 157-59, FWS09483-85 (Chiricahua leopard frog); 2016 BiOp 220-221,

FWS049546-47 (Huachuca water umbel); 2016 BiOp at 282-84, FWS049608-10

(southwestern willow flycatcher); 2016 BiOp at 309-11, FWS049635-37 (jaguar). In

addition, FWS issued a conference opinion in which it found that the Project is not

likely to result in the destruction or adverse modification of the proposed critical habitat

for the northern Mexican gartersnake and the yellow-billed cuckoo. 2016 BiOp at 190-

92, FWS049516-18 (northern Mexican gartersnake); 2016 BiOp at 255-57,

FWS049581-83 (yellow-billed cuckoo).

188. FWS again determined in the 2016 BiOp that the Rosemont Project was

likely to take (i.e., kill or injure) individual members of certain of the fish and wildlife

species, but that these adverse impacts would not rise to the level of jeopardy to the

species’ continued existence. FWS again issued an ITS in the BiOp authorizing the

anticipated take. In each case, FWS specified the amount or extent of take that was

anticipated, and imposed RPMs to minimize the impacts of the incidental take, together

with certain mandatory terms and conditions that implement the RPMs. The RPMs and

the mandatory terms and conditions imposed additional conservation measures to

benefit the species. 2016 BiOp at 98-105, FWS49424-31 (ITS for Gila chub); 2016

BiOp at 117-120, FWS049443-46 (ITS for Gila topminnow); 2016 BiOp at 136-38,

Fed. Reg. 17,093 (April 18, 2018). Therefore, the species is no longer protected underthe ESA and the provisions in the 2013 and 2016 BOs relating to the species are moot.


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FWS049462-64 ((ITS for desert pupfish); 2016 BiOp at 159-164, FWS049485-90 (ITS

for Chiricahua leopard frog); 2016 BiOp at 192-195, FWS049518-21 (ITS for northern

Mexican gartersnake); 2016 BiOp at 257-261, FWS049583-87 (ITS for yellow-billed

cuckoo); 2016 BiOp at 284-288, FWS049610-14 (ITS for southwestern willow

flycatcher); 2016 BiOp 311-16, FWS049637-42 (ITS for jaguar); 2016 BiOp at 329-

333, FWS049655-59 (ITS for ocelot); 2016 BiOp at 352-359, FWS049678-85 (ITS for

lesser long-nosed bat).

189. In the 2013 BiOp, FWS provided specific ESA Section 7(a)(1)

conservation recommendations for numerous species. FS0098319-20 (lesser long-nosed

bat), FS0098374 (jaguar), FS0098417-18 (Pima pineapple cactus), FS0098445

(Chiricahua leopard frog), FS0098496-97 (Gila chub), FS0098516-17 (Gila topminnow),

FS0098529-30 (Huachuca water umbel), and FS0098559-60 (southwestern willow

flycatcher).

190. In the 2016 BiOp, FWS again provided specific ESA Section 7(a)(1)

conservation recommendations for numerous species. FWS acknowledged the Forest

Service’s ongoing conservation actions and recommended that the Forest Service

continue to implement several of the conservation recommendations from the 2013 BiOp.

FS0108679-80 (Gila chub conservation recommendations 4-6, 8 & 10); FS0108693 (Gila

topminnow conservation recommendations 1-3 & 9); FS0108737 (Chiricahua leopard

frog conservation recommendations 2 & 3); FS0108794-96 (Huachuca water umbel

conservation recommendations 5-6, 7 & 10). FWS also recommended that Forest Service

continue its ongoing conservation actions with respect to the desert pupfish, see

FS0108711-12 (conservation recommendations 1-2 & 7), and the yellow-billed cuckoo,

see FS0108834 (conservation recommendation 4).

191. The Forest Service worked with Rosemont to develop revised conservation

measures associated with several species, including specific measures to implement FWS

conservation recommendations from the 2013 and 2016 BiOps. For example, Revised

Conservation Measure 2 incorporates some of the 2016 BiOp’s conservation


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recommendations for removal of nonnative vegetation to benefit the Huachuca water

umbel, among other mitigation measures to conserve riparian resources. Compare

FS0108593-94 (Revised Conservation Measure 2 - Harmful Nonnative Species

Management and Removal) and FS0108796 (Huachuca water umbel Conservation

Recommendation 10). Revised Conservation Measure 2 also incorporates the 2016

BiOp’s conservation recommendation for removal of nonnative species to benefit the

Gila chub. Compare FS0108594 and FS0108679 (Gila chub Conservation

Recommendation 8). In addition, Revised Conservation Measure 2 incorporates the 2013

BiOp’s conservation recommendation for removal of nonnative aquatic species to benefit

the Gila topminnow. Compare FS0108594 and FS0098516-17 (2013 BiOp, Gila

topminnow Conservation Recommendations 1 and 9). Revised Conservation Measure 3

incorporates the 2013 BiOp’s conservation recommendations for additional surveys for

southwestern willow flycatchers. Compare FS0108595 (Revised Conservation Measure

3 - Western Yellow-Billed Cuckoo and Southwestern Willow Flycatcher Habitat

Enhancement and Monitoring, Surveying, and Conservation Property Management) and

FS0098559 (2013 BiOp Southwestern willow flycatcher Conservation Recommendation

1).

192. FWS acknowledged that implementation of the revised conservation

measures “will augment a program that the Coronado National Forest is currently

undertaking that will assemble existing data on efforts to control targeted harmful

nonnative species, collect additional data, purchase equipment for the removal of harmful

nonnative species, mitigate effects to threatened and endangered species as well as other

native aquatic species, and develop a plan for continued control efforts within the Sierra

Vista Ranger District.” FS0108593.


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Respectfully submitted this 26th day of October, 2018,

JEFFREY H. WOODActing Assistant Attorney GeneralU.S. Department of JusticeEnvironment and Natural Resources Division

/s/ Andrew A. SmithANDREW A. SMITH (NM Bar 8341)Senior Trial AttorneyNatural Resources Sectionc/o United States Attorney’s Office201 Third Street, N.W., Suite 900P.O. Box 607Albuquerque, New Mexico 87103Phone: (505) [email protected]

LILA C. JONES (NM Bar 149098)Trial AttorneyNatural Resources SectionPO Box 7611Washington, DC 20044-7611Phone: (202) [email protected]

NICOLE SMITH (CA Bar 303629)Trial AttorneyMARK ARTHUR BROWN (FL Bar 0999504)Senior Trial AttorneyWildlife and Marine Resources Section601 D. St. NWWashington, D.C. 20004Phone: (202) [email protected]


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SIMI BHAT (CA Bar 289143)Trial AttorneyEnvironmental Defense Section301 Howard St., Ste. 1050San Francisco, CA 94115Phone: (415) [email protected]

Attorneys for Federal Defendants

FENNEMORE CRAIG, P.C.

/s/ Norman D. James (with approval)Norman D. James2394 East Camelback Road, Suite 600Phoenix, Arizona 85016-2394Telephone: (602) 916-5000Email: [email protected]

George O. KraujaOne South Church Avenue, Suite 1000Tucson, Arizona 85701-1627Telephone: (520) 879-6800Email: [email protected]

Ronald Opsahl1700 Lincoln Street, Suite 2400Denver, Colorado 80203-4524Telephone: (303) 813-3848Email: [email protected]

Mick RusingRUSING LOPEZ & LIZARDI, P.L.L.C.6363 N. Swan Road Suite 151Tucson, AZ 85718Telephone: (520) 792.4800Email: [email protected]

Attorneys for Rosemont Copper Company
