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Federal energy regulators deny permits for a controversial project on the Navajo Nation

The rim of Black Mesa The area is a critical habitat for several protected species, like the Mexican Spotted Owl and golden eagles. Chris Clements / KSJD
Chris Clements
The rim of Black Mesa The area is a critical habitat for several protected species, like the Mexican Spotted Owl and golden eagles. Chris Clements / KSJD

Federal energy officials denied permits for a controversial hydropower project on The Navajo Nation in northern Arizona. In its decision to deny those permits, the Federal Energy Regulatory Commission (FERC) said it was establishing a new policy about cooperation with Tribes.

“The Commission will not issue preliminary permits for projects proposing to use Tribal lands if the Tribe on whose lands the project is to be located opposes the permit,” the agency wrote.

Indigenous advocates and conservation groups are hailing the move as a win for tribes.

“It is encouraging to see federal decision makers honoring the trust responsibilities to Native American Tribes,” Nicole Horseherder, executive director of the Navajo nonprofit Tó Nizhóní Ání, said in a statement. “Historically, that has not been the case. These projects would have damaged vital groundwater sources that have already been harmed by 50 years of industrial overuse from coal mining.”

The hydropower company Nature and People First was seeking permits for a “pumped storage” project in the Black Mesa area of Arizona to generate electricity for nearby cities such as Phoenix and Tucson. That kind of facility holds water from high-elevation reservoirs, then allows gravity to carry it down through turbines to generate power. Then, when electricity demand is lower, that water is pumped back up to the upper reservoir to start the process over again.

People who live around the proposed site worried that the project could damage underground water supplies and sacred lands, and the company developing the facility had not done enough to involve nearby residents.

News An energy company wants to build hydropower projects on the Navajo Nation. Not everyone is on board Chris Clements | KSJD

Heather Tanana, an attorney specializing in water policy and a member of t he Navajo Nation, said the new FERC policy is consistent with the way the Biden administration has been interacting with T ribes, but still represents an improvement.

“I think it's a huge testament to the work of local community efforts,” Tanana said “They're not representing t he Navajo Nation as a governmental capacity. To have the communities be empowered in that way is new. ”Tribes have long been excluded from negotiations about access to water from the Colorado River. Thirty federally-recognized tribes use water from the river, and many are still calling for more inclusion in talks about how to divide its shrinking supply.

In June 2023, the Supreme Court ruled against the Navajo Nation in a case surrounding the Tribe’s rights to the river. The T ribe claimed it was the federal government’s legal duty to help figure out their future water needs, and aid them in accessing that water. But the justices said an 1868 treaty did not require the government to do so.

The recent decision to deny Nature and People First’s proposal comes on the heels of widespread opposition from nearby communities. In July 2023, environmental groups filed resolutions with FERC from 18 Navajo communities and agencies that opposed the projects.

“I think that was able to really help strengthen that argument from the Navajo Nation Department of Justice regarding the lack of community consultation and consent,” said Adrian Herder, a community organizer with Tó Nizhóní Ání.

Tanana said the FERC ruling does not mean the end of development proposals — including hydropower projects — on Navajo Nation, but it does represent a shift in how regulators decide whether they should go forward.

“I do think it's fair to say that the community is in the driver's seat now,” she said. “Unless they're the ones pursuing development that they view as beneficial to their community, it's going to be a lot harder to happen.”

This story is part of ongoing coverage of the Colorado River, produced by KUNC and supported by the Walton Family Foundation.

Copyright 2024 KUNC. To see more, visit KUNC.

Alex Hager graduated from Elon University in North Carolina with a bachelor’s degree in journalism. He'll join Aspen Public Radio from KDLG in Dillingham, Alaska.