September 21,2011

Via U.S. Mail and Email (Iee.anita@epa.gov)

Laura Yoshii, Acting Regional Administrator

clo Anita Lee

U.S. ENVIRONMENTAL PROTECTION AGENCY, Region IX

75 Hawthorne Street

San Francisco, CA 94105-3901

YAVAPAI-APACHE NATION

Executive Office

Chairman David Kwail>- Vice-Chairman Robert F. Jackson, Sr

Phone (928)567-1021 Fax (928)567-1048

2400 W. Datsi Street, Camp Verde, AZ 86322

Re: Docket No. EPA-R09-0AR-2009-0598 - Yavapai-Apache Nation's Comments

to Advanced Notice of Proposed Rulemaking - Assessment of Anticipated

Visibility Improvements at Surrounding Class I Areas and Cost Effectiveness

of Best Available Retrofit Technology for the Four Comers Power Plant and

Navajo Generating Station

Dear Ms. Yoshii:

As the Chairman ofthe Yavapai-Apache Nation of Arizona (Nation), please accept these

comments on behalf of the Nation with regard to the U.S. Environmental Protection Agency's

(EPA) Advanced Notice of Proposed Rulemaking (ANPR) on the Assessment of Anticipated

Visibility Improvements at Surrounding Class I Areas and Cost Effectiveness of Best Available

Retrofit Technology (BART) for the Four Comers Power Plant and Navajo Generating Station

(NGS) - Docket No. EPA-R09-0AR-2009-0598.

The Yavapai-Apache Nation is deeply concerned about the potential effects of this

rulemaking on the Nation's ability to use its Central Arizona Project (CAP) water for tribal

homeland purposes on the Yavapai-Apache Reservation (Reservation), and to achieve a final

Indian water rights settlement for the Nation in the near future.

The Nation has a contract with the Secretary ofInterior dated December 11, 1980, for the

delivery of 1,200 acre-feet of CAP water to the Yavapai-Apache Reservation located in northcentral Arizona near the towns of Camp Verde and Clarkdale. Presently, the Nation is engaged

in the development of the infrastructure necessary to deliver its 1,200 acre-feet of CAP water to

the Reservation.
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YAVAPAI-APACHE NATION cont.

Page 2

As you know, the CAP requires power to operate the pumps and a canal system to deliver

the CAP water from the Colorado River throughout Arizona. This power is supplied by the

Navajo Generating Station by virtue of the United States' 24% ownership stake in the NGS for

this very purpose. The pumping energy charges for CAP are already expensive, at $49 per acre

foot for 2012 delivery rates, plus the additional operation, maintenance and replacement

("OM&R") charge which is set at $73 per acre foot for 2012 delivery rates, making for a total

delivery charge of $122 per acre foot for 2012. These rates continue to increase from year to

year. As such, the Nation is concerned that requiring an expensive retrofit oftechnology for the

NGS will result in a substantial increase in the cost to the Nation for delivery of its CAP water.

Furthermore, the Nation is concerned that ifthe retrofit is mandated, the NGS owners will decide

to shut the NGS down, which would require finding an alternative energy source likely to cost a

whole lot more than the current operating cost ofthe NGS.

In the Arizona Water Rights Settlement Act of 2004 (AWSA), Congress established a

portion of the Lower Colorado River Basin Development Fund (LCBDF), pursuant to the

Colorado River Basin Project Act of 1968, as a funding supply for future Indian water rights

settlements in Arizona, as well as for defraying the OM&R charges for Indian CAP water.

Revenues from the NGS, which contribute to the LCBDF, are vital to the Nation to help defray

the annual OM&R charges for the Nation's 1,200 acre-feet of CAP water, as well as helping to

defray the costs of the Nation's water rights settlement. Reductions in NGS revenues to the

LCBDF would jeopardize these goals for the LCBDF which were established by Congress in the

AWSA.

While the Nation generally supports federal efforts to reduce pollution at the NGS, these

efforts must be undertaken in consultation with, and with due consideration given to affected

tribal governments such as the Nation. See Executive Order 13175, Consultation and

Coordination with Tribal Governments dated November 6, 2000 ("Executive Order 13175"), as

further effectuated in EPA Region 9 Approach to Consultation with Tribal Governments

Regarding Non-Enforcement Related Matters ("Region 9 Consultation").

The Nation requests that EPA engage in meaningful consultation with the Nation, as the

actions contemplated by the ANPR could have a significant impact upon the Nation and its

ability to achieve a water rights settlement and to provide its Tribal Members with adequate and

affordable water for the future.

Please ensure that the Nation's Special Legal Counsel, Ms. Robyn L. Interpreter,

Montgomery & Interpreter, PLC, 4835 E. Cactus Rd., Suite 210, Scottsdale, Arizona 85254, ph.

(480) 513-6825, email: rinterpreter@milawaz.com; the Nation·s Attorney General. Mr. Robb

Hunter, 2400 W. Datsi Street, Camp Verde, AZ 86322, ph. (928) 567-1052, email: rhunter@yantribe.or g; and the Nation's Public Relations Officer, Ms. Fran Chavez, 2400 W. Datsi Street,

Camp Verde, AZ 86322, ph. (928) 567-1006, email: editor@yan-tribe.org, are added to your

mailing list on this matter and please feel free to direct any further inquiries regarding this matter

to them.
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YAVAPAI-APACHE NATION cont.

Page 3

Thank you in advance for your attention to this important matter.

Sincerely,

David Kwail, Chairman

cc: Robyn L. Interpreter, Montgomery & Interpreter, PLC

(via email: rintemreter@milawaz.com)

Cynthia Hoeft, Providing StaffAssistance to Letty Belin re: NGS

(via email: CHoeft@usbr.gov)

Letty Belin, Counselor to Deputy Secretary, Dept. ofInterior

(via U.S. Mail- 1849 C. Street, NW, Washington DC 20240)

Randy Chandler, Bureau ofReclamation, Phoenix Area Office

(via U.S. Mail- 6150 W. Thunderbird Rd., Glendale AZ 85306)

Bryan Bowker, Bureau ofIndian Affairs, Western Regional Office

(via U.S. Mail- 2600 N. Central Ave., 4th Floor, Phoenix AZ 85004)

Cathy Wilson, Bureau ofIndian Affairs, Western Regional Office

(via U.S. Mail- 2600 N. Central Ave., 4th Floor, Phoenix AZ 85004)