Reprinted with permission from Environment & Energy Publishing, LLC. Not for republication by Wyoming media.

When U.S. EPA issued a report last month on groundwater contamination in Pavillion, Wyo., many saw it as proof that hydraulic fracturing had contaminated drinking water.

It wasn’t.

Fracturing contaminated groundwater, EPA said. Not drinking water.

The distinction is important. People in the small central Wyoming town don’t drink from the aquifer, 800 feet down. They drink from water wells, which are generally much shallower.

Finding fracturing chemicals in any groundwater does puncture a big industry talking point — that fracturing has been used safely for 60 years and has never, ever contaminated groundwater. But fracturing done in Pavillion was much closer to the surface — and groundwater — than the mile-deep “fracking” in shale formations like Pennsylvania’s Marcellus.

The groundwater versus drinking water distinction has been lost in the finger-pointing between environmentalists and industry. So have some other key facts. Among them:

• Oil and gas production activities — drilling, not “fracking” — did contaminate wells as shallow as 15 feet with high concentrations of benzene, xylenes and other nasty stuff, according to EPA’s study. But those concentrations still have not been found in drinking water.
• “Material Safety Data Sheets” that the local driller, EnCana Corp., provided were not sufficient to determine what chemicals were in the fracturing fluid used, according to EnCana.
• None of the wells, save two, were sealed with concrete all the way below the drinking water zone. Some of those wells were drilled as recently as 2007.

The report is a draft, and its findings are going to be subjected to peer review. EnCana has disputed most of EPA’s findings and disparaged the agency’s methods. Wyoming’s state oil and gas supervisor, Tom Doll, even suggested that EPA could have contaminated the deep aquifer itself when it drilled deep monitoring wells.

But EPA is standing behind the report. Administrator Lisa Jackson last week sent a letter affirming her support but also explaining some nuances of the study.

EPA’s findings will be tested in the political arena. The House Science Committee is planning a Feb. 1 hearing on the Pavillion report. Republican committee leaders chose a title — “Fractured Science” — that leaves little doubt the report will be attacked.

But if EPA’s findings are accurate, they point to some very basic problems in Pavillion. Oil and gas operators dumped their waste into unlined pits, which was legal at the time. They also did not seal their wells off from drinking water by encasing them in concrete all the way through the drinking water zone, a basic drilling practice laid out in the American Petroleum Institute’s standards.

“At least in retrospect, it appears they didn’t have the wells sealed enough to make sure that fluid couldn’t move up the wellbore,” said Dave Yoxtheimer, a hydrogeologist at Penn State University’s Marcellus Initiative for Outreach and Research.

EnCana spokesman Doug Hock said that the wells in question are located far from drinking water wells and there is no indication they have leaked. He also said, “The contamination associated with these pits is isolated and there is no evidence of impacts to drinking water.”

Material Safety Data Sheets, or MSDS, have been the industry’s preferred method of public disclosure of hydraulic fracturing chemicals. Oil and gas companies have long argued that the sheets amount to full disclosure. Texas’ new public disclosure law requires disclosure only of chemicals from MSDS sheets. But the sheets, which are posted at work sites as instructions for what to do in the event of accidental contact with chemicals, are designed for worker safety rather than long-term water quality monitoring. In this case, an established operator is saying that its own MSDS sheets are not reliable.

As part of the study, EPA got the MSDS from EnCana and compared them to the chemicals it found in the Wind River Aquifer below Pavillion.

“Tert-butyl alcohol, was detected … a known breakdown product of … tert-butyl hydroperoxide (a gel breaker used in hydraulic fracturing),” EPA says on page 35 of its report.

But EnCana says EPA should not use MSDS to link fracturing to contamination in the aquifer.

“Peroxide breaker was never used in the field yet we did record it in the MSDSs because it is possibly used in hydraulic fracturing,” EnCana officials state in written materials prepared for a technical briefing for reporters. “Yet they chose to make that claim despite knowing that peroxide breaker was not used.”

EnCana says EPA never requested more detailed information about what chemicals were used in which specific areas.

“However,” Hock said, “we are planning to provide this information as part of our rebuttal to the draft report.”
Groundwater contamination

EPA concluded that contamination from “constituents associated with hydraulic fracturing” are in the “drinking water aquifer,” around 800 feet down.

But those materials are different than contaminants EPA found in much shallower drinking water wells. And the agency says the contaminants in drinking water are “generally” below health and safety thresholds.

“We have absolutely no indication right now that drinking water is at risk,” Jackson said last year in a televised interview on Pavillion.

Still, after EPA found “petroleum compounds” in 17 of 19 drinking water wells in 2010, the U.S. Agency for Toxic Substances and Disease Registry recommended that some well owners use alternate sources of water for drinking and cooking. The agencies made no conclusion about where those compounds came from.

The EPA report notes that contaminants deeper in the aquifer could flow upward toward drinking water wells. Some stock ponds in the area flow, indicating that water moves up from below. They could also come up through old, forgotten oil and gas wells.

But they haven’t, or at least there is no indication of that in EPA’s study.

To reach most drinking water wells in Pavillion, the contaminants would need to rise upward several hundred feet. But to reach drinking water in shale formations, any contaminants would have to rise upward a mile or more.

In shales like the Marcellus or the Barnett in Texas, gas is trapped in hard rock a mile or so below the surface. Drillers inject millions of gallons of chemical-laced water at extremely high pressure to “fracture” the shale and allow the gas to flow out.

Because it is deeper, it requires more industrial activity at the surface. Drillers use exponentially more water than in the conventional production found in Pavillion, and the water is under exponentially higher pressure.

“I don’t think it’s something that can be extrapolated across formations all over the country,” Penn State’s Yoxtheimer said.

In dismissing the report, industry figures and Wyoming officials have said EPA itself might have contaminated the water in the aquifer when it drilled deep monitoring wells.

But Yoxtheimer said EPA documented a very careful approach to drilling the wells, monitoring everything that went into the wells. He does see a weakness in that the municipal water used to drill the monitoring wells was not tested and suggests its source could be tested, “to fill that gap.”

Some have noted that a portion of EPA’s samples were not tested within the proper time frame. Yoxtheimer said that might invalidate them in a court case, and EPA itself probably would not accept samples that had expired. But he said that given what they were testing for, the time lag probably did not affect the outcome and, if anything, would have shown less contamination because over time such chemicals diminish.

“Technically, the samples weren’t valid,” Yoxtheimer said. “But it probably didn’t affect the quality.”

More troubling to Yoxtheimer is how little data there is overall about fracturing chemicals. EPA said financial constraints prevented drilling more than two deep monitoring wells into the Wind River Aquifer.

“That’s a very limited data set,” he said. “It’s not a data set you can draw large conclusions from.”

Reprinted with permission from Environment & Energy Publishing, LLC. Not for republication by Wyoming media.

Robinson is helping oversee the federal environmental review process for Luca Technologies Inc.’s Rough Draw Project. The company, based in Golden, Colo., is seeking permission to farm methane in federal coal in an 18,000-acre area north of Gillette, Wyo., using existing wells.

State and federal environmental officials say they have not heard of the practice happening anywhere else. “It’s very new and very unique,” Kathy Shreve, an official with the Wyoming Department of Environmental Quality, said in an interview.

But methane farming has caught the attention of the coal industry, which is concerned about the practice’s impact on the Powder River Basin’s valuable coal. A March 2010 report that BLM made public late last year says methane farming could reduce the quality of coal and its British-thermal-unit level by as much as 1 percent. Many of Luca’s farming plans are near existing coal mining leases.

“There is a strong possibility of conflicts between methane farming and coal mining,” the report says. “It would be beneficial to the U.S. if these conflicts were avoided.”

Marion Loomis, executive director of the Wyoming Mining Association, says methane farming seems like a great idea — as long as it does not threaten coal deposits valuable to the companies he represents.

“We would prefer to see them develop out away from the mine in deep coal,” Loomis said in an interview. “We support them testing it, but we don’t want them to test it right ahead of our mines.

“If they would lower the Btu content by 4 percent, they would probably destroy the economics of that entire coal deposit,” Loomis added.

Luca turned down repeated interview requests for this story. Last year, the company filed paperwork with the Securities and Exchange Commission to take the company public. A spokesman said executives were trying to comply with “quiet period” rules.

However, the company has defended its methods in documents and communications with regulators.

“Coal seams that have produced the most [coal-bed methane] are the coal seams with the highest BTU values,” a Luca document states. “This would indicate the natural process does not destroy the coal.”

“That is the exact question we want to answer with the pilot project,” Robinson said. “We have experts on both sides of the fence who claim both sides.”

For their part, environmentalists are concerned about the land and water quality impacts of the technology, which they say remain largely unknown. They say Luca has done some injections but not enough to know the true effect.

“These coal seams are drinking water aquifers. They’re used by our members for water,” said Shannon Anderson, an organizer for the Powder River Basin Resource Council, in an interview. “We’ve been told that they are perfectly safe … but we are interested in having a true pilot project.”

Luca’s bacteria nutrients include calcium, magnesium, potassium and soy protein, among many others. State regulators say its injection permits require monitoring and sampling.

“It is unlikely that trace metals will be released from the coals or become more concentrated in coals as a result of Luca enhancing methanogenesis,” the company told BLM. “Luca’s laboratory data indicate there does not seem to be significantly higher concentrations of trace metals after methanogenesis.”

Documents indicate that Luca has spent at least $40 million developing methane farming technology. They say the process is necessary to extend the life of existing gas wells to prevent them from running dry. Regulators say the company is exploring methane farming in other states.

Still, regulators have to grapple with questions of royalties, land ownership and a permanent regulatory scheme for methane farming. BLM’s public scoping period for Luca’s Rough Draw site ends next week and has already generated lively debate in the region.

“It became clear very early on in the process,” he said, “that there are a lot of people interested.”

How to regulate?

Methane farming is so new that regulators have struggled to figure out how to police the practice.

Wyoming state lawmakers passed legislation last year to help provide for state permitting. The Wyoming Oil and Gas Conservation Commission mulled over drafting new rules but decided against it.

While the state commission and DEQ split jurisdiction for one of Luca’s methane farming requests, last week DEQ issued the company another permit on its own for both water injection and nutrient application. Kevin Frederick, DEQ groundwater manager, said that is how the state would proceed from now on.

“We wanted to make sure that the permitting system we were applying would be something that would be acceptable to U.S. EPA,” he said in an interview, adding that state officials have been in close contact with their federal counterparts over the issue of methane farming.

Another company, Centennial, Colo.-based Ciris Energy Inc., has also submitted applications to the state for what regulators call field pilot projects, also in the Powder River Basin.

“Each company considers the process a trademark secret,” said Shreve of the Wyoming Department of Environmental Quality. “But it’s basically the same idea.”

BLM’s Robinson said the agency has been exploring whether to oversee the practice under the coal or gas program. The current public comment period is for a less-stringent environmental assessment, but he said the review could turn into a full-blown environmental impact statement.

“This is research and development,” Robinson said. “The company has made certain claims in their application, but we have not seen the data, and we’d like to confirm those claims.”

Wyoming’s Powder River Basin is at the center of a growing debate over a new technology to artificially generate methane from coal seams.

The process, called methane farming, involves injecting water with nutrients into coal. The fluid then stimulates microbes already present in the seams to create methane gas faster than they would otherwise.

“According to what the company says, this is actually a natural process that happens over millions of years,” said Mike Robinson, project manager with the Bureau of Land Management, in an interview. “They’re not injecting microbes; they’re injecting nutrients to microbes.”

Robinson is helping oversee the federal environmental review process for Luca Technologies Inc.’s Rough Draw Project. The company, based in Golden, Colo., is seeking permission to farm methane in federal coal in an 18,000-acre area north of Gillette, Wyo., using existing wells.

State and federal environmental officials say they have not heard of the practice happening anywhere else. “It’s very new and very unique,” Kathy Shreve, an official with the Wyoming Department of Environmental Quality, said in an interview.

But methane farming has caught the attention of the coal industry, which is concerned about the practice’s impact on the Powder River Basin’s valuable coal. A March 2010 report that BLM made public late last year says methane farming could reduce the quality of coal and its British-thermal-unit level by as much as 1 percent. Many of Luca’s farming plans are near existing coal mining leases.

“There is a strong possibility of conflicts between methane farming and coal mining,” the report says. “It would be beneficial to the U.S. if these conflicts were avoided.”

Marion Loomis, executive director of the Wyoming Mining Association, says methane farming seems like a great idea — as long as it does not threaten coal deposits valuable to the companies he represents.

“We would prefer to see them develop out away from the mine in deep coal,” Loomis said in an interview. “We support them testing it, but we don’t want them to test it right ahead of our mines.

“If they would lower the Btu content by 4 percent, they would probably destroy the economics of that entire coal deposit,” Loomis added.

Luca turned down repeated interview requests for this story. Last year, the company filed paperwork with the Securities and Exchange Commission to take the company public. A spokesman said executives were trying to comply with “quiet period” rules.

However, the company has defended its methods in documents and communications with regulators.

“Coal seams that have produced the most [coal-bed methane] are the coal seams with the highest BTU values,” a Luca document states. “This would indicate the natural process does not destroy the coal.”

“That is the exact question we want to answer with the pilot project,” Robinson said. “We have experts on both sides of the fence who claim both sides.”

For their part, environmentalists are concerned about the land and water quality impacts of the technology, which they say remain largely unknown. They say Luca has done some injections but not enough to know the true effect.

“These coal seams are drinking water aquifers. They’re used by our members for water,” said Shannon Anderson, an organizer for the Powder River Basin Resource Council, in an interview. “We’ve been told that they are perfectly safe … but we are interested in having a true pilot project.”

Luca’s bacteria nutrients include calcium, magnesium, potassium and soy protein, among many others. State regulators say its injection permits require monitoring and sampling.

“It is unlikely that trace metals will be released from the coals or become more concentrated in coals as a result of Luca enhancing methanogenesis,” the company told BLM. “Luca’s laboratory data indicate there does not seem to be significantly higher concentrations of trace metals after methanogenesis.”

Documents indicate that Luca has spent at least $40 million developing methane farming technology. They say the process is necessary to extend the life of existing gas wells to prevent them from running dry. Regulators say the company is exploring methane farming in other states.

Still, regulators have to grapple with questions of royalties, land ownership and a permanent regulatory scheme for methane farming. BLM’s public scoping period for Luca’s Rough Draw site ends next week and has already generated lively debate in the region.

“It became clear very early on in the process,” he said, “that there are a lot of people interested.”

How to regulate?

Methane farming is so new that regulators have struggled to figure out how to police the practice.

Wyoming state lawmakers passed legislation last year to help provide for state permitting. The Wyoming Oil and Gas Conservation Commission mulled over drafting new rules but decided against it.

While the state commission and DEQ split jurisdiction for one of Luca’s methane farming requests, last week DEQ issued the company another permit on its own for both water injection and nutrient application. Kevin Frederick, DEQ groundwater manager, said that is how the state would proceed from now on.

“We wanted to make sure that the permitting system we were applying would be something that would be acceptable to U.S. EPA,” he said in an interview, adding that state officials have been in close contact with their federal counterparts over the issue of methane farming.

Another company, Centennial, Colo.-based Ciris Energy Inc., has also submitted applications to the state for what regulators call field pilot projects, also in the Powder River Basin.

“Each company considers the process a trademark secret,” said Shreve of the Wyoming Department of Environmental Quality. “But it’s basically the same idea.”

BLM’s Robinson said the agency has been exploring whether to oversee the practice under the coal or gas program. The current public comment period is for a less-stringent environmental assessment, but he said the review could turn into a full-blown environmental impact statement.

“This is research and development,” Robinson said. “The company has made certain claims in their application, but we have not seen the data, and we’d like to confirm those claims.”

(Banner photo by Eastcolfax/Flickr)

Reprinted with permission from Environment & Energy Publishing, LLC. Not for republication by Wyoming media.

A federal appeals court last week upheld a Montana judge’s decision that the federal government must protect grizzly bears near Yellowstone National Park.

The 9th U.S. Circuit Court of Appeals ruling found the Interior Department failed to prove that a decline in whitebark pine — a key food source for grizzlies — would not threaten the species’ survival.

But the San Francisco-based appeals court reversed U.S. District Judge Donald Molloy’s 2009 finding that existing regulatory mechanisms failed to ensure the species’ continued recovery.

The ruling came as a victory for the Greater Yellowstone Coalition, a Bozeman, Mont.-based conservation group that challenged the government’s decision to remove grizzlies from the federal endangered species list in 2007.

“We appreciate the strong language of the 9th Circuit Court saying that [the Fish and Wildlife Service] must further study the demise of the whitebark pine and its impact upon grizzlies before it can delist the Yellowstone griz,” Mike Clark, the group’s executive director, said in an email. “We look forward to working with the feds and state officials on plans that ultimately will delist the griz when it is appropriate.”

The decision means federal agencies must continue to manage lands to protect the iconic species, which could affect activities like logging, mining and road building in the West.

At the time of the species’ original listing in 1975, grizzly numbers in the lower 48 states had dwindled from about 50,000 in 1,800 to between 136 and 312 near Yellowstone, the court wrote. The species has since rebounded slightly, numbering more than 500 at the time of its delisting in 2007, FWS said.

“It’s certainly welcome news,” Bill Snape, a senior attorney with the Center for Biological Diversity, said of the decision.

“The Interior Department completely swept under the rug the reality that the species is losing one of its major food sources to climate change,” he said. “Interior’s behavior was the definition of ‘arbitrary and capricious.’”

In its delisting decision, Interior cited studies stating that while there is a connection between whitebark pine and grizzly survival, the animals will adapt because they are opportunistic omnivores and will not be threatened by the loss of whitebark pine (E&ENews PM, Sept. 21, 2009).

The states of Montana and Wyoming defended the government’s delisting decision in the case, arguing the bears won’t go extinct under state management.

As grizzly numbers rise in Montana, Idaho and Wyoming, some have blamed the animals for preying on livestock, damaging property and sometimes attacking humans.

(Banner photo by Shane Lin/Flickr)

Flaming Gorge Reservoir has capacity to hold 3.5 million acre-feet altogether. That’s a big bucket, exceeded in the Colorado River Basin by only two others: Lake Mead, near Las Vegas, and that giant sandstone bowl of splish-splash in Utah called Lake Powell.

Related Story: Water Pipeline Permitting is no Easy Task

But is the water that could be reached by tapping into Flaming Gorge enough to sustain export of large volumes via pipeline across the Continental Divide to southeastern Wyoming, let alone 560 miles away to central Colorado, as is being proposed? Nobody really knows.

There could be legal entitlements for enough water to serve the pipeline, yes. Harry C. LaBonde, Wyoming’s deputy state engineer, insists that Wyoming has a “sizeable amount of water” yet to develop from the Green River, under terms of two key interstate compacts, reached in 1922 and 1948, which govern the Colorado River Basin.

Colorado may also have legal entitlement to additional diversions of large volumes of water from the Colorado River Basin. Estimates range from 800,000 acre-feet to zero. Nobody really knows.

Compact-entitled water allocations, however, are not the same as water actually available in Flaming Gorge. Needs of several endangered species of fish downstream in the Green and Colorado rivers trump water for development, and the rights of Utah and Wyoming to the water must also be figured in.

Malcolm Wilson, chief of the water resources group for the Upper Colorado Regional Office of the Bureau of Reclamation, located in Salt Lake City, says his agency told Aaron P. Million, the first and at this point only pipeline applicant, in 2007 that 165,000 acre-feet per year might be available for a pipeline to Colorado. But that was based on a “very preliminary rough draft,” and later calculations indicate “even less water may be available,” says Wilson.

Million’s latest plan, however, calls for diversion of 160,000 to 200,000 acre-feet. Of that, 25,000 would be Wyoming water for Wyoming residents.

Wilson’s agency is modeling Flaming Gorge demands, and it is required to consider how global warming may affect water supplies. Until that study delivers a harder number about water availability, says John Kolb, a Sweetwater County commissioner, conversations about the proposed trans-basin diversions are just speculation. “Without knowing the facts, you’re just chasing your tail,” he says.

Just the same, the coalition of Rock Springs, Green River, and Sweetwater County that Kolb directs adamantly rejects any pipeline from Flaming Gorge. So do most Wyomingites. A recent poll financed by environmental groups found 79 percent of Wyoming residents opposed. Public Opinion Strategies, a market research company that most often works for Republican candidates, found even more staunch disapproval among those who knew something more about the proposals: 87 percent.

In-state dissents

Yet the idea of a pipeline has a certain allure in Torrington, Cheyenne, and in Laramie County, each of which has chipped in $25,000 as members of the Colorado/Wyoming Coalition, a rival to Million’s plan.

“If someone is going to provide water through a pipeline near our water system, we are going to be interested,” says Tim Wilson, director of the Cheyenne Board of Public Utilities.

A map of the Green River watershed. The Green River flows through northwestern Colorado for 41 miles. (Map by Karl Musser — click to enlarge)

The Cheyenne urban area, with 70,000 people, has sufficient water to meet growth during the next 15 to 25 years, Wilson says. Most of the city’s water comes from snowmelt in streams west of the city, including some water from the Colorado River headwaters near the Colorado-Wyoming border, with water brought through a tunnel and then an exchange of rights.

Cheyenne’s Wilson says many unanswered questions remain about a possible new supply piped in from Flaming Gorge, including the costs and the water rights.

Laramie County has a similar position. “If, in fact, there is additional (Colorado River) Compact water, and it can be brought into Laramie County, we want to tap into that,” says Gary Kranse, planning director. Almost exclusively dependent on groundwater, the county wants more diversity of supplies as population growth continues.

Torrington, population 6,000, is also at the prospective pipeline table. City engineer Bob Juve says conservation and efficiency measures have dampened demand in Torrington 30 percent, with more savings possible. But with the city growing 1 percent annually, those savings will have been exhausted in a few decades. And the North Platte River, which flows through the town, is already spoken for. Nebraska and Wyoming in 2001 signed a legal settlement that reaffirmed the longstanding arrangement that majority of the water in the river goes to Nebraska. A current expansion of the Pathfinder reservoir west of Casper, however, will allow some future new water supplies from the river for Wyoming communities along the Platte, along with some water to sustain whooping cranes, least terns and other endangered species downstream in Nebraska.

Supporting a Flaming Gorge pipeline has not, Juve acknowledges, made him popular in Southwestern Wyoming. He’s OK with that. “I don’t mind fighting with anybody, but I first want to know what we’re fighting about,” he says. “We are not trying to be adversarial with people in Sweetwater County. Obviously, they have interests that they have not fully defined yet.”

Colorado, too, has conflicting opinions. In September, the Colorado Water Conservation Board, the state’s leading water-policy commission, authorized $72,000 to establish a framework for evaluating the feasibility of a Flaming Gorge diversion. That’s chump change, as water studies go. Jennifer Gimble, director of the board (and a former assistant attorney general for Wyoming), carefully emphasized that the study was “not an affirmation of the project itself, or any aspect of it, but an agreement on how to fairly evaluate and scope out the issues involved.”

Environmentalists in Colorado were annoyed. As they saw it, this was a seed planted that may yet be nourished with further state allocations. The project, they insist, deserves no credibility. They paid $7,000 to erect a trio of billboards that melodramatically showed a lakebed, dry and with cracked soil – presumably Flaming Gorge after further diversion.

Strong endorsements of the pipeline study came from the Arkansas River Valley. Home of Rocky Ford melons, the valley’s water—much of it diverted from the Colorado River Basin— nourishes alfalfa, used to feed cattle. Since the 1950s, however, the valley has been losing that water. The water is being sold by farmers and ditch companies to Front Range cities. Having lost 70,000 acres of production already, the valley could lose another 75,000 to 98,000 acres, or about a third of existing production, says Jay Winner, general manager of the Lower Arkansas Valley Water Conservancy District.

As residential development in the Front Range grows, the South Platte Valley, where Denver and Greeley are located, could have it even worse. Some project the loss of all farms to a similar process. So when there’s a proposal like a new pipeline to tap into more water from the west, “I don’t know if it’s going anyplace, but as a state we need to talk about it,” says Winner.

The Pueblo Chieftain, in the Arkansas Valley, has been fiercer yet in its advocacy. “If the enviros are so concerned about the environment, let them visit Crowley County (located east of Pueblo), where the loss of most of its water has turned huge swatches of formerly productive farmland into a giant weed patch,” said the newspaper in a September editorial. “Do they want more of that?”

Home-run swings

Colorado has a conundrum of inverse proportions: about 80 percent of the state’s water falls naturally west of the Continental Divide, mostly as snow, and 85 percent of the state’s residents and the vast majority of its productive farms lie to the east. To overcome this imbalance, various interests have been doing big projects for more than a century. You might call them home-run swings.

The skyline of downtown Denver, Colorado. As early as 1909, the City of Denver has been trying to secure sources of water to sustain its growing population. (Photo by Frank Reese — click to enlarge)

The first major effort came in 1894. Work began on incising the Grand River Ditch into the flanks of the Never Summer Range, in what is now Rocky Mountain National Park, to deliver late-summer water to the farms along the Poudre River near Fort Collins and Greeley. In 1936, Denver began drawing water from the Fraser Valley, around what is now Winter Park. That added water is what allowed the city to flourish after World War II. Now, the area from Grand Lake to Aspen is a Swiss cheese of 27 separate tunnels, canals and pipelines that collectively achieve what historian David Lavender described as a “giant violation of geography.”

But the easy pickings are gone. The last major trans-mountain diversion, the federally financed Fryingpan-Arkansas Project, was launched in 1962. Headwaters close to the Front Range cities are mostly tapped out. Denver Water and Northern Colorado Water Conservancy District, the state’s two largest diverters, are trying to incrementally expand their diversions at the headwaters of the Colorado, near Winter Park, Granby and Breckenridge. Little is left to take. Somewhat more distant from Denver, the muscular resort communities of Vail and Aspen have been able to push back.

Several other home-run swingers have whiffed. In the 1980s, former Canadian oilman Maurice Strong – incidentally, the organizer of the 1992 Earth Summit in Rio de Janeiro – bought the huge Baca Ranch in the San Luis Valley, between the Great Sand Dunes National Monument and the town of Crestone. This is about 150 miles southwest of Denver. A 1971 survey estimated that two billion acre-feet, or 50 times the combined capacity of Lake Mead and Lake Powell, exists below the ranch. Strong tried to mine this Closed Basin aquifer, but was blocked legally by furious potato farmers from the valley. Next came a flamboyant native son, Gary Boyce, with knee-high boots, an ability to speak the local language, and a more innovative scheme. You can, he told the farmers, make more money exporting water than growing spuds. He, too, was rebuffed — permanently now, it would seem, or as permanent as anything can ever be. The 97,000-acre ranch was purchased in 2004 by The Nature Conservancy for $33 million.

Other proposals, including one still vaguely alive, would draw water from the Gunnison area, two or three mountain ranges away from metropolitan Denver. In recent years, still other “straws” from distant rivers—including the Colorado near Grand Junction and the Yampa near Craig—have been kicked around, but with little more seriousness than bar-napkin sketches.

Suburban water providers have instead purchased farms for their water in what is called buy-and-dry. In recent years, Aurora and others have been experimenting with new water-sharing arrangements with farmers. Cities get the water 3 out of every 15 years, for example, or gain ownership of water savings after paying for efficiencies on farms. Another major initiative has been recycling of water. Aurora last year completed a $667 million pipeline that draws water from wells along the South Platte River, just downstream from the metropolitan area’s wastewater treatment plant, and then purifies it with state-of-the-art technology. Other pipelines are also imagined, including one that would extend 150 miles downstream on the South Platte River, nearly to the Nebraska border, to pump water to Denver’s suburbs.

None of these ideas, big or small, have generated the buzz of the gleam in a graduate student’s wandering eyes during a summer night in 2002 when his eye light on the Green River just below where it emerges from Flaming Gorge Reservoir.

Aaron Million’s eureka

Runoff during 2002 was anemic, the summer hot and crinkly. Smoke from the Hayman and other wildfires obscured Denver’s skyscrapers. Water-starved bluegrass in a park was spray-painted green for a mid-summer monument dedication. Corn crops withered. People were cranky. The multi-year drought that greeted the new century had begun.

Aaron Million, a one-time farmer who had had better luck in small-scale real-estate development, was studying for a master’s degree that summer in water economics at Colorado State University. Sequestered in the library one Sunday evening, he took a break in the lobby. There, he casually studied a map. He had grown up in the university town of Boulder, but spent summer vacations on the farm of his grandparents, near Green River, Utah. His eye followed the river upstream to where it hooked through Colorado for 41 miles below Flaming Gorge.

An aerial shot of a section of the Green River below the Flaming Gorge Reservoir as it passes through Utah. (Photo by Paul Jonusaitis — click to enlarge)

It was, he said in 2006, when he announced his plans, his eureka moment. Why not deliver water from the Green River to the Front Range of Colorado? It would, he asserted, save agriculture. It would diminish pressure to divert additional water from badly dewatered creeks and rivers at the Colorado River headwaters. It would deliver water to Denver’s groundwater-dependent suburbs, even to the exurbs of Colorado Springs, at least 560 miles from Flaming Gorge.

Credit Million with a big idea— even brilliance. Flaming Gorge is at about 6,200 feet in elevation, the same as Castle Rock, one of the target communities. The highest barrier between them is 7,900 feet, near Laramie.

Also credit Million with determination, maybe cockiness. Some who have heard his pitches think him naïve or disingenuous.

Juve, the city engineer in Torrington, says he was surprised when he first heard Million’s presentation. That was several years ago. Million was predicting he would break ground in two years and begin operations within four years. “I almost laughed out loud in the middle of a public meeting, because it’s just not going to happen,” says Juve.

Million credentialed himself at the outset with an illustrious team of advisors from both Colorado and Wyoming, including former Wyoming State Engineer Jeff Fassett.

Still, his project has lurched. Federal environmental review was triggered by many laws. The agencies settled on the Army Corps of Engineers to take the lead, and Million says he was told the review could be completed in 33 months.

But in July, the Corps suspended review. The Million Resource Group, it said in a public notice, had changed the primary purpose of the project from water supply to electrical power generation. Million said he thought he could get a more rapid federal review from another agency, the Federal Energy Regulatory Commission, which has jurisdiction over hydroelectric production (Click here to read about the pipeline permit process.)

In his new plans, Million proposes to harness the power of falling water in the 3,000-foot drop from Tie Siding to Fort Collins. Creating a pumped-storage component would provide backup value for wind and solar generation, he says. Million estimates 70 megawatts of power production capability, conceivably expanded up to 1,000 megawatts. However, it would still use at least twice as much energy as it produces, according to an analysis for Western Resource Advocates by economist George Oamek.

But Million’s greatest vulnerability may be absence of a clear use for Flaming Gorge water. Federal analysts have to see clear evidence of use in order to consider a possible permit to divert the water. Million says he can deliver “firm, good, quality water in Colorado that can be reused to extinction” for $16,000 to $18,000 per acre-foot. By his calculation, the Prairie Waters reuse project cost $75,000 per acre-foot.

His buyers? “We have commitments. That’s all I will say about it,” says Million.

Daniel F. Luecke, a consultant allied with environmental groups, scoffs. “They are as mushy and soft as they can be,” he says of the “commitment” letters he examined. Many are from irrigators. “They couldn’t pay for the water at the rates he needs to charge if they were growing poppies like the ones they have in Afghanistan,” said Luecke, alluding to the heroin trade.

Beware of friends

But from the outset, Million’s greatest vulnerability was his seeming allies. After all, the Colorado Constitution bans speculative filing of water rights. There must be committed buyers and users. What’s to stop a city from doing the project itself? And the South Metro area – the primary target for all the home-run swings since the 1980s – is seeking to do exactly that.

Castle Rock, CO in Douglas County. From 1980 to 2010, population of Douglas County increased more than 10-fold. Castle Rock is one of a number of Colorado communities seeking new sources of water. (Photo by Allen Best — click to enlarge)

Located in the uplands between Denver and Colorado Springs, these South Metro communities have new-car smell. Flanked by forests of ponderosa pine, they are notably well-educated, unflinchingly Republican, and extremely affluent. Largest and best known is Douglas County, which includes Castle Rock, Parker, and a variety of unincorporated communities. As of 2008, it had the eighth highest median household income in the nation. From 1980 to 2010, population of Douglas County increased more than 10-fold, to 285,000 people.

All they lack is water. Only a few small creeks exist. They’re premised on wells that suck up water left during the ice ages. But all experts warn that the well drafts are unsustainable. Pumping is becoming increasingly expensive, and new wells even now are being drilled to supplement failing ones. Even with this knowledge, some communities expect to double in size. This is the core area for what a 2008 state report predicted would be a “demand gap” of 538,000 acre-feet to 630,000 acre-feet in Colorado by 2040.

The coalition of South Metro water providers is represented by Frank Jaeger, the long-tenured director of Parker Water and Sanitation District. He began visiting Wyoming communities in 2008, describing a slow, deliberative and inclusive process. He should know about slow. Jaeger has often pointed out that soon after joining Parker in 1981, he started plotting a small reservoir needed to begin weaning Parker from its well-water dependency. That reservoir, Rueter-Hess, was finally completed in September.

Jaeger told a group in Cheyenne in 2009 that he prefers Green River water because it’s clean, little adulterated by sediments and impurities. Parker has bought farms in far northeastern Colorado, near Sterling. But Jaeger says he doesn’t want to use twice- or thrice-used water from the South Platte River, because it’s so costly to clean using reverse-osmosis technology.

Despite Jaeger’s preference for virgin water, Parker and other South Metro communities are negotiating with Denver to use Denver’s recycled water using Aurora’s Prairie Waters infrastructure. If the deal goes through, that buys Parker and other communities time. But Jaeger, and other water managers, said they never quit looking for water.

“This project is in its infancy,” Jaeger said of the South Metro pipeline proposal when he testified to the Colorado Legislature’s Interim Water Resources Review Committee in September. The project figures to draw 140,000 acre-feet, enough to drop Flaming Gorge by no more than six inches, he said.

A water diversion in Wyoming that primarily benefits Colorado has been a tough sell, he conceded. “I won’t say I’ve made friends…. At least they understand the problem.” And that problem, he went on to say, is that “there’s no way of getting out of this without getting more water to the Front Range of Colorado. Without that we’re just whistling in the dark.”

Jaeger’s South Metro’s more patient, methodical approach has drawn in several Wyoming local governments into his Colorado/Wyoming Coalition, including. Torrington. “That 25- to 35-year timeline is something we can live with, and it will probably take that long to get it done,” says Jule, of a Green River pipeline.

Million concedes “surprise” that Jaeger’s group chose not to collaborate with him. “Other than that, I can saddle my own horse,” he says.

Cost and risk

Two key criticisms have been directed at both pipelines. One is purely financial. Boiling the numbers, the consultant to Western Resource Advocates estimated a start-up cost of $4,700 per acre-foot for Million’s private-enterprise venture, or $2,800 for a diversion of a comparable size built by a public entity, presumably Jaeger’s group.

Costs for both private and public ventures would drop over time as new subscribers are added, but would remain “significantly more expensive than the cost of new supplies currently considered by Front Range water suppliers and users,” the report says.

The Continental divide in Wyoming. Any potential pipeline bringing water from Flaming Gorge Reservoir to Front Range cities will have to cross the divide. Critics of Million's proposal say the project isn't fiscally feasible without help from state and federal governments, but Million contends otherwise. (Photo by Allen Best — click to enlarge)

Western Resource Advocates insists that even Jaeger’s group would have a hard time financing such a big project without help from state and federal governments.

Million disputes the analysis, citing an estimated pipeline cost of $2.8 to $3 billion by two major national pipeline contractors. He also contends that the private sector can get things done for 30 to 50 percent less than a public entity. Jaeger’s group did not respond directly.

Eric Kuhn remains skeptical of the pipelines. He manages the Colorado River Water Conservation District, which encompasses most of the state’s Western Slope. If the goal is to save agriculture, it’s a very impractical way of doing it, he says. He sees the pipelines as expensive to construct and operate, but also expensive to get permitted – with no assurances of getting a permit. Ultimately, city councils will see transfers of existing agriculture supplies as less risky. “I don’t see this as a panacea for anything – except maybe for the consultants who get to work on it and analyze it,” he says.

And again, the final question is whether sufficient water is available now – let alone in the future. Recent statistical downscaling of computer models by the Bureau of Reclamation suggests global warming may reduce the Colorado River Basin water flows 9 percent by mid-century. Just a Lower Basin problem? No, it’s more complicated. The 1922 compact, which assumed the presence of more water than has existed in most decades since then, puts an onus on the upper-basin states to release water downstream to meet entitlements of Arizona, Nevada and Colorado. It’s possible Colorado, Wyoming and other upper-basin states, might have to curtail uses of water rights filed since 1922. Colorado and Wyoming have started thinking carefully about how best to respond.

Risk is the key issue, says Luecke, the environmental consultant who was a key figure in building opposition to another of the Denver area’s failed home-run pitches, Two Forks Dam, an attempt to build a large reservoir on South Platte headwaters. The Environmental Protection Agency vetoed that proposal in 1991 due to concern about fisheries at the dam site and endangered species in Nebraska.

“I am not a great believer in these regional hydrological models about what will happen in the Colorado River 50 years from now. We don’t know what lies ahead, but it’s not what we had in the past,” he says.

“When you’re faced with those circumstances, you don’t put all your eggs in one basket. If there’s one message that climate scientists are delivering to us, if it is of portfolio approach. You hedge your bets in a number of smaller options as opposed to buying any one particular option.”

He and other environmentalists have long advocated smaller steps that use existing resources, including more efficient use of existing municipal supplies and innovative strategies to exploit water used for agriculture. Some 85 to 90 percent of existing water is used by agriculture, and about three-quarters of that specifically for livestock, mostly cattle.

Luecke’s predictions? “Aaron Million absolutely will not get a permit, and the chances of the South Metro group (Jaeger) getting something built are vanishingly small.”

Infield bunts

Water politics in Colorado and in western Wyoming  have long been driven by this one, nagging fear: that California was getting something to which it was not entitled – and might get accustomed to it. Squatter rights, if you will, bolstered by a huge population advantage. Million still plays that card. “If the water users of Wyoming decide they don’t want to access their water, then that’s their decision – and California, Arizona and Nevada will continue to benefit,” he says.

Stacy Tellinghuisen, water and energy analyst for Western Resource Advocates, says she believes proposals for pipelines at Flaming Gorge, Lake Powell and Las Vegas are all driven by a new realization of limits. “The thinking is that if we develop this now, if there is a shortage in the future, we will still have this water,” she says.

The Green River in Colorado. The state and Wyoming are gearing for a water politics battle with neighboring states, driven by a realization of future shortages. (Photo by Allen Best — click to enlarge)

There’s some evidence to support that. After all, the Bureau of Reclamation is only now modeling Flaming Gorge water availability because Utah and Million had pushed the question. “Prior to this, people didn’t really ask the question,” says the agency’s Wilson.

And seeing the bottom of the pail does force a different, and perhaps harder, thought process than when the pail was full. Environmentalists in recent decades have created a compelling case for a more sophisticated game strategy than the home-run swings of expensive infrastructure. Instead, they argue for more extensive changes in landscaping requirements and water conservation management, which might be the equivalent of a bunt to advance a runner. Colorado cities have invested in that; and California, too, has taken on elaborate conservation management to stay within its Colorado River Compact allotment. The question is whether they have done enough.

That’s not to dishonor Don Quixote figures like Million and Jaeger. The history of the West honors visionaries. Among those visionaries were Denver’s early architects, who foresaw need for water and in 1909 dispatched a reconnaissance team to Summit County, around Breckenridge, to scout future water diversion projects from Colorado’s Western Slope. That early vision became Dillon Reservoir in 1963, the metro area’s savior in the drought of 2002. But that was Denver, not an individual. If Million or Jaeger are going to hit a home run, they’re probably going to have to form strong alliances with sturdy organizations, perhaps Denver Water. If this is indeed Colorado’s last gulp out of the Colorado River, you can be sure there will be a fight in Colorado. And, as the polls suggest, in Wyoming, too.

Allen Best is a long-time journalist based in Colorado. He can be found at http://mountaintownnews.net.

(Banner photo by Paul Jonusaitis)

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Aaron Million had a stuttered process with the U.S. Army Corp of Engineers. Will he get the rapid review that he has predicted at the Federal Energy Regulatory Commission (FERC)?

Related Story: Million pipeline proposal may be on the rocks, but the thirst for Green River water is unquenched

Not likely, says Matt Rice, director of Colorado conservation for American Rivers, a non-governmental organization.

“(Million) has been suggesting that he could get this project done in a significantly shorter amount of time (through FERC). My first reaction is this: He’s totally forgetting about the federal hydropower licensing requirements under the Federal Power Act. The process can be incredibly complex, especially for a project of this size, geographic scope and complexity.”

Based on his experience working on hydropower projects seeking permits in South Carolina and Alabama, Rice expects a process that lasts at least a decade. “I wouldn’t be surprised if this project took at least 10 years…and more like 12 to 15 years,” he says. “Augusta, Ga., just got a license for a small project, and that process took more than 30 years.”

And before a permit is awarded by FERC, it must also get review under the applicable environmental laws – possibly including the Clean Water Act, which is what had triggered the original review by the Army Corps.

Million needed a section 404 dredge-and-fill permit under the provisions of that law because of proposed use of fill at Flaming Gorge Reservoir for his proposed take-out structure and possibly at other wetlands locations along the pipeline route.

A spokeswoman for the Army Corps describes a process that was delayed because of Million’s foot-dragging. “It had to do with the many delays and the applicant continuing to ask for more extensions and more time,” says regulatory specialist Rena Brand. “Toward the end of July, his group explained that they were thinking about moving to energy production.” And that, she said, meant a new purpose and need.

Precise identification of purpose and need are needed for all reviews under the Clean Water Act as well as those under the National Environmental Policy Act. After being informed of the requirement in July 2009, Million delivered a list of 18 water users in January 2010, half of them agriculture groups and half municipalities. The Corps set out to verify the water needs claimed by the entities, including uses and conservation plans, according to Brand.

Then, in May 2010 Million requested a pause in the Corps’ environmental impact statement review. He did not say why, according to Brand. Later, he requested another extension. That’s when the Army Corps began evaluating whether to continue its review of the application. On July 22, the agency announced it was ending the process.

In going to FERC, Million joins a similar proposal to construct a 100-mile pipeline to water from Lake Powell to St. George, Utah. “That concerns American Rivers,” say Rice. “We are seeing these water projects sort of disguised as power projects.” But if the intent is to dodge full-blown environmental review, it won’t work, says Rice. He says that watchdog groups such as American Rivers will closely watch the reviews to ensure compliance with both the spirit and letter of the laws.

(Banner photo by Stig Morten Waage)

For the first time ever, a Wyoming rancher has given his irrigation water right to the state to become an in-stream flow right to support fish.

To the rancher, the successful donation means keeping a water right in his community that would otherwise be lost. And to both state water officials and the Wyoming Game and Fish Department, that is a sign of Wyoming people coming around to accepting the once fiercely-fought concept of protecting water to stay flowing in-stream for fish.

Paul Hagenstein gave the state his right to divert water from Pine Creek, setting up an opportunity for state officials to create an in-stream flow for fish. (File photo — click to enlarge)

“What it shows me is this great social and cultural change that has occurred,” said a Game and Fish official who has championed in-stream flows in Wyoming for decades.

The ruling last week, by the state Board of Control, allowing the change from irrigation to in-stream flow also set precedent for exactly how such a change can take place, should other Wyoming water rights holders decide to turn over a water right to the state to become protected in-stream flow.

Wyoming water law was changed 25 years ago, after many debates, to say that water left flowing in a stream to support fish is worthy of being protected with a water right. Since then, new in-stream flow rights have been created in many locations, mostly on high Wyoming mountain streams.

Until now, however, no one has done what the 1986 law also allowed – taking an old private irrigation water right among settled ranch and farm lands and allowing it to change into a state-owned in-stream flow right to keep that water in a stream for fish.

Wyoming’s first conversion of a private irrigation water right to a state-owned in-stream water right could keep more water flowing through a section of Pine Creek through Pinedale.

Paul Hagenstein, a life-long irrigator on Pine Creek, ten years ago vociferously opposed proposals to create protected in-stream flows in that creek.

But Hagenstein has now given to the state one of his rights to divert water from Pine Creek, in order that the water can stay in the creek, legally protected from diversion. The amount of water now protected to stay in the creek would be enough to irrigate about 45 acres.

Because of a water rights swap which gave him more senior, valuable water rights, Hagenstein now can’t use the water right in question, and his neighbors don’t have an on-ground use for it either, he said.

So he ended up with the idea of giving the right to the state. Turning this irrigation diversion right into an in-stream flow right will keep that water in the community, he said in an interview last year with WyoFile, as his proposal got underway. “Though it’s a 1949 right, it’s good… Unless there’s a complete drought, it always has been filled.” And so his gift now means that in many years that water can be flowing in-stream in the Pinedale area for fish.

“We had a hearing, and there were no protestors,” Jade Henderson, the state’s superintendent of water rights in Wyoming’s southwest quarter, last week told the state Board of Control, which oversees water rights. “The public seems to have come around, over the years, to the value of an in-stream flow in Pine Creek, and they have stopped protesting.”

Tom Annear of the Wyoming Game and Fish Department said, “What it shows me is this great social and cultural change that has occurred.” Annear has for decades led the work of the Game and Fish Department to see more stretches of Wyoming streams with water flows that are legally protected from diversion.

“I went from people calling me all kinds of names… to now they say, ‘Hi Tom’… From getting death threats to, now, I can’t get any attention,” Annear said with a smile. “It’s like with every new idea – first nobody takes it seriously, they laugh at you; then they vilify you and want to kill you; and then, it’s common sense.”

Turning an irrigation right into an in-stream flow right means other water users can’t take it out of the stream in a defined, protected stretch – and the state of Wyoming could if necessary restrict some others’ uses to keep that water in the stream.

In-stream flows have been “cussed and discussed” in Wyoming since at least the 1960s, when a group of citizens requested creation of a right to protect flows to be kept in the Green River, and State Engineer Floyd Bishop ruled that creation of such a valuable new kind of right was a matter for the Wyoming Legislature to decide. Years of reports and debate followed, ending in a heated drive for citizen signatures on a petition to get in-stream flow legislation on the ballot for statewide voter decision. That effort finally pushed a reluctant Wyoming Legislature to enact an in-stream flow law in 1986, in order to forestall the citizen-drafted measure from reaching the ballot box.

The law the legislature put on the books includes elaborate restrictions to ensure that the keeping of water in-stream, now recognized officially as a “beneficial use” of Wyoming water – the fundamental characteristic required for a water right – would be to protect only the minimum amount of water fish required, would be provided only from reservoirs whenever feasible, and would not increase the amounts of water flowing to downstream states. Public hearings are also required to vet proposals for in-stream flow rights.

In initial years after the law was enacted, the Wyoming Game and Fish Department chose to seek modern-day rights on high mountain streams. Permits for over 80 such rights have been granted.

Pine Creek's in-stream flows have been a source of contention for Pinedale residents along the river for years, but Paul Hagenstein’s decision to give his right for it sets a new precedent in the debate. (Photo by Scott Almdale — click to enlarge)

Those rights with a modern date were “junior,” or inferior, to historic rights further downstream, rights which might date to 1890, or earlier. But the modern-date in-stream flow rights the department sought do protect the mountain streams from any new proposal to divert water high upstream. Seeking rights there avoided conflict and protests from the users of the irrigation, municipal or industrial rights downstream.

In recent years the Game and Fish Department has transferred some unneeded fish hatchery water rights to in-stream flows. The state has also acquired some rights to reservoir water once dedicated to agriculture but now to be sent downstream to keep water flowing for fish.

On Pine Creek itself, the state holds both a 2002 right to protect some natural flows, and a right to stored water that can be released to support Pine Creek flows for fish. Following the 1986 law, however, the State Engineer has allowed only a certain total amount of water to be protected in the creek to meet minimum fish needs.

The prospect of in-stream flow rights in Pine Creek originally caused divisive arguments in Pinedale, and Hagenstein was among the irrigators who opposed the idea. Since in-stream flow rights were approved on Pine Creek some ten years ago, however, a group representing all water users in Pine Creek – irrigators, the town of Pinedale, and the state’s in-stream flow – have met each year to decide how to best manage their varying water supply. The resulting success in distributing whatever water there was to serve all users fairly seems to have calmed earlier fears that an in-stream flow right could restrict irrigators’ water supply, state officials say.

Until now, no one has wanted to transfer their rights to the state, and have those rights changed into in-stream flow rights, even though the 1986 law allows it. Most water rights holders want to keep water rights because of their value. The town of Pinedale, for instance, at one point wanted some of its stored water to be used in Pine Creek for in-stream flow – but was not willing to transfer permanently to the state the rights to that water. So that in-stream flow move never happened.

A well-known water lawyer in southeast Wyoming, Harriet Hageman, told a Casper audience last spring that even the Game and Fish Department itself has not transferred irrigation water rights the department owns to become in-stream flow rights. The reason, she says, is one most water rights holders share: “They didn’t want to give up their water rights.”

Hagenstein’s decision to give his water right for in-stream flow is precedent-setting in several ways, but it doesn’t mean that arguments over in-stream flow are over.

Attorney Hageman, in her talk in Casper, restated a long-held concern about in-stream flows, according to a Wyoming Livestock Roundup report on her talk. Keeping water in-stream means it by-passes a very efficient irrigation system in which water is used and re-used as irrigators put it on land, and water returns back to the streams for another irrigator to use, she said.

“People have to understand the consequences. It’s not as simple as saying we’re going to go out and protect fisheries – it actually affects the entire irrigation system,” Hageman said.

Hagenstein is known locally as a very careful and successful irrigator, who has also worked to create wetland habitat on his land in a former gravel pit. His gift to the state of an irrigation water right does not mean he is giving up production on his irrigated lands.

Rather, his donation to the state is part of an elaborate package of water right changes that allows Hagenstein to end up with a more valuable, earlier priority-date water right officially attached to his lands than he had before. On his key lands he now has 1901 water rights – especially valuable because they pre-date the Colorado River Compact, and thus are protected from potential demands from downstream states.

The lands the 1901 right once irrigated were recently turned into a subdivision by one of Hagenstein’s neighbors. The water right, however, was kept valid for a limited time to allow possible transfer to other lands – like Hagenstein’s fields. The state Board of Control, which governs changes in Wyoming water rights, some years ago designed that process in order to preserve, if possible, the water rights that are no longer going to be used because of subdivision construction on formerly irrigated lands.

Once the 1901 right was transferred to Hagenstein’s lands, he didn’t need a 1949 right he had.

That 1949-date water right is post-Colorado River Compact, and so less valuable. Still, it is able to cover water on Pine Creek in all but the worst drought years, Hagenstein said. He prefers the 1901 rights he now has, of course, but he didn’t want the 1949 rights to disappear, no longer used for anything.

Discussing his plan a year ago, Hagenstein said that among his neighbors, “no one else could use it… I’ve been trying to find a way so it’s not abandoned.”

With other options a dead end, he decided to give the 1949 right to the state. The state’s in-stream flow law requires all in-stream flow rights to be held by the Wyoming Water Development Commission in the name of the state.

After a public hearing in Pinedale, the Board of Control ruled that the right to protect Pine Creek's in-stream flow is limited to the irrigation season in Pinedale, when the water was once diverted. (Photo by Scott Almdale — click to enlarge)

“I wouldn’t give it to Game and Fish,” Hagenstein said last fall. “It has to belong to the state of Wyoming.

Henderson, superintendent of Wyoming Water Division IV which includes Pinedale and the Green River Basin, is one of five members of the Board of Control, which consists of the superintendents of the state’s four major river basins plus the State Engineer. Henderson urged the board to approve the new in-stream flow right.

“If we go back to Hagenstein’s original ambition in this, it was not only to protect the pre-compact (1901) right of irrigation, but also the post-compact 1949 right – ‘Let’s protect it, keep it in the community, keep it on the books rather than let it go unused, surrendered to a subdivision,’” Henderson said. “Which I think is a decent argument, within an area where there are no protests.”

The process gone through by the Board of Control laid down the process for any future changes of irrigation rights to in-stream flow rights.

Henderson held a public hearing in Pinedale on the proposal. The board examined in recent meetings whether the 1949-date water had actually been used in the past for its original purpose of irrigation – a standard requirement for water rights being changed to new uses.

The board decided that all the water that had been diverted for irrigation could be converted to in-stream flow, without a deduction for water that probably returned to the stream after a crop consumed only part of the water. Irrigation rights converted to other on-land uses (for industry or municipalities, for instance) typically are subject to such a deduction to make up for the fact that the new use may consume much more of the water diverted. In a conversion to in-stream flows, however, that is not necessary since the new use consumes none of the water, the Board of Control decided.

The right to protect the water in-stream is limited to the irrigation season in Pinedale, when the water was once diverted, the board ruled. It can only be used to support – not add to – the total water amount the Game and Fish has shown, for its other rights on Pine Creek, is needed for minimal support for the fish, the board ruled.

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Reprinted with permission from ProPublica. Not for republication by Wyoming media.

As the country awaits results from a nationwide safety study on the natural gas drilling process of fracking, a separate government investigation into contamination in a place where residents have long complained that drilling fouled their water has turned up alarming levels of underground pollution.

A pair of environmental monitoring wells drilled deep into an aquifer in Pavillion, Wyo., contain high levels of cancer-causing compounds and at least one chemical commonly used in hydraulic fracturing, according to new water test results released yesterday by the Environmental Protection Agency.

The findings are consistent with water samples the EPA has collected from at least 42 homes in the area since 2008, when ProPublica began reporting on foul water and health concerns in Pavillion and the agency started investigating reports of contamination there.

Last year — after warning residents not to drink or cook with the water and to ventilate their homes when they showered — the EPA drilled the monitoring wells to get a more precise picture of the extent of the contamination.

The Pavillion area has been drilled extensively for natural gas over the last two decades and is home to hundreds of gas wells. Residents have alleged for nearly a decade that the drilling — and hydraulic fracturing in particular — has caused their water to turn black and smell like gasoline. Some residents say they suffer neurological impairment, loss of smell, and nerve pain they associate with exposure to pollutants.

The gas industry — led by the Canadian company EnCana, which owns the wells in Pavillion — has denied that its activities are responsible for the contamination. EnCana has, however, supplied drinking water to residents.

The information released yesterday by the EPA was limited to raw sampling data: The agency did not interpret the findings or make any attempt to identify the source of the pollution. From the start of its investigation, the EPA has been careful to consider all possible causes of the contamination and to distance its inquiry from the controversy around hydraulic fracturing.

Still, the chemical compounds the EPA detected are consistent with those produced from drilling processes, including one — a solvent called 2-Butoxyethanol (2-BE) — widely used in the process of hydraulic fracturing. The agency said it had not found contaminants such as nitrates and fertilizers that would have signaled that agricultural activities were to blame.

The wells also contained benzene at 50 times the level that is considered safe for people, as well as phenols — another dangerous human carcinogen — acetone, toluene, naphthalene and traces of diesel fuel.

The EPA said the water samples were saturated with methane gas that matched the deep layers of natural gas being drilled for energy. The gas did not match the shallower methane that the gas industry says is naturally occurring in water, a signal that the contamination was related to drilling and was less likely to have come from drilling waste spilled above ground.

EnCana has recently agreed to sell its wells in the Pavillion area to Texas-based oil and gas company Legacy Reserves for a reported $45 million, but has pledged to continue to cooperate with the EPA’s investigation. EnCana bought many of the wells in 2004, after the first problems with groundwater contamination had been reported.

The EPA’s research in Wyoming is separate from the agency’s ongoing national study of hydraulic fracturing’s effect on water supplies, and is being funded through the Superfund cleanup program.

The EPA says it will release a lengthy draft of the Pavillion findings, including a detailed interpretation of them, later this month.

Reprinted with permission from Environment & Energy Publishing, LLC. Not for republication by Wyoming media.

A new study suggests that intense oil and natural gas drilling on federal land is wiping out sensitive species of sparrows in southwest Wyoming, prompting environmental advocates to demand the Bureau of Land Management rein in high-density drilling projects.

The study, conducted by researchers at the University of Wyoming and published recently in the peer-reviewed Journal of Wildlife Management, concludes that populations of Brewer’s sparrows, sage sparrows and vesper sparrows drop as the number of oil and gas drilling well pads per square mile increases.

The study analyzed sparrow populations in the Upper Green River Basin’s booming Pinedale Anticline and Jonah Infill natural gas fields, as well as the Big Piney-LaBarge oil field. Researchers concluded that “increased well density was associated with significant decreases in Brewer’s sparrow and sage sparrow abundance, particularly in the Jonah natural gas field.”

The study suggests that limiting the number of well pads per square mile could help offset these declines, and that failure to do so “will further exacerbate regional declines of sagebrush songbirds,” according to the eight-page study.

Anna Chalfoun, a study co-author and research scientist at the University of Wyoming’s Cooperative Fish and Wildlife Research Unit, said in a statement that the results hint at a direct correlation between the number of wells per square mile and sparrow counts.

Chalfoun also noted that while much research has focused on drilling’s impacts to greater sage grouse and big-game species like mule deer and Rocky Mountain elk, very little attention has been paid to drilling’s impacts on smaller species that also depend on the region’s dwindling sagebrush steppe habitat for survival.

While conceding that oil and gas drilling activity is not the sole factor influencing songbird population declines, Chalfoun said researchers are still investigating whether increased human activity, including at drill sites, has attracted sparrow predators such as ravens.

Nevertheless, the study comes as federal regulators are reviewing proposals to dramatically expand natural gas drilling activity in the region, including a proposal by Calgary, Alberta-based Encana Oil & Gas USA to drill as many as 3,500 gas wells on nearly 141,000 acres of land managed by BLM in Sublette County.

If approved, the Encana proposal, called the “Normally Pressurized Lance” project, would be among the nation’s largest natural gas fields, producing trillions of cubic feet of gas over 50 years and essentially quadrupling the size of the Jonah Infill and more than doubling the 1,200 wells in place there today (Land Letter, May 12).

Nothing ‘new or surprising’

Dennis Saville, a BLM wildlife biologist in Cheyenne, Wyo., downplayed the study’s findings, noting that the research does not “present any new or surprising information” and fails to address broader issues facing sparrow populations.

“We know that active energy development areas are not going to be attractive areas for nesting migratory birds and some level of avoidance would be expected,” Saville said in an emailed response to questions.

“However,” he added, “the study does not explain regional declines for these species. There are literally millions of acres [of] non-impacted sagebrush habitats still present in Wyoming, but the declines in these birds has occurred across the entire region.”

Saville defended BLM’s management of the large drilling projects in the Upper Green River Basin, noting that the agency requires directional drilling in many areas of the Pinedale Anticline area as well as places seasonal restrictions on drilling activity to protect a number of sensitive species.

Saville also said that part of BLM’s National Greater Sage Grouse Planning Strategy unveiled in July includes amending more than 70 resource management plans across the bird’s 11-state range to include strategies designed to protect the grouse and also its dwindling sagebrush steppe habitat.

That, in turn, “will also conserve sagebrush habitats for many other species including these sagebrush dependent migratory birds included in this study,” Saville said.

Need for action?

But some environmentalists say the study’s conclusions are troubling and warrant immediate action.

Erik Molvar, a wildlife biologist with the Biological Conservation Alliance in Laramie, Wyo., said BLM has unnecessarily allowed intense drilling activity in sparrow habitat even as it identifies the birds as “sensitive species” that must be taken into account when permitting new projects.

Molvar said BLM has permitted projects that allow as many as 64 well pads per square mile in the Jonah Infill, where the latest study suggests that Brewer’s sparrow and sage sparrow populations have been hit hardest.

“This study underscores the need for the BLM to require directional drilling to reduce the footprint of oil and gas development so that dozens of wells are drilled directionally from each well pad and well-site densities are less than one pad per square mile,” he said.

With advances in directional drilling technology, “There’s really no excuse for having a well density of more than one well pad per square mile,” Molvar added.

But Cheryl Sorenson, vice president of the Petroleum Association of Wyoming, said directional drilling is not a viable option at all drilling sites that contain sparrow habitat. “Directional drilling is not always feasible in all areas, not only economically, but practically,” she said.

She added that oil and natural gas drilling operators are conscientious about environmental issues, including “sensitive species that need to be protected in the state of Wyoming.”

Click here to read the study.

Streater writes from Colorado Springs, Colo.

(Banner photo taken by Bill Bouton)

Reprinted with permission from Environment & Energy Publishing, LLC. Not for republication by Wyoming media.

The Interior Department over the next six months plans to remove more than 6,000 horses from federal lands and administer birth control to roughly 2,000 more in an effort to protect rangelands and reduce future herd growth.

The plan, which drew immediate criticism from horse advocates who argue the gathers are costly and inhumane, is required by law to balance herds with their habitat, the Bureau of Land Management said.

The gathers will emphasize the use of birth control to reduce the need for future removals, which saddle the agency with the long-term costs of caring for the horses in corrals.

Techniques will include injecting mares with the fertility vaccine PZP before the spring birthing season, increasing the male-to-female ratios of some herds and gelding some studs to prevent them from impregnating mares.

Fertility control is the cornerstone of BLM’s long-term plan to rein in costs, Dean Bolstad, the agency’s Nevada-based deputy division chief of wild horses, said last month.

“We clearly must change from our old mode of doing business, which was gather and remove,” Bolstad said. “It calls attention to the importance of controlling population growth. That’s the heart and core of this issue. … We have to do it, it has to be effective and we have to do more of it.”

The agency estimated that about 38,500 wild horses and burros — about 33,000 horses and 5,500 burros — roam BLM lands in 10 Western states, but that the range can support about 26,600. The population was last surveyed in February.

The tentative schedule calls for 16 gathers in Arizona, California, Nevada, Utah and Wyoming. The agency removed about 8,400 horses and burros from the wild in fiscal 2011.

A recent decline in adoptions suggests many, if not most, of the next 6,338 horses to be removed will need to be placed in short- and long-term corrals, which eat up more than half the agency’s wild horse budget.

The agency said it will allow the public and media to observe the gathers in areas it deems safe for both viewers and animals. It also pledged to end helicopter-driven gathers by Feb. 28, roughly a month before normal foaling season.

The plan drew fire from the American Wild Horse Preservation Campaign, a coalition of 40 groups that is calling for a halt to roundups and for BLM to allow more horses on the range.

“The BLM is misleading Congress and the public when it claims that it is reforming, because the agency continues to clear the land of mustangs to make room for commercial livestock grazing,” said the coalition’s Suzanne Roy.

The agency plan allows the removal of far more horses than the public is able to adopt and will result in higher long-term holding costs, Roy said. BLM last month said it was on track for about 3,000 adoptions in the fiscal year that ended in September. Future adoption numbers depend largely on the health of the economy.

“This mismanaged federal program is bankrupting American taxpayers and devastating our remaining wild horse herds,” Roy said.

A BLM spokesman was not available to respond this morning, as federal offices were closed for Columbus Day.

The agency said the 1971 Wild Free-Roaming Horses and Burros Act requires the agency to “immediately remove excess animals from the range so as to achieve appropriate management levels” as soon as it determines the animals have overpopulated a certain area. Herds have few natural predators and can double every four years, the agency has argued.

In addition, the agency in the past has faced lawsuits when wild horses have wandered off public lands and onto neighboring private lands (Land Letter, Aug. 11).

But wild horse advocates have long questioned the methodology behind BLM’s determination of “appropriate management levels,” as well as its tally of wild horses currently on the range.

While a recent Government Accountability Office report suggested BLM was likely undercounting, the agency has commissioned a two-year National Academy of Sciences study to explore both issues, among several others.

Reprinted with permission from Environment & Energy Publishing, LLC. Not for republication by Wyoming media.

Summer temperatures in Yellowstone National Park could rise by as much as 9.7 degrees Fahrenheit by the end of the century if global emissions of greenhouse gases are not restrained, according to a new report from a pair of environmental groups.

The changes could dramatically affect fish, wildlife and visitors to the Greater Yellowstone region, which includes Grand Teton National Park and parts of six national forests in Wyoming, Montana and Idaho, the report warns.

Warmer temperatures could further imperil the whitebark pine, a key high-elevation food source for grizzlies that is already threatened by mountain pine beetles, says the report by the Rocky Mountain Climate Organization and Greater Yellowstone Coalition.

The region can also expect a major reduction in native cutthroat trout as well as wolverines, lynx and other wildlife, it says.

Warmer temperatures have already affected the melting of spring snowpacks, which feed rivers and aquifers that sustain wildlife and downstream communities. Warmer temperatures could exacerbate that trend, the report says.

“Threads are already being pulled out of the glorious tapestry that is Greater Yellowstone,” said Stephen Saunders, president of RMCO and an Interior deputy assistant secretary under President Clinton.

The report found that temperatures in the Yellowstone region over the past decade were the hottest on record and were 1.4 degrees above the region’s 20th-century average. Globally, temperatures over the past decade have been 1 degree above the 20th-century average, the report says.

The temperature data were drawn from the government-run U.S. Historical Climatology Network using five regional weather stations. The most surprising news, Saunders said, is that Yellowstone has gotten hotter faster than other parts of the world.

But he cautioned that future climate projections are subject to change. “I’m sure there will be surprises and changes we don’t anticipate,” he said.

The report projects average summer temperatures rising 4.7 degrees by 2059 and 9.7 degrees by the end of the century under “medium-high future emissions,” which correspond to the Intergovernmental Panel on Climate Change’s “A2″ scenario of atmospheric carbon concentrations of about 2.5 times today’s levels.

The “lower future emissions” scenario, which corresponds to a 40 percent increase in carbon pollution by century’s end, would result in a 5.6-degree temperature hike by 2100, the report says.

Both scenarios assume no new government policies will be passed to reduce greenhouse gas pollution. Such moves could further reduce the rate of temperature increase, Saunders said.

Scott Christensen, climate change program director for the Bozeman, Mont.-based GYC, recommended several steps that federal land managers can take to gird ecosystems for the impacts of warmer climates, including reducing existing stressors to species and habitats. Steps could include restoring cutthroat trout in Yellowstone Lake by removing non-native lake trout, he said.

In addition, the group recommended enhancing water quantity and quality, preserving migration corridors for wildlife, improving forecasts of future climate events and managing collaboratively at an ecosystem level with all landowners and jurisdictions.

Click here to read the report.

Banner image taken by Koen Blanquart.