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

U.S. EPA has determined that southwest Wyoming’s Upper Green River Basin no longer meets federal ground-level ozone pollution standards, a conclusion that could significantly affect two of the nation’s largest oil and natural gas fields.

Industry and state leaders were not surprised when EPA Administrator Lisa Jackson submitted a letter to Gov. Matt Mead (R) last week notifying him that the region does not meet the ozone standard.

The Upper Green River Basin, which is home to the Jonah Infill and Pinedale Anticline oil and natural gas fields, has struggled the past four years with a wintertime ozone problem that is marked by stagnant air that allows pollution emitted mostly by drilling operations to collect in the lower atmosphere and then be converted into ozone by sunlight and heat reflecting off snowpack on the ground.

Last year, EPA monitors registered 13 days from January to March when ozone levels in the basin exceeded the health-based standard of 75 parts per billion averaged over an eight-hour period. That included a March 2 ozone reading of 124 ppb — higher than the worst ozone levels recorded last year in Los Angeles.

EPA’s “nonattainment” determination is based on three years of ozone readings in the basin from 2008 to 2011. The average fourth-highest annual reading over the three-year period was 78 ppb.

“Encana is going to continue to do whatever we can to reduce emission in all forms, and our goal is to continue down the path of trying to attain a near-zero-emissions operation,” said Randy Teeuwen, a community relations adviser for Calgary, Alberta-based Encana Oil and Gas USA — the largest operator in the Jonah Infill with 1,300 natural gas wells. “We don’t want any emissions, so we’ll continue on as we have. And I think we’ve been a leader in that regard as far as working with the state and other operators, the EPA and the community in order to accomplish that goal.”

But the nonattainment notice could affect future development in the Pinedale Anticline and Jonah Infill.

Thousands of new natural gas wells have been proposed for the region, including a proposal by Encana to drill as many as 3,500 natural gas wells on nearly 141,000 acres of land managed by the Bureau of Land Management in Sublette County.

If approved, the Encana proposal, called the Normally Pressurized Lance (NPL) 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 1,300 wells in place there today.

BLM is evaluating the proposal, and a draft environmental impact statement could be issued by the end of the year, Teeuwen said.

Teeuwen said Encana is committed to a number of steps to ensure the NPL project does not degrade air quality in the region. Among them, the company would install a closed-loop piping system that would allow all its gas production to be piped directly to a processing plant where the gas is separated from the water and oil. And all the equipment would run on electricity, so there would be few if any direct emissions, he said.

In addition, Encana officials say that by the time the company begins installing the estimated 350 wells a year called for in the NPL project, drilling in the broader Jonah field will be winding down, leading to overall lower emissions.

“Our expected emissions footprint will be far below our current emissions in Jonah,” he said.

Ongoing concern

The Upper Green River Basin designation was one of more than 40 ozone nonattainment designations nationwide announced last week under ozone standards established under the George W. Bush administration in 2008 and finalized late last year, said Rich Mylott, an EPA spokesman in the agency’s Region 8 office in Denver.

Because EPA determined the region to be only marginally out of compliance, the state has three years to correct the problem and bring emissions below the federal threshold. EPA is expected by July to issue rules outlining steps to bring the region and others like it into compliance within three years, Mylott said.

Jackson, the EPA administrator, wrote in her April 30 nonattainment letter to Mead that the agency is trying to implement the ozone standards “using a common sense approach that protects air quality, maximizes flexibility and minimizes burden on state, tribal and local governments.”

But she also noted in her letter that nonattainment areas such as the Upper Green River Basin “need to take actions to improve ozone air quality expeditiously.”

At high concentrations, ozone can trigger asthma attacks and inflame the conditions of those with emphysema, bronchitis and other respiratory diseases.

EPA’s notice affects all of Sublette County, Wyo., and parts of two neighboring counties, Lincoln and Sweetwater, said Keith Guille, a spokesman for the Wyoming Department of Environmental Quality.

Then-Wyoming Gov. Dave Freudenthal in 2009 formally asked EPA to designate Sublette County and parts of the two neighboring counties as violating ozone health standards.

Freudenthal’s letter included an analysis from the state DEQ that concluded the region’s ozone problems were “primarily due to local emissions from oil and gas” drilling operations.

Guille said the state has been working closely with industry for years in the Upper Green River Basin. “I would say the largest source [of ozone precursors] in that area is the oil and gas industry. So we’ve worked very hard on efforts to try and reduce those emissions.”

But environmentalists who have complained for years about air quality problems in the region say it’s about time EPA stepped in and put the hammer down.

“We are happy and very glad that they’ve finally gone through with it even though they’ve done a lot of foot-dragging,” said Elaine Crumpley, a Pinedale, Wyo., resident and chairwoman of Citizens United for Responsible Energy Development. “This is a start, and at least we’re finally going in the right direction now.”

Click here to read the EPA nonattainment letter.

Streater writes from Colorado Springs, Colo.

(Banner photo by John Amos/Flickr)

Mule deer in western Wyoming migrate long distances and indulge in lengthy foraging “stopovers” between their winter and summer ranges. That may not sound like earth-shaking news, but if you want to make a western wildlife biologist’s heart race, mention this finding from Hall Sawyer’s mule deer migration studies, and the frisson of a hot breaking story – scientifically speaking – is in the air.

And when it comes to policy, it could reshape the way roads and drill-pads are placed in mammoth energy projects on public lands in the West – that’s what turns this slice of new scientific information into a more typical news story. A proposal to drill a big new natural gas field in the Wyoming Range near the headwaters of the Hoback River was held up earlier this year while the U.S. Forest Service drafts some new alternatives for the project – incorporating, among other things, Sawyer’s surprising findings about mule deer odysseys.

That has energy companies, conservation groups, and other users of public lands on alert: the decision on Bridger-Teton National Forest presents a rare opportunity to see whether strong, new scientific information about wildlife can significantly alter a major energy project on public land. For once, valuable site-specific data is in hand before decisions are made and development begins.

Crossroads at the Hoback headwaters

The project – a proposal by Plains Exploration & Production Co. (PXP) to drill 136 natural gas wells from 17 drill pads – would add to the swath of natural gas projects expanding from the enormous Jonah and Pinedale Anticline fields in Sublette County to the south. Conservation groups have targeted the PXP project for a number of reasons. It’s in the Wyoming Range, one of the few wildland areas which state politicians seem inclined to protect from development. It’s under the jurisdiction of the U.S. Forest Service, an agency viewed as friendlier to conservation than the U.S. Bureau of Land Management. It’s closer to Jackson, with its eco-friendly population, and some special conservation legal tools, including stipulations that could restrict the location of wells. Finally, opponents have some scientific ammunition, in the form of long-term studies by Hall Sawyer and others that show major impacts of energy development in western Wyoming on mule deer herds, pronghorn, sage grouse, and other species.

A Wyoming Range peak, west of Hoback River. Partly spurred by animal migration studies, the U.S. Forest Service is contemplating alternatives to a drilling proposal that would be situated near the headwaters of the river. (Bryant Olsen/Flickr — click to enlarge)

A PXP spokesman noted that the project has so far been subject to seven years of analysis of seven different alternatives. Hance Myers, vice-president and director of corporate information for PXP, said in an email response to questions that while the “analysis period (should) not be permanently open-ended,” the supplemental analysis will put the project “on even stronger footing.” And the company still believes the natural gas can be developed in “an environmentally sound manner with a minimal amount of disturbance.”

But seven years has also given the public, and the conservation community, more time to focus on a project that would drill in the headwaters area of the Hoback River, a federally designated wild and scenic river. American Rivers, a national group advocating protection and restoration of rivers, has put the Hoback on its “most endangered” list, and groups like the Citizens for the Wyoming Range and the Wyoming Outdoor Council want PXP’s 17 well pads scaled back, if not blocked altogether.

Biologists and other scientists are reluctant to weigh in publicly on large-scale public land policy decisions, where economic concerns, politics and powerful industries are often in play. They simply want to see science given its due. Sawyer’s earlier studies of mule deer declines connected to energy development in the Pinedale Anticline have not slowed the expansion of Anticline energy production; but this time, the research is in hand before drilling begins, and it shows that crucial stopover sites along several mule deer migration routes coincide with PXP’s proposed well pads. Lisa McGee, National Forests & Parks program director for the Wyoming Outdoor Council, hopes this time science might trump the industry juggernaut.

Add to this the excitement – a particular biologist-sort of excitement – generated by Sawyer’s application of the “Brownian Bridge movement model” to determine a pattern of ungulate migration that no one knew about. “It’s great and good stuff, truly important,” says an excited Gary Fralich, a Wyoming Game & Fish Department biologist who’s studying moose in the same area.

And it could, if applied to the PXP plan, radically alter a major energy development project.

‘The mule deer are dying’

I first met Hall Sawyer four years ago, when we hiked around the rough sagebrush country in the western foothills of the Wind River Mountains near Boulder, Wyoming, in Sublette County, looking for a mule deer collar with a radio transmitter that had stopped moving – in other words, a dead deer. Sawyer had begun this work as a graduate student at the University of Wyoming, and he’d been working for nearly a decade on studies of ungulate migrations, including long-term research on the Sublette mule deer unit, which happened to share some landscape with the giant natural gas discoveries of the last decade, including the Jonah and Pinedale Anticline fields.

Some environmentalists are particularly concerned about mule deer migration "stopovers" occurring along the sides of Highway 191. (USDA/Dave Herr — click to enlarge)

Sawyer, a rangy fellow usually wearing a baseball cap, set off through the hills at a rapid clip, waving antennae overhead to pick up a signal. It took a few hours to find the deer – a pile of bone and rumpled fur – and while he was unscrewing the radio collar he told her story: “We captured her in December of 2005, and during the next summer, she migrated about 105 miles up into Cache Creek, just behind Jackson Hole. She made the migration back to this winter range, but in 06-07 she couldn’t make it through the winter.”

Sawyer raised the transmitter over his head, glinting in the sun, swiped at the flies, and checked it. Collars get smarter all the time – if a spotting plane flies once a month picking up the GPS locations of collared animals, biologists can get a fairly exact picture of their travels. This doe, like most other mule deer, and pronghorn, passed every year through Trappers Point, a migration bottleneck near Cora Butte where Indians camped every year and filled their larder. Human migrators still come through here, but now they’re in semi’s and Winnebagos, and the mule deer and pronghorn have to dodge across sometimes heavy traffic on Highway 191. There’s a lot of migrating going on.

The conservation community has long been concerned about migration corridors for wildlife, but in recent years a larger public awareness has flared. It helps when the wildlife has charisma: “Y2Y” (Yellowstone to Yukon) has grizzlies and elk; the area where Sawyer works has, in additional to mule deer, the fleet and graceful pronghorn, traveling from Grand Teton National Park to the Red Desert along what conservationists have designated the “Path of the Pronghorn.”

If you were a mule deer, you might feel a little resentment – pronghorn, which travel the longest ungulate migration route in the Lower 48, are the poster child for migrations-in-danger in these parts. Their journey from Grand Teton to as far south as I-80 includes steep paths through the Gros Ventre Mountains and tip-toe trails amidst the drill rigs.

But it was the mule deer – also migrators in the same tightening corridor – that were dying. The pronghorn, as biologist Kim Berger’s studies showed, actually tolerated the energy boom pretty well, maintaining a stable population while Jonah and the Anticline expanded. (Fences, on the other hand – many of them erected by wealthy second-homers – were crippling the sprinters.)

This map shows the migration of mule deer moving west of the Pinedale Anticline territory and into the Mesa area. The western migration has struggled with significant decline. (Hall Sawyer and Matthew Kauffman/University of Wyoming — click to enlarge)

While Berger’s data showed the pronghorn doing all right, the mule deer were crashing. The Sublette herd has two segments, one on each side of north-south Highway 191. The segment on the east side of the highway where Sawyer and I hiked lives on land that, as yet, has had no energy development. It’s a rough life east or west, as the carcass at our feet suggested, but east of the highway, the winter herd population was replenishing itself and maintaining numbers between 6,000 and 8,000 over the last decade. On the west side, though, in an area with a distinct Mesa newly dotted by drill rigs, it was a different story.

“Through the first five years on the Mesa we’ve seen a 45 percent reduction in deer numbers,” Sawyer said in 2008 as we hiked back to the truck.

Although his contract, at the time, was being paid by Questar, Ultra Petroleum and other energy companies as part of their mitigation requirements, he wasn’t shy about assigning blame to oil and gas development. “We’ve got so many radio-marked animals we’ve been able to tell whether deer actually leave the area. … The idea that the mule deer are just moving somewhere else and that’s why we’re seeing the decline just isn’t what’s happening.” The mule deer are dying.

Each species has different needs, which is part of why it doesn’t always work when a big energy project adjusts for a particular animal or season. If you look at the sagebrush hills on a hot summer day, you may not see much, and the notion of year-round drilling activity (which was approved by the BLM as an exemption to long-standing big game winter range protection strategies) might seem reasonable. But in the winter, flocks of 500 sage grouse may gather, and deer will be everywhere. “Once they get to these winter ranges, they’re pretty much in a negative energy balance,” said Sawyer. “Basically just trying to hold on until spring. That’s why it’s so important that these deer aren’t disturbed a lot during the winter, and there’s not a lot of activity going on.”

Since our first hike together, Sawyer has earned his Ph.D., and published an impressive array of papers with gripping titles like “Identifying and Prioritizing Ungulate Migration Routes for Landscape-level Conservation,” and “Evaluating Mule Deer Crossing Structures in Nugget Canyon.” He is circumspect about the significance of his work – he will not like being singled out in this article – and a bit gloomy over a beer when he ruminates on the impact of biologists’ data on energy development in western Wyoming. The development, once it gets underway, isn’t likely to slow or change course because of a paper published in “Ecological Applications.”

Migrating from science to policy

Over the years, energy companies involved in the Pinedale Anticline development have taken me with television crews to look at their work in Sublette County, visiting air quality testing sites and protected sage grouse leks, noting how they have replaced truck traffic with buried pipelines, reclaimed disturbed sites and planted new vegetation, and used directional drilling to minimize surface disturbance. Despite expensive and extensive efforts at mitigation, the premise is always that the energy extraction goes forward. “In general, any sort of science that suggests energy development and wildlife aren’t perfectly compatible is frowned upon,” Sawyer said last December, reflecting on a decade of mule deer and pronghorn studies, paid for directly or indirectly by the corporations he was slamming. “There’s been a lot of effort to discredit that kind of research rather than seriously consider it and have an honest discussion about the tradeoffs.”

PXP’s Myers emphasized in his email the company’s “commitment” to “balance new energy development with conservation.”

Then, a key discovery lifted Sawyer’s mood. A recent paper, written with Matthew Kauffman of the Wyoming Cooperative Fish and Wildlife Research Unit, has Sawyer excited, even hopeful. “Stopover Ecology of a Migratory Ungulate” was published in May 2011 in the Journal of Animal Ecology.

This map shows the habit occurrences of mule deer stopover along the established migration routes. (Hall Sawyer and Matthew Kauffman/University of Wyoming — click to enlarge)

The finding is simple, perhaps even obvious. When mule deer migrate long distances, rather than make the trip in a beeline, they dawdle, pausing for days and weeks at “stopover sites” along the way. Amazingly, this is new information, and it came from evolving GPS tracking efforts.

Ungulates like deer, elk and pronghorn, it was assumed, had a seasonal switch that set them off rushing from summer to winter range, and vice versa. Since some of these corridors were extraordinarily long – pronghorn can travel as far as 200 miles from Grand Teton National Park to the Red Desert – corridor conservation was an almost impossible challenge in the face of big new energy projects, fenced subdivisions, proliferating roads, and new building in the migration pathways. Inexplicably, the new U. S. Bureau of Land Management office in Pinedale was built, smack-dab, in a migration corridor.

“In the past, the perception was that these migration routes were essentially just conveyor belts, animals got on them and moved from one seasonal range to another,” Sawyer explained. “We’ve been able to clearly see that that’s not the case.”

It’s more the way birds travel, dropping down into wetlands to refuel on their long journeys. But there is a distinct difference between avian and ungulate: the tempo. Birds travel in a hurry, “optimizing food loads” and taking off again. Mule deer, in the spring, are almost languid in their journey, scaling higher elevations as they move north and stopping for days at sites they’d used for years, expertly timed just prior to “peak green-up, when forage quality was presumed to be highest,” according to the Sawyer/Kauffman paper.

The stopover phenomenon was easy to overlook in past studies because it was rarely possible to identify a particular animal at the beginning and end of its migration, nor could scientists put frequent checkpoints along the lengthy routes. Rapid advances in GPS technology over the last decade have changed all that. New collars collect location data every two hours, 365 days of the year, with high resolution data. The information is stored aboard the collar, which is programmed to drop off in two years, usually at a time of year when the animal will be at a lower elevation.

With the new gear, Sawyer and Kauffman found the mule deer were timing their migratory journey to higher elevation so that they got the nutritional benefit of spring green-up at every stopover. “And it’s very consistent,” said Sawyer. “About every three miles, whether it migrates 10 or 100 miles. They use the same stopover sites year after year in spring and fall migrations.”

“It’s good and great stuff,” said Gary Fralich, Wyoming Game & Fish’s South Jackson Wildlife biologist, who is studying moose in proposed energy development areas. Fralich rhapsodizes about the way Sawyer applied the Brownian Movement Model – which, if this helps, is defined in a 2007 paper in Ecology: “based on the properties of a conditional random walk between successive pairs of locations, dependent on the time between locations, the distance between locations, and the Brownian motion variance that is related to the animal’s mobility.” There you have it.

The spread of the Bridger-Teton Forest in eastern Wyoming. There have been rumors of negotiations to buy out Plains Exploration and Petroleum

“For people who study ungulate migration, it’s kind of a big deal,” said a laughing Kauffman, a mentor of Sawyer’s who gives his former student lead credit. “Once you define the stopover areas, you find they spend 95 percent of their time there, and only 5 percent of the time migrating.”

And here’s where we come back to the PXP project (formally called the Eagle Prospect and Noble Basin master Development Plan). The proposed gas field would be situated in the Wyoming Range near Bondurant, including the headwaters of the Hoback River, and outside the area protected by the Wyoming Range Legacy Act. The Bridger-Teton National Forest’s latest Supplemental EIS was released in the face of increased public scrutiny, including demands that the Forest Service strictly apply stipulations in the lease restricting surface occupancy, which conservationists say could cut the disturbed area in the proposed project by two-thirds. There have been rumors of negotiations to buy out PXP’s lease hold in the area. Sawyer’s mule deer data could – emphasis on ‘could’ – be another impetus to change PXP’s plans.

Or not. There is 10 years of data on mule deer on the Mesa in the Pinedale Anticline, and the population is being allowed to crash, apparently due to human activity in critical winter range, according to Sawyer’s data . But those Anticline studies providentially include mule deer that migrate north through the PXP area. Sawyer uses that data to identify stopover sites, and suggests the Forest Service could require that those sites be kept clear of rigs and roads and people, especially during the periods the mule deer use them. It wouldn’t be everything the conservation community wants – that would be a complete ban on development – but with both PXP and the Forest Service insisting that the companies’ right to drill is already decided, Sawyer wants to be sure the importance of stopover sites, at least, is recognized.

If the PXP project moves forward, Sawyer suggests that the essential project infrastructure – those roads, rigs and people – could actually be located in the migration corridors in order to spare the stopover sites. It sounds counterintuitive, but Sawyer says, mule deer on the move will cross roads. It’s the places where they stop and forage that the “do not disturb” sign must be posted.

Opponents of the PXP project still hope the project can be stopped entirely. They are worried about the kinds of air pollution experienced in the Pinedale area (the potential for ozone spikes from gas field emissions is the primary concern), and also water quality (PXP will use hydraulic fracturing — or “fracking” — and must also manage large volumes of potentially toxic waste fluids), and surface damage to a beautiful viewshed. Wildlife advocates say there are other species in jeopardy, too, such as elk, and the moose that Gary Frahlich is collaring  in a study underwritten by PXP, the state, and the Bridger-Teton that will arrive after a decision is made about whether, and how the PXP project moves forward.

The Bridger-Teton Forest, through which mule deer annually migrate. PXP has said that it intends to continue to developing drilling projects west of the forest, but some in the conservation community say it's less likely if natural gas prices continue to fall. (Tom Zegler/Flickr — click to enlarge)

The mule deer “stopover” data could, opponents say,  at least contribute to another delay. “We’re not drilling holes in the ground, and we’ve acknowledged that there are some issues,” said Dan Smitherman, a Bondurant outfitter who leads Citizens for the Wyoming Range. “It’s a business decision for (PXP). If they incorporate protection for air, water and wildlife, I think it’s going to be very difficult for them to make money there when gas goes down to $1.50 (per thousand cubic feet [mcf] of gas).”

Natural gas prices have dropped precipitously this year, to just under $2 per mcf in Wyoming, but PXP officials show no sign of faltering resolve. In fact, PXP is among about a dozen oil and gas operators that, collectively, propose drilling some 20,000 new gas wells in western and central Wyoming over the next two decades.

Forest Supervisor Jacque Buchanan has no regrets about reworking the project plan and creating new alternatives. When she took over at Bridger-Teton in July, 2010, arriving from the Lincoln National Forest in New Mexico, she was told the review process on the PXP project’s environmental impacts was virtually complete. Right away, she saw problems. The public hadn’t been notified about road density changes, a requirement under the Bridger-Teton’s 1990 Forest Plan. The project also could be subject to the Jackson Hole Oil and Gas stipulations, which limits drilling near public roads – a special protection for that special corner of the state.

Both those things, along with Sawyer’s science, will be considered in the new draft Supplemental Environmental Impact Statement. Buchanan expects the new version to be out near the end of May, followed by a 45-day public comment period. If the last draft is any indication – 60,000 comments poured in – this decision-making process will be much scrutinized.

PXP continues to show considerable forbearance and resolve. The federal permitting process for PXP’s proposal began with a requirement that the company develop a plan for full field development, where many projects begin with a less elaborate Phase 1 that only involves the plans and impacts for exploratory work. The company has negotiated with the state and with groups like the Wyoming Outfitters and Guides Association and Wyoming Sportsmen for Fish & Wildlife to drop 28,000 acres of its federal mineral lease and devote millions of dollars to protecting and studying habitat and air and water quality.

Rumors persist that the company is looking for a way out, even negotiating a sale to conservation bidders. Responding to written questions, PXP’s Myers counters that the company “has always taken the ‘long view’ on this project and recognized that the timeline for the permitting process would run completely independent of any price fluctuations in the commodity market.” But the company will, writes Myers, “entertain any market based offer for our lease holdings on the Bridger-Teton National Forest.”

Battleground central

Buchanan insisted that she does not feel inordinate pressure from either the energy industry or the conservation community, but there are voices on all sides, including two Wyoming governors who have chimed in. She repeatedly states that PXP’s right to drill is unquestioned – and she is merely following “the good process laid out under NEPA (the National Environmental Policy Act), and let that drive us.” She noted that Hall Sawyer’s mule deer studies and stopover data will be incorporated not just in the two new alternatives, but in revising the old alternatives as well. And there will be language to allow changes in the plan when the moose studies are completed in 2013.

Then she paused, and one can imagine what runs through her mind – the huge outpouring of public comment, the concerns of state officials about the Wyoming Range, the strong opposition in the Jackson community, and the still-unfolding lessons of developments like the Pinedale Anticline. “None of us loves that this (process) has gone on as long as it has,” she said. “It’s interesting. It’s battleground central.”

(Banner photo courtesy of Rictor Norton & David Allen)

Geoffrey O’Gara is one of Wyoming’s most accomplished journalists and writers. Geoff is a Wyoming Public Television producer and host of the influential Capitol Outlook and Wyoming Chronicle programs. He is the author of What You See in Clear Water: Indians, Whites, and a Battle Over Water in the American West (2002) and A Long Road Home, Journeys Through America’s Present in Search of America’s Past (1989) and several other books. An avid cyclist, basketballer and fly fisherman, he lives in Lander.

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It all started as a way to finance the clean-up of forgotten coal mines, dangerous eyesores that collapsed or leaked acidic sludge into streams. Yet the Abandoned Mine Reclamation Fund turned into a piece of federal legislation with more lives than a resourceful alley cat.

Originally scheduled to expire in 1992, the Abandoned Mine Reclamation Fund (or AML) has been reauthorized by Congress seven times; the legislation is scheduled to remain alive until 2021.

Outside the Carissa Gold Mine, one of the 1,051 mine sites reclaimed by the state of Wyoming. Millions of dollars of AML funds have been directed to projects other than mines. (Courtesy of Department of Environmental Quality — click to enlarge)

But the most adroit – and scrappiest – feline in the AML saga has been the state of Wyoming.

Since 1977, the state of Wyoming has received (or been promised) $1,051,898,067.60 from the AML fund according to Office of Surface Mining, which operates under the auspices of the Department of the Interior.

While disbursements did go towards the original purpose of the fund – Wyoming has reclaimed more than 1,051 coal and non-coal mine sites – hundreds of millions also got funneled into building water systems in Gillette, clean-air research, a hospital addition in Sheridan, maintaining state highways, and the Wyoming Wildlife and Natural Resource Trust.

The largest single recipient has been the University of Wyoming, which has received more than $200 million in AML-related funding for research in clean coal technology, engineering and over-all energy research. This includes a 2007 $50 million appropriation for building the Michael B. Enzi STEM (science, technology, engineering and mathematics) facility.

A 2011 report from the Office of Surface Mining (OSM) on Wyoming’s AML activity put it plainly. “Wyoming has spent much of its AML funds on non-coal mining related problems.”

According to OSM documents, Wyoming has, thus far, spent only roughly 10 percent of its AML-related distributions, $151.6 million, reclaiming coal mine hazards.

Wyoming DEQ-AML office says the current number is closer to $164 million.

Wyoming's Legislative Discretionary Spending of AML funds, from 2008 to 2011. (Courtesy of Office of Surface Mining, Reclamation and Enforcement — click to enlarge)

Beginning in FY 2014, however, Congress will significantly curtail distributions to Wyoming from the AML fund. (Actually, due to a 2006 settlement, distributions now come directly from the U.S. Treasury, not the AML fund).

Coming to an end will be an annual disbursement of $82.7 million. There have not been many strings attached to the funding, either. While Washington won’t totally turn off the AML spigot (another distribution, dedicated to specific mine remediation projects, will last until 2022), the legislature is scrambling to fulfill its wish list and adjust their funding before the annual checks cease to arrive.

For example, for the 2012-13 budget, the University of Wyoming reorganized the funding for its School of Energy Resources (SER), which has received more than $75 million in AML-related funding during the last four years. SER has now gone back to depending on the legislative general fund.

Still, this year the legislature approved projects fairly far afield from remediating dangerous coal mines, such as a $10 million stadium rebuild at UW and a $3.5 million agricultural building on the campus of Sheridan College.

The story of how the distribution became so inclusive gives testament to Wyoming’s powerful position in the coal production world, the tug-of-war between east vs. west mining interests, and the persistence of Wyoming politicians – particularly U.S. Sen. Mike Enzi, a Republican from Campbell County, America’s largest coal mining district – who made sure the money came back to the state.

*****

It began with the philosophy that the polluter had to pay a little.

A map shows the sprawl of abandoned mines across Wyoming, both coal and non-coal sites. (Courtesy of the Wyoming Department of Environmental Quality — click to enlarge)

In the mid-1970s, there were an estimated 1.1 million acres of abandoned coal mine sites in the United States. In Pennsylvania, West Virginia, and Kentucky, the abandoned sites numbered in the thousands. They were serious polluters, especially those dumping acid mine drainage into water systems. In Wyoming, streets in Rock Springs collapsed into sinkholes, the results of developing a municipality over old coal mine shafts.

To solve the problem, Congress passed the Surface Mining Control and Reclamation Act of 1977 or SMCRA, an ambitious law designed to regulate the environmental impacts of coal mining. It is the law governing the environmental impacts of strip mines in Wyoming today. The law also created a trust, the AML fund, to finance the clean-up of old, abandoned mine sites.

The trust operated on simple premise: mines would be levied a per ton fee: 35 cents per ton for surface-mined coal, 15 cents per ton for underground coal, and 10 cents per ton for lignite coal. The Department of the Interior would distribute the money, gathered in the interest-bearing trust fund, for various mine reclamation projects.

“When (Ed) Herschler was governor, Wyoming fought the idea that western coal mines should have to pay into fund,” said former Governor Dave Freudenthal. “It made no sense to us. This was largely an eastern problem. But, if we were going to pay, we had to have some assurance that we’d get the money back.”

To alleviate such concerns, Congress guaranteed states at least 50 percent of the money (called the state’s share) levied from mines in their borders would be returned for local clean ups. The other half of the money would go to areas in the country where it was needed most, regardless of where it came from.

Wyoming had its own unique problem, however.

The state’s star as a coal-producing colossus was on the rise. The year the AML fund came into being, 1977, Wyoming producers mined 44.4 million tons of coal; in 2008, they mined 467 million tons. Thus, each year producers began paying an increasingly higher percentage of per-ton AML contributions, especially since most of Wyoming’s production comes from strip mines, which pay a higher fee.

The problem got more complicated in 1984, when Wyoming voluntarily certified it had taken care of all of its serious abandoned mine issues. This would include remediating a smoldering underground fire at the Acme coal mine outside Sheridan and addressing subsidence (streets and houses collapsing into old coal mines) in Rock Springs.

A caution sign posted outside the Gas Hill Abandoned Mine warns of radioactive materials inside. The U.S. Congress passed Surface Mining Control and Reclamation Act of 1977 in hopes of curbing the health hazard and environmental impacts of coal and other abandoned mines. (Courtesy of the Bureau of Land Management — click to enlarge)

Powder River Basin coal producers kept breaking production records. In 1988, Wyoming passed Kentucky as the lead coal producing state in the nation. Coal companies, especially in Campbell County, were pouring millions into the AML fund and Wyoming, fresh out of projects, had little to spend the money on.

Well, not quite. An amendment to SMCRA, called the Abandoned Mine Reclamation Act of 1990, gave Wyoming wiggle room.

The legislation “contained a new provision which expanded the rights of states that have certified completion of known coal [mining] problems to utilize state share funds for non-coal reclamation,” said Alan Edwards, who oversees AML projects in Wyoming.

This included “the repair of facilities serving the public, the construction of new public facilities in communities impacted by coal or mineral mining and the construction of new facilities or funding of activities related to the coal or mineral industries,” said Edwards.

Given enough imagination, this language opened up a potential cornucopia of cash. Applications came in for a community health center in Kaycee; sewer replacement projects in Greybull and Frannie; a $2 million vocational training center in Gillette; flood mitigation (again in Kaycee); and for building a snow fence along County Road #304 in Lincoln County.

Under Governors Mike Sullivan and Jim Geringer, communities from all over Wyoming applied for AML funds. “They had a stream of applicants,” said Don Richards, former energy policy advisor for Sen. John Barrasso (R-Wyoming) but now Director of Governmental and Community Affairs for the University of Wyoming. “The number of the requests exceeded the amount money available by a multiple of ten.”

Still, Wyoming was not getting anywhere close to its 50 percent state-share money back. The problem, said Richards, came from Washington and coal producing states competing for the money. By the year 2000, the AML corpus had reached $1.5 billion and had become somewhat of a financial darling for Congress.

Not only did its seven-figure corpus help offset (at least on paper) the federal deficit, the interest gathered was seen as a new source of revenue. States with an endless list of abandoned mine liabilities were not keen on seeing money, either from the interest or the corpus, going to any state that had taken care of their major coal mine problems.

“There came a certain stage when the government just about stopped giving us money,” said Freudenthal. “The federal government – who are they to make such a decision? It was such an outrage that if we were a colony, we’d be pitching tea into the water. Well, we would if the Platte had enough of flow in it.”

The sewer system in Hartville, Wyo., received a substantial upgrade, subsidized by AML funds. (Courtesy of the Wyoming Department of Environmental Quality — click to enlarge)

At the time, Mike Enzi (R) and Craig Thomas (R) represented Wyoming in the U.S. Senate while Barbara Cubin (R) was Wyoming’s sole vote in the House. They fought an uphill battle against Eastern coal states like Pennsylvania (19 House members); Ohio (18 House members); Kentucky (six House members); and W. Virginia, (three House members).

Powerful congressional members like Senator Arlen Specter (R, then D-Pennsylvania) and Rep. Nick Rahall (D-West Virginia) made sure that AML money flowed to problems in their states. They were influential in passing a 1992 law that made $60 million (gathered from interest) from the AML fund available to support the United Mine Workers of America (UMWA) Combined Benefit Fund. The UMWA describes this fund as “a group of six multi-employer plans that provide health and pension benefits to retired coal miners and their eligible dependents.”

This might have been fine for eastern coal miners, but at the time, there were roughly 100,000 (including active and retired) UMWA miners nationwide of which those in Wyoming numbered under 400.

The OSM, via the AML fund, made a second distribution of $69 million to the United Mine Workers Combined Benefit Fund in 2005.

In 2002, Pennsylvania claimed it had an abandoned coal mine remediation backlog requiring $4.5 billion. Yet, due to the small percentage its operators put into the fund, it could only receive $19.7 million. The same year, West Virginia had identified $625 million in abandoned or reclaimed coal mines, but could only collect $17.5 million. By contrast, Wyoming had no remaining high priority abandoned mines sites, but regardless received $21.3 million.

As time passed, Wyoming’s delegation became increasingly concerned about getting money returned to the state at all. Distributions from the AML funds were scheduled to expire on June 30^th, 2006.

The state did not suffer its dilemma in solitude. Three other states, Louisiana, Montana, and Texas, had certified they had taken care of their priority coal-related problems. So had the Crow, Hopi and Navajo Indian tribes. But Wyoming producers had contributed more to the AML fund than producers in these six entities combined.

“It was not an easy path for (the) three-party delegation to navigate,” said Richards, Director of Governmental and Community Affairs for the University of Wyoming.

Then, in the waning hours of 2006, Congress passed an amendment to SMCRA. It guaranteed that Wyoming would receive its state share (totaling $580 million) that Wyoming coal producers had put into the fund prior to 2006. Those familiar with the legislation point towards Sen. Mike Enzi for accomplishing the task.

Abandoned mine land at Gas Hill in Wyoming. Sen. Mike Enzi is largely credited with maintaining the state's AML funds through bill amendments and revisions. (Courtesy of the Bureau of Land Management — click to enlarge)

From his position as Chairman of the Senate Health, Education, Labor and Pensions Committee, Enzi hammered out the legislation. “He definitely had a leadership role in getting that amendment passed,” said Richards.

Richards also said former Rep. Barbara Cubin (R-Wyoming) and her staff did “yeoman’s service,” in getting the measure approved. “She had no allies, really, other than Montana,” which also has just a single seat in the House.

“It was one of those moments when a state had to surrender any partisanship and all put their best foot forward,” said Freudenthal.  “But at the end of the day, the credit goes to Mike Enzi. In his quiet and methodical way, he got the job done.”

Senator Enzi and his staff declined to discuss any aspect of the AML with WyoFile.

Enzi put the language in a bill called the Tax Relief and Health Care Act of 2006 (sponsored by former Rep. Ellen Tauscher, D-California), and tucked it away in a section deemed so insignificant that most descriptions of the legislation do not include a single syllable about abandoned mines.

According to an OSM document explaining the measure, “The legislation revised the fee collections and distributions of the AML payments. The 2006 amendments extended the fee collection authority through September 30, 2021, reduced the fee by 10 percent, and changed the fee structure. The amendments also dramatically increased funding and changed distribution of the fee receipts to States and Tribes.”

What it said, in essence, is that all certified states would get back all the money their coal producers had put into the fund prior to 2006. The payout began in 2008 as “historic payments” and would end in seven years. For Wyoming, this equaled $580 million in $82.7 million annual increments.

In addition, Wyoming would get another $59.5 million annually, earmarked specifically for mineral reclamation projects until 2021.

One of the terms of the deal was that the distributions would not come from the AML fund, but the U.S. Treasury. Moreover, certified states were no longer guaranteed a return of all their state’s share for payments made after 2006.

Wyoming's AML Funds Expenditures by year, from 2008 to 2011. (Courtesy of the Office of Surface Mining — click to enlarge)

But the battle wasn’t over.

The 2010 report issued by National Commission on Fiscal Responsibility and Reform, chaired by former Sen. Alan Simpson (R-Wyoming) and former White House Chief of Staff Erskine Bowles, otherwise known as the Simpson Bowles report, recommended modifying AML fund distributions including “eliminating these (historic) payments because they no longer serve their stated purpose — contributing to reclaiming abandoned coal mines.” The report only echoed the thought already running through federal budget proposals.

As the federal budget crunch worsened, administrations both Republican and Democrat began looking at ways to save money. That included reducing the amount of money sent to states. “For the last three years of the Bush administration and every year of the Obama administration, presidential budgets dealing with OSM have recommended reducing the payments to certified states,” said Richards.

On March 21, 2012, Gregory Conrad, Executive Director, Interstate Mining Compact Commission, an organization that consults 28 states on federal mining regulations, testified before the House Interior, Environment and Related Agencies Appropriations Subcommittee 2013 Proposed Budget for the Office of Surface Mining. Conrad complained strenuously about these presidential modifications.

For the 2013 AML distributions, the “OSM has budgeted an amount of $307 million based on an ill-conceived proposal to eliminate mandatory AML funding to states and tribes that have been certified as completing their abandoned coal reclamation programs. This $180 million reduction flies in the face of the comprehensive restructuring of the AML program that was passed by Congress in 2006, following over 10 years of Congressional debate and hard fought compromise among the affected parties,” said Conrad.

Thus far, however, Congress has thwarted the executive office from reducing the amounts promised by the 2006 amendment.

Back to basics?

With only two more $82.7 million payments to go, the legislature is refocusing spending AML-related distributions on energy-related projects.

In contradictory language common to federal legislation, the $82.7 million payments are a “mandatory disbursement,” yet the state must file a grant application for every project.

State Rep. Rosie Berger (R-Big Horn) says the reason the University of Wyoming is a significant recipient of AML funds is due to its ability to conduct energy-related research and projects. (Click to enlarge)

State Rep. Rosie Berger (R-Big Horn), who co-chairs the Joint Appropriations Committee, said there’s a perception that the OSM just hands Wyoming the $82.7 million each year. “It’s quite an arduous process. Due to that one word ‘grant,’ in SMCRA, we have to apply for every project, get it approved, build it, then bill OSM for the money,” she said.

This is one reason why UW is a primary candidate for AML-related funding, Berger said. The university offers plenty of opportunity for energy-related projects.  Moreover, the university’s systematic billing process streamlines the process of getting the money back to Wyoming.

Besides the School of Energy Resources, AML-related funds have gone toward the Wyoming Carbon Sequestration Major Research and Demonstration Initiative, Wyoming Reclamation and Restoration Center and a High Plains Gasification-Advanced Technology Center (now on hold).

Wyoming AML Administrator Alan Edwards concurs that Wyoming has to jump through numerous hoops to get the money, but there have been no outright denials from Washington. OSM’s approval of grants is “pretty automatic,” he said.

“We’re trying to focus back on energy, such as finding out how to work with rare earth elements, coal-to-liquids technology, and other alternative energy projects. We want to fund projects that brighten the economic future of Wyoming. Above all, we can’t forget about what we have: coal,” said Berger.

Maybe that’s why the legislative agenda list of projects for FY 2012-2013 AML funding allocates $10 million to UW’s School of Energy Research for the continuation of clean coal research and $9 million “to the Governor’s office for the purpose of supporting the construction and operation of a commercial scale facility which converts minerals to value added products.”

The Powder River Basin Resource Council, the Equality State Policy Center, and the Wyoming Outdoor Council all signed a letter asking Governor Matt Mead to exercise his power of the line veto on this last measure, saying it was “contrary to the purposes of the AML fund.”

“We know you are aware of the great need in Wyoming to address land reclamation, monitor and address air quality impacts, and remediate water contamination from oil and gas and other mineral development activities. We also know you are aware of the great need local governments around the state have to address socio-economic impacts of energy development, including county road maintenance and other infrastructure needs. We believe Wyoming should continue to prioritize the use of AML funds for these purposes,” the letter read.

But what of these AML fund related projects like a $10 million dollar auditorium renovation in Laramie and a $3.5 million agriculture complex in Sheridan?

Historic sites, like the Duncan Shafthouse outside of Lander, Wyo., also benefited from an influx of AML funds. (Courtesy of the Wyoming Department of Environmental Quality — click to enlarge)

These expenditures are, in fact, another example of Wyoming’s ability to shape federal mineral policy to the state’s advantage, despite poor odds.

The same case may be made for the billions that Wyoming receives in federal mineral royalties. Legislation concerning that program has, since 1920, been protected – and adjusted – by Wyoming’s Washington representatives to serve the state’s interest. It’s paid off. Federal mineral royalties have built $2.2 billion worth of new primary, middle, and high schools in Wyoming since 1999.

It doesn’t all go Wyoming’s way, however. When it comes to AML funds, Wyoming doesn’t have half its money back, not yet anyway. Not even close. As of 2011, Wyoming coal mines have contributed $3 billion to the AML fund since 1977; the state has received just roughly one-third of what they put in.

The 2011 Evaluation Summary Report for the Wyoming Abandoned Mine Land Reclamation Program

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Reprinted with permission from Yellowstone Gate. For details on republishing Yellowstone Gate content, click here.

CODY, Wyo. — Planners and managers from Yellowstone National Park, including Superintendent Dan Wenk, have been visiting gateway communities this week to host meetings about their ongoing efforts to develop a long-term winter-use plan for the park.

Related story: Snowmobile trip over Sylvan Pass offers adventurous loop through Yellowstone Park

The first meeting was Monday in Cody, where many attendees said they worried that regulations, including one draft proposal to manage over-snow vehicle traffic by “sound events,” would unfairly restrict access to the park.

Efforts to nail down a long-term winter-use plan have been complicated for more than a decade by public debate and court challenges over issues like snowmobile traffic and avalanche management on Sylvan Pass, between Cody and Fishing Bridge.

The Park Service is regulating operations this winter in Yellowstone under a “one-year rule,” designating it as a “transition year.” That means use levels and restrictions on snowmobiles and snow coaches, for instance, are the same as under the interim rule that has governed use over the past two seasons: up to 318 commercially guided snowmobiles and up to 78 commercially guided snow coaches are allowed per day.

Photographers in Yellowstone National Park snap pictures in January during an eruption of Old Faithful geyser. (Ruffin Prevost/Yellowstone Gate — click to enlarge)

Meetings this week are designed to take public comments on issues that will be addressed in an upcoming supplemental Environmental Impact Statement evaluating various potential alternatives for winter use. That document will guide a draft winter-use plan to be released later this year. Barring legal challenges, a final version of that plan will be adopted as a long-term regulation by the start of the 2012-13 winter season.

Various preliminary draft alternatives include: eliminating all snowmobile and snow coach travel, plowing park roads from West Yellowstone and Mammoth Hot Springs to Old Faithful, continuing winter operations at the present temporary limits and phasing out snowmobiles to allow only snow coaches.

Park planners said that some elements of preliminary proposed alternatives are included for procedural reasons, and are unlikely to be included in the final plan.

Yellowstone spokesman Dan Hottle said that attendees at the West Yellowstone planning meeting were concerned primarily about impacts to the local economy, and heavily favored increased guided and unguided snowmobile use. Attendees in Bozeman were mainly from user groups and environmental groups, while the Jackson meeting was smaller and “more subdued” than the Cody meeting, Hottle said.

Judicial Battles

The plan revision is a process that has repeated itself in recent years without yielding an enduring result, as interest groups and government entities have taken their objections to federal court. The numerous judicial battles have made it virtually impossible to craft a long-term plan that can survive litigation.

New ideas for winter-use management in the last decade have been rare, as opponents have dug in their heels on key issues. One new idea discussed in Cody is to use so-called “sound events” to manage and cap the number of snow coaches and snowmobiles in the park at once. The method could potentially allow more visitors while reducing noise, planners said.

Winter-use plans for Yellowstone National Park have been the subject of numerous court challenges over the past decade. (National Park Service — click to enlarge)

Many attendees at the Cody meeting said they either didn’t understand the concept, didn’t like it or didn’t trust the National Park Service to implement it fairly.

Reducing vehicle noise in the park during the winter is an important goal, and one where managers are still working to make sufficient progress, said David Jacob, an environmental protection specialist with the Park Service.

Park visitors and those who have commented on winter use have identified natural soundscapes as an important issue, and the Park Service has a policy that mandates preservation of the peace and tranquility of parks.

Setting a limit on “sound events” — the number of snow coaches or groups of up to 10 snowmobiles — moving through the park at any given time would help manage overall noise and shape how other visitors hear that noise, Jacob said.

“I’m trying to wrap my head around this,” Park County Commissioner Tim French said Monday.

French and others said the sound event management concept seemed unnecessarily complicated.

Former Wyoming House Speaker Colin Simpson said the sound event idea appeared to be “just some other way to define and restrict” public access to the park.

Sylvan Pass

Closing Sylvan Pass was another potential option opposed by many in Cody.

The 1.5 mile stretch of road at an elevation of 8,524 feet lies between the East Gate and Fishing Bridge, and is subject to avalanches throughout the winter, as well as spring and summer slides. A 2007 draft winter-use plan proposed closing the pass, but public outcry from Cody residents and pressure from Wyoming elected officials brought about a working group and discussions with park officials that later resulted in a reversal of that decision.

Yellowstone National Park road crews and avalanche experts work to clear Sylvan Pass of more than 20 feet of snow from a May 2011 slide that injured no one but partially buried a Park Service vehicle. The slide temporarily closed the pass to vehicle traffic. (National Park Service — click to enlarge)

Various conservation groups have objected to the risk, cost and environmental effects of using a howitzer cannon to mitigate avalanche risks along the pass.

Mark Pearson, conservation program director for the Greater Yellowstone Coalition, said he did not think it was “appropriate to be doing that kind of artillery shelling in Yellowstone National Park for a discretionary recreational activity.”

Park Service cost estimates for avalanche mitigation on the pass have ranged from $200,000 to $325,000 per year.

Wade Vagias, who has worked on Yellowstone winter use planning as an acting management assistant for the Park Service, said the most recent estimate of $325,000 is probably high. Wenk has ordered a more detailed analysis of costs.

Pearson said that GYC sees avalanche control on Sylvan Pass as an unnecessary risk to Park Service staff and visitors. The group also is pushing to phase out snowmobiles in favor of allowing only rubber-tracked snow coaches using best-available technology to reduce noise and emissions.

He said there was little point to a provision in a draft alternative that would allow up to five snowmobile riders per day to enter the park with a noncommercial guide.

Five sleds is too few to significantly address concerns some have raised about making access to the park more affordable than by commercial guide, Pearson said, and he questioned whether noncommercial guides would have adequate training and expertise.

Park County Commissioner Loren Grosskopf also objected to the five-sled limit, saying it was “like a gunshot to your stomach” for those expecting a larger number of “self-guided” riders to be authorized.

Relatively warm waters in the Lower Geyser Basin in Yellowstone National Park are clear of snow and ice despite a recent winter storm. (Ruffin Prevost/Yellowstone Gate — click to enlarge)

Jacob said the number was small because, if approved, the noncommercial guide option would begin as a “pilot program.”

Bringing back some non-commercially guided sledding would help revitalize winter activity along the North Fork of the Shoshone River, said Dede Fales.

Fales and her husband own Gary Fales Outfitting, the only company holding a Park Service permit for snowmobile tours through the east entrance.

High Country Adventures of Cody had held a concession contract to offer snow coach tours via the east entrance, but the Park Service revoked the company’s permit after it stopped operating a few years ago, Hottle said.

In fall 2010, the Park Service advertised for a new concessioner to offer East Gate snow coach service, but no one has applied, he said.

Dwindling numbers

During the 1990s, visitors could enter the park on snowmobiles without guides, and the North Fork corridor between Cody and the East Gate was busy with downhill and cross-country skiers as well as snowmobile riders. Since then, the ski area was temporarily closed and snowmobile use has plummeted.

In February 1995, the east entrance saw 3,398 snowmobile riders, while West Yellowstone had 50,242 and Mammoth had 2,086.

February 2011 saw just 115 sleds pass through the east entrance, 10,083 at West Yellowstone and 548 at Mammoth.

A guide leads a group of snowmobilers along the road east of Fishing Bridge in Yellowstone National Park. (Ruffin Prevost/Yellowstone Gate — click to enlarge)

More snowmobiles from noncommercial guides would help raise numbers at the East Gate, Fales said.

“There are plenty of people in town who used to make that trip. But the fact that they’ve cut out the everyday user means our business may never come back,” she said.

“As a business owner, it feels really uncomfortable when they start saying it costs too much to keep that pass open” based on the number of people using it, she said.

Carol Armstrong, one of the leaders of the grassroots Shut Out of Yellowstone group in Cody said at Monday’s meeting that she worried that closing Sylvan Pass would set back efforts to revitalize the nearby Sleeping Giant ski area, and could harm the area’s winter economy.

“It wouldn’t take us very long to remobilize and raise hell,” said Armstrong, who helped collect thousands of signatures in 2007 demanding that Sylvan Pass be kept open.

“Our North Fork corridor used to be vibrant and alive, and we want that back,” she said.

Wenk urged Armstrong to have faith in the process, but also repeated some advice he gave Cody business owners during an October luncheon meeting.

“I’m concerned about your economy, but I’m not responsible for it,” he said.

Gary Fales said Wenk showed his concern during a private meeting Monday to discuss the Sylvan Pass issue.

Fales said he has done little to market his snowmobile touring business in recent years, because with only a one-year permit issued each winter and lingering uncertainty over the fate of Sylvan Pass, it doesn’t pay to spend heavily on such efforts.

Fales said he understands the budget pressures Wenk is facing, but he hoped a long-term plan would give him a chance to grow snowmobile traffic over Sylvan Pass.

“If this thing was really going, we would chase it,” he said.

Wenk said he had a “good discussion” with Fales as part of his efforts to “understand all the issues related to winter use.”

Fales said he thinks Wenk will be fair and thorough as he works through the planning process.

“I truly felt like he’s working on the project to the best of his abilities,” Fales said.

Contact Ruffin Prevost at 307-213-9818 or ruffin@yellowstonegate.com.

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)