Industry greets new state rules with skepticism

Dave Nickum of Trout Unlimited said he is concerned oil and gas development may de-water sensitive streams on the Western Slope, and he wondered if the COGCC rulemaking process will tackle how energy companies’ water use will be regulated. http://www.gjsentinel.com/news/content/news/stories/2007/11/28/112807_1a_COGCC_side.html

By BOBBY MAGILL The Daily Sentinel

Wednesday, November 28, 2007

DENVER — The Colorado Oil and Gas Conservation Commission’s proposal for how it will create new oil and gas permitting rules was met Tuesday with skeptical questions from the energy industry and concerns from conservationists.

During a series of meetings about the proposal Tuesday, attorney Ken Wonstolen, who represents the Colorado Oil and Gas Association, asked the COGCC’s acting director, David Neslin, if there is any indication the rules already in place aren’t adequate to assess environmental and public health impacts of energy development.

“The question is: Is that going to be a fiat rulemaking or based on administrative record?” he said.

“To the extent that there are disputes over draft rules, we will provide appropriate support as part of the rulemaking process,” Neslin responded, moving quickly to the next question.

Colorado Oil and Gas Association president Meg Collins said there were few surprises in the proposal, and she’s especially glad the COGCC is giving the industry two weeks to respond to it before it is widely released to the public.

But it’s too early to say what the meaning of the proposal is because the industry hasn’t had a chance to digest it, Colorado Petroleum Association President Stan Dempsey said. Most industry members had not seen the proposal before Tuesday morning.

Dempsey said he wants to be sure the commission isn’t duplicating other state regulations, such as those addressing odor control.

Parachute resident Sid Lindauer said he is concerned about how the proposal addresses noise and dust caused by oil and gas operators.

“From where I’m located, you can look often to the north and to the west 25 miles and see bunches of dust,” he said, adding he wonders how it might affect wildlife.

Neslin said no changes to the commission’s rules on dust are in the works. Division of Wildlife biologist John Broderick said the agency has no details on how dust affects wildlife, and the state has no recommendations for how the industry can minimize it.

Dave Nickum of Trout Unlimited said he is concerned oil and gas development may de-water sensitive streams on the Western Slope, and he wondered if the COGCC rulemaking process will tackle how energy companies’ water use will be regulated.

DOW Assistant Director John Bredehoft said that while the DOW has concerns about how the energy industry could deprive streams of their water, he said he couldn’t remember if the new rules will tackle that issue.

“We need to make note of that,” he said.

Kim Phillips of the Grand Valley Citizens Alliance in Garfield County told Neslin she is concerned the proposal may not require enough transparency about the chemicals that companies use in their drilling processes.

“We’re often introduced to the idea that we should just trust that those (chemicals) are safe,” she said, adding the public should have the right to know about the health effects of drilling.

“This is a potential win for industry,” she said. “We need to do testing on specific levels of specific ingredients that we know to be harmful to public health.”

Other concerned residents were less skeptical.

“I want to say this really is such an exciting thing for us,” Palisade-based home builder and Western Colorado Congress member Duke Cox said to Neslin, praising the proposal. “We’ve waited for this day for a very long time.”

Enviros up pressure on Ritter over the Roan

http://www.aspendailynews.com/archive_22917 David Frey - Aspen Daily News Correspondent

Fri 11/23/2007 11:00PM MST

Environmentalists and sportsmen's groups are calling for a "final push" encouraging Gov. Bill Ritter to seek more protections from energy development on the Roan Plateau. Their effort comes in the waning days of the review period the governor asked for to study the drilling plan put in place before he took office.

The effort is part of conservationists' two-pronged approach meant to keep gas rigs off the surface of the plateau to protect the landscape and habitat for species like deer and elk.

In addition to pressuring the governor to urge the Bureau of Land Management to ban drilling from the top, drilling foes are encouraging lawmakers to support language in the energy bill that would keep drilling off the Roan for at least a year. Reps. John Salazar and Mark Udall, both Colorado Democrats, succeeded in getting that language included in the House version of the bill.

"Success with both the legislature and the governor's review is going to be really important," said Clare Bastable, conservation director for the Colorado Mountain Club. "What they decide to do in Washington is equally as important as the plan itself."

Ritter's office isn't indicating what action the governor will take after the review period ends in mid-December. Spokesman Evan Dreyer said his options range from endorsing the current plan to making his own recommendations. But even if he offers his own plan, the BLM may not listen.

"There is nothing that obligates the federal government to pay any heed to us should we offer recommendations," Dreyer said, "so in short, it is all still a very unsettled picture."

THE PLAN The BLM has approved a plan that would allow gas drilling on top of the Roan, but with phasing intended to limit surface disturbance and protect wildlife. The plan was based largely on recommendations by the state Division of Natural Resources, which worried that drilling on the plateau could harm the species that call it home.

But that was under Ritter's predecessor, Gov. Bill Owens, a Republican. After Ritter, a Democrat, took office in January, he asked for a chance to review the project. The BLM initially refused until Sen. Ken Salazar, D-Colo., brother of Rep. Salazar, threatened to withhold consideration of President Bush's nominee to head the BLM.

The energy industry is also stepping up its efforts to press for drilling on the plateau. Last month, the group Americans for American Energy released a study that claimed the state could reap $1.2 billion in the first year of drilling on the Roan Plateau, and that local and regional bodies would gain $6 billion in royalties and taxes over 30 years and $11 billion in industry investment. Environmentalists questioned those numbers.

"It only makes sense, I think, to go slow on developing resources like the Roan," said Bastable, who said most of the gas leases already approved haven't been drilled on yet. "We're in no danger of losing revenue."

In recent weeks, conservation organizations and hunting and fishing groups have organized phone banks, appeared in radio ads and have encouraged members to call Ritter and Sen. Salazar to encourage more protections for the Roan.

"Nobody's saying that you can't extract gas out of the ground," said Bill Dvorak, of the National Wildlife Federation. "We're just saying there's ways to do it that will leave the wildlife habitat intact."

Dvorak said he would like to see energy companies use methods like directional drilling to reach the gas under the plateau without drilling new wells. He said he worries not only about protecting the habitat on top of the Roan, but some of the remaining habitat below. That's important winter range, he said, but it's already been impacted by a "web" of wells and roads.

"We think eventually there will be ways to extract the gas," said Suzanne O'Neill, executive director of the Colorado Wildlife Federation, "but we have to have a little bit of patience so we strike the right balance and protect critical wildlife habitat."

In addition to species like deer and elk, the Roan is also home to some rare populations of native cutthroat trout. That has raised concerns among anglers.

"They're a pretty unique population of fish up there," said Ken Neubecker, vice president of Colorado Trout Unlimited. "Right now, while they've survived thousands of years in these small populations, a single accident up there, either from stormwater discharge or a tanker truck spill, could wipe these populations out. There's no need to rush into this and go after this gas."

The energy industry has said the gas could be extracted without harming wildlife. An estimated 8.9 trillion cubic feet of federally-owned natural gas is believed to lie 8,000 to 11,000 feet below, enough to heat 4 million homes for 20 years. Supporters believe that could be an important source of domestic fuel, from an area originally set aside for energy production.

Ritter's spokesman Dreyer said the governor's office hasn't seen a big increase in phone calls or correspondences from either environmental groups or drilling supporters, but that will likely change as the governor's deadline approaches.

Drilling opponents said they hope the governor will seek to keep gas rigs off the surface of the Roan, and the BLM will listen.

"He's the head of the state government and represents the people in Colorado," Neubecker said. "His voice, I hope, would be important in protecting the resources on top of the Roan in the face of, really, this juggernaut of oil and gas development in western Colorado."

Law prevents work to clear pollution

http://www.gazette.com/articles/water_30226___article.html/mine_law.html By R. SCOTT RAPPOLD

THE GAZETTE

November 27, 2007

In the mountains above the Keystone ski resort, a legacy of the past continues to pollute the future.

From the 1880s through the 1940s, the Pennsylvania Mine was one of Summit County's most profitable. Today, all it produces is acidic and metal-laden drainage water that poisons creeks, kills fish and confounds local officials.

For nearly 15 years, the federal law meant to clean sources of water pollution such as the Pennsylvania Mine has actually prevented work to improve the water.

A 1993 court ruling said that, under the Clean Water Act, anyone who tries to remediate water at an abandoned mine becomes legally liable for discharges there forever. The ruling halted efforts by the state to clean drainage from the Pennsylvania Mine and ensured that little water cleanup was done at any of Colorado's other 23,000 abandoned mines.

A decade of efforts to pass a socalled "good Samaritan" law, legal protection for groups and government agencies who want to clean up mines, has failed, mainly because of resistance from environmental groups. Both of Colorado's U.S. senators backed such a measure last year.

"The Clean Water Act was written and designed to clean up problems like this, and it's the only thing stopping us from doing it, and it's so unfortunate," said Elizabeth Russell, mine restoration coordinator for Trout Unlimited, which wants to be a good Samaritan at the Pennsylvania Mine.

A recent report on Colorado water quality pointed to abandoned mines as a major cause of heavy metal contamination in creeks running down from the high country. Most of the mining companies no longer exist, so there is nobody to hold responsible.

There are a host of nonprofit organizations, local governments and state agencies that would like to get involved in cleanup efforts, particularly in areas such as Summit County where dead, brown waterways like Peru Creek at the Pennsylvania Mine could be bad for tourism. But assuming the legal liability for all future discharges - in today's litigious society - is a risk none will take.

While it may seem a good Samaritan law may be a nobrainer, like most issues of environmental law, it is not.

When Colorado's U.S. senators, Republican Wayne Allard and Democrat Ken Salazar, backed a bill in 2006 to remove parts of the law that discourage cleanup, it drew opposition from environmental groups.

The groups worried changes could allow mining companies to come back into the mines and renew operations and not be responsible for discharges. The opposition was enough to kill the legislation, and it looks unlikely any will advance in 2007.

It's an issue dividing environmentalists.

Russell said she recognizes the concern other environmental groups have about weakening the law. But, she said, "We're the only ones out there trying to do the darn cleanup."

At the Pennsylvania Mine, the lack of legislation has forced cleanup advocates to get creative.

Plans are in the works to create a nonprofit organization, the Snake River Water Foundation, that will take over ownership of a water treatment facility outside the mine. The foundation will have little cash or assets, so it is hoped no one would bother to sue it under the Clean Water Act.

"Nobody's going to sue them because they don't have anything to be sued for. There's no money," Russell said.

Numerous groups, government agencies and ski resorts are involved in the effort, though not Denver Water, because there are no human health issues for Lake Dillon reservoir downstream of the mine, which serves the water supplier.

It's not the ideal way of doing cleanups - it's taken 15 years to reach this point, and plans for the treatment facility still haven't been drawn up. It will cost from $500,000 to $1.5 million, Russell said.

But, for now, it's the only way of cleaning up the polluted water rolling down from the mines of yesteryear.

Pollution control

Construction could begin next fall on a large sand trap called the “Basin of Last Resort” that is designed to catch sediment in Black Gore Creek before it reaches Gore Creek in Vail. The Colorado Department of Transportation is fully funding the $1.1 million project — good news for groups like the U.S. Forest Service and the Eagle River Watershed Council.

The basin already exists — it just needs to be cleaned out. It’s a deep and flat 3-acre stretch of Black Gore Creek around mile marker 183 in East Vail that’s been trapping sand and slowing downstream pollution ever since I-70 was built.

But more than 61,000 tons of sand have piled to the top of the basin pool and can more easily wash away and settle on the bottom of nearby Gore Creek.

The sand, used to keep icy and snow-packed roads safe in the winter, is now covering insect habitats and harming trout.

Environmental assessments on the project must be finished before it can start.

W. Slope rep calls for fair Roan study

Al White warns state officials against playing politics with a review of possibly lucrative gas drilling on the plateau. By Steve Raabe The Denver Post

Article Last Updated: 11/14/2007 04:05:49 AM MST

Colorado's ranking Republican on the legislature's Joint Budget Committee has joined the debate on drilling for natural gas on the Roan Plateau, warning state officials not to "play politics" with a pending study.

State Rep. Al White, whose western Colorado district includes the targeted drilling area, said the state could lose billions of dollars in needed revenue if a study by the Colorado Department of Natural Resources discourages development of the area.

White said he is undecided on whether the scenic plateau should be opened to large-scale energy development.

But he's concerned, he said, that the DNR study, ordered by Gov. Bill Ritter, may underestimate the value of the Roan's gas and the economic benefit to Colorado.

A politically motivated underestimate of the resource would "increase the perceived political risk of execution by the private sector and will actually end up reducing Colorado's future receipts," White said in a Nov. 1 letter to Harris Sherman, executive director of the DNR.

The pending study will be forwarded next month to the U.S. Bureau of Land Management, which has proposed a plan to open up about 52,000 acres on the plateau for development.

The issue has been highly controversial. Environmental groups have been critical of a report issued by the energy-industry-backed Americans for American Energy, which said lease payments and royalties from gas production in the area could bring revenue to Colorado of up to $6 billion over 30 years.

White said a BLM energy-lease sale last week that attracted a high bid of $26,000 an acre for a Garfield County parcel "seems to justify some of the higher-end (industry projections) as opposed to the lowball numbers the enviros are throwing around."

Environmental groups have said the revenue potential is as little as one-fifth of the industry's estimate of $1.2 billion in the first year of drilling.

Department of Natural Resources spokeswoman Deb Frazier said the agency's analysis "will be solid and thorough and based on defensible assumptions."

Steve Raabe: 303-954-1948 or sraabe@denverpost.com

The native dilemma

Hermosa Creek cutthroat project mixes opinions

On the whole, Durango's angling community is "divided" on the issue, according to Ty Churchwell, vice-president of the local Five Rivers Chapter of Trout Unlimited. http://www.durangotelegraph.com/telegraph.php?inc=/07-11-08/localnews.htm

by Will Sands

The push is on to go native in the headwaters of Hermosa Creek. The Colorado Division of Wildlife and San Juan National Forest are currently working to reverse the local decline of the native Colorado River cutthroat trout. However, the reintroduction effort, which focuses on the drainage's headwaters, has also drawn mixed reviews.

The Colorado River cutthroat, the only trout species native to western Colorado, was abundant in rivers through the mid-1800s. At that time, human settlement arrived in the San Juan Mountains, and the fish were over-harvested. Early residents of the area recognized the need to restore the balance in the Animas, San Juan, Florida and Pine rivers, and they imported rainbow, brook and brown trout from outside the region and began stocking them in the area's waterways. These fish, and particularly the brook trout, eventually outcompeted the native cutthroats, leading to the current situation. Only a few pockets of the original fish remain in the San Juans, and the cutthroats have been designated a Species of Special Concern by the DOW and a Sensitive Species by the Forest Service.

"When you have a combination of species, the brook trout typically outcompete the others," explained Mike Japhet, senior aquatic biologist for the DOW. "If we did nothing, the entire upper Hermosa Creek area would be completely populated by brook trout in a number of years."

The DOW is doing something in the upper Hermosa watershed, however. Faced with the threat of an "endangered" designation from the U.S. Fish and Wildlife Service, the agency is continuing its efforts to bring the native fish back to the San Juan Mountains.

"This project is certainly one that is a high priority," Japhet said. "The Forest Service and DOW have agreed that preventing the listing of this species as ‘endangered' is a good thing to do. It's a situation where an ounce of prevention is better than a pound of cure."

This ounce of prevention actually got under way in 1992 on the East Fork of Hermosa Creek. At that time, a hold-out population of pure Colorado River cutthroat trout was discovered in a remote stream within the Weminuche Wilderness. The DOW then identified that East Fork of Hermosa Creek, located near Purgatory, as an ideal stream to reintroduce the natives. More than a decade later, that population is now flourishing.

"The project on East Hermosa Creek is doing very well," Japhet said. "It's a very stable, very robust population of cutthroats up there."

That 1992 discovery also led to the creation of a Weminuche strain of Colorado River cutthroat trout. Spawn taken from that original discovery has been used to establish a brood stock at the Durango fish hatchery. Since 2005, fingerlings from that stock have been seeded into remote streams and high-mountain lakes throughout the region. Now the DOW plans to stock the native fingerlings into another stretch of Hermosa Creek - 4 miles of the stream's upper reaches above Hotel Draw.

Japhet explained that the upper Hermosa Creek drainage offers the DOW a unique opportunity to restore the natives in close proximity to the East Fork population. With the current project, the agency will reintroduce the fish into 4 miles of upper Hermosa Creek and 1 mile of Corral Creek. To accomplish this, the Forest Service recently built a five-foot waterfall barrier on the stream to isolate the new fish from other trout and potential predation.

Next summer, the stretches will be treated with rotenone, a short-lived botanical pesticide, to kill the existing, healthy population of mixed trout species. Widely used for the last 80 years, rotenone does not harm other species and breaks down completely within 48 hours. Thirty days after the application, the fingerlings will be introduced and special regulations will be implemented to protect the fledgling population.

Though the introduction is intended to be beneficial, it has drawn criticism and split the local flyfishing community. Some have criticized the DOW for destroying one population of fish to create another. Another group of anglers has said that the project will harm their ability to fish on a favorite stretch of water.

On the whole, Durango's angling community is "divided" on the issue, according to Ty Churchwell, vice-president of the local Five Rivers Chapter of Trout Unlimited.

"We can't even come up with a uniform opinion about the project amongst our board," he said. "We took a straw poll at our last meeting, and we don't have strong consensus in one direction or another and can't make a formal statement about the reintroduction."

However, for his part, Churchwell strongly advocates the reintroduction and restoring a local section of stream to the conditions of 125 years ago. "My personal opinion is that I am all for it," he said. "I'd like to see things restored to native genetics as closely as possible. This is a section that the public will be able to drive to, fish and catch a cutthroat trout that is as genetically pure as possible."

Churchwell and Japhet also disputed the claims that the reintroduction will damage the Durango fishing experience. They noted that local anglers have hundreds of miles of stream at their disposal and can readily fish the 23-mile stretch of lower Hermosa Creek as well as countless other similar streams.

"There are so many people who love to fish up there, and they don't care what kind of trout they catch," Churchwell said. "But there are also hundreds of miles of stream just like that in the San Juans, and we're talking about reintroducing natives on one little section."

Japhet added that the project is about reestablishing the viability of an animal species. He asked that anglers endure a temporary disruption in recreation to help accomplish a greater goal.

"We're certainly sensitive to the fact that people are concerned about impacts to their recreational fishing," he said. "But we feel like the short-term disruption will be far outweighed by the benefits of enhancing the habitat and creating a new area for people to fish for these natives. When you restore a native species, it's a win-win for everyone." •

Bureau of Land Misuse

Drilling on Roan could negatively affect wildlife

Trout Unlimited is concerned that "development could result in impacts that would severely harm or even wipe out the sensitive populations of Colorado River cutthroat trout on the Roan," said Corey Fisher, energy field coordinator for Trout Unlimited.   http://www.gjsentinel.com/hp/content/sports/stories/2007/11/14/111407_db_OUT_roan_WWW.html    

By DAVE BUCHANAN The Daily Sentinel Wednesday, November 14, 2007

Bruce Gordon banked his small plane and stared down at a line of drill pads marching across the top of the Roan Plateau. Gordon's attention was fixed at the sight of the six scars on the plateau's winter-bare landscape, an umbilical road tying them together like knots on a rope, each one edging along an unnamed ridge toward the westernmost edge of the Naval Oil Shale Reserve.

"I can't believe it," said Gordon, the lead pilot and president of EcoFlight, a wildlands conservation group based in Aspen. "I flew over here earlier this summer and there's so much more development now. It's like a land rush."

Gordon was leading one of his group's semi-regular trips across the Roan Plateau, giving various public groups the rare opportunity to see first-hand the level of development happening up there.

As energy development continues to ravage parts of western Colorado, and in particular creep closer to the still-unmarked top of the Roan Plateau, more voices are expressing opposition to the Bureau of Land Management's energy leasing policies.

"The BLM is becoming a single-use agency," said Ron Velarde, northwest region manager for the Colorado Division of Wildlife. "I don't blame the energy companies, I blame the BLM for letting this happen on our public lands."

Trout Unlimited is concerned that "development could result in impacts that would severely harm or even wipe out the sensitive populations of Colorado River cutthroat trout on the Roan," said Corey Fisher, energy field coordinator for Trout Unlimited. He quoted a BLM analysis that said effects could be irreversible, "especially those that eliminate genetically unique resources ... such as genetically pure Colorado River cutthroat trout."

While most of the drilling around and on the Roan Plateau is occurring on private land, some is being done on public lands around the base of the plateau. Some interests have written off the bottom of the cliffs as a quasi-sacrifice zone to energy development, but the DOW is quick to differ.

"The base of the plateau is critical (big game) winter range," DOW spokesman Randy Hampton told Daily Sentinel reporter Bobby Magill. "If (the energy companies) hammer the bottom, there won't be any wildlife on top."

Still, much of the focus now is on preserving what little unmarred habitat remains on the top of the plateau. The federal lands up there haven't yet been leased, although that may occur as soon as late next summer.

Wildlife managers, hunters, anglers and conservationists all know that once the BLM opens the plateau to drilling, the effects from development will forever change the Roan Plateau.

The best option, obviously, would be to disallow any energy development in the still untouched parts of the Roan, but that's unlikely to happen.

What critics of the drilling would like to see is moderation, a slow staging of the development so effects could be properly addressed. Stipulations and restrictions could address such problems as controlling runoff, habitat fragmentation, and loss of public access before they happen.

And, Velarde emphasized, these are public lands, no matter how often that point is overlooked by pro-development interests.

However, once the development begins, the constant traffic, noise and disturbance compromise wildlife and recreational uses to where the land becomes a industrial zone and little else.

Part of the 73,600 acres of federal land on the plateau won't be developed, said BLM spokesman David Boyd. Some of it is too steep or in riparian areas and some of it is managed with NSO (no surface occupancy) restrictions.

"Nothing on the top of the plateau is closed to leasing but a little less than half of it is NSO," Boyd said. That means in order to extract the gas, a company has to use off-site directional drilling.

Other restrictions Boyd listed from the BLM's Roan management plan include "staging" the development along the ridge lines and making sure one well pad is finished and reclamation is under way before another pad can be started.

Of the leasable federal lands, approximately 34,758 acres, only 1 percent can be disturbed at any one time, Boyd said.

"We think most of the development will be accessible by existing roads but some of the roads probably will have to be improved," Boyd said. "We think this will motivate them to reclaim things more quickly."

But it's the cumulative effects that cause the most concern for sportsmen and conservationists.

It's long-lasting effects on water, wildlife and air quality. A clear day is rare in western Garfield County because of the dusty haze from constant traffic on gravel and dirt roads. A glance last week at upper Parachute Creek revealed clouds of dust reminiscent of nuclear bomb tests 50 years ago.

Uncontrolled runoff from well pads and roads could damage or destroy isolated populations of cutthroat trout, especially if development reaches down the sides of the ridges.

"The key is to protect the watersheds from ridge top to ridge top," Fisher said. "Gas development (currently) is not precluded in headwaters of the (cutthroat) stream reaches."

Velarde said the 1 percent disturbance limit and requiring mitigation on pads before others are built might soothe some of the DOW's concerns.

"But if they are able to drill all over the Roan Plateau, we have problems," he said.

A provision introduced by Reps. Mark Udall and John Salazar in the House-approved version of the 2007 Energy Bill includes NSO restrictions across the top of the plateau while allowing off-site (directional) drilling to tap the resources below.

As Gordon's small plane flew across the plateau's well-drilled south face, his guests looked down on a couple of new, biggie-sized well pads at the base of the cliffs, where two rigs were working side-by-side. Someone remembered that Williams Energy RMT recently announced its plans to start cluster drilling.

Gordon sighed and headed his plane for home.

"It's a cluster all right," he observed.

Small stream cause of big fuss in state

The Upper Ark district protested the expansion of the Badger Creek water right at a March meeting of the CWCB in Canon City. In the months since, Assistant Attorney General Amy Stengel and Trout Unlimited attorney Drew Peternell have argued that no augmentation water rights are at risk by increasing the in-stream flow rate to 5.5 cubic feet per second (about 3.5 million gallons a day) from the current 3 cfs (about 1.9 million gallons a day). http://www.chieftain.com/metro/1194623125/8

By CHRIS WOODKA THE PUEBLO CHIEFTAIN

A small stream in western Fremont County is causing a big ruckus as the state ponders expansion of a water right to protect its flows.

Expanding the water right on Badger Creek, a 30-mile-long stream near Howard, to include higher flows is supported by the Bureau of Land Management, Colorado Department of Wildlife, Trout Unlimited and other environmental groups.

The move is opposed by the Upper Arkansas Water Conservancy District, which says increasing protected flows for Badger Creek could impede augmentation plans for future wells in unspecified locations.

The Colorado Water Conservation Board, the agency which approves in-stream flows, will consider the Badger Creek issue again at its meeting next week. A three-hour block for a hearing is scheduled to begin at 3:30 p.m. Nov. 14, at the Golden Hotel, 800 11th St., Golden.

The Upper Ark district protested the expansion of the Badger Creek water right at a March meeting of the CWCB in Canon City. In the months since, Assistant Attorney General Amy Stengel and Trout Unlimited attorney Drew Peternell have argued that no augmentation water rights are at risk by increasing the in-stream flow rate to 5.5 cubic feet per second (about 3.5 million gallons a day) from the current 3 cfs (about 1.9 million gallons a day).

"We don't think there is that much water there every year," said Terry Scanga, general manager of the Upper Ark district. "All we're asking for is that they provide a number that won't take the whole flow."

Upper Ark said its augmentation plan incorporates a flow of 0.25 cfs (about 160,000 gallons a day) and suggested a "variable decree" that would account for that amount, Scanga said.

"I guess it's a matter of when is enough, enough, to maintain a good habitat?" Scanga said.

Stengel, in her brief to the CWCB, says the state's calculations of the flow of the creek show that the flow of Badger Creek exceeds the Upper Ark's potential domestic water supply requirements more than half of the time, with roughly enough water to sustain 117-900 homes, depending on lawn irrigation.

Beyond the simple water availability, however, the state said the water would preserve a natural environment in a 17-mile reach of the stream below a perennial spring. The Upper Ark also has not demonstrated how the proposed state water right would injure its right, Stengel said.

"The subject reach of Badger Creek is an exceptionally pristine section of stream supporting a thriving brown trout population," Stengel wrote, adding that 90 percent of the stream is on public land.

In its statement, Trout Unlimited pointed out the expansion of the in-stream flow would be junior to existing rights held by the Upper Ark.

"It's speculative. What they're really doing is protecting future growth in the upper reaches of Badger Creek," Peternell said. "The Upper Ark is protecting hypothetical future users, but this does nothing to injure their water right."

The Upper Ark is arguing the stream is intermittent in stretches, even below the spring, which is disputed by the Division of Wildlife and Trout Unlimited.

Reed Dils of the Collegiate Peaks Chapter of Trout Unlimited said there are occasions when flash floods move debris to some sections of the stream and temporarily "bury" them, but the flows of Badger Creek soon cut the channel again. A big flood in 2004 disrupted part of the stream, but Dils was able to find fish above and below the point before and after it reopened.

"It's an extraordinary place, and an in-stream flow is needed," Dils said.

The BLM has worked for years with Fremont County residents to protect the public lands on Badger Creek by cleaning up the area and restricting motor vehicle access.

What’s worse than an unethical hunter?

 Writers on the Range - by Pat Wray All-terrain vehicles aren't good or bad in themselves; it's all about context. When my son was lost for an entire night in the mountains of northeast Oregon, search and rescue volunteers from Union County showed up on their ATVs and set out to bring him home. I was never so glad to see machinery in my life. They helped find him later that morning.

Then there are those other occasions. A few years ago, I was slogging through deep snow near the Malheur River east of Juntura, Ore., in search of chukars -- Eurasian partridges -- when I heard the distinctive growl of ATVs. I looked up to see two of them cresting a hill above me.

I had a bad feeling about their presence in a place with no established trails. My concern was proven justified a few minutes later when I cut across their track. The two machines had simply driven straight uphill from the river, taking advantage of the deep snow to drive on top of sagebrush and bunchgrasses. The weight of the machines crushed the sagebrush, leaving a trail of shattered branches and trunks. Where the snow was shallow, tires had cut through to the soil, gouging it out and spraying it across the snow.

By the time I headed back that evening, the ATVs were gone. They had, for the most part, followed the same track down the hill. At least they hadn't carved a new track across the virgin desert, but their second trip completed the destruction of the sagebrush, breaking it down so completely that when the snow melted, it would no longer be high enough to prevent ATV travel. Predictably, ATV drivers began using the track regularly, and now it is a deeply rutted scar from which hundreds, if not thousands, of pounds of dirt washes directly toward the Malheur River.

Another time, after I had killed an elk near Enterprise, Ore., and was hiking back to my vehicle to pick up a backpack to begin hauling the meat, I met the rancher who owned the land on which I'd been hunting, and he offered to help bring the animal out -- an offer I quickly accepted. We hauled the elk up to an established trail, loaded it onto his ATV trailer and pulled it back to his house. The rancher and his machine saved me four roundtrip hikes of three miles each. It would have taken me a long, exhausting day.

Last year was a different experience. I was hunting chukars on the Owyhee River down in southeastern Oregon. I came up out of the canyon far from any road and worked along the rim into the wind with my pointer, Sadie. The dog became almost immediately "birdy" and began moving slowly and carefully. Her careful approach didn't help. A covey of 25 birds flushed almost 100 yards away and bailed off into the canyon. Bad luck, I thought. Two hundred yards later, a second covey of similar size flushed wild, this time nearly 125 yards away. Over the next mile the same thing happened again and again.

Then I found the cause: ATV tracks running along the canyon rim. Hunters using ATVs were busting through the desert, creating their own trails so they didn't have to walk while they hunted some of the best chukar ground in North America. And it was flat! What incredible laziness! The birds had been harassed into a level of paranoia I'd not seen anywhere else in the state, even where hunter numbers were much higher.

It's true that most of the habitat damage done by ATVs isn't caused by hunters, but by a small percentage of recreational riders. Their concept of the outdoors is a warped desire for a place where they can go fast without regard for laws or for anyone else around them. But hunters are far from innocent. Far too many have made the unethical use of ATVs the linchpin of their hunting experience, and instead of confining their driving to established trails as the laws require, they've succumbed to the lure of the easy way.

"The hill is too steep, I'll just make my own trail." "I'll just ride along until the dogs point the birds. Then I'll get out and walk." In following rationalizations like this, they damage both the game animals they pursue and the land on which wildlife depends.

In their slimy devotion to laziness, these hunters make one thing crystal-clear: The only thing worse than an unethical hunter is an unethical hunter on an ATV. And hunters like that are too stupid to know what they have lost.

Pat Wray is a contributor to Writers on the Range, a service of High Country News (hcn.org). He is an avid hunter and outdoor writer who lives in Corvallis, Oregon.

Grand County drill leases halted

BLM notes the furor over 31,000 acres with little energy imprint.

By Steve Lipsher The Denver Post

Article Last Updated: 10/31/2007 01:22:34 AM MDT

 The federal government on Tuesday removed 23 oil-and-gas-exploration leases in Grand County from its upcoming sale after residents protested what they considered an unwarranted intrusion into unmarred country.

U.S. Bureau of Land Management officials announced that they would defer the Nov. 8 sale of 12,802 acres of BLM land and 18,276 acres of "split-estate" property - in which the landowner does not control the mineral rights beneath the ground - including scenic parcels just outside the county seat of Hot Sulphur Springs.

"We acknowledge that, with little federal oil-and-gas leasing in Grand County in recent years, all parties involved will benefit from additional discussions and outreach on the federal oil-and-gas leasing process," said BLM deputy state director Lynn Rust.

Granby Mayor Ted Wang expressed relief, saying that he recognized a groundswell of opposition to energy exploration in the fast-growing ranching and tourism region.

Wang and officials in four other Grand County towns indicated they had not been aware of the extent of the exploration that could occur and expressed concerns over the impacts to roads, housing, social services and the local economy.

The Colorado Division of Wildlife and environmental groups including Trout Unlimited also protested the leases.

Wildlife officials still harbor concerns about the leases proposed for parcels in Jackson, Routt and Moffat counties that could intrude into big-game habitat and undermine efforts to protect endangered fish.

The BLM plans to continue with sales of 135 parcels covering 129,726 acres across Colorado despite receiving protests on all of them, although no exploration will be allowed until those concerns are considered.

Grand County is not believed to harbor a significant profitable quantity of natural gas, a big reason that records say just one drilling permit has been issued there since 1988.