Earthjustice attorney Jim Angell told the Colorado Independent that last week’s decision by the Tenth Circuit Court of Appeals rejecting a 2008 Wyoming federal court decision and backing the Clinton rule undermines Colorado’s contention that it needs its own rule because of legal uncertainty.

“Really, for all intents and purposes this is the certainty we’re going to get in this region, and what’s really going on is the state [of Colorado] wants its rule and is using alleged legal uncertainty as an excuse for its continued support for it,” Angell said.

The proposed Colorado Roadless Rule, first floated in 2005 when the Bush administration set aside the Clinton rule and later allowed individual state rules for the management of roadless federal lands, contains too many road-building exemptions for logging, coal mining and oil and gas development, conservation groups contend. But Colorado has stayed the course because of various legal challenges to the 2001 Clinton rule.

“This ruling does not preclude further litigation, which could continue to create uncertainty,” Colorado Department of Natural Resources Executive Director Mike King said after last week’s appeals court decision. “As a result, we will continue working to finalize the Colorado rule so we can provide clear and appropriate direction on the management and protection of national forest roadless areas in Colorado.”

But Angell said very few legal options remain open.

“I suppose the other side can ask the entire court to take the case en banc or they can seek [U.S.} Supreme Court review, but given this opinion and the fact that it aligns perfectly with the Ninth Circuit review [in 2009], both of those are extreme long-shots,” Angell said. “But if that is really the certainty they wanted, then it would only be a short wait to resolve that process.”

There are 4.2 million acres of roadless federal lands in Colorado, and King says the Colorado rule is based in large part on the 2001 rule – with some key differences.

“Starting in 2005, Colorado has been engaged in an extensive public involvement process to develop consensus on a rule that makes sense for the various needs and uses of our forests while also finding ways to provide strong protection of these lands,” King said.

“That process has benefitted from updated backcountry inventories for true roadless characteristics, the identification of high-value fish and wildlife habitat, and developing narrowly-tailored accommodation of activities critical to local economies that also includes wildfire protection for mountain communities.”

The only other state to petition the federal government for a state-specific rulemaking process was Idaho. The Idaho rule has been finalized and put into place for management purposes but is being challenged on appeal in the Ninth Circuit Court.

The MLRB also voted unanimously to revise existing rules regarding the disclosure of additional information during prospecting activities and to update hard rock mining fees.

“These rules will protect our groundwater resources by requiring baseline characterization and grant much greater transparency to the impacted communities regarding the proposed mining activities,” MLRB board member Mike King, the executive director of the Department of Natural Resources, said in a release. “DRMS [Division of Reclamation, Mining and Safety] did a remarkable job in framing the issues, incorporating public concerns and developing a truly balanced set of regulations.”

According to a press release from the state, “the rule making implements a trio of laws passed during the 2008 legislative session that were driven in part by concerns over the potential impact on groundwater from in-situ uranium mining, a developing technology that uses chemical solutions to leach uranium from underground rock formations.”

Coloradoans Against Resource Destruction (CARD) and Environment Colorado helped pass some of the nation’s toughest uranium laws as well as mine prospecting legislation back in 2008, and Thursday’s 7-0 decision represented the final steps to put the new protections into Colorado law.

“We’re pleased with the board’s decision today in passing rules that protect groundwater and ensure public involvement in uranium mining decisions,” said Jeff Parsons, the attorney with the Western Mining Action Project who represented CARD and Environment Colorado.

Recent attempts to revive Colorado’s once booming, although historically highly toxic, uranium mining and processing industry have led to a flurry of legislative action to head off the pollution problems of the 60s, 70s and 80s.

Go to the Department of Natural Resources website for more details on Thursday’s decision.

The accord between the Three Rivers and Scenic River Tours outfitters and the owners of the Jackson-Shaw property along the Taylor prompted the pulling of an estimated 24 different ballot measures on the issue from the November slate.

Gov. Bill Ritter (wiki commons)

Instead, Ritter will convene a task force under the auspices of the Colorado Department of Natural Resources that will develop a “framework for resolving future disputes” and make its recommendations to Ritter’s office by Dec. 31.

Independent state lawmaker Kathleen Curry introduced the rafting bill last session in hopes of allowing commercial outfitters to float through private property and touch land in the event of an emergency or the need to “portage,” or travel around a river obstacle on land.

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The 12-member Carbon Capture and Sequestration Task Force will start delving into policy issues facing the state’s coal and electrical utility industries as research continues on carbon capture and underground storage of CO2 produced by coal-fired power plants and other utilities. Scientists says CO2 emissions are the biggest contributor to global climate change.

The goal is to produce omnibus legislation for the 2011 legislative session. Several other states, including Wyoming, North Dakota and Montana, have already either passed CCS regulations or are considering legislation.

Current state lawmakers named to the CCS task force, which will meet monthly, include Sen. Gail Schwartz, D-Snowmass, Sen. Al White, R-Hayden, Rep. Claire Levy, D-Boulder, and Rep. Marsha Looper, R-Calhan.

There will also be two members each from the utility, coal and oil and gas industries and one member each from the cement industry and the conservation community, as well as two Ritter administration officials: Ginny Brannon, the climate change program manager for the Colorado Department of Public Health and Environment, and Robert Randall, assistant director of energy and minerals for the DNR.

The task force will deal with such questions as whether surface owners, mineral owners, or the state or federal government should own the pore space in which CO2 would be injected and stored; who should own the CO2 once it’s been injected into geologic formations; and what environmental and health regulations are appropriate for geologic CO2 sequestration.

In Moffat County, the Colorado Geological Survey is conducting a $5.48 million study backed by the U.S. Department of Energy to see if CO2 from several different industrial facilities could be stored in underground sandstone formations.

“Interest in carbon capture and sequestration has grown dramatically in recent years,” Colorado State Geologist Vince Matthews said in a release. “Colorado should encourage its progress by ensuring that a workable legal and policy regime is in place before the state is asked to evaluate specific projects.”

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“Martin’s leadership on the state air commission was essential to cutting mercury pollution 90 percent from coal-fired power plants in 2007,” Environment Colorado advocate Matt Garrington said in a statement. “As head of the Colorado Department of Health and Environment, Martin was key to protecting our drinking water and making sure oil and gas development is done right.”

Martin got his undergrad degree in biology from Knox College in Illinois and his law degree from Northwestern School of Law, Lewis and Clark College, in Oregon. But Sherman, the man Martin replaces at DNR (confirmed earlier this month by the Senate as the U.S. Department of Agriculture’s undersecretary for natural resources and environment), is a 1964 graduate of Colorado College.

The Colorado College connection is becoming a noteworthy one in the Obama administration, with a half dozen CC grads assuming significant roles. Last week, Marcia Kemper McNutt (Class of ’74) was confirmed by the Senate as the first female director of the U.S. Geological Survey, and Sherman was confirmed the week before.

McNutt will also serve as a special science advisor to CC grad and Secretary of the Interior Ken Salazar (Class of ’77), who, interestingly, is also a former head of the Colorado DNR.

Other CC grads in key roles include Jane Lubchenco (Class of ’69), administrator of the National Oceanic and Atmospheric Administration; Lori Garver (Class of ’83), deputy administrator of NASA; and Aaron Gutierrez (Class of ’08), intern in the office of legislative affairs at the White House. Gutierrez, of Pueblo, is a brain cancer survivor.

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State water officials, in conjunction with the Western States Water Council, are trying to sort out conflicts between growing residential development, agriculture, recreation and the thirsty industrial sectors such as energy production, the Herald reported Tuesday.

Gov. Bill Ritter was scheduled to speak Tuesday, but Colorado Department of Natural Resources director Harris Sherman, who prompted the water confab, was unable to attend because he’s prepping for his U.S. Senate confirmation hearing for an undersecretary of agriculture post that would have him overseeing the U.S. Forest Service for the Obama administration.

“He’s the one who kind of got us – how do I put this nicely? He kicked us in the butt and told us to get these conversations going,” Jennifer Gimbel, director of the Colorado Water Conservation Board, told the Herald.
Conspicuously absent Monday, however, were representatives of the residential development and planning sectors, the paper noted.

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The 2002 Hayman fire. (Photo courtesy U.S. Forest Service)

Speaking at the Denver Museum of Nature and Science during the announcement of a public-private partnership to restore public lands scorched in the 2002 Hayman fire, Vilsack told The Colorado Independent in an interview that the Centennial State’s efforts to lift federal restrictions on building forest roads in order to better contain fires make sense.

“Our first priority is to protect the roadless areas,” Vilsack said of the ongoing odyssey to maintain the roadless integrity of more than 58 million acres of national forest land nationwide. “But I appreciate that Gov. [Bill] Ritter has started a process to build consensus around the issue.”

In 2001, the Clinton administration pushed through a roadless rule that was quickly set aside by the Bush administration, which later allowed states to petition for individual roadless rules based on state agendas. Only Idaho and Colorado went down that route, with Idaho successfully passing its own roadless rule last year.

“As you probably know, the Idaho process developed consensus and has been successful,” Vilsack said. “It’s important to recognize the uniqueness of each situation, that each state is unique and to go forward from that stand point.”

That is more of a nod to the Colorado rule than Vilsack has previously given, and to some degree validates the ongoing efforts of the Ritter administration to protect approximately 4.2 million acres of roadless national forest in the state. Environmentalists have charged that the Colorado rule contains far too many exceptions for logging, water and energy infrastructure, ski resort expansion and energy development.

Colorado Department of Natural Resources officials argue that the 2001 Clinton roadless rule, which is reportedly closer in its protective scope to what the Obama administration prefers, was put in place before the ongoing mountain pine bark beetle epidemic, which has killed nearly 2 million acres of lodgepole pines statewide. They say there needs to be much more road-building leeway in order to thin national forests around ski resorts and other mountain communities.

The Obama administration has indicated a preference for the more restrictive Clinton rule by challenging two previous 10th U.S. Circuit Court of Appeals rulings against the Clinton rule.

Vilsack made his comments to The Colorado Independent while standing amid posters of blown-up photos of the Hayman fire and its devastation.

The largest blaze in recorded Colorado history at nearly 138,000 acres, Hayman wasset by federal forestry officer Terry Barton, who was convicted and spent six years in prison. The fire denuded the land, sterilized the soil and filled streams with ash and sediment.

Monday night, some of the state’s top political leaders, together with representatives from Vail Resorts, the U.S. Forest Service, the National Forest Foundation and the Nature Conservancy, announced the launch of a three-year, $4 million project to restore the South Platte River corridor scorched by the 2002 fire.

Besides Vilsack, other speakers included U.S. Sen. Mark Udall, Ritter and Denver Mayor John Hickenlooper, all of whom praised the restoration project as an innovative private-public partnership that, in endlessly budget-strapped Colorado and across the recession-wracked country, may signal the future of national forest stewardship.

The event was hosted by Vail Resorts, which committed $750,000 to the project over the next three years. CEO Rob Katz told The Colorado Independent that the company was in the business of bringing people to enjoy the beautiful Colorado landscape and so has “a real stake in the environment.”

“We thought, ‘What is the signature program that we can take up and make a difference?’” Katz said. “The Hayman project is just total habitat. This is about forest health and water quality and it serves the broader Colorado community. We could not find a more impactful project to be a part of anywhere in the state.”

The launch of the Hayman restoration project comes on the heels of news that Vail Resorts is pulling out of its wind credits offset program. The company has been a leader in buying wind-credits for the last three years.

“We’re proud of our commitment to the wind-credits program, but when we took that up it was 2006 and climate change was not on the agenda in the same way it is now,” Katz said. “We’re proud of our leadership on the issue. We were number two in the nation in buying wind credits. I think we’re No. 27 now. Vail Resorts doesn’t like to ever fall in rankings, but in this case we think it’s a good thing.”

Vail ski area recently fell to number three in the annual resort rankings issue of Ski Magazine, behind Deer Valley in Utah, and Whistler in British Columbia. Vail typically occupies the top spot in the annual reader survey.

Katz also said that Vail Resorts draws most of its visitors from the greater Denver area and the Hayman restoration project serves that community in a very immediate way because it will restore the watershed in a drainage that supplies water to much of the Denver metro area.

“The [Hayman restoration] protects the climate but it’s also a local project,” Katz said. He acknowledged the PR benefits among green watchers, but added that the environmentalist community would continue to “hold our feet to the fire. And that’s what they should do. We expect that.”

Environmentalists have also been critical of the state’s efforts to build more roads for fire mitigation despite the very real threat of another Hayman fire. Critics say trees should only be thinned near communities and not any deeper into the national forest.

But Vilsack on Monday was commended for taking an “all lands” approach to his job.

“The Forest Service is usually a step child” when compared to farmland in the eyes of the Department of Agriculture, said Bill Possiel, president of the National Forest Foundation. “Tom Vilsack is different.”

“Usually these private-public partnerships are about bringing recreation to Americans,” Possiel added. “This time it’s about restoration, and that’s just awesome.”

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(Photo/Rob Lee, Flickr)

The Colorado Independent disclosed last week that the U.S. Department of Agriculture hoped to publish the controversial Colorado roadless rule in the Federal Register by Jan. 16, four days before the inauguration of President-elect Barack Obama.

But late last week, Harris Sherman, director of the Department of Natural Resources, wrote a letter to the Department of Agriculture to request a delay in finalizing the roadless rule. On Friday, he announced the Bush administration agreed to hold off.

“Gov. Ritter made the right call to ask the Bush administration not to issue its proposed rule regarding Colorado’s national forest roadless areas until the rule’s serious flaws can be fixed,” said Jane Danowitz, U.S. public lands program director for Pew Environment Group.

“With 4.4 million acres of the state’s best backcountry on the line, there’s no need to rush through a rule that, among other things, would allow roughly 100 new oil and gas leases to move forward in these pristine areas. It’s wise to wait.”

The management of so-called roadless public lands in Colorado has been a contentious issue since the Clinton administration in its waning days issued a national rule that in 2001 put broad restrictions on the building of roads on 58 million acres nationwide. The Bush administration quickly suspended that rule, leaving backcountry public lands in limbo.

A series of court cases ensued, with a San Francisco district judge briefly reinstating the Clinton rule and rejecting a Bush administration plan to allow states to individually petition for their own set of rules. A Wyoming district court judge later invalidated the Clinton rule again, and the San Francisco judge last week limited her ruling to exclude Colorado.

Colorado and Idaho are the only two states that took advantage of the Bush petition process.

With so much legal uncertainty, the state is determined not to rely on the Obama administration to push for its own national rule more closely paralleling the Clinton rule, but officials say they want to make sure they get the Colorado rule right before it’s finalized.

“We’re a little nervous right now because there is no national roadless rule, so we’re in a situation where we have a letter from [Undersecretary of Agriculture] Mark Rey saying that no activities inconsistent with the Colorado petition will occur, but we’d just as soon tie that down into a rule as soon as reasonably possible,” said Mike King, deputy director for the Colorado Department of Natural Resources.

“We would support a national rule, but we’ve invested a lot in our Colorado rule and would ask that we would get some special dispensation for the effort and the evaluation that we’ve undertaken.”

Once a final environmental impact statement is completed and signed off on by the head of the Forest Service, the secretary of agriculture has 30 days to consider the Colorado rule. There is speculation Obama may appoint U.S. Rep. John Salazar, D-Colo., as his secretary of agriculture.

The Forest Service’s preferred alternative for the Colorado roadless rule takes 520,000 acres of backcountry out of the state’s roadless inventory. Colorado Division of Wildlife officials have disputed some of those deletions, contending they should still be considered roadless and therefore prime wildlife habitat.

Another point of contention for environmentalists are exceptions that would allow for “long-term temporary” road building to service more than 100 oil and gas leases that have been issued by the Forest Service since the Clinton rule was suspended in 2001. Additionally, there is some dispute over how deep into the forest roads should be allowed for cutting timber to reduce wildfire danger from the state’s mountain pine beetle epidemic.

The Forest Service’s Rocky Mountain Region spokesman said those are all issues that are still under consideration regardless of the timeframe for finalizing the rule.

“We know what some of the key issues are, but we’re still working through them,” spokesman Terry McCann said.

King said the state wants to avoid more oil and gas leases without a roadless rule in place, and simply can’t afford to wait on the Obama administration to tackle the issue. Ritter opted to continue the Colorado roadless rule process first started by former Gov. Bill Owens’ administration in 2005.

“With no federal rule in place all of those [roadless] areas are subject to future oil and gas leases unless we take action to tie down the Colorado protection. We don’t want another set of gap leases,” King said. “It’s our insurance policy, and it turns out that the governor [Ritter] was very wise to take that policy out, and we’re set to be protected in a manner that the vast majority of states won’t.”

The Yampa River on Colorado

The report, prepared for key government and private water stakeholders in the area, says that northwest Colorado rivers can supply enough water to meet the growing demands of the natural gas, coal and uranium industries, but unproven oil shale production technology would “require tremendous amounts of water” that might not be available.

The practical importance of water to the goal of extractling oil from shale is often overshadowed by the dream of tapping into a vast new source of energy. Studies show the Green River Formation of western Colorado contains between 1.5 trillion and 1.8 trillion barrels of recoverable oil trapped in sedimentary rock and sand. That’s more than four times the proven liquid oil reserves in all of Saudi Arabia.

But the process of extracting oil from rock require enormous amounts of water and power, as well as the refining and transportation infrastructure needed to get the oil to market. So far no oil company has been able to efficiently heat kerogen — the organic material that releases oil — in the sedimentary rock on a large enough scale for commercial production.

“A dominant finding is oil shale development, along with its associated power production, could require tremendous amounts of water, up to 378,300 acre-feet annually,” concludes the Energy Development Water Needs Assessment, which was funded by grants from the Colorado Department of Natural Resources and the Colorado Water Conservation Board.

An acre-foot is the amount of water needed to cover one acre a foot deep in water, or about 325,851 gallons. If the report’s estimate is accurate, oil shale development in Colorado would consume 123 billion gallons of water a year.

Proponents of oil shale production, which was just gearing up on Colorado’s western Slope in the early 1980s when the industry went bust, say technology has improved dramatically and requires much less water and power. But incoming Democrats such as newly elected Sen. Mark Udall have vowed to try to reinstitute a commercial leasing ban allowed to expire by Congress this fall.

“In a nutshell, the energy industry in Colorado will need a lot of water, but it’s manageable — with the exception of the speculative oil shale part of the equation,” said water consultant Caroline Bradford, the former director of the Eagle River Watershed Council, an organization devoted to preserving that tributary of the Colorado.

Besides water consumption issues, the report also concludes that the oil shale industry would also consume an inordinate amount of energy

“In either a moderate or high production scenario in the mid-term or long range, they’ll need to build 14 more huge (Craig-sized) power plants to produce the energy needed to produce the energy, but nobody knows if oil shale will really happen or not,” said Bradford, referring to the state’s largest power plant, Craig Station.