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Federal energy regulators have rejected an application for a water pipeline from Flaming Gorge to Colorado's Front Range, earning applause from foes and a vow from the developer to try again.
Wyco Power and Water Inc. downplayed the denial as a glitch that it can address by submitting a better application to the Federal Energy Regulatory Commission (FERC), but opponents say it effectively kills the pipeline until the company gets environmental permits and secures the water approvals they doubt are coming.
"We think that's going to be impossible," said McCrystie Adams, an Earthjustice attorney who represented the Sierra Club, Utah Rivers Council and other groups that intervened to oppose the federal permit.
Wyco Power, headed by entrepreneur Aaron Million, had applied with FERC for a preliminary permit to study feasibility. Million had changed course from a previous application deemed incomplete by the Army Corps of Engineers and submitted one to FERC instead because of several hydropower plants that would use water along the 501-mile route from the Green River to Denver and Pueblo, Colo.
Critics have said the pipeline is primarily a water supplier and not an energy project appropriate for a FERC-led approval process because pumping the water to Colorado customers would use more power than the generators would produce.
A FERC official ruled Thursday that the route was too uncertain and the application premature. Although Wyco's application maps show only federal rights of way, FERC Office of Energy Projects Director Jeff Wright wrote in his decision, the pipeline would also have to cross state, county and private lands.
"Until some certainty regarding the authorization of the pipeline is presented," Wright wrote, "Wyco will not be able to gather and obtain the information required to prepare a license application for a proposed hydropower project."
He also noted that the hydropower stations on which the application is based require water from a pipeline that doesn't exist, and the application provides no timeline for seeking other agencies' authorizations to build it.
The proposal has drawn criticism from a number of sectors, including Wyoming's governor, environmentalists opposing trans-basin diversions, Utahns fearing effects on their state's water supply, advocates for the Green River's endangered and sport fish, and those who question private control of 200,000 acre-feet of scarce Colorado River Basin water.
Colorado-based Western Resource Advocates (WRA), representing two conservation groups that had filed protests with FERC, celebrated the decision.
"The Flaming Gorge pipeline is a zombie project at this point," WRA attorney Rob Harris said, "staggering around looking for anything to latch onto to keep it alive while everyone else is running away screaming."
Million insisted Thursday's decision just means he needs to fill in more details before resubmitting a FERC application. Gaining permission to cross lands on the map isn't an issue, he said, given that water projects are entitled to condemnation rights.
"It doesn't set us back at all," he said. "This is the process. We keep moving forward."
Opponents, including WRA, said it won't be so simple for Million, because he will likely have to secure permission from multiple agencies before FERC will ever reconsider.
Identifying an exact route means getting permission from other federal agencies more suited to studying water projects, said Adams, the Earthjustice attorney. The Bureau of Reclamation likely would not consent, she said, because there's insufficient water at its Flaming Gorge Reservoir, and endangered fish would suffer downstream.
"FERC made the right call," she said. "This is a project that would have devastated the Green River."
Million has said the water is there and, if not, Utah's plans for a Lake Powell pipeline likely are doomed. In fact, he said he modeled his proposal after Utah's project, which also is before FERC because it includes hydropower production.
FERC's decision on the Flaming Gorge pipeline may indicate the agency learned a lesson after approving an initial permit for study of the Lake Powell pipeline, Harris said. Maybe the energy regulators will no longer take the lead on projects that are primarily about supply.
A FERC spokeswoman did not respond to a question about whether the Powell project was more complete. Zach Frankel, executive director of the Utah Rivers Council, said Utah's proposal to supply water to St. George likely carries more weight with federal regulators than does Million's "speculative" concept.
Still, he was surprised FERC shot down the Flaming Gorge proposal before even granting a permit for further study. "They give those out like candy," he said.
Gov. Gary Herbert has said he would not stand for the Green River project if it threatens Utah's supply, but he did not intervene in the FERC application as Wyoming's governor did.
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