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The commissioners were left with virtually no choice but to approve the agreement, since Orion could move forward with its drilling plans without an agreement simply by paying a state bond and obtaining a state permit. That is because DOW only owns surface rights to the 13,200-acre wildlife refuge, not the mineral rights below.

"If you do not have an agreement, you do not have control over what they do," said Wildlife Commissioner Dorothea Farris, explaining why the commission approved the agreement.

Orion plans to drill one exploratory well on a 2-acre well pad close to an existing road in the wildlife area. The surface-use agreement includes several requirements to protect wildlife and the environment, including seasonal drilling restrictions, the use of pipelines to transport water produced by the well to reduce the amount of truck activity from drilling operations, and water sampling around the well pad to ensure the drilling activities do not impair water quality.

"Everybody is doing everything we can to make the system work, but there's still a concern about where does that leave wildlife?" said DOW spokesman Randy Hampton.

"Our preference would be not to have that activity there," Hampton added. "That said, we think we've done everything possible to protect the wildlife value. As the surface owner and not the mineral owner, there's only so much we can do."

Doug Harris of Orion Energy Partners said it was in both parties' best interests to come to an agreement. "Any time you can come up with an agreement that benefits both parties, it's a lot better than one party taking a stance against the other."

Orion hopes to start drilling the well next month and to complete drilling operations by mid-October, ahead of the deer rifle hunting season, Harris said.

The agreement only covers the initial exploratory well. Should Orion discover gas and want to develop more wells, the company would have to apply for additional permits from the state, and DOW would try to work out another surface-use agreement with the company.

With gas already discovered to the east and west of Orion's well, Hampton said it seems likely the company will discover gas, which will present new concerns for the wildlife agency.

"We were able to work out our wildlife concerns with one well, but what happens when it becomes 20 wells, or more? That's the rub," he said. "It's our mistake and our fault as the Division of Wildlife for not buying the mineral rights, frankly."

'A property that must be protected'

Although DOW is limited in what it can do to protect the wildlife area, it has tried to prevent energy development from disturbing wildlife. In late January, DOW Director Thomas Remington asked the Bureau of Land Management, which holds some of the mineral rights to the area, not to lease a federal mineral lease parcel underneath Garfield Creek. In a letter to Colorado BLM Director Sally Wisely, Remington warned that any additional habitat alteration in and around the Garfield Creek refuge could hamper the agency's ability to manage wildlife populations in the area.

"Winter range in the area is being reduced significantly by housing and energy development," Remington wrote. "In short, the wildlife area provides crucial winter range for deer and elk that are finding fewer and fewer places to inhabit without conflict."

"This is a property that must be protected to the fullest extent," he added.

Despite DOW's concerns, BLM auctioned the parcel off in February.

The Garfield Creek State Wildlife Area is unique because it provides an entire ecosystem, from low-elevation winter range to high-elevation summer range. One of the main purposes behind its creation was to prevent deer and elk from damaging nearby agricultural areas by providing a place for them to forage. The refuge also helps to reduce vehicle collisions with elk by keeping the elk on the refuge and away from Interstate 70.

"The concern is, if there is disturbance during the winter months, not only will it push the elk onto [the property of] adjoining landowners, who don't want them, it will push them onto I-70," Hampton said.

BLM requires energy companies to use directional drilling to access minerals underneath the refuge, which BLM officials maintain is sufficient to protect wildlife.

But DOW notes that much of the minerals beneath the refuge are in private hands, which could undermine BLM's "no surface occupancy" protections. For example, Orion Energy is working on developing private minerals directly adjacent to the parcel BLM auctioned in February. Because Orion did not purchase the lease, DOW worries that it could mean even more facilities on DOW property.

Additionally, because of the parcel's location, the company that purchased the lease would have to access the federal minerals from Garfield Creek property. BLM can waive "no surface occupancy" status if energy companies cannot develop the lease any other way.

Other plans for energy development on the wildlife area are already under way. Two separate projects planned for Garfield Creek involve more than 900 acres.

Click here to read the agreement.

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