We’ve discussed the proposed NEPA regulations already here. They’re having two hearings on them, one in Denver today, and one in DC. Here is a basic story about what’s going on.
If you read the Presidential candidates’ list of things to do, it includes building massive green infrastructure (including on federal land) as quickly as possible. After all, it’s a crisis. Now many NEPA folks have never thought “emergency” and “EIS’s” go together very well. So you think that updating the regulations might receive broader support, as pointed out by Hudson Miller in this op-ed.
It should not require 13 years and the 16,000 pages that assessed the expansion of I-70 within its current alignment in central Denver.
Bruce Finley, of the Denver Post, selected an inholding road project on the White River (11 years? so maybe 13 is not so bad for the I70 expansion?) to illustrate his story on the proposed rule.
The showdown over President Donald Trump’s proposed trimming of environmental reviews for roads, bridges and pipelines under the nation’s foundational look-before-you-leap law hits Denver this week — just as that law guides a precedent-setting decision in western Colorado’s booming Vail Valley.
A Czech entrepreneur has requested a paved road through the White River National Forest, on protected habitat for rapidly declining elk, to allow the development of gated luxury estates on his 680-acre “inholding” of pristine high-country aspen meadows.
His push for a road to enable development on this inholding — private land surrounded by public forest — became so controversial that the U.S. Forest Service launched a years-long review under the National Environmental Policy Act, or NEPA, to consider possible harm.
For 50 years, the NEPA law has served as an environmental Magna Carta, obligating Americans to anticipate impacts before embarking on any major development projects involving the federal government, whether through funding, permitting or the work itself. It forces about 170 detailed environmental impact studies across the nation each year, and 10,000 lesser assessments, federal records show.
But White House officials, with support from the fossil-fuel industry and the U.S. Chamber of Commerce, are moving ahead with a revamp of how NEPA reviews are done and, on Tuesday, they’re holding a hearing at the Environmental Protection Agency’s regional headquarters in Denver. This overhaul stands out as the most ambitious step in Trump’s deregulatory agenda to help speed up development and infrastructure work by rolling back clean air and water protections.
The environmental review in western Colorado that has encompassed nearly a decade has led to careful vetting of the effort by Florida-based Czech entrepreneur Petr Lukes and co-owner Jana Sobotova to construct Berlaimont Estates, featuring 19 homes each built on a parcel of land 35 acres or larger. The project hinges on building a 26-foot-wide access road that rises 2,000 feet through forest.
Lukes declined an interview request from The Denver Post.
For the landowners, the fact-gathering, investigation and analysis of likely environmental impacts began with a process called scoping in 2009. The initial proposal was put on hold to work with Eagle County officials before intensifying NEPA reviews began in 2016.
“I don’t think we would have wanted any less thorough of an environmental review,” said Andy Hensler, a Colorado-based consultant that the property owners hired to navigate the process. “The review is important. And we have learned a lot through the process. We are looking at modifications, things we could do to lessen our impact.”
U.S. Forest Service supervisor Scott Fitzwilliams hasn’t revealed a decision yet, but emphasized in an interview that he’s bound by federal case law saying his agency must provide adequate access for owners of inholdings. An environmental impact statement, 400 pages long, is nearly done along with a draft final decision.
Colorado opposition has been fierce, with thousands of residents petitioning the Forest Service to reject the road, pointing to the plummeting elk, the potential for recreational overload in a forest that is already the most visited in the nation, and a potentially costly precedent for catering to inholdings owners.
Elk herds across a broad area around the Vail Valley have decreased by 40% over 20 years and suburban-style development now covers much of the valley bottom.
State wildlife officials warned of problems as the review began in 2016. Gov. Jared Polis, U.S. Sen. Michael Bennet and Rep. Joe Neguse, all Democrats, last summer weighed in, urging close attention in a letter to Fitzwilliams, noting the road would mean changing a forest management plan to open up an area that’s been closed from November through May to help elk survive.
The year-round road and development also could threaten sensitive species, the leaders said, including lynx, cutthroat trout, sage grouse, brewer’s sparrows and delicate rare plants.
As an observer of many years of the Village at Wolf Creek, which I used to call the “Reasonable Access for Unreasonable People” project, it doesn’t seem precedent-setting at all if Supervisor Fitzwilliams decides to approve access.
10 thoughts on “Poster Child for Proposed NEPA Regs? The White River’s Berlaimont Estates Road Access Project”
Rock and a hard place…actually denying reasonable access to an inholder property owner would be the precedent. Though, a 26-foot wide road challenges the definition of “reasonable”.
Wouldn’t 26 feet just be your basic two-lane road with 10-foot wide lanes and 3-foot wide shoulders? Seems like the bare minimum for a year-round paved access road to a housing development. I mean, I suppose they could build a rough 4WD road up to it, but then how could the rich Aspenites drive their Porsches and Ferraris up there?
Patrick, I’m checking with the Forest, but it sounds from, some coverage, as if there might already be some kind of road. There are plenty of subdivisions in Colorado without paved roads, but I agree that 26 feet seems pretty standard. Perhaps it’s a county requirement.
I’m not sure that the difference between gravel and paving in and of itself have different environmental impacts, but that’s probably in the document somewhere.
Ah ok. I suppose a graded dirt road could also work, though I’m sure the rich folks buying these houses wouldn’t like that very much. Oh and I should have said Vailites rather than Aspenites. Got mixed up which rich mountain town we were talking about here. 🙂
Thanks much to the White River! I now located the link to the project documents.
Here is the official name:
Berlaimont Estates Road Improvement Project
Here’s a link to the documents:
“Proposal to grant an easement to Berlaimont Estates LLC to improve and maintain National Forest System Roads in support of the desired development of their property ? a 680-acre private inholding entirely surrounded by National Forest lands. Currently, the property may be accessed by existing National Forest System Roads (NFSR) 774 and 780. The Proposed Action would authorize Berlaimont to improve those existing segments of NFSR 774 and 780 as they lead up to the southeastern corner of the Berlaimont property from local public roads in Edwards. The range of alternatives to be considered will likely include an additional road segment continuing to the northern portion of the Berlaimont property or other alternatives for access to the upper portion of the property. Potential Road improvements will be evaluated [The development proposal on the private land is not part of this analysis. Private land development falls within the jurisdiction of Eagle County.]” (my italics)
Looking at my MVUM layer in Google Earth, both 774 and 780 are ML2 high clearance vehicle roads open seasonally from 5/21 – 11/22. Not exactly sufficient for access to a ritzy housing development. FR 774 looks pretty smooth and is probably still accessible for most Subaru type vehicles. FR 780 looks rougher and with some fun looking sections of two-track shelf road. It would be kind of sad if they paved that since it looks like it could be a fun Jeep trail.
If the property already has a road leading to it, then access is established. As Sharon has offered us, the decision appears to be more about whether to grant an easement to allow the landowner to improve the road to a 2-lane paved access from the current dirt road surface. Is that improvement necessary to allow the landowner enjoyment of their property? And would that improvement have adverse effects? That will be the crux of the future conversations for this project.
My memory is not the greatest, but I remember “reasonable access” as the standard (from ANILCA?). I think the FS has to judge what is “reasonable.” Certainly meeting county requirements would be reasonable.
We’ve talked about this one:
The ANILCA language is actually access for “reasonable use,” though it seems to get shortened to “reasonable access.” I think a ski area expansion is a lot different from a gated subdivision – primarily the presence of an existing development, but also the public benefit (if that factors into it at all).
As a NEPA poster child, it might be a good one. Especially “The review is important. And we have learned a lot through the process. We are looking at modifications, things we could do to lessen our impact.” That is exactly what NEPA is for.
The crux of the issue in my opinion, is what is “reasonable use and enjoyment” of the property? Is it reasonable for someone to develop such a property at all when it was clearly an inholding with some — but 4WD, seasonal only — road access? Is it reasonable for them to expect the access to change from what it was when they purchased the property to access that accommodates passenger vehicles year-round?
The FS has “considerable discretion” about what it decides is “reasonable use and enjoyment.” If it decides this is, it sets the precedent that future similarly situated properties deserve similar treatment.