Gunnison County Continues Hearings on Oil & Gas Regs

Written by Seth Mensing
Wednesday, 11 January 2012
BOCC continues public hearing on gas amendments
A public hearing on a set of proposed amendments to the Gunnison County Regulations for Oil and Gas Operations resumed on Tuesday, January 10 where it left off five months earlier, with a call to continue the public hearing.
When the Board of County Commissioners put the public hearing on hold last August, it was a chance to engage in a discussion about finding ways of coordinating with the Colorado Oil and Gas Conservation Commission’s regulatory process. There was also a lawsuit from one of the county’s major natural gas developers, SG Interests, that needed to work its way through the court.
With a major milestone in the lawsuit reached (see below) and the conversation with the state ending in a memorandum of understanding that called for an intergovernmental agreement, the delay now is meant to provide the time needed to give special attention to various parts of the Planning Commission’s recommended amendments.
“There will be some people in the audience who will likely say that we’re overreaching with our amendments and there will be other people in the audience who will say that we’re under-reaching,” county attorney David Baumgarten said to the commissioners. “I would actually pick a third. I would suggest that you pick a very deliberate pace in going through the proposed amendments.”

He asked that the commissioners look at one or two of the proposed amendments at a time, which could be adopted when the discussion on that topic ended, so the entire review wouldn’t need to be completed before the BOCC could start adopting amendments.
Some of the more contentious amendments would get the attention of the commissioners first, like the proposal to increase a state-required 300-foot setback of oil and gas operations from water bodies, to a 500-foot setback and other parts of the proposal that might be construed as conflicting with state regulations.

Most of the comments from the audience were in support of the Planning Commission’s proposal and the BOCC’s willingness to go through a regulatory process that has drawn the attention of governments and industry around the state and country.
Matt Reed, public lands director for High Country Citizens’ Alliance, repeated his request that the county include an air quality monitoring plan in its permit requirements. “HCCA urges you not to dilute these amendments, especially their provisions for buffer zones around water bodies,” he said, citing more than 900 reported chemical spills, 274 of which impacted ground and/or surface water.

On the other side, SG Interests land manager Eric Sanford warned the commissioners not to overstep their bounds, with a letter from the state’s attorney general to the Arapahoe County commissioners, which lists rules similar to those Gunnison County is considering that are in conflict with COGCC rules.

Area resident Sandy Shea, speaking for himself, said he could remember having some of the same conversations in 2003. “It’s incredibly frustrating to think that we haven’t really come very far at all in regulating toxic stuff that goes down a hole that can affect all of our water.” He asked that the commissioners require a chemical additive that would allow chemicals turning up in water sources to be traced to the companies that put them there.
“That conversation has already begun,” Baumgarten said.

Commissioner Hap Channell addressed the plodding progress of the Planning Commission’s recommended amendments, which were forwarded to the BOCC for review last June.
“I think there is good reason for being where we are now, but I do get frustrated with not moving forward more quickly,” Channell said. “However, my feeling about that is tempered somewhat by the fact that there is, I think, general concern from the public that our continuation of the hearing would open the door for a tremendous amount of permit activity and that hasn’t happened. So I’m a little less concerned about taking some careful time here than I was before.”

The work sessions are set to start February 28, with another to follow March 27 just as drilling season gets underway in the North Fork. The public hearing on the proposed amendments will be continued on Tuesday, April 17.

County gets win in gas litigation
District Judge Stephen Patrick handed down his response to Gunnison County’s motion for summary judgment and a cross-motion in the lawsuit filed by SG Interests last June.
To SG Interests’ claim that the county is preempted in regulating areas of industry already regulated by the state and federal governments, Judge Patrick says, “There is no express or implied preemption.”

“The Court is persuaded that [Gunnison County v. BDS International] is still good law and has not been limited or reversed by subsequent cases or statutory changes,” he says in his opinion, referring to the 2003 case involving the county that dealt with a similar preemption question.
Patrick gave one win to SG in reprimanding the county for failing to follow its own regulations related to the amount of time it has taken to process permits, which the county acknowledged.
On the question of operational conflict, which could be a pair of regulations that cannot be reconciled, Patrick said there is no operational conflict in the county’s regulations as a matter of law, but added that a hearing will be necessary on SG’s claims that an operational conflict does exist.

Another part of the order that could serve as a major win for the County is Judge Patrick’s ruling that the “Recovery of technical or expert fees for review of technical permit applications does not constitute an exaction or charge … a tax or a contravention of the County’s statutory authority.” The order also leaves the door open for SG, or another operator, to challenge the cost of the fees or the need for the services.

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