Local Control – The Devil is in the Details

On August 14th, Delta County Planning Department Staff presented a plan to the Delta County Planning Commission to repeal Delta County’s Specific Development Regulations for oil and gas operations (essentially repealing all of Appendix 1 of the Specific Development Regulations and removing all other references to oil and gas operations). Repeal of the oil and gas regulations means waiving or throwing away local authority over oil and gas activity in the county, which discriminates against other industries and specific development activities in the County. It creates an advantage for oil and gas that no other business, industry (including coal), or residential project has.

This repeal proposal was presented as a way to avoid litigation against the County, and to avoid implementing a moratorium. Why the County Commissioners want to avoid implementing a moratorium is unclear – it is the only option that preserves local authority, achieves the goal of protecting Delta County citizens, and avoids litigation – but that was the primary reason given at this meeting. The plan does not include a replacement for the abdication of local authority and control.

Here are the details that the County left out in its justification for repealing the oil and gas regulations:

Litigation avoidance: To be very clear, risk of litigation comes with the territory of being a regulator. The best way to avoid litigation is for a local government to be a good regulator—and that means following its own regulations and the federal and state laws and regulations to which it is bound. Delta County did not provide the Planning Commission with all the options for avoiding litigation.

  • Follow your own regulations
  • Follow state and federal laws and regulations
  • Take advantage of tools under Colorado’s Land Use Control Act and SB181 to take the necessary time to revise local government regulations to address a changing regulatory environment and avoiding potential litigation if existing regulations no longer comply with new laws.

With this proposed repeal action, Delta County seems to be saying that it can’t be a good regulator, and that its only option to avoid litigation is to give up its local power.

Moratorium.

What is a moratorium? It is a temporary pause on processing and approval of new and pending applications that would last until the County can revise its regulations. A moratorium, as long as it is for a limited time, is perfectly legal under Colorado’s Land Use Control Enabling Act. The courts have upheld a moratorium for up to 10 months. The County often conflates this local government right with Supreme Court cases that found local government oil and gas bans illegal under the pre-SB 181 Colorado Oil and Gas Act, which gave exclusive jurisdiction over oil and gas to the Colorado Oil and Gas Conservation Commission. SB- 181 lifts this exclusive jurisdiction and removes the cloud of state preemption.

A temporary moratorium is legal under the Land Use Control Enabling Act and the Colorado Oil and Gas Conservation Act as amended by SB-181. Unfortunately, Delta County Staff did not inform the Planning Commission of these details.

CHC and much of our membership called for a moratorium on the review and approval of new and pending oil and gas related specific development applications until Delta County revised its regulations to comply with SB181 and HB1261 and until the State completed its rulemakings. However, there is no need for Delta County to wait until the state rulemakings are complete, because Delta County can go above and beyond the State standard; what it CANNOT do is regulate BELOW the State floor. The County can easily impose a moratorium of 2 months, 6 months or 10 months to preserve its local authority, but hasn’t offered such options. The County is conflating a moratorium with a ban, which it is not. The County is misleading the community to believe that it is so, but a moratorium is nothing more than a perfectly legal, temporary tool that allows local governments to practice good governance.

What’s the rush to repeal?

Delta County planned to revise its oil and gas regulations in the Fall of 2019 to coincide with its Land Use Code Revisions. If the county really planned on revising the regulations in the timeframe stated, along the lines of the 33 recommendations made by the oil and gas working group in December 2018, then why is it not seriously considering a temporary moratorium to follow through on its plan and to align the regulations to comply with SB 181 and HB1261? Some Planning Commissioners asked this very question, but did not receive a good answer. What’s the rush?

Unfortunately, Delta County is therefore sending the signal that it doesn’t want to be a good regulator. It is better staffed than at least one other county (Gunnison County) that regulates oil and gas activities, and stands up for its residents. Delta County’s most recent audit showed that the County’s coffers are full. It is simply not true to say that Delta County does not have the resources to be effective regulators.

For more background on the consequences of throwing away local authority, you can read the alert we sent out last week here. 

The County’s Proposal and Planning Commission Vote

The Planning Commission was tasked with voting to recommend the repeal of the oil and gas regulations, but County Staff also presented a possible scheme to rely on the State to regulate oil and gas activities in Delta County while the County and the COGCC worked on updating their own regulations. This scheme was not subject to a Planning Commission vote, and was presented as a set of possibilities that still need to be worked out, not a concrete and enforceable mechanism that would actually be implemented. County staff did not provide the Planning Commission with an objective analysis of the pros and cons of repealing its regulations, did not justify the rush to repeal, and did not provide a mechanism for ensuring public accountability. Public input and public accountability are two different things.

Despite the lack of analysis and information to make an informed decision, and the lack of a viable replacement for abdicating local land use control, the Planning Commission eventually voted 7-2 to approve the repeal of the oil and gas regulations, with a few conditions. The conditions were that County staff had to come up with a mechanism to ensure that the public would still be involved, that impacts to agricultural infrastructure be avoided, and that impacts to county infrastructure be offset by heavy hauling permit system.

Please mark your calendars and try to attend:

  • The next Planning Commission Meeting is August 28th, at which we presume they will hear the feedback from the Working Group.
  • The Delta County Commissioners will hold a public hearing and will vote on the repeal the regulations on September 3rd .

Take Action. The Planning Commission and the Delta County Commissioners need to hear from you. If you have not sent a letter to either please do so today, telling them to be good regulators and preserve local authority.

Stay tuned to this developing issue.

 

No Comments

Post A Comment

X