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REWRITING REGULATIONS

Many counties and cities in Colorado have rewritten their oil and gas regulations in an attempt to fill the gaps in state regulations on fracking. A major problem is that local regulations often are preempted by state regulations -- meaning state regulations trump local regulations. Conflicts in regulations have resulted in lawsuits. This makes it very difficult for local governments to respond to the requests of their citizens and determine the future of their community.

For example, a local government can't require the use of less-toxic fracking chemicals. What they are allowed to regulate is minimal and limited to surface operations.

Colorado Oil And Gas Conservation Act (Title 34, Article 60)

34-60-127. Reasonable accommodation.

(1) (a) An operator shall conduct oil and gas operations in a manner that accommodates the surface owner by minimizing intrusion upon and damage to the surface of the land.

(b) As used in this section, “minimizing intrusion upon and damage to the surface” means selecting alternative locations for wells, roads, pipelines, or production facilities, or employing alternative means of operation, that prevent, reduce, or mitigate the impacts of the oil and gas operations on the surface, where such alternatives are technologically sound, economically practicable, and reasonably available to the operator.

(4) Nothing in this section shall:

(c) Establish, alter, impair, or negate the authority of local and county governments to regulate land use related to oil and gas operations.

At a December 2011 BoCC meeting in El Paso County, a representative from Ultra Resources stated that the draft regulations are inefficient and burdensome and important issues are all effectively regulated by the state.

"There is a comprehensive, well established, very rigorous regulatory program at the state level, with a lot of expertise and very experienced staff," said David Neslin, director of COGCC.

As the state's chief regulator of oil and gas drilling, Neslin says local governments should only have the purview to regulate things like traffic, dust or other local impacts.

Neslin's argument is backed up by a series of legal memos recently sent [pdf] from the Attorney General's Office to Douglas and Arapahoe counties -- warning that proposed, new, local oil and gas regulations were duplicative and in some cases, in direct conflict with the Colorado Oil and Gas Conservation Act.

In 2009, then Governor Bill Ritter pushed through sweeping changes to the state's oil and gas regulations. The goal was to better protect the environment and public health from drilling. But they stopped short of clarifying how much authority a local government has to regulate drilling within its boundaries.The courts may eventually have to intervene and clarify ambiguity in the law or state legislature could give local governments the authority to regulate drilling.

Setbacks from buildings

As of July 2011, COGCC deferred a decision on setbacks for wells -- leaving the standard at 350 feet from a residence in developed areas.

"Some people thought it was too politically charged to deal with," said Traci Haupt, a former Garfield County commissioner who served on the oil and gas commission."

La Plata County has imposed a 400-foot setback requirement, and Gunnison County has had a 500-foot setback rule.

In less developed areas, COGCC regulations allow a 150 foot setback from a residence.

In Garfield County, where natural gas drilling has been going on for years, a University of Colorado School of Public Health study conducted last year concluded that "there are no studies that document a 'safe' distance between natural gas wells and homes, schools, and other places occupied by community members."

Any wonder local communities are trying to write their own regulations?

Nine out of 10 wells drilled in Colorado are at least 500 feet away from the nearest building, according to Dave Neslin, executive director of COGCC.

Setbacks from drinking water

Current rules allow drilling within 300 feet of public drinking-water supplies -- with no limits on drilling by streams.

Noise limits

In February 2011, the Colorado School of Public Health wrote, "COGCC noise rules do not take into account possible health impacts of noise from extended well development periods. Noise levels associated with well development activities have been measured above levels that are likely to cause health impacts, even though these levels meet COGCC permissible levels."

Casings

COGCC regulations require fifty feet below the lowest drinking water aquifer as the minimum for well surface casing.

Water testing

There are multiple alluvial and bedrock aquifers, but COGCC regulations don't require water be tested from all of them around a drill site. For example, there are four aquifers in the Denver Basin.

COGCC regulations require two (2) closest water wells within a one-half (1/2) mile radius of the conventional gas well or the plugged and abandoned (P&A) well shall be sampled. If possible, the water wells selected should be on opposite sides of the conventional gas well or the P&A well not exceeding a one half (1/2) mile radius.

If no water wells meet the foregoing criteria, then sampling shall not be required.

Diesel motors

COGCC does not require the use of electric motors instead of diesel-powered on drilling equipment.

"COGCC evaluated hydraulic fracturing risks in comprehensively updating its regulations in 2008, in analyzing groundwater quality trends in 2009, in adopting a special notification policy in 2010, and in working on a new groundwater sampling program during 2011."

COGCC_Response_To_STRONGER_06132011.pdf

Why is it so difficult to get reasonable changes made?

Revising oil and gas regulations meets stiff resistance from the energy industry. K ey arguments the oil and gas industry uses are that fracking is safe, the costs would cripple their business and that state regulations are already strong .

Colorado has the best regulations in the nation?

For years, industry leaders and state partners have hailed Colorado's regulations as among the best in the nation. Now, experts who helped craft those regulations question whether they'll be sufficient.

Mike Chiropolos, lands-program director for Western Resource Advocates, a law-and-policy group, who participated in development of the rules said, "The penalties for violations need to be reviewed, and probably increased, to give companies an incentive to get on spills right away."

Chiropolos and others advocate tweaking rules to require baseline testing of water and soil before drilling, wildlife-protection plans, more inspectors to keep pace with industry expansion, and a ban on drilling inside municipal boundaries.

"There's a hope now that bringing drilling to the population centers of Colorado will encourage decisionmakers to err more on the side of public safety, health and welfare," said Frank Smith, organizing director of the Western Colorado Congress.

Industry leaders contend companies already are working diligently to minimize spills and say spills do not always lead to harm.

"Any spill is unacceptable, and when they happen we will address them immediately," said Tisha Schuller, president of the Colorado Oil and Gas Association.

However, industry groups oppose stricter regulations and are mobilizing to roll back existing protections.

Best available technology (BAT)

Some technical innovations that represent best available technology include: capturing air emissions; reusing toxic fracking fluids to reduce waste; using non-toxic substitutes where available; using closed-loop pitless drilling; preventive maintenance to prevent leaks; and, well-clustering and centralized operations.

Voluntary use of the above (by some companies, sometimes) has had the following proved benefits: wells fractured with non-toxic fluids were found to be effective and less costly; closed loop drilling incurs a cost-savings and also reduces road use, truck noise, emissions and dust, and water waste; capturing methane emissions from a well reduces air pollution and the methane can be sold to offset the costs associated with installing BAT. In summary, BAT can pay for itself if companies only put in the effort to install and use it!

REFERENCES:

Drilling Bans Highlight Ambiguity in Colorado Law
http://kunc.org/post/drilling-bans-highlight-ambiguity-colorado-law

Letter from COGCC to Douglas County Commissioners DouglasCountyCommissionersLtr12_15_11.pdf

Colorado's suburban homeowners face invasion of oil and gas wells
http://www.denverpost.com/ci_18493742

Colorado Study Links Methane in Water to Drilling
http://www.propublica.org/article/colorado-study-links-methane-in-water-drilling-422

Fracking fury reaches fever pitch in Erie
http://www.dailycamera.com/erie-news/ci_19696245

Draft Battlement Mesa Conducted by Colorado School of Public Health, February 2011
8_HIA_2nd_draft_findings-recommendations.pdf

Energy Industry Sways Congress With Misleading Data
http://www.propublica.org/article/energy-industry-sways-congress-with-misleading-data-708

Drilling spills rise in Colorado, but fines rare http://www.denverpost.com/search/ci_18881512

NY Times report on hydro fracking pollution - shocking!
http://switchboard.nrdc.org/blogs/jsass/ny_times_report_on_hydro_fracc.html

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