Colorado Oil & Gas Rulemaking
What You Need To Know About the Drilling & Fracking Regulations in Colorado:
Western Resource Advocates examined the most recent Colorado Oil and Gas Conservation Commission (COGCC) provisions to help Colorado families understand what to expect from the new 2013 hydraulic fracturing rules. The rules do little to ease the concerns of hundreds of thousands of families living near drilling operations.
Setbacks
Prior Regulations: Minimum setbacks of 150 feet in rural areas and 350 feet in urban areas.
New Regulations: Minimum setbacks increased to 500 feet, regardless of rural/urban designation. Additional 1,000 foot setback requirement for schools and hospitals.
Practical Changes: The 1,000 foot setback for schools and hospitals can only be bypassed through a special hearing with COGCC, which offers some layer of protection from exception. But the 500-foot minimum setback includes two significant exceptions that could render the rule all but irrelevant:
- The “Beware Thy Neighbor Exception” Surface use agreements with landowners can allow drilling sites to be pushed to the edge of a neighbor’s property line, even if that change moves the well closer to a residential area and inside the new 500-foot setback. People who live closest to drilling operations are at the greatest risk for health problems, and the “Beware Thy Exception” increases those risks.
- The “Expansion Exception” Existing active well locations are not subject to the new 500-foot setback, and “active well” size is not defined. Not only are active well pads grandfathered into the rules and not subject to a 500-foot setback, one active well pad can be expanded to include multiple different drill sites within the same well pad. In other words, drill sites that don’t yet exist are essentially grandfathered and exempted from the new rules.
Watch a video that explains each of these exceptions:
When Fracking Exceptions become the Fracking Rules from Western Resource Advocates on Vimeo.
Amid a boom in drilling activity in Colorado’s densely populated Front Range, Western Resource Advocates argued for a minimum setback of 1,000 feet for residences and 1,500 feet for schools, hospitals, nursing homes and other similar facilities. These arguments were not without precedent; the State of Maryland requires 1,000 foot setbacks (without exception), and several towns in the heart of drilling in North Texas require setbacks of 1,500 feet.
Groundwater Testing and Monitoring
Prior Regulations: None (some voluntary industry-designed programs were in operation).
New Regulations: The COGCC approved new measures for baseline water testing and groundwater monitoring. The rules require tests of up to four water wells within a half-mile of drilling sites, and two follow-up tests after drilling is completed. Western Resource Advocates has long argued for water quality testing as a critical health and safety measure in identifying potential contamination before it becomes widespread.
Practical Changes: Baseline testing and monitoring is long overdue, but the state rejected a proposal despite science that had support from both industry (Shell) and environmentalists. Instead, the groundwater monitoring rule excludes the Wattenberg oil field, including parts of Boulder, Larimer and Adams county—areas that are very concerned about threats to groundwater. The provision only requires testing near the drilling location, and does not establish monitoring near more remote fracking locations.
Legal Timeline:
2007: The Colorado Habitat Stewardship Act (pdf), which was largely drafted and negotiated by Western Resource Advocates, and the Oil and Gas Commission Reform Act (pdf) are passed. These laws help to ensure that future oil and gas development is balanced with protections for wildlife, the environment and public health.
2008: The most comprehensive regulatory overhaul in Colorado history begins, encompassing public health, environment, and wildlife protections. WRA was in the thick of the rulemaking process, representing ten citizen and conservation groups. Despite being outnumbered by industry attorneys more than 10-1, the coalition of surface owners, local government, conservation and wildlife groups that supported the rules largely prevailed – and the Colorado Oil and Gas Conservation Commission (COGCC) approved the new rules by an 8-0 vote in December, 2008.
March 2009: The Colorado General Assembly approved the comprehensive 2008 revisions set in motion by WRA.
April 2009:The legislature’s approval of the comprehensive 2008 revisions was signed into law by Governor Ritter on Earth Day, in a ceremony attended by WRA Lands Program Director Mike Chiropolos.
May 2009: The Colorado Oil and Gas Association (COGA) sued the Colorado Oil and Gas Conservation Commission, challenging the agency's approval of a sweeping package of reforms and protections for Colorado's land, water, and residents in the gas patch.
August 2009: Western Resource Advocates - joined by Earthjustice and National Wildlife Federation - intervened in the case to defend the hard-fought comprehensive reforms incorporated into the 2008 wildlife protection rules.
November 2009: Judge Herbert L. Stern III issued a broad ruling rejecting various claims and procedural maneuvers attempted by COGA to prolong and complicate this straight-forward case. The court denied both COGA's attempt to amend its suit to introduce a vague litany of new allegations, and COGA's effort to "discover" and seek to introduce a virtually limitless set of documents outside the agency record.
Western Resource Advocates maintains that the procedures met and exceeded state law, and that the new rules properly balance future oil and gas development with common sense protections for wildlife, the environment and public health.
2012: WRA requests to increase drilling setbacks from homes, schools and hospitals resulted in a new hydraulic fracturing rulemaking processes that considered new public health and environmental protections in Colorado. Western Resource Advocates represented Conservation Colorado, San Juan Citizens Alliance and High Country Citizens Alliance, pressing for strong protections for families living near the gas patch.
Key Accomplishments
- Encourage industry to work with other stakeholders to develop voluntary "Comprehensive Drilling Plans" for future operations, effectively applying the concept of subdivision plats and city planning to the oil and gas industry.
- For the first time, grant the surface owner the ability to challenge an agency decision to approve a drilling application over the landowner's objections about the well location or operational details. This is a basic fairness measure: industry has always had the right to challenge the denial of a drilling permit.
- 300 foot drilling setbacks from the State's best blue ribbon trout streams.
- Require industry to disclose toxic chemicals used in hydraulic fracturing operations, when there is reason to believe "fracking" fluids might pose a threat to public health.
- After several decades of being dominated by industry, the state agency charged with regulating oil and gas development is now charged with taking account of impacts to public health, the environment and wildlife. Developing Colorado's mineral estate is no longer the dominant use which trumps other private property interests or the larger public interest.