Task force recommendations and near misses

The right to vote on setbacks and local control was traded for this task force. So what did we get?


When Governor John Hickenlooper handpicked his task force to examine state and local regulations concerning oil and gas operations, his stated intent was to resolve those issues involving competing regulatory entities and multiple jurisdictions including state and local governments, surface and mineral owners, oil and gas operators and local community members concerned about the effects of drilling and fracking. The task force itself was crafted as a compromise to pull initiatives from last November’s ballot that would have allowed Colorado voters to weigh in on the rights of local communities to defend their environment and citizens, and on establishing a 2,000-foot setback from occupied buildings. In his executive order for the task force, the governor charged its members with addressing those issues, as well as drilling-related concerns over noise, air quality and dust in a state valued as much by the people who choose to make Colorado their home as by the corporations invested in extracting the state’s oil and gas.

The buzz surrounding the oil and gas task force’s final report, released Feb. 27, has centered largely on whether they did or didn’t accomplish anything. Was this task force and the public meetings it held in locations around the state useful?

When the oil and gas task force members finally voted, they considered 50 recommendations. Nine were sent on to the governor to disperse to the state legislature and to regulatory agencies. None are guaranteed to become law.

We asked the question of not just what did they accomplish, but what could they have accomplished? What extremes did they consider? What proposals narrowly missed the two-thirds margin required to pass?

The composition of the panel made that level of agreement difficult. The 21 appointees were chosen to represent various, broadly categorized interests. The oil and gas, agriculture and home-building industry interests were represented by Brad Holly of Anadarko, Daniel Kelly of Noble Energy, Peter Dea of Cirque Resources, Winton Pearce of Conoco Phillips, Kent Peppler of the Rocky Mountain Farmers Union and Scot Woodall of Bill Barrett Corporation. Five employees of oil and gas industry companies, in short, and one agricultural industry advocate. To represent the local government and conservation communities, the governor chose Sara Barwinski of Weld Air and Water, Boulder-based attorney Matt Sura, Durango-based attorney Jeffrey Robbins, Jon Goldin- Dubois of Western Resources Advocates, Durango-area rancher Jim Fitzgerald and Will Toor, former Boulder County commissioner, currently of Southwest Energy Efficiency Project. Members “representing a variety of interests” were Bruce Rau of the Colorado Association of Home Builders, Elbra Wedgeworth of Denver Health, Russell George of Colorado Northwestern Community College (and former director of the state’s departments for transportation and for natural resources), Rebecca Love Kourlis of the Institute for Advancement of the American Legal System, former Secretary of State Bernie Buescher and former Broomfield mayor Patrick Quinn. The task force was co-chaired by Gwen Lachelt, a La Plata County Commissioner, and Randy Cleveland of XTO Energy.

What they accomplished 

The task force approved nine recommendations for various state agencies and governing bodies. Specifically, they recommended that the Colorado Oil and Gas Conservation Commission (COGCC):

– “define and adopt a process for enhancing local government participation” during the review of applications for drilling permits, define “large scale oil and gas facilities” and address the COGCC director’s authority and procedures for reducing impacts and conflicts for local communities by adjusting siting or engaging in other mitigations to decrease drilling’s effects on local communities. This recommendation received 21 votes.

– require oil and gas operators to submit information, including an estimation of number of wells and a map of existing well sites and production facilities, for local governments’ planning departments to use and respond to with a map outlining potential areas for conflicts. This recommendation received 21 votes.

– ensure the local government designee and local government liaison positions be fully utilized as a conduit for communication between local governments and the COGCC by reviewing existing barriers to and ways to enhance education and outreach in communities, expanding the comment period, offering financial or other support for training and using Energy and Mineral Impact Assistance Funds to support local governments in creating these positions. This recommendation received 18 votes. The three votes against came from Fitzgerald, Lachelt and Robbins.

– authorize hiring an additional 12 full-time employees to assist with inspecting wells (Colorado currently has 2,000 wells per inspector, which means years can pass between inspections of a well. The task force suggested adding another three field inspectors), conducting environmental investigations, taking and tracking citizen complaints (current ly the COGCC does not have a staff position for processing citizen complaints; the task force recommended having one staff member and one hearing officer for taking and processing complaints), processing permits and performing data analysis and responding to requests from the legislature, media, public, industry and other stakeholders. This recommendation received 21 votes.

– “implement and emphasize a compliance assistance program to help operators comply with complicated and ever-changing operating rules and policies.” This recommendation received 21 votes.

For the Colorado Department of Public Health and Environment, the task force recommended converting five temporary full-time positions to permanent full-time to continue air monitoring and leak detection activities; establishing a health complaint and information line prepared to provide current regulation information and links to public health studies and able to relay complaint information on to operators and regulatory agencies for evaluation; asking the General Assembly to fund the acquisition of a mobile air quality monitoring unit that could be used to respond to some complaints; and asking the General Assembly for funding to conduct a human health risk assessment that would draw from research currently being conducted by Colorado State University. This recommendation received 21 votes.

For the governor’s office, the members recommended creating an oil and gas information clearinghouse to distribute “accurate, unbiased information to foster an improved understanding of oil and gas industry activities, practices and the federal, state and local regulatory regime.” This recommendation received 21 votes.

The taskforce also agreed on the general principle that large truck and trailer traffic on roads, highways, roads and public streets is “one of the most serious impacts of oil and gas activity” and the COGCC and Colorado Department of Transportation should work to reduce truck traffic. This recommendation received 21 votes.

Additionally, it recommended that the state bill allowing for the indefinite continuation of rules established in the previous year be passed. This year’s bill includes regulations on hydrocarbon emissions, including methane, adopted in February 2014 by the Air Quality Control Commission. This measure received 20 votes, the one vote against coming from Cleveland.

What else they considered 

The final report from the task force includes a “minority report” that details the other proposals that were considered and voted on by the members but did not receive the two-thirds of the votes necessary to become recommendations. Of those, several received 13 votes, just one shy of passing.

Task force members who work for oil and gas companies — again, six in total sat on the task force panel — were in favor of the following recommendations for the COGCC.

– That the state permits for oil and gas drilling or production be coordinated with applicable local government planning and permitting processes and that those permits that fall within the boundaries of an existing memorandum of understanding between the local government and the permit applicant see expedited approval. Votes against came from the conservation and local government interests, primarily, with Barwinski, Fitzgerald, Goldin-Dubois, Kourlis, Lachelt, Robbins, Sura and Toor opposing this recommendation.

– That wells and production facilities would be allowed to increase in size so oil and gas operators could establish drilling and spacing units from which operations such as remote fracking could be run and truck trips might be replaced with pipes. The recommendation included language to draft a bill for an act that clarified this consideration for “surface impacts,” larger developments presumably reducing surface impacts elsewhere. Again, Barwinski, Fitzgerald, Goldin- Dubois, Kourlis, Lachelt, Robbins, Sura and Toor opposed this recommendation.

– That the state collaborate with local governments and operators on locations for large-scale multi-well oil and gas production facilities in “Urban Mitigation Areas” and that the COGCC would define “large-scale multi-well oil and gas production facilities” based on their size, proximity and intensity criteria. Barwinski, Fitzgerald, Goldin-Dubois, Kourlis, Lachelt, Robbins, Sura and Toor opposed this recommendation.

Those on the more environmentally conscious end of regulating oil and gas voted in favor of the following recommendations, which missed inclusion by a single vote:

– That the General Assembly create an oil and gas dispute resolution panel to handle disagreements over operations siting and surface owner damages. Opposing votes came from Cleveland, Dea, Holly, Kelly, Moreno, Pearce, Quinn and Woodall.

– That the General Assembly revise Colorado Statutes to state that the Colorado Oil and Gas Conservation Commission is charged not with fostering, but with administering the responsible, balanced development, production and utilization of oil and gas, and that public interests are to be “harmonized, to the extent possible, with local government land use regulations over oil and gas development.” The rationale was to clarify that the commission is charged with oversight of oil and gas, amending any potential confusion over that state agency’s role as partial to promoting development. Opposing votes came from Cleveland, Dea, Holly, Kelly, Moreno, Pearce, Rau and Woodall. (It’s perhaps not a surprise that this measure failed given the language in the governor’s executive order for the creation of the task force, which lists, as one of their objectives, “fostering a climate that encourages responsible oil and gas development.”)

– That the General Assembly and Department of Local Affairs create an independent, impartial and neutral ombudsman housed in the state Department of Local Affairs to address citizen concerns and be prepared to answer questions on property law, oil and gas activities, land use law and rights of the people involved in those activities. Opposing votes came from Cleveland, Dea, Holly, Kelly, Moreno, Pearce, Rau and Woodall.

Other proposed recommendations that failed to garner support from twothirds of the task force called for a review of existing studies on possible negative health effects from oil and gas development, compensation for surface owners when their land is used for natural resource extraction, improved disclosure of hydraulic fracturing processes including the chemicals used in the process, allowing counties to regulate noise associated with oil and gas activity and requiring ongoing monitoring of groundwater and soil near oil and gas processing facilities. One recommendation would have asked the COGCC and Colorado Department of Public Health and Environment to delay any additional rulemaking in areas where new rules have recently been adopted or existing rules amended.

The Keystone Center, the organization charged with helping to facilitate the task force meetings, blames Colorado’s open meetings law for the group’s stalemate on so many proposals. Colorado’s attorney general had visited the task force to lay out the boundaries of the state’s open meetings, open records and conflict of interest law and policies and their application to the task force. Any discussions between two or more task force members had to be open to the public and the media, who also needed to be notified of those meetings and minutes had to be taken, and all correspondence among task force members was subject to the Colorado Open Records Act.

The Keystone Center agreed that formal actions and recommendations should be open to public debate, but said in their final report that the constraints of meeting the guidelines for open records impeded the process. Task force members were not allowed to converse outside meetings “to understand each other’s positions or negotiate possible options and resolutions” without public notice; could not coordinate travel, meals and field trips unless those events were open and recorded; could not share written information or exchange email unless those documents were also sent to the meetings facilitator and co-chairs could not jointly participate in weekly conference calls to plan meeting agendas and discuss procedures.

“There was little to no opportunity for task force members to get to know one another as individuals, which would have allowed for a different level of rapport and candor in discussions,” The Keystone Center writes in the final report. “These impediments challenged the task force’s ability to negotiate. While it was theoretically possible for these challenges to be met by having all activities be open, noticed and recorded, neither The Keystone Center staff nor the task force members were comfortable or able to do so.”

Task force member and Western Resource Advocates President Jon Goldin-Dubois has been vocal in his critique of the group’s accomplishments. In a press release, he described the progress as small strides that failed to address the central task of providing tools for communities interested to protect their homes, health and environment.

“While a handful of modest recommendations were adopted addressing health studies and regulatory staffing, the task force didn’t give residents and local governments the tools they need to manage the industrial oil and gas development that we are seeing in Colorado today,” he said. “The majority of members of the task force saw resolving the conflict between local government and oil and gas development as the central issue. Unfortunately, the oil and gas industry blocked the most meaningful recommendations on local government’s role in protecting its citizens.

“There is much more work to be done.”

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