Boulder County government is following the lead of municipalities like Longmont by attempting to tighten its regulations on oil and gas operations like hydraulic fracturing, or “fracking” — without getting sued by the state.
It will be tricky, as Longmont officials have found out, to tiptoe around areas controlled by the state’s Colorado Oil and Gas Conservation Commission (COGCC), which has the lion’s share of authority over fracking and other extraction processes that have been the source of health concerns lately.
The state attorney general’s office has informed Longmont City Council that a number of its proposed regulations conflict with state law, although city attorneys counter that they have been careful to avoid legal entanglements.
Boulder County has started down a similar precarious path, recently extending a moratorium on oil and gas permits until next February to give staff time to propose changes to the county’s comprehensive plan and land use code.
In a Feb. 2 prepared statement, the county commissioners said they support “appropriate, tighter restrictions on drilling and increased local control to mitigate the impacts of these activities.” The million-dollar question, or perhaps multi-million-dollar question, is how to define “appropriate.”
The commissioners’ Feb. 2 statement acknowledges that because most authority over oil and gas drilling lies with the state and federal government, “it is unlikely that Boulder County could simply prohibit hydraulic fracturing on either public or private land in the county.”
County Commissioner Deb Gardner says staff have been charged with looking “under every little rock” for ways to regulate oil and gas drilling and keep county residents safe from possible air and water contamination. Gardner lists among her concerns the elevated levels of methane in the air around drill sites as well as the possibility that extraction practices can set off earthquakes. She says the millions of gallons of water used for fracking should be reused instead of permanently lost, and the contaminated water that comes back up after a frack job should be treated as a hazardous material when it is being transported.
The challenge, Gardner says, is finding the “sweet spot” of regulations that are both strict and legally defensible.
Jim Webster, the county’s community wildfire protection coordinator, has agreed to take on an additional role as coordinator of the county’s oil and gas inquiry. Several county departments are involved in the project, including land use, the county attorney’s office, parks and open space, public health and transportation (due to the impacts of truck traffic associated with drilling operations).
Webster says the first step, which begins this month, is amending the Boulder County Comprehensive Plan, a broad policy document overseen by the Planning Commission.
The second and more complicated phase involves proposing changes to the county’s land use code, the specific regulations that might be tightened to restrict oil and gas drilling’s impacts in unincorporated Boulder County. A joint meeting of the commissioners and planning commission on that topic is set for September, with public hearings before the planning commission in October.
“The legal research is a big part of this,” Webster says.
When asked whether the oil and gas industry has exerted any pressure on county government yet, Webster says no, but he describes the industry as “an active participant” and “an important stakeholder” that will have an equal opportunity to give input at public hearings and during written comment periods.
In addition to possible water and air pollution, issues the county is examining include visual, noise, lighting, drainage, agricultural, historic/archeological/cultural and geologic impacts.
Webster says that while other Colorado counties have explored tighter regulations on oil and gas drilling (Douglas and Arapahoe counties have explored assessing transportation impact fees, for instance), Boulder County is breaking new ground.
“We’re not going to adopt something that’s already out there,” Webster says. “Otherwise, we would have done a one-month moratorium.”
Conrad Lattes, assistant county attorney, says the legal area in which the county needs to be careful not to step on the state’s toes is “operational conflict” with COGCC rules.
“It’s a tricky business, because we have federal laws and state laws that govern certain subject matter,” he says. “We have limits on the jurisdiction that the county government has. We can only regulate in areas that have been granted to us by the state government. And even in those areas where we have general jurisdiction, if there is operational conflict between local regulations and state regulations, then we are pre-empted from regulating that subject matter.”
In a Nov. 16, 2011, memo provided to the county commissioners at their March 1 hearing on the subject, attorney Barbara Green outlined some of the possibilities for local restrictions on oil and gas drilling, and gave her assessment of how likely each is to be challenged successfully by the state.
In the memo, she says that while counties probably can’t ban such operations outright, they may be able to limit them to certain areas or zoning classifications. And she notes that courts have upheld counties’ rights to require special use permits for oil/gas activities to minimize impacts on things like adjacent uses, traffic and the environment.
Green also says that counties have the right to protect surface and drinking water quality, as well as wildlife habitat, especially if the standards used are consistent with state regulations in those areas.
New setbacks from bodies of water are unlikely to stand, she writes, but counties may have more success with efforts related to stormwater, sediment/erosion control and the discharge of dredged and fill materials. However, Green acknowledges that it would be unlikely for a county to regulate technical aspects of oil/gas extraction methods, like the types of fluids injected.
Finally, she says, counties cannot require access to companies’ records.
The county has created a website that has various resources about the effort, including an interactive map and public comments. It can be found at http://bit.ly/bcoilgas.