Cynicism confirmed

New COGCC draft regulations fail to meet expectations

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An industrial oil and gas production platform at the corner of U.S. 66 and County Road 7 in Weld County just east of Longmont.
Joel Dyer

Stew and Christine Nyholm have lived in the Wadley Farms neighborhood north of Denver for close to 30 years, raising five children in the same house. The couple enjoys the quiet neighborhood and ample space it provides. “We’re a small enclave of a little tiny piece of unincorporated Adams County surrounded by Thornton,” Christine describes. “You’re talking about a densely populated area that is really close to Denver.”

But in May of this year the couple discovered plans by Synergy Resources Corporation to significantly add to a three-well oil and gas site adjacent to the neighborhood. They have heard estimates the company plans to add between 6 and 20 additional new wells, with the most consistent estimate being 19, Stew says. If approved, the new, and quite massive, production site would sit only 505 feet from the nearest residence.

Shocked by the prospect of such a large industrial facility so close to homes and schools, a group of Wadley Farm residents, including the Nyholms, convinced the Adams County Commissioners to postpone signing an agreement with Synergy until the Colorado Oil and Gas Conservation Commission (COGCC) finalized new regulations regarding large scale oil and gas facilities near residential areas.

“Then of course we read these regulations and we realize this not only doesn’t help us, that it’s a green light for them to take all these smaller one-, two- or three-well sites and transform them into multi-well sites,” Nyholm says.

The COGCC released new draft regulations for “large scale oil and gas facilities” at the beginning of October in an attempt to mitigate the ongoing concerns of local governments and communities regarding oil and gas development near homes and schools throughout Colorado. But like Stew and Christine Nyholm, several individuals as well as community groups, local governments and even members of Gov. Hickenlooper’s now-disbanded Oil and Gas Task Force are publically criticizing the draft regulations.

“Unless the oil and gas conservation commission makes significant changes and takes local governments seriously as they deliberate and adopt this rule, it will fall far short of addressing the problem it was created to solve,” says Boulder County Commissioner Elise Jones. “And it will just be another disappointing experience where once again Colorado residents are not adequately protected from the industrial, intensive activity of oil and gas development in neighborhoods.”

Boulder Weekly began contacting Todd Hartman, communications director at the Department of Natural Resources (DNR), the umbrella agency for the COGCC, regarding the draft regulations on Oct. 26. After receiving no response, COGCC Executive Director Matt Lapore, his assistant Jan Missey and DNR Executive Director Mike King were also contacted by phone and email. They were also completely unresponsive. Eventually, five days later and after BW had already pushed the story a week in an effort to get a COGCC response to our questions, Hartman responded with a link to the COGCC regulations website. When asked again for an interview to specifically address BW’s questions regarding the draft regulations, Hartman responded by asking for the questions via email to see what he could do. More than two days later and as of press time, neither Hartman nor any representative of the COGCC or DNR have responded to even the emailed questions.

With public hearings scheduled for Nov. 16 and 17, roughly 65 different groups and individuals have registered as interested parties and submitted pre-hearing statements, including Boulder County and the City of Boulder, as well as several oil and gas companies and interest groups. Several other individuals have submitted comments or have requested to speak at the hearing with a non-party status, with more expected before the Nov. 6 deadline.

The draft regulations are based on recommendations No. 17 and No. 20 from Gov. Hickenlooper’s Oil and Gas Task Force, which was created as part of the Hickenlooper-Polis compromise. [see “Who killed the vote on fracking?” News, Oct. 24, 2014] This resulted in the trading of a quarter of a million citizen signatures that would have put two initiatives on the 2014 ballot for the Task Force and other considerations. These initiatives would have given local governments more control over oil and gas extraction and created a 2,000-foot setback for oil and gas development.

Recommendations No. 17 and No. 20 seek to define large scale oil and gas facilities, where such developments can occur and increase collaboration with local governments regarding the oil and gas industry’s long-term development plans. The recommendations are an effort to mitigate impacts on and conflict with local communities.

Of the 50 proposals the Task Force considered, only nine received the two-thirds majority vote and were passed on to regulating agencies. Several other recommendations received positive votes from more than half of the Task Force, but did not meet the two-thirds majority vote requirement.

Task Force members Jim Fitzgerald and Matthew Sura agree that the understanding at the Task Force meetings was that any proposal which did not require new or amending legislation needed a simple majority to be forwarded to the COGCC for consideration. However, at the end of January 2015, just a month shy of the deadline for Task Force recommendations, Gov. Hickenlooper wrote a letter stating that a two-thirds majority would be needed for any recommendation to be considered for implementation.

“There was no vote on this change. It was simply announced,” Fitzgerald writes in his comment letter to the COGCC. “…The result was that several important proposals to give local governments more standing have not been considered even when they had as many as 13 positive votes.”

In the end, recommendations that received more than half the Task Force votes, but fell short of a two-thirds majority, were submitted to the Governor as part of a minority report but are not being considered by the COGCC for implementation.

Several of the nine recommendations that received a two-thirds majority vote received unanimous support by Task Force members, including No. 17 and No. 20. The COGCC draft regulations are based on these two recommendations. “None of the people who were interested in something more serious were going to vote against these proposals so they got unanimous support,” Fitzgerald says. “But that wasn’t what we were hoping would come out of that [Task Force].”

No. 17 seeks to define what constitutes a large scale oil and gas facility, the procedure for local government participation in permitting such facilities and the COGCC procedures to site such facilities.

Many critics agree that the definition of a large scale facility in the draft regulations is simply too large to be near neighborhoods and are asking the COGCC to reduce the size by half. “It only deals with extra large facilities that industry can easily stop just shy of and completely bypass this rule,” Jones says.

Plus, the draft regulations only apply to a few densely populated areas along the Front Range and fail to address communities threatened by oil and gas development across the state. If passed, the regulations would apply to only one percent of land in the Wattenberg gas field, which is located in Adams, Boulder, Broomfield, Denver, Larimer and Weld counties.

The current three-well near the Wadley Farms neighborhood. Synergy Energy Corporation is proposing an expansion of the site to approximately 19 wells. Christine Nyholm
The current three-well near the Wadley Farms neighborhood. Synergy Energy Corporation is proposing an expansion of the site to approximately 19 wells.

“There are only 14 locations in the last two years that have been approved that this would have applied to. It’s less than 1 percent,” says Sura, who is also the attorney representing Boulder County at the COGCC hearings. “Everybody, including the industry at the time, [agreed] this was an issue that needed to be dealt with statewide and now it’s being interpreted to only apply to a handful of locations every year.”

Sara Barwinski from Weld County and a member of the Task Force, who was part of the sub-committee that drafted recommendation No. 17, says the COGCC draft regulation does not fulfill the intent of the Task Force’s work. “I was very disappointed that it didn’t realize the potential of that recommendation,” she says. “We really wanted to be able to say that wherever you live in Colorado, that decisions around where these very large industrialized sites [were placed] had some oversight beyond what industry thinks is expedient or economically most practical for them.”

In his pre-hearing statement, Bernie Buescher, Task Force member who also helped draft No. 17, agrees that the recommendation was intented to apply to all large scale oil and gas facilities regardless of location and suggests the COGCC reduce the size of large scale development significantly.

“It refers only to the Front Range dense areas where there is a density of houses so all of us down here who’ve been suffering with this [industry] forever just got excluded from that,” criticizes Fitzgerald, who lives in La Plata County. Plus, “all they talk about is consultation, but they certainly do not ever give the local government the opportunity to refuse to offer a permit or turn down a well.”

On the other hand, the COGCC is taking the intentions of recommendation No. 20 literally. This recommendation lays out communication regarding oil and gas development between industry and local municipalities for the sake of comprehensive planning. The original language in the Task Force document does not apply to county governments but only municipalities. However, Jones and Sura both affirm that throughout the COGCC stakeholder meetings, every county requested to be included under the regulation, with the exception of Weld County.

“Again, the administration says we have to read these recommendations and we want to ensure that they are implemented exactly how they are written in the case of recommendation 20,” Sura says. “But in the case of recommendation 17, they’re misreading it and refusing to listen to how it’s written and implementing it very narrowly to benefit the industry.”

Jones says counties are completely disregarded in No. 20 and under the current language will receive no information from oil and gas industry plans on unincorporated county lands. Which is significant given the fact that counties have land use authority over every other single industry except oil and gas development and this development is most likely to occur on county, not municipal, land.

 

“This development is going to happen some place, presumably getting it away from homes and schools and hospitals is the desired outcome. Well, that’s counties,” Jones says. “It makes no sense for it to be crafted this tightly. It’s as if people are going out of their way to make it apply to as little ground and as to help as few communities as possible.”

Barwinski agrees there doesn’t seem to be any rational reason to exclude counties from No. 20. “Especially when the intent is to avoid conflicts in the future, why wouldn’t you be sharing the information that could help industry plan and could help counties as well as municipalities?” she questions.

But despite the requests by counties to be included in the No. 20 provisions, the COGCC draft regulations only apply to local municipalities, greatly lessening the effect of the ruling on a majority of land where oil and gas development is set to take place. This leads to an overall sentiment by citizens and local governments that despite COGCC outreach meetings across the state throughout the summer, the agency is not listening.

In addition, the Commission released second draft regulations following three days of stakeholder meetings Oct. 14-16. There is no significant change between the two drafts, other than reorganization, as admitted by the COGCC in a memo. Although the memo concludes by admitting that there is still significant “distance” between the regulations and interested parties.

Weld County resident Anne Harper says she was pleasantly surprised by the three days of stakeholder meetings. Harper lives in the Pleasant View neighborhood just a half of a mile from Boulder County. She has been outspoken and resistant to the two five-acre oil and gas production platforms being proposed near her home and is a registered party in the upcoming COGCC hearings.

“This particular stakeholder meeting was very publically welcoming and it was the first welcoming experience I’ve had with them,” she says. “[But] it didn’t change a thing. So we did those three days and then the second version came back worse.

“They wrote them in this way that leaves the director all of this power, that leaves gaps the size of trucks for the industry to pretty much do what they want,” she continues. “I’m not saying take fracking out of the state of Colorado. I’m saying you need to be accurate about how you define a large scale operation in Colorado … I just want [the Commission] to hear and do something about what all these communities are saying, which is keep your large scale industrial fracking away from our homes and schools.”

Commissioner Jones says that although she started the stakeholder process with optimism, ultimately the process has been disappointing. Despite her sense that the COGCC staff listened throughout the meetings, the concerns and suggestions weren’t translated into anything meaningful in the draft regulations, she says.

However, Jones points out, the process isn’t over and the regulations can still be amended to address the concerns of communities. The COGCC website gives no indication of when to expect a decision by commissioners, other than to say the hearings may extend to the Dec. 7 COGCC meeting and the agency intends for the regulations to become effective as soon as bureaucratically possible.

“I want to leave that door open that commission members could actually try to solve the problem that this whole process was initiated to solve, which was to give local governments a more meaningful role in the siting of oil and gas development so that they can protect their residents and assure some level of confidence that their health, quality of life [and] property values wouldn’t be negatively affected,” Jones concludes.

“The whole purpose of the Task Force was to navigate these kind of difficult situations but I don’t think as written it really gives us the tools to do that,” Barwinski says.

In her estimation, Weld County should serve as a “cautionary tale” to the rest of Colorado — a situation where an economic driver, such as the oil and gas industry, can sway a local government’s allegiance away from its own citizenry in such a way that threatens democracy. However, she remains hopeful that the commission can improve the regulations and address the concerns of Task Force members, local governments and citizens.

“It’s really important for Coloradans to see that a process can work and not be cynically twisted around. Instead of losing their faith in government, losing their faith in the process,” Barwinski says. “Another unfortunate casualty is people’s disillusionment with government and with government processes and with who controls decision making. That is very detrimental to democracy. Even in larger ways than the oil and gas controversy.”

But Fitzgerald for one has admittedly always been cynical about the process, and the draft regulations only affirm his skepticism.

“The governor has chosen to make a mockery of the entire Task Force purpose and process,” he concludes in his comments to the COGCC. “There were many who chose to participate in that Task Force who did so with much skepticism about accomplishing a whole lot.

But I believe that even the most cynical of us never thought that there would be such shameless manipulation to ensure an outcome that had been pre-decided. An outcome that did not reflect in any way the hard work and sincere effort that the majority of Task Force members put into this.”

Christine Nyholm also doesn’t share Barwinski’s hope. The regulations “are going to be what they’re going to be,” she says. “I don’t think they are going to be dramatically changed in the favor of homeowners or surface right owners. … I don’t see, personally, that we’re going to make a dent. It’s bent on favoring the industry.”

She says that the draft regulations, as written, would not only allow Synergy to proceed with the plans in Wadley Farms, but the ruling would also open the door for oil and gas development in any neighborhood in Colorado.

“If they come in here, then no neighborhood is safe from this.”