Stage set for showdown over oil and gas regulations

Longmont City Council passes new, stricter drilling regulations despite threats of legal action by state, industry

Joel Dyer | Boulder Weekly

It was another nasty, council-bashing, marathon session in Longmont on Tuesday night. But when the name-calling, finger-pointing and flip-flopping finally came to an end and the vote was taken, the Longmont City Council had passed a new set of oil and gas regulations that represent the first real test of local government versus state government when it comes to regulating the oil and gas industry.

As a result of passing its own rules, which in some instances differ from and are more restrictive than the state’s existing regulations, the state is now expected to sue the city.

The final vote on the oil and gas ordinance was 5-2, with council members Bonnie Finley and Katie Witt voting against the new regs, while their counterparts Brian Bagley, Sarah Levison, Alex Sammoury and Gabe Santos joined Mayor Dennis Coombs in supporting the measure.

Both Witt and Finley, as well as Mayor Pro Tem Santos, spent much of Tuesday evening arguing against the portion of the new regulations that prohibits drilling in zoned residential areas.

All three expressed their belief that it was likely the residential language that would lead to the city being sued by the state. Councilman Bagley countered by describing the residential drilling restrictions as the very “heart and soul” of the ordinance.

Even though he seemed to have been siding with Witt and Finley on Tuesday, as well as in recent meetings, at the very last minute Santos voted in favor of the regulations, stating that he had only just then made up his mind on how he would vote on the new regulations — despite the fact that the controversial issue had been before council for months. His move came after the other four council members had already assured the ordinance’s passage by stating their intention to vote in favor of the measure.

The actual vote on the new regulations had originally been scheduled to occur back in May, but after state officials raised the specter that the city would likely be sued if it tried to limit drilling in residential areas, several council members, including Santos and Sammoury, voted to shelve the ordinance and extend a moratorium on drilling permits while the city tried to work out the legal issues with state officials. In the end, the majority on council went forward with the regulations, stating that they hoped the state would not sue the city but acknowledging that it is likely the price that Longmont must be willing to pay to maintain control over its landuse rules, which directly affect Longmont residents’ quality of life, health and property values.

In what can only be described as an effort that backfired, the Colorado Oil and Gas Association (COGA), an industry trade group, apparently attempted to pressure councilmember Sammoury, who was considered to be on the fence regarding the ordinance, by making phone calls to Longmont residents that reportedly stated, among other misleading things, that Sammoury had ties to out-of-state anti-fracking organizations. Several of the calls went to personal friends of Sammoury who tipped him off to the industry’s ploy, he said, and one of the calls actually made it to his wife.

It was clear from Sammoury’s comments Tuesday night regarding the phone calls that he was not amused by the group’s efforts. While only he knows for sure, it seems likely that the attack by COGA may well have nudged Sammoury toward supporting the new regulations, as opposed to creating the intended pressure that would push him into voting against the ordinance.

In addition to supposedly preventing drilling in residential areas within city limits — “supposedly” because a company can ask for an exemption from the residential ban if such ban would prevent the development of the minerals beneath the residential property — the new oil and gas rules also provide for 750-foot setbacks from occupied homes or structures such as schools and churches (more than twice the distance of current state laws), and 350-foot setbacks from activity areas such as playgrounds and soccer fields. It is the city’s contention that in all but the rarest instances, modern technology such as horizontal drilling will make it possible to develop the minerals under zoned residential areas without actually siting a well within 750 feet of those residential areas, thus avoiding the need for any lawsuits pertaining to denying development to mineral rights holders. The ordinance also requires water testing as well as protections for potential cultural assets such as historically significant sites and/or artifacts.

Also on the agenda Tuesday night, and perhaps the evening’s most controversial item, was the development agreement between the city and Colorado-based oil and gas developer TOP Operating Co. Last fall, TOP Operating had sought several drilling permits from the city that would have allowed the company to drill at several sites around Union Reservoir and Sandstone Ranch, both very popular recreation areas controlled by the city. It was TOP’s intention to drill these sites that led to the drilling moratorium and the city council’s decision to attempt to strengthen its oil and gas regulations in the first place. It was also the thought of having well heads and production platforms near these popular family attractions that inspired local activists to form the group “Our Health, Our Future, Our Longmont,” which has been approved to gather signatures on a petition that would put a measure to ban fracking in Longmont on November’s ballot. On Tuesday night, following the approval of the new oil and gas regulations, city council voted 6 -1 (Levison was the lone vote against) to approve an agreement with TOP that allows the company to develop eight wells around Union Reservoir and another three wells in proximity to the baseball and soccer fields at Sandstone Ranch, hence the current controversy.

It is quite likely that by this Friday, July 20, Our Health, Our Future, Our Longmont will have gathered enough signatures to allow for the general population of Longmont to decide if all fracking should be completely banned within the areas of city jurisdiction. However, the ban will not be retroactive, which means that the city’s approval of the TOP agreement means that the two recreational areas will be home to drilling rigs, fracking fluids, wellheads, production platforms and all the associated contaminants and emissions, regardless of whether the majority of Longmont residents vote for the ballot measure.

For the first two hours of Tuesday’s meeting, most of those speaking were angry at and/or pleading with council to postpone the vote on the TOP agreement, to allow the voters of Longmont to decide their own fate.

But in the end, most likely because those on council recognize that it is extremely unlikely that a full ban on fracking will ever stand up to the scrutiny of the courts, the TOP agreement passed, and now Longmont residents will never know if the drilling at Union Reservoir and Sandstone Ranch could have been prevented. But by negotiating the contract with TOP, city council was able to guarantee that TOP will abide by the city’s new oil and gas regulations, and TOP has agreed to not sue the city for creating regulations that are stricter than those required by the state. As Sammoury put it, “they [TOP] didn’t get everything they wanted, and we didn’t get everything we wanted, but it was the best we could do.”

Longmont has taken the first bold step for all of Boulder County and its cities. As the advancing drilling rigs make their way west, ever deeper into unincorporated Boulder County and onto the outskirts of Lafayette, Louisville and Broomfield, what happens to Longmont as it takes a stand against the state should matter to all of the county’s residents.

How much does it matter? Take the short 10-minute drive from Longmont east to Frederick, Firestone and Dacono, and you will have your answer. Wells are less than 50 feet from homes, your throat burns and your eyes water after five minutes in a public park, churches and schools have wellheads and production platforms in their parking lots or the fields right next door, and a public library surrounded by brown tanks in every direction looks like it’s making its last stand.

What happens to Longmont matters.

Unfortunately, due to a newly discovered loophole in our state’s oil and gas regulations, even Longmont’s best efforts to prevent oil and gas development even in its residential areas may not work. (See story here.)