County and state finding “harmony” over new regs

Could shift some inspection
authority to county, not

According to Gunnison County officials, two months of trying to find a balance between local and state regulation of the expanding natural gas industry with the Colorado Oil and Gas Conservation Commission (COGCC) are going well and are about to yield some results.



Last week the commissioners got a first look at a draft Memorandum of Understanding (MOU) between the county and state that puts some of the those results on paper and could be an official declaration of the developing understanding between the two entities even if it isn’t legally binding.
Whatever form the relationship between the county and the state takes, communication will be key and the MOU suggests meeting twice annually to keep each other informed of issues or developments that might improve the process.
With open lines of communication, the county is hoping to avoid the lengthy and costly litigation that has marked county efforts to regulate the gas industry.
“We’ve been informed over the past 25 or 30 years that the best way to solve disputes of our respective regulatory processes is to sue each other and let it be settled in court,” County Attorney David Baumgarten told the commissioners at their meeting on Tuesday, September 27. “So now we’ve begun a conversation to see if we can take a different approach. At first conversation was limited to general topics. Then it quickly came to a place where we felt it could bear fruit.”
Some of that fruit could put some of the authority to inspect natural gas facilities, which has been sought locally, in County hands. The draft MOU says, “It is the intent of the Parties that the commission shall assign to Gunnison County certain Commission inspection and monitoring functions … so that Gunnison County can provide Commission inspection and monitoring services during both development and operational phases of various projects within Gunnison County.”
Inspection authority isn’t to be confused with enforcement authority, Baumgarten says. Any violations revealed in a county-run inspection would have to be passed on to the COGCC before action could be taken to correct the problem.
But as Commissioner Paula Swenson said, “In our county one of the major concerns we hear from our citizens is the lack of information. I think [the inspections] could become a good tool for us to have better lines of communications with the state so that we get better informed about the state’s process, the permits it issues and the associated conditions, so our citizens can be better informed of what’s going on on the ground.”
One way both the state and county feel they can make better use of the current system of communication is through an improved Local Government Designee (LGD) process. Under current COGCC rules, each county is already permitted one LGD who communicates with the state when there are local questions or concerns with the state’s permitting process or just as a means to transfer information.
Part of the MOU would make a point of making the “most beneficial use” of the LGD process. “We haven’t used LGD process to best of our ability and the state hasn’t used it to the best of their ability,” commissioner Hap Channell said at a meeting of the Gunnison County and Pitkin County commissioners.
Counties across the state that are interested in enforcing some land use authority of their own over the natural gas industry are watching Gunnison County’s conversation with the state closely. Pitkin County is among them and its commissioners wanted to know details about how Gunnison County has dealt with preemption by state or federal rules and fitting regulations into the county’s land use authority.
Pitkin County Commissioner Rachel Richards suggested her board might also be considering rules related to water quality monitoring requirements and the reporting of chemicals used in the hydraulic fracturing process, which Gunnison County has stopped short of doing for technical reasons.
Richards also wanted to know, “Is this [conversation with the state] going to mean a withdrawal of county gas regulations?” which got a unanimous “No” from the Gunnison County Commissioners and staff. “[The conversation with the state] is to harmonize the respective regulatory regimes and not for one to replace the other,” Baumgarten clarified.
And as the lines of communication open up, the commissioners noted the existence of several separate efforts by the gas industry to get a law passed in the legislature limiting local control. But Baumgarten said even if those bills are successful, the conversation with the state has established a mutual understanding.
“We have the federal government which looks at things from a really high altitude and we have the state that really looks at things much more rigorously from a little lower altitude,” Baumgarten explained of the need for local regulation. “Then we have the local government where your phone rings at 5 o’clock and they want you on the ground to see the situation from zero altitude. There’s a place for each level of government and I think the task before us is to harmonize our systems of regulation.”
The county is characterizing the MOU as a major step toward finding that harmony. The commissioners could consider a final draft of the agreement between the state and the county in early October.

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