Public pushes back on county proposed oil and gas rules

Public hearing April 17

A work session on the proposed amendments to Gunnison County’s regulations for oil and gas operations turned up some concerns from people on both sides of the ideological aisle.

The Gunnison Board of County Commissioners started reviewing a set of proposed amendments to the regulations that had been recommended by the Planning Commission last June. But a conversation with the Colorado Oil and Gas Conservation Commission (COGCC) and a lawsuit, both addressing the county’s authority to regulate gas operations, forced the commissioners to put their consideration of the amendments on hold.
In February, the commissioners got back into the game by asking the county attorney and planning staff to work out another set of amendments to the regulations addressing the timelines and process for reviewing oil and gas permit applications.
In a memo from staff passed around at a work session on Tuesday, March 27, the county commissioners and members of the public and industry got a chance to see the latest set of proposed amendments.
First, the staff’s proposal would create two levels of review for permit applications. A “limited impact” classification would only be subject to an administrative review by community development department staff.
If a permit application were submitted for an oil and gas operation that could have a “potentially significant impact” the Planning Commission would take on the review. If the application is for a project that’s particularly contentious or the Planning Commission’s decision is appealed by the applicant, the Board of County Commissioners would take over the review.
“If it’s not significant, it’s limited,” special counsel to the county Barbara Green told the commissioners. “We have some presumptive characteristics of what limited would be.”
Baumgarten added, “The fact that an application may, on its face, fulfill one of the characteristics … means that at least coming through the door you’ll be considered to be a limited impact oil and gas operation. It is not conclusive. There’s a pre-application conference. It may be site-specific elements that pull you out of the ‘limited’ review and require something more significant.”
The list of “incentives” included in the memo that would allow an applicant to get in the county door with a limited impact classification touched off a blaze of feedback from the public.
Reminding the commissioners about the county’s goal of harmonizing its review of gas operations with the state’s review process, gas developer SG Interests’ lands manager Eric Sanford said, “Part of the COGCC process is to ‘foster and promote the development of oil and gas’. My reading of this… it impedes that. You have a subjective review process and a subjective application. Instead of moving toward an objective standard as the COGCC does, you’re creating and adding subjectivity to the process.”
Referring to specific characteristics listed in the memo that would allow an application to be considered as a limited impact operation, Sanford said, “I’d like an explanation of how those are not preempted by state and federal law. This is an attempt to regulate those elements through the back door … those things which cannot legally be regulated through the front door. I think that’s apparent on the face of this.”
Sanford was one of the industry representatives who consistently attended the Planning Commission meetings throughout 2011 that touched on the proposed amendments to the county’s oil and gas regulations. He said, “Reading this document is a bit maddening to me after the process I’ve been through with the Planning Commission over the last two years to this point. This is obstructionism through delay and an application of subjective standards. It’s nothing more than that.”
He said that based on the current proposed amendments, “Most, if not all of our applications, will be appealed to you. That delays the process, depending on how you read this, that is between 100 and 150 days.” One rationale for taking on the amendments was to create a finite and reasonable timeline to get applications reviewed by the county.
Richard Karas, a former member of the Planning Commission who often encourages the county’s officials toward a higher level of review, had similar concerns despite having disparate motivations.
“Almost every one of these that leads to the presumption of a limited impact is flawed,” Karas said. He argued his point by choosing one of the characteristics the county had listed for limited impact operations—the use of a closed loop system—on its own doesn’t necessarily mean the operation will have a limited impact.
“I think the language, although well meaning, that’s included in these presumptive standards needs reconsideration,” he said. “I will, for once, agree with Eric. I think the way this is framed is going to automatically send an awful lot of stuff to the county commissioners.”
High County Citizens’ Alliance public lands director Matt Reed said, “I see this as a pretty arbitrary list of good industry practices. But taken by themselves, if it’s between the different criteria, that doesn’t mean it’s going to be a non-significant impact … I see this provision [related to limited impact operations] as really limiting and curtailing the work of the Planning Commission over the last two years to make better regulations.”
Acknowledging the additional burden the proposed regulations would put on the county’s planning staff, who would need to gain the expertise to make what are being referred to as “subjective” decisions, Gunnison Energy Corporation president Brad Robinson said, “I think what we’re doing here is saying that the planning department, because of their knowledge and their review of the application, is reaching a judgmental conclusion that something is limited [impact] … Unless you’re going to make a list that is so detailed and so precise, we’re going to have a situation that involves judgment. But I think it’s a good place to start.”
Planning Commission chairman Ramon Reed jumped in the fray, saying, “I see huge problems with what’s proposed here. At the risk of agreeing with Eric, I find this way too subjective … I think it’s way too subjective and vague at the same time.”
In responding to the onslaught of criticisms over the wording of the proposed amendments, Baumgarten said, “When I’m listening I’m not sure I agree with the terms subjective or objective. I really think these are objective … What I’m hearing is that you, the board, have to make a decision to invest a certain amount of authority in your staff to make the hard decision.”
He mentioned the opportunities for any application review to be called up to the Planning Commission or to be reviewed by the BOCC. “I think that is a big departure from what we’ve done in the past.”
Barbara Green also pointed out that the new proposal was recommended in the context of a robust pre-application discussion between the county staff and the applicant, when some of the judgments about the project could be made.
But the staff heard the public’s concerns and spent the remainder of the meeting working through the wording of the proposed amendments.
The public hearing on the proposed amendments will be continued on Tuesday, April 17.