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Commissioners irked by new COGCC proposals
12/14/2007 By: Carole McWilliams
The La Plata County Commissioners are seriously unhappy about repeated instances of being left out of statewide discussions on oil and gas development, how it is regulated, and how severance tax money is divvied up.
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On Tuesday they approved a letter to the state objecting to any Colorado Oil and Gas Conservation Commission rule changes that could take away local control over gas related land use issues.
They also voted to send a second letter objecting to being left out of these discussions.
Planning staffer Brett Sherman told the commissioners that on Nov. 27, the COGCC issued two rulemaking proposals to implement two industry related bills that were approved by the legislature this year.
“There are some far-reaching effects that appear to impact current regulatory authority of the county,” related to gas development, Sherman said.
County attorney Jeff Robbins said of the proposed COGCC rule changes, “Our concern is the concepts are land use oriented. The status of the law on pre-emption isn’t certain, (it says) that if the OGCC has a rule on something, it pre-empts local rules. We’ve had regulations in these areas for many years. They’ve been very effective. We want those to be able to stay in effect.”
In the early 1990s, prompted by the new boom in coalbed methane development, the county fought the COGCC in court, all the way to the State Supreme Court.
The Bowen- Edwards ruling affirmed county authority to regulate land use issues as long as there was no operational conflict with COGCC technical rules. But it has never been clearly defined what constitutes an operational conflict.
Robbins said the alternatives are to let the COGCC regulate everything related to oil and gas, including land use; to do that only where there are no local oil and gas land use regulations; or to object that the COGCC is getting into things that have been reserved for local control.
La Plata County is pushing for the second choice.
Some counties don’t have their own oil and gas land use regulations, and they want the COGCC to step in, Robbins said.
The letter says, “La Plata County finds that the initial proposal implements many of the positive and pro-active concepts that are contained within the natural resources section of the La Plata County Land Use Code. We believe that these ideas are good ones and that it is not improper for the state Commission to implement these regulatory concepts in those counties which have not adopted regulations over oil and gas activities at the local level.”
The letter continues, “…we are gravely concerned that as drafted the regulations could be construed to pre-empt the regulations by those counties that are currently regulating the land use and surface aspects of oil and gas activities. This was not the intent of the legislation that is being implemented. Therefore, we suggest that the draft be revised to specifically recognize and preserve local regulation…”
The current COGCC proposals are very preliminary, put out by COGCC staff, Robbins said. The actual rulemaking will start in spring 2008. The county letter asks for the county to be designated a significant stakeholder, given the county’s experience in regulating land use aspects of gas development, he said.
County Commissioner Wally White commented, “We were left out of the process here and not asked to comment. Some counties were referenced as stakeholders” in the northwest and northeast parts of the state.
“We haven’t gotten an answer of why we weren’t included,” White said. “We have to have a seat at the table. To be excluded, as the largest producer in the state, it rubs me the wrong way. We request very strongly to be at the table in any future discussions.”
Commissioner Kellie Hotter noted how hard it was to get a seat at the table for state discussions on how severance tax money is distributed to counties and towns. The lack of inclusion “is becoming offensive,” she said.
Hotter and White agreed with Commissioner Joelle Riddle’s suggestion that the letter start and end (not just end) with the idea that La Plata County is “a significant stakeholder” and needs to be included in all these policy and rulemaking discussions.
Riddle commented, “We should be allowed to continue to be leaders and innovators. It’s becoming annoying to continue to be overlooked.”
Robbins said, “We’ll try to learn how it was that a couple counties were cherry-picked to participate, and others weren’t.”
In addition to the modified letter approved Tuesday, the commissioners said they want a second letter on the inclusion issue, to be sent to Colorado Department of Natural Resources Director Harris Sherman and to Gov. Bill Ritter.
They will consider that letter on Dec. 18. Also on that agenda will be possible postponement of when the county’s new land use code takes effect. It was approved in August and was supposed to go into effect in early January.
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