Colorado AG sues Boulder County over oil, gas moratorium

Colorado Atty. Gen. Cynthia H. Coffman (R) sued Boulder County over an oil and gas moratorium it has kept in place despite the state Supreme Court’s May 2016 ruling that such local bans are preempted if they conflict with the Colorado Oil & Gas Conservation Act.

Colorado Atty. Gen. Cynthia H. Coffman (R) sued Boulder County over an oil and gas moratorium it has kept in place despite the state Supreme Court’s May 2016 ruling that such local bans are preempted if they conflict with the Colorado Oil & Gas Conservation Act (OGJ Online, May 2, 2016).

Boulder County commissioners imposed the original moratorium on new applications for oil and gas development within the Front Range county in 2012, the AG’s office said on Feb. 14 as it filed its complaint in Boulder County District Court.

The county commissioners have extended or reimposed Boulder County’s moratorium eight separate times since, two of which came after other counties lifted similar bans following the Supreme Court’s decision against the Cities of Longmont and Fort Collins in separate cases, the AG’s office said.

It notified Boulder County commissioners in a Jan. 26 letter that if the county did not come into compliance by Feb. 10, the state would sue.

The county rescinded a moratorium it had in place through July 2018 on May 12, 2016, based on the Fort Collins and Longmont cases’ outcome, Boulder County Atty. Ben Pearlman said in a Jan. 27 response. That left only the original 2012 regulations in place, which were inadequate because of oil and gas industry practices which have changed substantially in the time since their enactment, he said.

More wells per pad now

“For example, when the county last updated its regulations, the current practice was to construct 1-4 wells/pad. Recently, industry has moved toward much larger well pads with 12, 16, 20, or more wells per pad,” Pearlman said. “In neighboring Broomfield, an operator is planning multiple well pads holding 40 wells.”

The county’s Land Use Department staff determined last May that it would need about 6 months to develop and implement adequate oil and gas development regulations, he said.

“This timeframe included hiring technical expertise; internal staff meetings; meeting with the [Colorado Oil & Gas Conservation Commission] and industry; drafting; referral to interested third parties; public review of these drafts; planning commission hearings; and a board of county commissioners hearing,” Pearlman said. Accordingly, the county adopted a 6-month temporary moratorium through Nov. 16, 2016, he told Coffman.

County officials then worked to develop oil and gas regulations to meet Boulder County’s current needs, including meeting with the COGCC and industry officials and receiving input from the public, Pearlman said. The county presented draft regulations to the county planning commission on Oct. 12, which recommended numerous modifications following a public hearing. The staff then presented a new version that incorporated the planning commission’s recommendations to the Board of County Commission at a Nov. 15 public hearing.

Following extensive public testimony at that hearing, the county board determined that further work was needed on the new regulations, scheduled a public hearing on Mar. 24, 2017, to consider a final draft, and extended the temporary moratorium through May 1, the county attorney said.

State made no contact

“During this entire timeframe and multiple opportunities for public input, neither the COGCC nor any representative from your office indicated that it believed the county was legally required to complete its work by Feb. 10, 2017,” he told Coffman. “It certainly would have been helpful to know this position earlier in the process rather than springing this issue on the county two weeks before this purported deadline.”

Following the Mar. 24 hearing, Boulder County’s commissioners will hold a second hearing on Mar. 27 to discuss their findings from the one held earlier and consider new oil and gas regulations for the unincorporated county, it said on Feb. 14.

“Because five years is more than enough time to complete such a project, and because Boulder County continues to operate in clear violation of Colorado law, the attorney general today is filing suit in Boulder County District Court to compel compliance,” Coffman’s office responded on Feb. 14.

“It is not the job of industry to enforce Colorado law; that is the role of the attorney general on behalf of the people of Colorado. Regrettably, Boulder County’s open defiance of state law has made legal action the final recourse available to the state,” it said.

“It’s not about drilling, or [hydraulic fracturing], or pipelines, it’s about the law,” Colorado Oil & Gas Association Pres. Dan Hailey said in response to the AG’s action. “And the law is clear: Long-term moratoriums—and this one is over 5 years now—are illegal. Boulder County shouldn’t be surprised that the attorney general cares about the rule of law in Colorado.”

Contact Nick Snow at nicks@pennwell.com.

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