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County to discuss gas, oil rules
After two years, decision time comes
Herald Staff Writer
At issue is whether the county's rules, if passed, would conflict with or duplicate state rules, currently undergoing revision by the Colorado Oil and Gas Conservation Commission.
While industry representatives have urged the commissioners to wait, local environmentalists argue that doing so is not in the community's best interests.
Tom Dugan, a Durango attorney representing the Colorado Petroleum Association in the state's rule-making proceedings, said if the county moves forward independently, the odds increase that its rules could be put to the "pre-emptive test"in court.
The Colorado Supreme Court ruled in 1992 that state law does not automatically pre-empt conflicting rules established by local authorities.
In the case, operator Bowen/ Edwards Assoc., represented by Dugan, challenged a 1988 La Plata County land-use regulation requiring the county to approve operators' development applications.
The court provided a test by which judges could determine when state law does prevail, but it didn't offer details, said Dugan in a phone interview Tuesday.
"They left it for future cases and controversies to flush out the specifics on a case-by-case basis," he said.
Josh Joswick, gas and oil coordinator for the San Juan Citizens Alliance, said the commissioners need to act on their own - now.
"That's the game the industry has been playing - is wait, wait, wait, wait, wait - and that works to their favor," he said in a phone interview Saturday. "Anytime they can forestall any regulation that is going to cause them to do something they're not used to doing, they win."
Joswick also said that, in general, the county rules apply to land-use issues that the state does not address, such as adjacent landowner rights, well placement, and road and environmental impacts.
By waiting for the COGCC to finalize its rules, Dugan said, the county can draft its rules using a process of pre-emptive analysis.
Doing so would help prevent expensive court proceedings resulting from conflicting rules and avoid the waste of government resources that results from implementing duplicate or inefficient rules.
Until the state presents a set of concrete final rules, however, the county is dealing with a moving target, Dugan said.
Waiting also makes sense because, if faced with two conflicting sets of rules, gas and oil companies might be forced to halt operations altogether, said Dugan.
"In the meantime, while the company is paralyzed, the minerals aren't getting produced, the mineral owners aren't getting royalties, the governments aren't getting taxes," he said.
Joswick responded that the new regulations will apply only to new gas and oil activity in the county.
"They have some 3,000 wells operating here now. Those aren't going to be shut down," he said.
Dugan said by waiting for the COGCC to finalize its rules, the county can reap the fruit of its research and deliberations.
"The state has worked for months and months extensively," said Du-gan. "There's been many meetings and expert testimonies, (creating) a great body of knowledge. So let's see what the result of that effort is."
Joswick argued that the county has done in-depth research, too, since it started its process to update its regulations in August 2006.
In addition, he said, once the state finalizes its rules - which it is expected to do in December - the industry might well challenge those rules in court, further delaying the county's rule-making process.
"To hold off on doing anything pending what the state does could put this off for a very long time," he said.
Dugan stressed that the county's process of revamping its regulations is not occurring in a vacuum.
"The things we're debating here are a microcosm of the larger national debate: How do we achieve energy independence? How do we keep costs down? How do we protect the environment? And what's the appropriate balance?" he said.
The board will decide on Tuesday whether to move forward or wait for the COGCC to finish its rules.
County Commissioner Joelle Riddle said Thursday the county does not want to enter into state territory unnecessarily.
"We want to make sure that if we do, we're complementing each other and not creating more onerous of a process by adopting our regs," she said.
The meeting, at 2 p.m. Tuesday at the County Courthouse, continues a special public hearing held Sept. 29.
At that meeting, the commissioners modified language in the current draft of county regulations to address issues brought up by residents and industry representatives during public comment.
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