The Archuleta County Board of County Commissioners voted unanimously to deny the proposed BP Cox 3 Well Pad special exemption on Tuesday, after BP requested time to rebut comments from a previous hearing.
Previously, BP had applied for a major oil and gas facility permit for the BP Cox 3 well pad special exception. The permit would have been used to accommodate another gas well within an existing government section of land that already has four wells.
The well would have been located in Section 14, south of Colo. 151 and east of the county line. There are three existing well pads owned by Southland Royalty Company in the southern half of Section 14 (two of which are close together), and one BP well pad, known as Cox 2, in the northern half.
Up to four well pads can be placed in any government section through an administrative process, while a special exception is required for any additional wells above that amount.
At an Aug. 7 meeting, the commissioners voted unanimously to deny the exception. For more information on the prior hearing, see the Aug. 9 edition of The SUN.
Todd Starr, the interim county attorney, began by explaining what happened after the hearing on Aug. 7.
"Shortly after that hearing, where the board did in fact make a decision ... I was contacted by an attorney for the applicant who raised a claim of perhaps the county had not followed procedural due process," Starr said.
Starr explained that in this case, the allegation was that BP was not allowed an opportunity to rebut comments made at the previous hearing.
Further, he mentioned that the county disputes the allegation that insufficient process was provided.
"... but with a procedural due process claim, rather than the lawyers making all the money, it's easier just to clean it up," Starr said.
BP and the board agreed "that if we provide them 20 minutes of rebuttal time this afternoon, that will cure the alleged defect," Starr said.
Starr gave some explanation to what was happening, stating, "... what we're doing is we've taken the hearing, it's not a new hearing, it's the same hearing ... your prior decision is moot."
Further, "... if one of you decides to make a motion," Starr explained, "I would ask you to state that you have considered all of the evidence from Aug. 7, as well as the evidence that you hear today, and that your decision on the motion that is made is not impacted by the board's prior decision."
Starr explained that BP would start with its rebuttal, then public comment and, finally, BP would be given a chance to respond.
"Again, commissioners, all the evidence, and all of the statements that you heard on Aug. 7 are in the record and are to be a basis, together with what you hear today, for your ultimate decision," Starr said.
Carolynne White, land use counsel for BP America, began by introducing herself to the board. According to the agenda, White is with the law firm Brownstein Hyatt Faber Shreck LLP.
White was not present at the previous hearing concerning the well pad in August.
White also introduced the other members of BP as Miles Venzara, surface land negotiator, and Naomi Azulai, permitting analyst.
White thanked the public and the BoCC for allowing a further opportunity to respond to concerns raised at the last meeting.
Three additional documents, including a letter outlining the things she was presenting, a presentation and three suggested conditions of approval if the BoCC approved the application were added to the record.
"During this response time that has been granted, we intend to respond to the various issues raised at the hearing," White said, adding that the criteria was met.
White began with the permit-approval criteria. There were "about 20 potential criteria" that could apply to the application across several sections of the regulation.
The criteria pertained to health, safety and welfare, according to White.
"What those criteria do not address is the question of whether or not you like this particular company, or this particular applicant, whether you're for or against oil and gas drilling or any of those other types of considerations," White said.
The question, according to White, was, "Does the application on its face meet the criteria in your code?"
White next went in to the criterion of "need."
White explained that the issue of need was addressed by the Colorado Oil and Gas Conservation Commission (COGCC) when it granted "what we call Form 2A, which is the form 2 application for permit to drill."
That approval, White explained, was already granted before the application was submitted.
"In that form, the COGCC has essentially already addressed the question of need by determining that the well is appropriate in this location, and that it is needed," White said.
Under the criteria of need, White noted that:
Use of other wells in the area were not possible as BP did not have rights.Engineering and geological limitations dictated this was the best location.Rules and obligations require obtaining the minerals through the most "economically feasible and practical way," as failure to do so could potentially create liability.Other topics covered constraints including sustainability, impact to plant life and visual impact.
White mentioned previous comments that there were already several wells in the area.
"Actually, the fact that there are already several here is an indication that this is a potentially suitable location for additional well pads to be located," she said.
Wildlife and plant life disturbance and impact was another topic White commented on.
White added that BP, if this were granted, would agree to engage in additional consultations with the landowner and determine what the appropriate seed mix would be.
She further added that BP had entered into a wildlife mitigation plan with Colorado Parks and Wildlife.
Visual impact, lower tanks and use of a lower well were touched on by White.
White mentioned the possibility of using electricity to power the well to lower noise impacts, and color of the tanks could be chosen by the commissioners.
"Dialogue" with nearby property owners, the Swains, was mentioned by White, adding "it was discussed on the record that BP had proposed to provide a budget to plant some additional trees along the property line, as well."
She mentioned that no "formal" documentation was had of the agreement, but that "we have provided" a proposed condition of approval "that BP would agree to comply with."
White closed by adding that BP appreciated the additional time to respond.
Archueta County Commission Chair Steve Wadley opened the public comment section for those in favor of the well pad first; however, no one came forward.
Wadley then opened public comment against the well pad, limiting comments to three minutes.
Agnes Sanchez spoke, comparing the well pads to a duplex.
"These two wells, even though they're so close together, they're still separate, just like my duplex would be and would be taxed separately," Sanchez said. "So, when they try to say that they're one unit ... they share the same kind of common wall, but they're still as two separate units."
The issue of need caused some concern from the speakers in public comment.
Elaine Nobriga, recalling the Aug. 7 meeting, stated, "Citizens were not allowed to bring up need at all, and yet 20 minutes or 10 minutes of her discussion was about need, so I don't think that's fair."
She added, "We believe four is enough."
Barb Swain, a neighbor to the south of the proposed site, added some clarity about the agreement with BP.
"I do want to state for the record that when my husband and I first spoke with the representative we were rebuffed as far as the trees ... They absolutely stated that they were not a landscaping company, so when they made a phone call, there was no agreement, gentlemen," Swain said.
BP was offered a chance to rebut the public comment.
White offered some comments on need, noting her absence from the hearing on Aug. 7 and that BP was unable to obtain a recording of that meeting.
" ... but our teams' handwritten notes from that day indicate that, notwithstanding the caution from the county attorney, the concept of need or not need was discussed at length, and that was why we felt the need to address it in our rebuttal today," White said. "So, it is a proper rebuttal topic."
White added there were any number of emails and letters on the subject in the record.
"But I think the substance of it has been addressed, and we actually agree with the county attorney's interpretation that that's really not an appropriate criterion of consideration," White said.
White added that with landscaping concerns involving the Swains she did not want to "represent on behalf of BP what was agreed to or not agreed to," but that BP's proposal was that BP was willing to provide a budget of $9,900 to place trees and maintain them.
The amount was provided by the Swains, according to White.
Comments ranged from definition of a well head to improving county process and about the placing of trees at the edge of the property.
Discussion between Venzara and Wadley revealed that all trees would need to be planted.
Venzara explained in response to a question that the Swains would plant the trees.
Wadley asked how many trees would be placed, and Venzara replied he was told 80 trees.
Venzara explained that the reason BP didn't "get into the tree business" was because of liability.
Later, Wadley explained that, for himself, he was taking into account the testimony from that day and the previous hearing and would make his decision based on that information, and represented he was not affected by the prior vote of the board.
Commissioners Ron Maez and Michael Whiting expressed similar statements.
Maez moved to deny the request for BP Cox 3 Well Pad special exemption and to bring back a resolution stating findings.
Whiting seconded the motion, and it passed unanimously.
avery@pagosasun.com
