Mountain States

Boulder County Approves New Oil and Gas Regulations, Wades Further Into Legal Quagmire

After being sued by the Colorado attorney general just last month over the county’s extended moratorium on oil and natural gas development, the Boulder Board of County Commissioners (BOCC) voted yesterday to adopt new oil and natural gas regulations that may sink the county further into legal quagmire.

Before the vote, Commissioner Elise Jones asked Boulder Chief Planner Kimberly Sanchez and Deputy County Attorney David Hughes, “Do you think that these regulations are as strong as we possibly can make them and do you think they’re the strongest of any county in Colorado?”

They both answered, “I do.”

“I think we’ve looked for the obvious things that we want to regulate,” Sanchez added, “and we’ve also really tried to look … in creative, outside-of-the-box ways to get at the impacts that we’re concerned with.”

These creative, outside-of-the-box ways to impose new conditions on oil and natural gas development may further embroil the county in legal challenges, as state law precludes local governments from regulating areas of development that are already regulated by state agencies, and some of Boulder’s new regulations may even conflict with state regulations.

At last week’s hearing, a lawyer with the State of Colorado clearly warned that Boulder County’s “outside-the-box” regulations are also outside the law.

“I think there are some areas where the proposed rules go above and beyond state law,” Jake Matter, an assistant Colorado attorney general representing the Colorado Oil and Gas Conservation Commission (COGCC), told the hearing.

Mark Matthews, counsel for the Colorado Oil and Gas Association (COGA), told the county commissioners, “Local governments may not have regulations or impose permit conditions that in any way conflict with state law or state regulations.”

He explained that a number of the proposed – and now approved – regulations “intrude on areas that are already heavily regulated by the COGCC,” including air quality, water quality, floodplains, and pipelines.

“Under the proposed regulations, BOCC has the ability to deny a permit for a well in a floodplain even though COGCC regulations say exactly the opposite,” he said. “Under the operational conflict standard as it stands today, the state, not local governments, makes that decision.”

Colorado oil and gas industry representatives reiterated their concerns after the Boulder County Commission approved the regulations.

“After a five year moratorium, it’s not surprising that Boulder County passed unrealistic regulatory standards designed to roadblock responsible energy production,” COGA President and Chief Executive Officer Dan Haley said in a statement issued yesterday. “Our industry remains committed to conversations and flexible approaches that fall within the rule of law. Aspects of Boulder County’s regulations clearly do not.”

The latest iteration of Boulder’s five-year-old series of moratoria on oil and natural gas development is set to expire on May 1. Last month, Colorado Attorney General Cynthia Coffman filed a lawsuit against Boulder County over its series of moratoria, writing in a court filing that Boulder’s “open defiance of state law has made legal action the final recourse available.” A Colorado Supreme Court ruling last year found local bans on development “invalid and unenforceable.”

When asked to comment on the lawsuit at an event earlier this month, Gov. John Hickenlooper (D) said, “I respect the attorney general; I understand where she’s coming from on this.

“The attorney general did what she felt was right and important,” Hickenlooper added.

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