Face the State omitted COGCC clarification on 90-day rule from report on June 23 hearing

Summary: A Face the State Staff Report uncritically reported that "stricter wildlife protections proposed" by the Colorado Oil and Gas Conservation Commission "would require the industry to halt drilling for up to 90 days each year, resulting in tens of thousands of lost jobs." In fact, according to the commission's acting director, "there are several ways for operators to avoid having to shut down for 90 days, such as if they agree to work with the Division of Wildlife on a comprehensive mitigation plan."

In a June 24 Staff Report about a June 23 hearing by the Colorado Oil and Gas Conservation Commission (COGCC), the "news" website Face the State uncritically reported that opponents of proposed rules that were the subject of the hearing "believe that some of the stricter wildlife protections proposed would require the industry to halt drilling for up to 90 days each year, resulting in tens of thousands of lost jobs." However, Face the State did not include a response made during the hearing by David Neslin, the commission's acting director. According to a June 23 online Denver Post article on the hearing, Neslin "said there are several ways for operators to avoid having to shut down for 90 days, such as if they agree to work with the Division of Wildlife on a comprehensive mitigation plan."

Face the State also mischaracterized the commission as an "eight-person panel." As Colorado Media Matters noted after a June 23 Face the State Staff Report incorrectly stated that rules governing the composition of the commission had been changed "to exclude members with ties to the energy industry," statute requires the nine-member commission to include three members with "substantial experience in the oil and gas industry."

From the June 24 Face the State Staff Report "OIL COMMISSION HEARING SEES SCHWARTZ'S SNOWMASS 'CHALETS' V. MCNULTY'S BURBS":

Hundreds of people, including several state lawmakers, turned out to Denver's Paramount theater Monday for the the first day of a week-long rulemaking hearing by the Colorado Oil and Gas Conservation Commission. While "balance" and "reasonable" were the buzzwords of the day, the debate quickly heated up on how to craft energy policy that would protect both jobs and the environment.

The eight-person panel, charged with developing rules governing the state's oil and gas industry, came under fire from energy officials who believe that some of the stricter wildlife protections proposed would require the industry to halt drilling for up to 90 days each year, resulting in tens of thousands of lost jobs. Industry representatives pleaded with the commission not to implement new rules that would drive jobs from the state. Already, EnCana Oil and Gas has diverted $500 million into development in other states, including Texas and Wyoming, where new taxes or regulatory uncertainty aren't as much of a threat.

However, the proposed rule in question -- 1208. Sensitive Wildlife Habitat -- provides three methods by which "an operator shall protect Sensitive Wildlife Habitat from adverse impacts associated with proposed oil and gas locations," and offers the option of "demonstrat[ing] that the identified habitat is not in fact present" as alternatives to the "Timing Limitation on Drilling" provision for specified habitats. Rule 1208h states that the timing limitations described in 1208e "do not apply where the Colorado Division of Wildlife has previously approved in writing a wildlife mitigation plan for the area that includes the proposed oil and gas location and remains in effect":

1208. SENSITIVE WILDLIFE HABITAT

An operator shall protect Sensitive Wildlife Habitat from adverse impacts associated with proposed oil and gas locations, except gathering lines, as follows:

a. Comprehensive Drilling Plan. Operators are encouraged to develop and obtain acceptance of a Comprehensive Drilling Plan that will minimize adverse impacts to wildlife resources within

Sensitive Wildlife Habitat, pursuant to Rule 216;

b. Consultation. Alternatively, an operator may consult with the Commission and the Colorado Division of Wildlife to agree on conditions of approval that will minimize adverse impacts to wildlife resources within Sensitive Wildlife Habitat, pursuant to Rule 306.c;

c. Limited Surface Density. Alternatively, an operator may apply for and obtain a Commission order pursuant to Rule 503 providing that there will not be more than two (2) well sites per section, except in sage grouse areas where the limitation shall be one (1) well site per section;

d. Demonstrate Lack of Habitat. Alternatively, an operator may demonstrate that the identified habitat is not in fact present to support the identified species and use; or

e. Timing Limitation on Drilling. If an operator elects not to protect Sensitive Wildlife Habitat through a Comprehensive Drilling Plan, consultation, or limited surface density as provided in Rules 1208.a, 1208.b, and 1208.c, respectively, or cannot demonstrate that the habitat is not present to support the identified species or use as provided in Rule 1208.d, then it shall refrain from drilling activity on the proposed oil and gas location in the habitats and during the periods below:

(1) Mule deer critical winter range (West of Interstate 25, except in Las Animas County).

Development activity shall be restricted between January 1 and March 31.

(2) Elk winter concentration areas (West of Interstate 25, except in Las Animas County).

Development activity shall be restricted between January 1 and March 31.

(3) Pronghorn antelope winter concentration areas (West of Interstate 25). Development activity shall be restricted between January 1 and March 31.

(4) Bighorn sheep winter range. Development activity shall be restricted between December 1 and February 28.

(5) Elk production areas. Development activity shall be restricted between May 15 and June 15.

(6) Columbian sharp-tailed grouse, plains sharp-tailed Grouse production areas.

Development activity shall be restricted in areas within 1.25 miles of active lek sites between March 15 and June 15.

(7) Greater sage-grouse and Gunnison sage-grouse production areas. Development activity shall be restricted in areas within 4 miles of active lek sites between March 15 and June 15.

(8) Lesser prairie chicken production areas. Development activity shall be restricted in areas within 2.2 miles of active lek sites between March 15 and June 15.

(9) Prairie dog (White-tailed, Gunnison's). Development activity shall be restricted in active colonies between March 15 and June 15, except those colonies within 1 mile of urban development areas.

(10) Black-footed ferret release areas. Development activity shall be restricted between April 15 and June 14 in Prairie Dog colonies where Black-Footed Ferrets have been released or documented since 2001.

(11) Raptors. Development activity shall be restricted within nest buffers or roost sites during the defined nesting or roosting dates for each species, as set out below:

A. Bald eagle nest sites. Development activity shall be restricted in areas within ½ mile of active bald eagle nest sites between March 1 and May 31.

B. Bald eagle winter night roost sites. Development activity shall be restricted in areas within ½ mile of a bald eagle winter night roost site where there is a direct line of sight to the roost or in areas within ¼ mile where there is no direct line of sight to the roost between December 1 and February 28. Notwithstanding the foregoing, operators may conduct periodic visits for activities such as oil maintenance and monitoring work within the buffer zone after development, however such activities should be restricted to the period between 10:00 a.m. and 2:00 p.m.

C. Golden eagle nest sites. Development activity shall be restricted in areas within ½ mile of active nest sites between March 1 to May 31.

f. During the period of a Timing Limitation on Drilling in Rule 1208.e, ground disturbing activities are prohibited, including construction, drilling and completion, non-emergency workovers, and pipeline installation activity, except in the event of situations posing a risk to public health, safety, welfare, or the environment or to minimize adverse impacts to wildlife resources. During the period of the timing limitations, production, routine maintenance, emergency operations, reclamation activities, or habitat improvements are not prohibited.

g. Where the proposed oil and gas location is subject to multiple timing limitations on drilling under Rule 1202.e, then the Colorado Division of Wildlife shall determine which timing limitation or combination of timing limitations shall apply; provided, that such determination shall provide a window for drilling that is in all instances nine (9) continuous months or more, unless otherwise agreed to by the operator.

h. Exemption. The provisions of Rule 1208.e do not apply where the Colorado Division of Wildlife has previously approved in writing a wildlife mitigation plan for the area that includes the proposed oil and gas location and remains in effect [emphasis added].

The Post's June 23 article reported Neslin's response to "[o]il-and-gas-industry supporters [who] slammed a rule that could force operators to stop drilling for 90 days each year in wildlife-breeding areas":

Opponents say the rules will drive oil and gas operators to other states, crushing one of the pillars of Colorado's economy. Proponents say tighter regulations are needed to mitigate the impacts of drilling.

A number of landowners from Las Animas County in southern Colorado voiced concern today that the proposed rules would give neighbors the power to dictate what occurs on their property.

The commission's acting director, Dave Neslin, clarified that that rule would only give adjacent landowners advance notice of drilling activity but not veto authority or the right to call a hearing to discuss the matter.

Oil-and-gas-industry supporters slammed a rule that could force operators to stop drilling for 90 days each year in wildlife-breeding areas.

Neslin said there are several ways for operators to avoid having to shut down for 90 days, such as if they agree to work with the Division of Wildlife on a comprehensive mitigation plan.

Peter Ackerman of the Colorado Oil and Gas Association said it is "cynical" to suggest that the rule won't lead to a three-month shutdown for operators.

—E.B.