Posted by: tommtn | December 21, 2012

Boulder County Regulates Fracking

Last week, Boulder County updated its regulations governing oil and gas production and fracking. The action is part of a larger tapestry of regulation and conflicts within Colorado and the Country on this issue. For more information on these regulations, please see Boulder County’s Oil and Gas Development page.

Fracking and oil and gas production faced an unprecedented flurry of regulatory activity throughout Colorado in 2012, at both the local and state levels.  The City of Longmont adopted its own rules and was promptly sued by the State. Longmont voters approved a ban on fracking, prompting another lawsuit by industry.  On the state level, both the Air Quality Control Commission and the Oil and Gas Conservation Commission (COGCC) undertook rulemakings to amend their rules.

Boulder County chose not to ban fracking, but it did proceed to adopt some of the most stringent oil and gas regulations in the state. To do so, they took advantage of state air pollution laws that give clear authority to local governments to impose more stringent rules than state regulations. We believe that Boulder County is the first to take advantage of this authority in the oil and gas context. The County sought to adopt rules that avoided operational conflicts with state rules while still protecting the people and environment of Boulder County to the maximum extent possible within such authority.  Many in the community called for a ban on fracking, but the Commission believed it did not have authority to adopt such a ban.

The County regulations contain certain requirements that apply to all applicants. For example, the rules require all applicants to minimize air pollution (e.g. by controlling volatile organic carbon emissions by 98% and developing and implementing a leak detection and repair program) and to electrify the drill site where feasible, among other requirements. These rules go beyond the current state and federal regulations.

The regulations also encourage operators to voluntarily opt-in to an expedited permit process, which provides for additional protections. These additional controls include greater setbacks from homes and other sensitive areas, more protective procedures for drilling (such as closed loop drilling procedures), specific testing protocols for groundwater, and restricting the venting of gas during production, among other things. In exchange to agreeing to these more protective measures, operators will be able to obtain a permit more quickly. Since the additional controls are voluntary, they do not present an operational conflict with state rules.

If an applicant opts out of the expedited review, the application is still subject to certain prescriptive standards (such as the 98% control outlined above) but also has to develop plans to meet subjective standards. Since the standard review involves more subjective standards with fewer built-in protections, the process will also involve additional public review, process and time.

Gallagher & Gallagher advised Boulder County on these rules.

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