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Testimony Before the Colorado Oil and Gas Conservation Commission on Fracking
I want to thank the Commission for the opportunity to comment on its draft setback rules. I am testifying today because the outcome of this rulemaking is extremely important to the people I represent in the second congressional district of Colorado. My testimony addresses two issues: (1) buffer zones; and (2) local government controls.
Developing our oil and natural gas resources is an important part of our nation’s energy and economic future but we need to make sure operators are drilling in a way that minimizes health and safety issues. Colorado’s natural gas reserves will make a meaningful contribution towards achieving energy independence, creating jobs, and reducing our carbon emission and energy costs. While we all understand the many virtues of natural gas, today we are here to discuss how Colorado’s new rules can encourage responsible development of the state’s plentiful natural resources.
Land Use Controls
While the Commission should work to increase the statewide buffer zone, I want to focus the next part of my testimony on the importance of local land use controls.
It has been long understood that local zoning ordinances are necessary to prevent the proverbial “pig in the parlor instead of the barnyard.”2 To this day, local governments are responsible for preserving the character of local communities through planning and zoning laws. To develop land use plans, local governments consider many factors, including current and future land uses, economic development, traffic, and projected growth. For example, a developer must follow local planning and zoning regulations if he or she wants to build a skyscraper or a factory. Oil and gas operators should be subject to the same zoning ordinances that surface users must follow.
Local governments derive their authority to regulate land use in the oil and gas context through the Local Government Land Use Control Enabling Act and the County Planning Code. Taken cumulatively, these statutes grant broad power to local governments to plan for and regulate oil and gas land use activities. Oil and gas activities are quintessential matters of local concern that directly involve the use of land and have an impact on the local government’s interests in land use control.
Some local governments have adopted common sense local controls that address oil and gas development. La Plata County, for instance, has long had a comprehensive oil and gas land use plan. Recently Boulder County also updated its land use code to enact reasonable land use controls to address operators’ surface and land use impacts. The City of Fort Collins, Garfield County, and many other government entities are considering regulations to address future drilling operations in their communities. It’s not an easy job and I don’t envy County Commissioners their job, but that doesn’t mean that you should seek to do their job for them. While some communities have enacted such regulations based on community need, certainly not every county or city will choose to implement additional regulations. As a result, creating strong statewide rules as a statutory baseline is also important to protect communities across the state.
I am concerned that the Commission is using this rulemaking as an opportunity to preempt local governments from enacting reasonable land use measures to promote the health and safety of their citizens. Because some of the draft rules address issues traditionally addressed through local controls, the current draft rules muddy the regulatory framework. While I do not expect this attempt to preempt local government controls to be successful, the uncertainty caused by the draft rules could cost millions in litigation and years of political fighting to the detriment of job creation and natural gas development.
The Commission should make two changes to the draft rules. First, the Commission should use this rulemaking opportunity to expressly reaffirm the broad existing authority of local governments to enact land use controls that fit the needs of their communities. Formally incorporating traditional local land use authority into the draft Rules will protect local governments from unnecessary and frivolous law suits brought by operators who may misinterpret the draft rules.
Second, the Draft Rules should be a regulatory floor, rather than a ceiling, that allows local governments to implement reasonable oil and gas measures that protect their community’s health, safety, and quality of life.
1. See 600 Series Safety Regulations, Rule 603 Drilling and Well Servicing Operations and High Density Area Rules.
2. 272 U.S. 365, 388 (1926).