Oil-and-gas director says state AG may have to decide drilling setback flap

A potentially precedent-setting fight over how close natural gas drilling should come to homes in the Western Slope community of Battlement Mesa may ultimately be decided by Colorado Attorney General John Suthers, according to the director of the state’s oil and gas conservation commission.

Well on Colorado's Western Slope. (Photo/picture taking fool, Flickr)

Well on Colorado's Western Slope. (Photo/picture taking fool, Flickr)

COGCC executive director David Neslin recently told The Colorado Independent that his commission is empowered by the State Legislature to regulate oil and gas drilling in the state but that sometimes local regulations at the county level can conflict with the state’s interests.

Garfield County has been asked by citizen’s groups representing Battlement Mesa residents to exercise its land-use powers to increase setbacks for natural-gas drilling in their community to at least 1,000 feet from the current state standard of 150 feet.

Denver-based Antero Resources plans to drill up to 200 wells in the roughly 5,000-member community southwest of Rifle, although the company hasn’t formally submitted its comprehensive drilling plan (CDP) to the COGCC for approval.

“Obviously, at some level the State Legislature has assigned to the oil and gas conservation commission the responsibility for facilitating the development of the state’s oil and gas resources in a way that’s safe and protects the environment,” Neslin said, “and at some point, local government actions or decisions that conflict with that legislative mandate could be preempted.

“As to any particular instance that’s going to raise a legal issue, then we’d have to look to the attorney general’s office for advice on it.”

There is precedent for county regulations winning out over state rules — including a 2006 Gunnison County case –- although it’s not certain the Garfield County commissioners would agree to the 1,000-foot setback. The commissioners have, however, agreed to at least review Antero’s drilling plan as part of Battlement Mesa’s original planned unit development approval by the county in the 1970s.

“Generally speaking, the state has statutory authority to regulate oil and gas activities, and when there’s what we call in the law an ‘operational conflict’ between state and local, the judges have historically generally ruled in the state’s favor, saying the COGCC has the authority to regulate gas first and foremost,” said Mike Saccone, communications director for Colorado Attorney General’s Office. “However, when the courts can, they will harmonize or find a middle ground between the regulations.”

The Antero CDP will likely be the first big test case under the new COGCC drilling regs that went into effect April 1, but Neslin said he hopes any conflicts can be ironed out before the attorney general’s office has to enter the fray.

“Antero has indicated they intend to go through our comprehensive drilling plan process under our new rules, under our amended rules, and so we would anticipate working closely with Antero and with the county to try to minimize or avoid conflicts if we can,” Neslin said.

That may not be possible. Rifle resident Leslie Robinson is part of the Grand Valley Citizens Alliance, which is helping represent Battlement Mesa residents fearful of the environmental impacts of placing drilling rigs, wells and holding tanks within a few hundred feet of homes. Robinson said much more testing needs to be done.

“No one has studied the impacts of that many wells over a long period of time in a high-density residential area filled with people who already have health issues,” Robinson said. “Therefore, there should be no drilling activity in Battlement until after the Colorado Health Department has made an in-depth study in the area about impacts from fracking [hydraulic fracturing] and drilling.

“However, currently, there are no plans to even conduct baseline tests or studies concerning health impacts, or to set up monitoring sites in Battlement to watch air and water quality in the area.”

Neslin has said the COGCC staff would support more study of fracking -– the process of high-pressure injection of new wells with sand, water and chemicals to free up more gas –- but he objects to federal regulation of the process, as proposed by U.S. Reps. Diana DeGette and Jared Polis of Colorado.

Dana Barker, a retired resident of Battlement Mesa and former chairman of the Garfield County Democratic Party, said he hopes Antero will be reasonable on the issue of setbacks.

“What we have in Parachute and Battlement Mesa the past few years is it’s turned into an industrial zone, and Antero, based on its reputation, will probably not be as unfriendly a neighbor as some we’ve had.

“We’ve had a tremendous buildup in traffic. When we came here the well spacing was 160 acres, and in 1998 they got the COGCC to reduce that to 80 acres and it is now down to 20 acres on the surface and 10 acres underground and that’s quite a change.”

Barker said drilling in the former Exxon oil-shale boomtown is probably inevitable under current mineral rights laws, but that there has to be consideration given to local residents in such close proximity to drilling rigs.

“Mineral rights owners have their rights and under the Mining Law of 1872 there aren’t a lot of restrictions on them, so I expect drilling will occur, but I and others hope that we can work with Antero to mitigate the impact on our community.”

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About the Author

David O. Williams

is an award-winning reporter who has covered energy, environmental and political issues for years. His work has appeared in the New York Times, Chicago Tribune and Denver Post. He's founder of Real Vail
and Real Aspen.

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