Oil and gas counsel George Monsson, near left, listens to the Rio Grande commissioners on Tuesday while planning and zoning commissioners Mike Mitchell, right, and Vern McCallister, Jr., left, look on.
Courier photo by Lauren Krizansky
Courier staff writer
DEL NORTE — In light of recent rig developments, Rio Grande County (RGC) is amending its oil and gas operation regulations.
On Tuesday, the RGC commissioners and planning and zoning commissioners held a joint meeting to review oil and gas counsel George Monsson’s proposed changes to the county’s code.
Monsson, who assisted RGC with the First Liberty Energy (FLE) oil and gas conditional use permit approved earlier this month, presented both commissions with a draft the RGC commissioners will take into consideration at a later date barring a few adjustments.
The planning and zoning commissioners unanimously recommended the RGC commissioners accept Monsson’s proposed changes subject to a final draft and as long as they include:
• Well pad liner requirements
• Flow line marking and tracking devices
• Removal of water testing references because the county will follow the Colorado Oil and Gas Conservation Commission (COGCC) regulations. The oil and gas operation regulations, however, will require drilling companies to directly provide the county with water test results.
• Required Surface Use Agreements
• Reference to the COGCC 500 to 1,000-foot setback requirements, and
• Removal of language regarding well pad density
In addition, the planning and zoning commission recommended the RGC commissioners adopt a Notice of Landowner’s Rights to replace the Surface Owner Bill of Rights, and to allow the county land use administrator to approve any application more than one mile from a residence or other occupancy and minor changes to existing operations.
“She (RGC land use administrator Rose Vanderpool) can always decide she doesn’t want to approve (applications) because of local concerns,” Monsson said. “She can put it through the public hearing process.”
He explained the changes serve several purposes. As the document stands now, it contains provisions likely to be overturned in a legal challenge, and it contains unnecessary and technically incorrect language inconsistent with COGCC rules. They also aim to improve the regulations to reflect current law.
“There are pages and pages that are struck through,” said Monsson, who based this draft on one he helped prepare in El Paso County. “They had no reason to be there...They don’t have a legal place.”
Taking into consideration the county’s constraints when it comes to oil and gas regulations, Monsson referenced the state’s power to delegate and the county’s inability to regulate in areas where there has not been a delegation of authority. Ultimately, he added, if local regulation “operationally conflicts” with a state regulation, the state will prevail.
“We don’t want to get too big for our britches,” Monsson said. “We don’t get to carve out a special definition for one county.”
Other adjustments included transportation, fire protection, emergency management and financial assurance language, a requirement to post fracking chemical uses on the fracfocus website and active and abandoned flow line reporting stipulations.
“I have seen a number of times where someone is digging where there have been oil and gas wells and they find a pipe.” Monsson said. “Sometimes you don’t know if it is live... It’s a sermon I have been preaching for a long time. I have seen problems.”
In regards to the Notice of Landowner’s Rights, he said the new document would provide landowners more information in a timely fashion. Today, the Surface Owner Bill of Rights often goes unnoticed until late in the oil and gas conditional use permit application process.
“It’s a day late and a dollar short,” Monsson said.
After Monsson presented the proposed changes to the oil and gas operation regulations, both commissions and the public provided feedback.
RGC Chairwoman Karla Shriver asked if certain permit timelines could be amended to allow an adequate period to review information and make a decision. She referenced the FLE application process that required the RGC commissioners to act within 30 days of receiving a substantial amount of information right before the public hearing.
“Thirty days is a very narrow window for something so complex,” Shriver said.
Monsson said he felt an amendment of this type is possible, but it might be more appropriate if placed in the general land use regulations.
“You could use that to delay things, but it is a legitimate exercise,” he said.
RGC Planning and Zoning Commissioner Dwight Freeman added,”Either we need one or the other. Either the items get done or we get more time.”
Several community members joined the discussion, requesting additional rules and asking Monsson for further clarification.
John Bricker, a Del Norte resident for 40 years, asked the attorney several questions addressing financial assurance, preemption and the Notice of Landowner’s Rights.
“It behooves the county to have the authority to check things out... to make micromanagement available,” Bricker said referencing the state’s inspection policies and overall control. “The county could always hire an expert. They should be allowed to provide that.”
In response to Bricker’s inquiry about the notice’s purpose, Monsson said, “Now you can inform people of their surface rights without difficult language... I have been around land men over the years and they are very slick and fast talking.”
Del Norte resident Steve Reznik questioned several of the draft’s sections and specific language including the permission of “economic feasibility” to opt out of installing underground utility development.
“It is a complete out for anyone to use,” Reznik argued.
Monsson explained there would have to be viable proof for someone to take advantage of the statement in a courtroom. Either the company would have to provide evidence of excessive cost or the county would have to prove there was a permit violation for the matter to end up before a judge.
“It largely depends on the circumstances,” he said. “This is one of those 50/50 areas.”
Del Norte resident Susan Constance provided Monsson and the commissioners with several bits of advice including rezoning to prevent having to issue conditional use permits, recognizing technology changes, requiring food grade fluids and recyclable gels for fracking and hiring local well inspectors through possible oil company subsidy dollars.
“Then we don’t have to worry about taking away from poorer parts of the county to pay for the richer extraction,” Constance said. “Perhaps this is another thing that could be assessed.”
After hearing from several others recalling the Valley’s unique geology and aquifer, and a recommendation for RGC to consider developing an oil and gas position, Vanderpool reminded everyone, “These wells could not even be productive. Let’s see what happens.”
To see the oil and gas operation regulations draft and the Surface Owner Bill of Rights, visit www.riograndecounty.org and click on Land Use.