Setback exceptions are the rule

RBC I After weeks of testimony and discussion, the Colorado Oil and Gas Conservation Commission (COGCC) gave preliminary approval on Jan. 9 to a broad set of new rules on oil and gas drilling that will do little to ease the concerns of hundreds of thousands of families living near drilling operations. In preparation for final COGCC approval on Jan. 24, Western Resource Advocates has examined the provisions at length to help Colorado families understand what to expect from the new regulations.
“Citizens and scientists both testified that drilling setbacks of 1,000 feet or more are needed to protect Colorado families living in the gas patch who are getting sick,” said Mike Chiropolos, chief counsel for the lands program at Western Resource Advocates and the lead representative for a coalition of environmental organizations involved in the rulemaking process. “With the exponential increase in drilling along the Front Range, 500-foot setbacks don’t cut it. Adding insult to injury, two of the exceptions could allow drilling even closer to residential areas than ever before.”
A groundbreaking new study by the Cooperative Institute for Research in Environmental Sciences (CIRES) at the University of Colorado affirmed the need for stronger rules than those approved by COGCC. Announced on Jan. 14, just days after the COGCC ruling, the CIRES report found that emissions from oil and natural gas drilling are responsible for more than half of compounds that lead to harmful ozone pollution in Erie, Colo. The study found that elevated levels of propane alone were 10 times the amount found in notoriously smoggy Pasadena, Calif., (http://cires.colorado.edu/news/press/2013/natgas.html).
With the COGCC board set to finalize new rules on Jan. 24, Western Resource Advocates examined the key rules and how to interpret them:
Setbacks
Prior regulations: Minimum setbacks of 150 feet in rural areas and 350 feet in urban areas.
New regulations: Minimum setbacks consolidated and increased to 500 feet, regardless of rural/urban designation. Additional 1,000 foot setback requirement for schools and hospitals.
Practical changes: The 1,000 foot setback for schools and hospitals can only be bypassed through a special hearing with COGCC, which offers some layer of protection from exception. But the 500-foot minimum setback includes two significant exceptions that could render the rule all but irrelevant:
The “Frack Your Neighbor Exception” surface use agreements with landowners can allow drilling sites to be pushed to the edge of a neighbor’s property line, even if that change moves the well closer to a residential area and inside the new 500-foot setback. People who live closest to drilling operations are at the greatest risk for health problems, and the “Frack Your Neighbor Exception” increases those risks.
The “Expansion Exception” existing active well locations are not subject to the new 500-foot setback, and “active well” size is not defined. Not only are active well pads grandfathered into the rules and not subject to a 500-foot setback, one active well pad can be expanded to include multiple different drill sites within the same well “pad.” In other words, drill sites that don’t yet exist are essentially grandfathered and exempted from the new rules.
Amid a boom in drilling activity in Colorado’s densely populated front range, Western Resource Advocates (WRA) argued for a minimum setback of 1,000 feet for residences and 1,500 feet for schools, hospitals, nursing homes and other similar facilities. These arguments were not without precedent; the State of Maryland requires 1,000 foot setbacks (without exception), and several towns in the heart of drilling in North Texas require setbacks of 1,500 feet.
“Why are we drilling and fracking inside city limits and residential neighborhoods in the first place?” said Chiropolos. “And why should the oil and gas industry have the ability to easily sidestep setback rules that COGCC claims are designed to protect the public?
“Imagine if we allowed railroads to be constructed through everybody’s backyard as long as they had permission from the owner of the big house on the corner. That’s similar to what these exceptions allow.”
Groundwater testing and monitoring
Prior regulations: None (some voluntary industry-designed programs were in operation).
New regulations: The COGCC approved new measures for baseline water testing and groundwater monitoring on Jan. 7. The rules require tests of up to four water wells with a half-mile of drilling sites, and two follow-up tests after drilling is completed. Western Resource Advocates has long argued for water quality testing as a critical health and safety measure in identifying potential contamination before it becomes widespread.
Practical changes: Baseline testing and monitoring is long overdue, but the state rejected a proposal based on science that had support from both industry (Shell) and environmentalists. Instead, the groundwater monitoring rule excludes the Wattenberg oil field, including parts of Boulder, Larimer and Adams county — areas that are very concerned about threats to groundwater. The provision only requires testing near the drilling location, and does not establish monitoring near more remote fracking locations.
The state legislature could improve this rule by imposing a “rebuttable presumption of liability” clause, shifting the risk of not testing water to the oil and gas industry. In the event of contamination, it should be the responsibility of the drilling company to prove that it did not cause the problem, rather than placing that burden on residents. Many prudent drilling operations are already testing all water sources as a good neighbor policy (and to protect their bottom line).
“A legislative fix to the water testing rule would put Colorado among the states that are serious about protecting their water,” said Chiropolos. “Colorado is an arid state facing increasing water scarcity. We need the strongest possible protections for our most precious resource. We need to safeguard existing aquifers and the people who rely on them every single day.”
“We hope Colorado will do more to protect the health of residents in the upcoming rulemaking process on emissions.”
Mike Chiropolos is the lead attorney in the fracking hearings on behalf of Conservation Colorado, Earthworks’ Oil and Gas Accountability Project, High Country Citizen’s Alliance, Natural Resources Defense Council, and San Juan Citizens Alliance. Follow us on Twitter @Wrad.
Western Resource Advocates is a regional nonprofit conservation organization dedicated to protecting the West’s land, air, and water. Offices or staff are located in Boulder, Phoenix and Tucson, Ariz.,, Pocatello, Idaho, Santa Fe, N.M., Carson City, Nev., and Salt Lake City. Visit www.WesternResourceAdvocates.org, follow us on Twitter @wradv and “LIKE” us on Facebook.