The Colorado Oil & Gas Conservation Commission on Monday approved a “preliminary final vote” establishing new 2,000-foot setback rules for drilling and fracking operations statewide.

“Preliminary,” however, is mostly a formality — Commission Chairman Jeff Robbins confirmed the setback rule is final, but all of the rule changes must be adopted at once in a final vote, expected by Nov. 1.

Commissioners on Monday closed the record on drafting and finalizing those rules, meaning they will stop taking evidence and hearing testimony, which they’ve been accepting since Fall 2019.

Robbins said he and a majority of commissioners determined the new setback rules met all three requirements set forth by Colorado law to guide oil and gas industry regulation, the first being to “provide substantially equivalent protections for public health, safety and welfare.”

The rules are being changed and established by the COGCC, which was modified by Senate Bill 19-181. That law changed the group’s mission from a body that advocated for oil and gas development to one that regulates “the responsible development and production” of oil and gas in a manner that protects public health, safety and welfare, wildlife and the environment. It also changed the commission from a volunteer body to a full-time professional one.

The new setback rules increase the distance from the current 500 feet that operations must be located from homes and most any occupied structure, including schools. The new rules take effect Jan. 1, 2021. Any existing permit applications filed, but not conforming to the new rules, must be refiled under the new rules.

Commission Director Julie Murphy said during the hearings Monday there’s a “large backlog of permits filed” that have not been approved, and the staff has been asking operators to prioritize the most viable ones. She could not estimate how many pending permits would have to be re-filed to conform with the new setback rules.

Robbins praised staff and commissioners for taking evidence and testimony from a “diverse group” of 93 stakeholders.

Republicans, the Colorado Cattlemen’s Association and some industry representatives had harsh criticism for the group last week, saying that the rule “would be a de facto ban on drilling for oil and gas in Colorado.” Those industry advocates have repeatedly cited a study done in 2018 showing a 2,500-foot setback would render some 85 percent of private, non-federal, undevelopable.

Robbins said during a conference call with reporters Monday commissioners didn’t agree with that study’s findings.

“There was sufficient evidence and testimony that the 2,000-foot setbacks, with the off ramps, is the appropriate place to be,” Robbins said.

Republican legislators and industry proponents have alleged the commission is circumventing the will of a majority of Colorado voters. In 2018, voters soundly defeated Proposition 112 that called for a minimum 2,500-foot distance requirement for fracking or drilling wells.

Colorado Rising’s Joe Salazar, the main proponent of 112, said Monday that “based on the language all the parties received just moments ago, we are extremely disappointed that the COGCC failed to listen to outdoor industry and environmental groups, including ours, that requested a removal of language allowing the COGCC to reduce setback limits to 500 feet. Frankly, the COGCC has a sordid history of finding ways to accommodate the industry, which is the one of the main reasons why Colorado is in the mess we are in with respect to oil and gas development.

“We also warned the COGCC not to include variance language in its rules. SB 19-181 is abundantly clear that the Commission is to prioritize the public health, safety, welfare, environment, and wildlife resources above oil and gas development. The whole premise of rulemaking is to establish a state floor that protects Coloradans and our environment first. Now, the COGCC wants to dig a basement below its own floor in favor of oil and gas operators through variances. Literally, Colorado courts have noted that variances are basically a license to break the law. SB 19-181 does not give the COGCC the authority to give the industry a license to break the law when protections are set in place. Do not be surprised if the COGCC is receives a legal challenge to its variance language.”

Lynn Granger, executive director of American Petroleum Institute/Colorado told Colorado Politics in a statement that “while we appreciate some changes made as this rulemaking has progressed, we continue to have broad and grave concerns regarding a number of the rules tentatively advanced today. The rules proposed would set a troublesome precedent, giving untethered discretion to the Director and the Commission regarding when a permit will be approved or rejected. This leaves little room for certainty, as it would allow for the rules to be interpreted subjectively. In addition to this concern, we believe the rules lack clarity and consistency under the Administrative Procedure Act, and believe specific provisions, including those concerning standing, fail to comply with the Act.

“We also maintain that there is no scientific basis upon which to effectively quadruple the state’s existing setback regulations, and fear that its implementation will yield an array of unintended consequences. In their deliberations, Commissioners failed to account for the multitude of other regulations being considered, both at the COGCC and the Air Quality Control Commission, that help bolster protections beyond those allegedly implied by setbacks. Just last week, the AQCC passed regulations targeted at reducing emissions specific to the natural gas and oil industry. Those rules will address the primary concerns of last year’s study by the Colorado Department of Public Health and Environment, an analysis that serves as the anchor of many of the duplicative or arbitrary rules under consideration at the COGCC…As an industry, we will continue to prioritize public health, safety, welfare, the environment and wildlife. Nothing in the ongoing regulatory sea change will change that commitment. We will continue to participate in the upcoming rulemakings with those priorities above all else and are confident that other parties will do the same. Data, science and facts must be the primary drivers in any future changes we may see.”

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