November 23, 2020

COGCC wildlife series rulemaking concludes with substantial protections

On November 23, 2020 the Colorado Oil and Gas Conservation Commission voted unanimously to adopt new wildlife rules [1200 series] that provide substantially improved protections for wildlife.  We thank the Commission, staff and Colorado Parks and Wildlife (CPW) for their excellent painstaking work during this momentous rulemaking. We also thank the general assembly and Governor Polis for the 2019 law [SB 181] that requires protection for public health, safety, welfare, the environment and wildlife resources and required this rulemaking.

Mule deer, elk, bighorn sheep and pronghorn:

An operator must enter into a CPW-approved wildlife mitigation plan if proposing more than 1 location within 1 square mile in severe winter range and migratory corridors.  1202 d. For bighorn sheep, the new rule is no surface occupancy in bighorn sheep production areas. 1202 c.

Wildlife maps for these high priority habitats will be updated annually and subjected to a hearing. This will be especially important as migratory corridors, pinch points and stopovers where applicable, are updated.

At times CPW  and Bureau of Land Management will disagree on high priority habitats and their application under the new rules. CPW may recommend greater protections and the Commission will make the decision where there is a disagreement.

Gold Medal Waters:  The new rules require a 500 feet buffer [no surface occupancy] with the exception that a location can be sited closer only if Commission grants a variance after a public hearing. An operator must consult with CPW before applying for a variance.

Cutthroat Trout Habitat and Native Species Conservation waters:  Under the new rules a 500 feet buffer [no surface occupancy] is required, subject to these exceptions:

An operator can locate 300-500 feet if (a) CPW waives and COGCC Director supports, and (b) application incorporate the spill-prevention measures (Rule 411) with possible exception of the requirement of daily inspections. An operator cannot locate a wellpad and associated infrastructure  from 0-300 feet buffer only if Commission grants a variance after a public hearing

Sportfish Management Waters:  A 500 feet buffer [no surface occupancy] is required, except an operator can locate between 300-500 feet if (a) CPW waives and COGCC Director supports, and (b) application incorporates the spill-prevention measures from Rule 411 (with possible exception of the requirement of daily inspections). An operator may locate 0-300 feet from intermittent or ephemeral streams if CPW waives and COGCC Director supports, and 0-300 feet from perennial waters only if Commission grants a variance after a public hearing.

Compensatory Mitigation fee

An operator will pay a flat fee  for disturbances up to 11 acres IF the Commission decides to approve a permit in which the operator cannot avoid or minimize adverse impacts to wildlife.  The Commission will review the fee amount on a regular basis.

Earlier during the proceedings:

The Colorado Oil and Gas Conservation Commission wildlife series (1200 series) rulemaking hearing opened on November 10 with oral public comment.  The comments ran 2:1 in favor of the revised draft rules/strengthening the draft rules  v. worries that the draft rules would harm the oil and gas industry.  CWF is a party to the rulemaking, represented by Bob Randall, former Executive Director of Department of Natural Resources.

On November 23 the Commission will conclude their deliberations and vote. CWF will post highlights of the new rules then. The Colorado Oil and Gas Conservation Commission voted unanimously on October 13 to delay the wildlife series rulemaking hearings that were scheduled to begin on the 13th.  The hearing now are scheduled to begin on November 10, resume on the 12th-14th and extend in to the following week.  The reason for the delay was that COGCC issued revisions to the draft wildlife rules on Friday, October 9, which was insufficient to meet the requirement of the Administrative Procedures Act that mandates issuance at least  5 days in advance of the hearing.advance

COGCC tentatively approved revisions to Rules series 200-600 on September 28, 2020.  Written public comment on the wildlife series was reopened until October 8 November 4 at  5pm.

SB 181 which mandated the rulemaking “ensures that oil and gas development and operations in Colorado are regulated in a manner that protects public health, safety, welfare, the environment and wildlife resources.”

CWF’s positions on wildlife 1200 series:

CWF agrees with the COGCC draft rules (and now the revised draft rules)  in large part.  As to protections for High Priority Habitats of bighorn sheep, mule deer, elk and pronghorn, however, we believe the draft protections need to strengthened based upon the current science that has evolved.  We urge:

— surface disturbance from oil and gas development in bighorn sheep migration corridors, production areas, severe winter range and winter concentration areas not exceed 3 % of a section (square mile). The revised draft changed from the draft rule for bighorn sheep production areas.  It now provides no ground disturbance in sheep production areas. Very good!

— surface disturbance from oil and gas development in mule deer and elk  migration corridors, production areas, severe winter range and winter concentration areas not exceed 3% of a section (square mile).

–surface disturbance from oil and gas development in pronghorn migration areas, severe winter range and winter concentration areas not exceed 3% of a section (square mile).

As to aquatic areas:

–Wetlands and streams should be designated as High Priority Habitats and buffered by 500 feet. The revised draft issued on October 9 has changed from the draft. The draft provided a 300 feet buffer and the revised draft specifies a 500 feet buffer.  Great news!

–Gold Medal waters designated by Colorado Parks and Wildlife and native cutthroat trout streams should be protected by a buffer of 1,320 feet (1/4 mile).   The revised draft provides a 500 feet buffer.

 

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