Amid all the loud noises erupting from the recent series of hearings conducted by the Colorado Oil and Gas Conservation Commission regarding water and wildlife protection, one reality has escaped public notice.
When all debate is done, the state agency may not have the authority to enforce whatever rules it finally adopts.
Citing a list of legal precedents, the Bureau of Land Management claims jurisdiction to conduct leasing on federal lands as it sees fit. This assertion was made early last month in a letter to the commission from Sally Wisely, director of BLM’s Colorado State Office.
“BLM believes that certain draft rules would be pre-empted by federal law if applied to oil and gas operations on federal lands,” Wisely wrote in a five-page letter that repeatedly proclaimed supremacy regarding activities on the federal domain.
“The COGCC may avoid the pre- emption problems discussed above by adding language to the draft rules which acknowledges that COGCC regulations do not apply to federal lands and minerals absent BLM concurrence.”
In the federal hierarchy, BLM administers all matters pertaining to minerals, even on Forest Service lands. All of which appears to set the stage for a direct state-federal conflict of the sort that has not existed for a century or more.
For its part, Colorado’s Department of Natural Resources, of which COGCC is a part, shows no inclination to back down.
“Issues regarding water and wildlife are expressly reserved for the state and we intend to protect them under the state constitutional provisions and mandates,” said Mike King, DNR deputy director.
At the root of the skirmish are COGCC draft rules stipulating a drilling distance of 300 feet from streams, along with a requirement that drilling cease during critical periods of deer, elk or sage grouse reproduction. These issues were detailed last week on this page.
After initially issuing stricter draft rules on these matters, COGCC appeared to be waffling in the face of industry protests. Wildlife advocates since have mounted a vigorous campaign to reinstate the original draft. COGCC expects to issue its decision next month.
This latest interagency battle serves to confuse the issue and, considering the timing of Wisely’s letter, perhaps further tip the scales toward the industry position of maximum development.
Snared in this blue haze of bureaucracy are the contrasting currents of federal supremacy and the fact that all applications for drilling must be processed and approved through COGCC. Questioned about this obvious discord, both agencies tried to downplay the discord.
“There’s no turf war, just two agencies with overlapping regulatory authority,” said Steven Hall, BLM communication director. “The best solution is to iron out our conflicts.”
King offered similar conciliation.
“I don’t expect a tremendous amount of conflict at the end of the day,” he declared.
Meanwhile, wildlife proponents are keeping an eagle eye on the proceedings.
“If BLM insists on doing business this way, we’ll insist, we will demand it perform site-specific environmental analysis before any permits are issued,” said Steve Torbit, regional executive director of the National Wildlife Federation. “We feel BLM will have to step up to the plate with a full analysis with the state.”
Should the division continue, litigation from any of the three entities seems a very real prospect.
