Colorado Oil & Gas Conservation Commission
Rules Proposal & TU
October 3, 2020
On behalf of Colorado Trout Unlimited, local Headwaters Chapter Board Member Dennis Buechler submitted written testimony to the Colorado Oil and Gas Commission regarding their 1200 series proposed rules to protect fish and wildlife resources of high value. He emphasized that only 2 % of the surface area of Colorado is covered by wetlands and riparian habitats, yet they are very important for over 26% of our vertebrate species. Because they are so important and so vulnerable to sediment and oil and wastewater spills, he provided reasoning why the current proposed buffer is inadequate. He will also be providing oral testimony to the COGCC later this month. The written testimony can be read Here. Some older, background info is below.
June 23, 2020
Colorado TU and several other major conservation groups provided thorough comments on the COGCC’s strawdog draft regarding revised rules for improved protection of fish and wildlife and their habitats. Stay tuned because after the Commission staff releases a final draft, which may be in July, organizations will contact their members with an “ask” for letters of support for their recommended changes.
Jeff Robbins, Director
Colorado Oil and Gas Conservation Commission 1120 Lincoln St., Suite 801
Denver, CO 80203
Submitted via electronic mail: dnr_cogcc.rulemaking@state.co.us
Re: Feedback on COGCC’s May 1, 2020 Strawdog Proposal for 1200-Series Rules
Dear Director Robbins,
Thank you for the opportunity to provide feedback on the COGCC’s May 1, 2020 strawdog proposal for amendments to the agency’s rules for wildlife protection to implement Senate Bill 19-181.
The strawdog sets out an approach to implement the Commission’s new mission as to wildlife and biological resources set out in SB 181, namely to safeguard wildlife resources and to ensure that the adverse impacts of oil and gas, wherever possible, be avoided, and that any remaining impacts be minimized and mitigated. See C.R.S. 34-60-106(2.5)(a), 34-60-103(5.5). COGCC is further directed to guarantee that even where adverse impacts have been avoided, minimized and mitigated, wildlife and biological resources are ultimately protected from adverse impacts resulting from oil and gas operations.
We appreciate the efforts of COGCC staff, along with those of individuals from Colorado Parks and Wildlife and the Department of Natural Resources’ Executive Director’s Office, in developing the strawdog proposal, the May 13 FAQ document, and the High Priority Habitat table. In general, the strawdog represents a substantial improvement over existing regulations adopted in 2008 to minimize adverse impacts on wildlife resources, and strong and meaningful wildlife protections are more important now than ever given habitat loss over the last decade in areas important for wildlife.
The following discussion and accompanying proposed redlines contain feedback, questions, and suggestions for ways the strawdog could be improved to implement the COGCC’s new mission to protect wildlife and biological resources. Due to the short timeframe to prepare this feedback, this letter provides comment on the highest priority issues for the undersigned organizations and is not exhaustive. Signatories may supplement this submittal verbally or in writing before the COGCC publishes Notice initiating the formal rulemaking hearing.
Consultation with Colorado Parks and Wildlife
In the strawdog, the COGCC proposes to require operators to consult with CPW on wildlife impacts and ways to avoid them whenever a pad or new drilling is proposed in High Priority Habitat, critical habitat for a threatened or endangered species, or when facilities would fall within a conservation easement established for wildlife habitat. CPW will have 60 days in which to conduct the consultation on wildlife impacts – an expansion of the current, 40-day period. After consultation, CPW can recommend that the COGCC attach permit conditions that are necessary and reasonable to avoid, minimize, or mitigate
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impacts to wildlife, or to deny the permit application altogether if risks to wildlife cannot be sufficiently addressed. We support these changes.
Areas for Improvement:
1) There are additional circumstances in which operators should consult with CPW in recognition of potential impacts on resources in which public entities have made substantial financial investments, including when a new location or infrastructure is proposed within a State- maintained fish hatchery, within an access easement to be held by CPW, or within 1,320 feet of the ordinary high-water mark of a waterway segment that has an instream flow water right.
2) We propose additional procedural requirements that would apply when CPW’s recommendations on a pad or new drilling are not carried forward. When the COGCC Director proposes not to include CPW-recommended conditions of approval in the Director’s Recommendation on a particular Oil and Gas Development Plan or Form 2A, s/he would be required to explain not just the grounds for disagreement, but also the ways in which the Director proposes to address impacts to wildlife or biological resources identified by CPW. See Rule 309.e.(5).C. Likewise, should the Commission approve an application that CPW recommended be denied, its decision must include the ways in which it will avoid, minimize, or mitigate adverse impacts to wildlife or biological resources. See Rule 309.e.(5).D.
3) We appreciate the FAQ’s explanation for the expansion of the consultation period from 40 days to 60 days. We note a tension, however, between giving CPW adequate time to conduct the consultation and the value of CPW’s review in informing and educating would-be commenters on an application. While we want CPW to have the time it needs, we also would like CPW’s analysis of a proposed location’s likely impacts and ways to avoid, minimize, and mitigate them to be available to members of the public as they conduct their own review of a site. We will continue thinking through this issue and possible ways to address this tension.
High Priority Habitat
We appreciate the proposed shift from Sensitive Wildlife Habitats (SWH) and Restricted Surface Occupancy areas (RSO) to the High Priority Habitat (HPH) regime, and also the rationale for this change contained in the May 13 FAQ.
Areas for Improvement:
1) It is difficult to assess the adequacy of the High Priority Habitat areas set out in Rule 1203.c.(1), 1203.d, and the HPH table without maps or GIS shapefiles. We look forward to reviewing those as soon as they are available.
2) We continue to have questions about the definition of certain terms within Rules 1203.c and 1203.d. For example, what types of streams are included in “Native Species Conservation Waters” or “Sportfish Management Waters”? We counted 23 fish species identified as “species of concern” on CPW’s website, but do not know the scope of streams where each species is located or whether all of those streams are within “Native Species Conservation Waters” or
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“Sportfish Management Waters.” Additionally, do those terms include certain RSO areas in the current rules such as designated Cutthroat trout habitat or Gold Medal waters? We have added those habitat areas -- see Rules 1203.d.(1).Y and 1203.d.(1).Z, respectively.
3) Ground disturbance and road and pad construction have impacts on migration corridors for all important big game species, not just Bighorn sheep. Importantly, there is no empirical evidence supporting whether measures to minimize or mitigate unavoidable impacts are effective to protect migration corridors in light of many big game species’ fidelity to these routes. Accordingly, we have proposed to add migration corridors for elk, mule deer, and pronghorn to Rule 1203.c.(1), in recognition of the importance of these areas to maintaining healthy populations of these species and the heightened emphasis on their protection expressed in Governor Polis’s Executive Order 2019-11.
4) The distance from water-based HPH areas where ground disturbance is prohibited should be expanded from 300 feet to 1,320 feet (0.25 mile). A distance of 0.25 mile has been shown to be necessary to maintain the quality and integrity of streams and their associated riparian values by protecting against both sedimentation from erosion and degradation of water quality from spills or releases. The Bureau of Land Management has included 0.25 mile No Surface Occupancy stipulations in recent Resource Management Plans in Colorado – we are happy to provide specifics and citations if helpful.
5) Additionally, we have proposed that new oil and gas locations within 1,500 feet of all waterbodies employ the requirements contained in Proposed Rule 411.e for operations in the Intermediate Buffer Zone upstream of Surface Water Supply Areas. These requirements include containing flowback and stimulation fluids in tanks (i.e. no pits), lining berms, keeping spill response equipment on the location, inspecting for compliance with Rule 411, and collecting baseline surface water quality data. See Rule 411.e and 411.f. Just as they are needed to protect streams that provide drinking water, these requirements are necessary to protect important aquatic habitats from negative impacts to water quality resulting from spills and releases.
6) We have proposed a limited expansion of certain critical habitat areas for species in Rule 1203.c, namely increasing the distance from Greater sage-grouse leks from 1.0 mile to 2.0 miles, the distance from Gunnison sage-grouse leks from 0.6 mile to 1.0 mile, and the distance from active Golden eagle nests from 0.25 mile to 0.5 mile. These changes are supported by the latest scientific literature, have been incorporated into federal land use plans and other management documents, and are necessary to protect and avoid adverse impacts to these species.
7) The strawdog is silent on certain mechanical issues related to HPH, including how operators will determine whether they are within HPH, how HPH will be updated, and the interval for conducting such updates. We have proposed a new rule subsection, Rule 1203.e, to address these matters.
8) While moose were one of five big game species for which CPW provided a baseline of scientific information in its “2020 Status Report: Big Game Winter Range and Migration Corridors” (May 2020), the strawdog is silent as to protection of moose or moose habitat. Likewise, the
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strawdog fails to address white-tailed deer or its habitat. We have proposed that habitat areas for these species contained in CPW’s Species Activity Mapping (SAM) database be added to Rule 1203.d so that the COGCC and CPW can consider ways that adverse impacts can be avoided, minimized, or mitigated when a proposed location would result in density greater than one pad per square mile.
Compensatory Mitigation
The strawdog would require operators whose projects have impacts on certain species or habitats which cannot be avoided to complete compensatory mitigation to offset direct or indirect impacts from the proposal. An operator can satisfy this mitigation requirement by either completing a mitigation project approved by CPW (including ongoing maintenance, monitoring, and long-term management), or by paying CPW a mitigation fee of $13,750 for direct ground disturbance up to 11 acres.
When CPW determines compensatory mitigation is necessary to address a project’s indirect impacts of habitat fragmentation, it can recommend that the COGCC require it. An operator can satisfy its obligation to mitigate indirect impacts by paying a habitat mitigation fee based on CPW’s estimate of its costs to complete compensatory mitigation sufficient to offset the indirect impacts to wildlife from the project.
Areas for Improvement:
1) We appreciate the FAQ’s explanation for how the mitigation fee of $13,750 was calculated for direct habitat disturbance up to 11 acres. Notwithstanding the basis in DOLA figures for the cost of conservation easements in Colorado, we are concerned that it may not be sufficient for CPW not only to conduct mitigation projects or purchase conservation easements, but to ensure long- term maintenance and management of the project in order to offset a project’s ongoing impacts on wildlife. We are also concerned that because the mitigation fee is set in rule, it may become out of date as the cost of acquiring land or interests in land increase. We have not proposed specific language to address these issues but plan to discuss them with COGCC and CPW.
2) The draft rules fail to set standards for when an operator would be allowed to complete or pay for compensatory mitigation projects, rather than avoiding or minimizing impacts to these species or habitats in the first place. SB 181 requires COGCC to avoid impacts where possible, and the rules should set parameters for when that will be required. We have proposed to define “UNAVOIDABLE IMPACTS” in the 100 Series Definitions, and we have proposed language in Rule 1204.a stating that an operator may propose compensatory mitigation only after CPW has had the opportunity to identify, through consultation, reasonable and necessary measures that will avoid and minimize impacts on wildlife resources.
3) The strawdog states that an operator can satisfy a mitigation requirement for direct impacts by either completing a CPW-approved mitigation project or by paying a mitigation fee, yet it gives operators only one option to fulfill a mitigation requirement for indirect impacts: the payment of a fee. We recommend language be added to Rule 1204.d.(3) providing that operators may be allowed to complete a CPW-approved mitigation project in order to offset indirect impacts.
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4) While the strawdog uses both “Wildlife Mitigation Plan” and “Compensatory Mitigation Plan,” neither term is defined and it is unclear whether they are intended to be synonymous. We have proposed defining and utilizing only the latter, both to simplify the 1200 Series and to provide clarity about its purpose.
Biological Resources
In addition to requiring COGCC to protect and avoid impacts on wildlife, SB 181 directs the COGCC to protect air, water, soil, or biological resource against adverse environmental impacts from oil and gas development.
While protection of air and water are addressed elsewhere in the COGCC’s rules, the strawdog does not address biological resources notwithstanding the clear connection to wildlife.
Areas for Improvement:
1) We have proposed a definition of “BIOLOGICAL RESOURCES” in the 100 Series Definitions that includes plants and plant communities, invertebrate species, and soil resources. Each of these resources has a clear and close connection to wildlife – plants are food and cover for terrestrial wildlife, invertebrates are food for aquatic, avian, and terrestrial wildlife, and soil is important for range and habitat health.
2) We have proposed that applications for a Form 2A, Oil and Gas Location Assessment, include a Biological Resources Protection Plan in a new subsection, Rule 304.c.(18). We have also proposed a new subsection, Rule 1201.d, describing the required contents of such plans.
3) We have proposed to add the Colorado Natural Heritage Program (CNHP) to the list of parties with whom the operator must consult, in Rule 309.e.(1). CNHP is a nonprofit organization and a sponsored program of the Warner College of Natural Resources at Colorado State University. Not only does CNHP maintain detailed information on the status and location of species in Colorado, but they also track and rank Colorado’s rare and imperiled species and habitats.
Other Matters
There are a few additional matters contained in the strawdog that either raised questions or concerns for us.
1) In several places, the strawdog refers to CPW approval of a Wildlife Protection Plan (see Rule 309.e.(2)(B), 309.e.(2).E, and 1203.d) or inclusion of a Wildlife Protection Plan in an Order approving a Drilling and Spacing Unit (see Rule 309.e.(2).E). The Wildlife Protection Plan is a required element in an operator’s Form 2A application pursuant to Proposed Rule 304.c.(17),but neither the Proposed 300-Series Rules nor the strawdog include any mechanism for CPW to approve a Wildlife Protection Plan. Likewise, the Proposed 300 Series Rules do not include a mechanism for inclusion of a Wildlife Protection Plan in a DSU Order. While we have flagged this issue in our proposed redlines, we have not proposed specific language detailing a process
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by which CPW could approve a Wildlife Protection Plan or by which a Wildlife Protection Plan would be included in a DSU Order.
2) Given the strawdog’s reliance on the Wildlife Protection Plan, we want to ensure that they remain up to date. We have proposed a new subsection, Rule 1201.b, providing that CPW may recommend to the Director that any Wildlife Protection plan that is more than 10 years old be reviewed and, if necessary, updated to avoid, minimize, or mitigate adverse impacts to wildlife or other biological resources that have occurred since the initial Wildlife Mitigation Plan.
3) In the FAQ, CPW introduces for the first time the possibility that it might waive the wildlife portions of the Alternative Location Analysis (ALA) submitted with an application for a Form 2A, Oil and Gas Location Assessment, if the operator demonstrates via “informal pre-consultation” that it has selected a location that avoids or minimizes impacts to wildlife. We are concerned that such a waiver would subvert the purpose and value of the ALA process in informing the COGCC and the public on the impacts of alternative locations. Rule 304.b.(2)(B) provides that the operator is to identify all potential alternate locations that may be considered and address why siting the proposed location at each of the alternative locations is or is not more protective of, inter alia, wildlife resources. We have proposed additional language for Rule 304.b.(2).A.iv that would require documentation of this analysis on a Form 4, Sundry Notice. If this language is not included, we request that the final clause of 304.b.2.A.iv (“and the applicant did not obtain a waiver from Colorado Parks and Wildlife through a pre-application consultation”) be stricken.
Again, we appreciate the time and effort that has gone into development of the 1200 Series strawdog, as well as this opportunity to provide feedback. The comments addressed herein are reflected in the attached redlines, along with other suggested ways in which the strawdog could be improved to protect wildlife and biological resources.
Thank you for your consideration of our input. Please do not hesitate to contact us if you have any questions – we are happy to meet with you at any time.
Sincerely,
John Gale, Policy Director Backcountry Hunters & Anglers
Aaron Kindle, Director of Sporting Advocacy National Wildlife Federation
Nada Culver, Vice President, Public Lands National Audubon Society
Kelly Nordini, Executive Director Conservation Colorado
Tracy Coppola, Colorado Program Manager National Parks Conservation Association
Suzanne O’Neill, Executive Director Colorado Wildlife Federation
David Nickum, Executive Director Colorado Trout Unlimited
Madeleine West, Center for Western Lands Dir Theodore Roosevelt Conservation Partnership
Jim Ramey, Colorado State Director The Wilderness Society
Juli Slivka, Conservation Director Wilderness Workshop
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Mike Freeman & Tom Delehanty (Earthjustice) for League of Impacted Oil and Gas Coloradans Earthworks
Alison Holloran, Executive Director & VP Audubon Rockies
Cc: Dan Prenzlow, Director, Colorado Parks and Wildlife
Doug Vilsack, Assistant Director, Colorado Department of Natural Resources
May 11, 2020
COGCC has invited stakeholders to provide written comment and proposed redlines. While the initial comment period has now passed, it’s not too late to add your voice. They have a comment portal that will stay open well past the initial 5/20 date. They’ve said that they intend to kick off the 1200 Series rulemaking formally on June 16 by publishing Proposed Rules with the Secretary of State, etc. So the sooner the better on specific feedback, of course, but we basically have a full month to influence the drafting before the rulemaking proceeding actually starts.
Any member of the public can submit comments on the COGCC’s 1200 Series strawdog proposal (along with any other rule series) – they do not need to be a formal party to the rulemaking, or affiliated with a formally recognized stakeholder group.
To do so, click HERE to reach the COGCC’s Public Comment page for the SB 181 rulemaking generally, and then click on the link for “Mission Change Rules 800, 900, 1200,” available HERE. The form allows individuals to type comments into a “comment” field on the form itself, or to upload a pdf attachment.
The official online information in the links above doesn’t include the actual straw dog draft language for viewers to review. To see the draft language, 100 Series (Definitions), 300 Series (Permitting Process), 500 Series (Rules of Practice), and 1200 Series (Protection of Wildlife), which starts on Page 6, click the button below. We think folks will be most interested in the 1200 Series information so feel free to scroll directly to that, although such things as the permitting process and rules of practice will be very important pieces of the new rules.