Proposed Elbert County Oil & Gas Regulations and Permitting Process
Part II, Section 26.2 Review Procedures

I. OPERATIONAL CONFLICTS WAIVER

A waiver to these Regulations shall be granted if or when the application of the requirements of these Regulations actually conflict in operation with the rules of the Oil and Gas Conservation Act or implementing regulations.

1. All applications where a waiver due to operational conflicts is requested shall be processed as a Major Oil & Gas Facility and heard in a noticed public hearing by the Board of County Commissioners. The Applicant shall have the burden of pleading and proving an actual, material, irreconcilable operational conflict between the requirements of this section and those of the Colorado Oil & Gas Conservation Commission in the context of a specific application.

Translation: You have to prove an operational conflict exists between interpretations of the county and interpretations of the state regulations.

2. For purposes of this Section, an operational conflict exists where an actual application of a County condition of approval or regulation is contrary to State statutory or regulatory requirements and where such conflict would materially impede or destroy the Colorado Oil & Gas Conservation  Commission’s goals of fostering the responsible, balanced development, production, and utilization of the oil and gas resources in the State of Colorado in a manner consistent with protection of public health, safety, and welfare, and protection of the environment and wildlife resources.

Translation: The county determines the standard by which it will accept a conclusion of an operational conflict.

3. County requirements in areas regulated by the Colorado Oil & Gas Conservation Commission that fall within County land use powers necessary to protect the public’s health, safety, and welfare pursuant to the application presented, and which do not impose unreasonable burdens on the Applicant, or materially impede the State’s goals, shall be presumed not to present an operational conflict.

Translation: The county will interpret when an operation conflict exists and whether the conflict presents an unreasonable burden to the applicant.

4. If the Board of County Commissioners determines that compliance with the requirements of these Regulations results in an operational conflict with State statutes or regulations, a waiver to this section shall be granted, in whole or in part, but only to the extent necessary to remedy the operational conflict. The Board of County Commissioners may mitigate any impacts by conditioning the approval of a waiver as necessary to protect the public health, safety, and welfare. Any such condition shall be such that the condition itself does not conflict with the requirements of the Colorado Oil & Gas Conservation Commission.

Translation: The county says whether a waiver that they might offer will satisfy the conflicting state requirement.

5. If the Applicant, or any person entitled to receive notice of the original application for the Oil & Gas. Facility, wishes to seek judicial review of a final Board of County Commissioner’s decision on the operational conflict waiver request, appeal to the district court shall be pursuant to C.R.C.P. Rule 106(a)4.

Translation: If you don’t like it, sue us.

From: Kurt Schlegel
Sent: Wednesday, January 11, 2012 12:22 PM
To: Marvin and Nancy Maul; Del Schwab; John Shipper
Cc: Richard L. Miller
Subject: DRAFT Elbert County Oil and Gas Regulations
Good Afternoon Mr. Maul,

Thank you for sending me your thoughts / opinions regarding County based land use regulations.  I have followed the recent actions that have been taken or deferred by other Counties regarding the adoption of specific land use regulation relating to Oil & Gas Exploration.  As County Commissioners we are tasked with adopting and enforcing land use rules and regulations in order to protect the property values of all property owners in the County.

I believe it is County government’s duty to ensure that Oil & Gas exploration in Elbert County is done responsibly and  staff has worked diligently to incorporate lessons that have been learned from other Colorado counties in our proposed Oil & Gas Regulations.  Please be aware that these DRAFT regulations have nothing to do with the actual drilling / hydraulic fracturing / harvesting of resources processes.  These are regulated by the Colorado Oil and Gas Conservation Commission (COGCC).  Our County regulations are designed to ensure the public safety by designating traffic / haul routes for equipment, specify where and how equipment can be stored safely, how waste byproducts are handled and stored, etc.  In addition our staff has worked to ensure that the proposed regulations do not pre-empt any regulation already in place by the State of Colorado.  I invite you to review the DRAFT document which is available on the Elbert County website at http://elbertcounty-co.gov/dept_CommunityandDevelopmentServices.php

As I stated previously, the County is also responsible for the enforcement of all zoning and land use regulations.  The taxpayers expect this service and are entitled to this regulatory authority that is designed to protect everyone’s property values and ensure the public’s safety.  The fact that we will have clearly defined what is expected of all surface activities associated with oil and gas exploration will make it easier for staff to enforce, thereby saving the taxpayers money in the long run.

I appreciate your input and invite you to attend, or be a part of, the Planning Commission’s review process.  Their first meeting to discuss the DRAFT Oil & Gas Regulations is scheduled for Thursday - 26 January, 2012 at 6:00 pm.

Sincerely,

Kurt C. Schlegel

Elbert County Commissioner; District 2
215 Comanche Street
Kiowa, CO  80117
303-621-3139
Kurt.schlegel@elbertcounty-co.gov

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

From: Marvin and Nancy Maul
Sent: Tuesday, January 10, 2012 3:05 PM
To: Del Schwab; Kurt Schlegel; John Shipper
Subject: Oil and gas regulations

To the Elbert County Board of County Commissioners:

This refers to the draft of new oil and gas regulations being prepared by Richard Miller, Director of the Elbert County Community and Development Services that I understand will be brought before the Board for a vote shortly.

I would suspect that by now the Commissioners are aware of the lead editorial contained within the January 9 issue of The Denver Post entitled “Current fracking rules enough” which summarizes pretty well the intent of the editorial.  I understand as well, that at least two Colorado counties (Arapahoe and Gunnison) have been convinced that their proposed oil and gas proposed regulations represent an unnecessary duplication of regulations already adopted by the Colorado Oil and Gas Conservation  Commission, and are withdrawing them.

With all due respect I am concerned that actions taken by the Board to date as I understand them, seem to indicate that Elbert County is moving toward adoption of a 60-page set of regulations, tailor-made for Elbert County, even to the point of hiring outside counsel to aid in the drafting of the document. I cannot understand (and I refer again to the Denver Post article) why the County feels the need for a set of regulations that will largely superimpose over the existing COGCC regulations

Further, we recognize that Elbert County as with most other governmental entities across the country is in a financially precarious position.  Adding the regulatory purview  of Mr.. Miller’s proposal to the county’s populace would include not only the direct costs of the consequences of the regulations as well as additional costs imposed by the mechanisms for enforcement of the regulations.  How many new employees will Miller be able to add to his department if these regulations with resultant enforcement are adopted?  It seems to me that in view of the state’s regulatory actions, the County’s tacking on of these new costs will represent a highly wasteful use of taxpayers dollars, and it’s not as if the environmental concerns of the County’s residents were being overlooked!

Finally, as an Elbert County taxpayer, I am wondering if, in the event the County decides along with the other counties to instead adopt the COGCC regulations, will the County be able to recover some of the funds being expended on the outside lawyers?!

Sincerely yours,

Marvin O. Maul
Colorado Springs, CO

Arapahoe County proposed Oil and Gas Zoning recently rejected

Colorado Attorney General’s Letter to Arapahoe - pdf

Note: Arapahoe’s proposed regs are 19 pages long.  Elbert County’s proposed regs run 60 pages.

~

The Board of Elbert County Commissioners met in a regularly scheduled meeting on September 28th, 2011: Excerpt-

Commissioner Shipper moved to approve and execute Engagement agreement between Elbert County and the law firm of Murray, Dahl, Cougenmiester and Renaud LLP regarding provision of certain special counsel service to Elbert County regarding the draft of the Elbert County Oil and Gas Regulations.

Commissioner Schwab commented on a concern, the State can overrule County Regulations and would not want to be put in this position. The only way to avoid this is to have someone with oil and gas experience review these regulations, that is reason the Board is entering into this Agreement with Murray, Dahl, Cougenmiester and Renaud LLP.

Commissioner Schwab seconded the motion, passed.

Perhaps the Elbert County BOCC should get their money back on this contract….

and consider whether we need a czar of anything around here.

COGCC, Gunnison County approve MOU

“The Colorado Oil and Gas Conservation Commission and Gunnison County have approved a memorandum of understanding that memorializes the intent of both parties to work together on regulatory matters related to oil and gas development. This MOU, the first of its kind between the Commission and a county government, was approved Oct. 31, 2011.

The MOU follows several meetings between Commission staff and county officials and represents a cooperative approach designed to clarify and coordinate the regulation of oil and gas operations in a way that assists the state and provides assurance to the county and its residents that industry activity is protective of public health and the environment.”

MOU Between the Colorado Oil and Gas Conservation Commission and Gunnison County

Let’s see how many instances of regulatory duplication you can find in the proposed Elbert County Oil and Gas Regulations, and regulations already enforced by the COGCC at the state level:

Draft Oil and Gas Regulations for Elbert County, 12-27-2011 Version

Colorado Oil and Gas Conservation Commission - Cross Reference

Colorado Oil and Gas Conservation Commission - Rules and Regulations Table of Contents

(See the RULES heading at http://cogcc.state.co.us/ for detailed rule text.)

~

Should there be any duplication of regulation between Elbert County and Colorado?  No.

Should a county with tight budgetary constraints that has had to materially cut back work hours and numbers of personnel be taking on duplicative regulatory functions already addressed by the State of Colorado?  No.

~

Elbert County can ill afford an oil and gas regulatory empire headed by a czar of Community and Development Services.

I hope that the one-year performance review of the Jail Based Behavioral Health Service program contains outcome data that links program expenditures to actual reductions in recidivism and hospitalization rates in the target population.  The good intentions surrounding social services programs make them politically attractive to theorize about and establish, however, their success tends to be measured by growth in the target population served, when a better measurement would be how much the size of the target population has been reduced by the program.

U.S. Supreme Court
ICC v. Brimson, 154 U.S. 447 (1897)
Interstate Commerce Commission v. Brimson
No. 883
Argued April 16, 1894
Decided May 26, 1894
154 U.S. 447

“Power given to Congress to regulate interstate commerce does not carry with it authority to destroy or impair those fundamental guarantees of personal rights that are recognized by the Constitution as inhering in the freedom of the citizen.”

“The inquiry whether a witness before the Commission is bound to answer a particular question propounded to him, or to produce books, papers, etc., in his possession and called for by that body, is one that cannot he committed to a subordinate administrative or executive tribunal for final determination. Such a body could not, under our system of government and consistently with due process of law, be invested with authority to compel obedience to its orders by a judgment of fine or imprisonment.”

“Neither branch of the legislative department, still less any merely administrative body, established by Congress, possesses or can be invested with a general power of making inquiry into the private affairs of the citizen. Kilbourn v. Thompson,

Page 154 U. S. 479

103 U. S. 168, 103 U. S. 190. We said in Boyd v. United States, 116 U. S. 616, 116 U. S. 630 — and it cannot be too often repeated — that the principles that embody the essence of constitutional liberty and security forbid all invasions on the part of the government and its employees of the sanctity of a man’s home and the privacies of his life. As said by MR. JUSTICE FIELD in In re Pacific Railway Commission, 32 F. 241, 250, “of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves not merely protection of his person from assault, but exemption of his private affairs, books, and papers from the inspection and scrutiny of others. Without the enjoyment of this right, all others would lose half their value.”

Now, see: 

The American Community Survey

~

Democrats Use Fiscal Crisis As Weapon To Bash GOP
Investors Business Daily Posted 12/27/2011 07:09 PM ET

Debt: Wasn’t it just last summer Republicans and Democrats nearly came to blows over raising the debt ceiling? Well, guess what — President Obama is back, asking for another $1.2 trillion. Are we being gamed here? (more…)

PRESIDENT OBAMA: Well, we’re not done yet. I’ve got five more years of stuff to do. But
not only saving this country from a great depression. Not only saving the auto industry. But
putting in place a system in which we’re gonna start lowering health care costs and you’re
never gonna go bankrupt because you get sick or somebody in your family gets sick. Making
sure that we have reformed the financial system, so we never again have taxpayer-funded
bailouts, and the system is more stable and secure. Making sure that we’ve got millions of
kids out here who are able to go to college because we’ve expanded student loans and
made college more affordable. Ending Don’t Ask, Don’t Tell. Decimating al Qaeda, including
Bin Laden being taken off the field. Restoring America’s respect around the world.
The issue here is not gonna be a list of accomplishments. As you said yourself, Steve, you
know, I would put our legislative and foreign policy accomplishments in our first two years
against any president — with the possible exceptions of Johnson, F.D.R., and Lincoln — just
in terms of what we’ve gotten done in modern history. But, you know, but when it comes to
the economy, we’ve got a lot more work to do. And we’re gonna keep on at it.

12-11-11 60 Minutes with Obama interview

From the ACLU 50-State Survey for January of 2012:

• Access to abortion and birth control. [Must keep killing babies.]
• Equal treatment of lesbian, gay, bisexual and transgendered. [Must treat those who display sexual preference the same as those who do not.]
• Protection against racial profiling and discrimination by law enforcement. [Must not profile those most likely to commit terrorism.]
• Equal access for eligible residents to vote. [As opposed to citizens.]
• Non-preferential treatment of any one religion by the government. [Except Islam.]
• Preventing the teaching of creationism and intelligent design from interfering with the teaching of evolution in public school science classes. [When government sanctions a theory it must be protected.  See global warming.]

Let’s see: infant death and dismemberment, sexual obsession, terrorism, illegal aliens, Sharia, spurious government science.  That’s an impressive series of harmful policies to rack up by one organization in one fund-raising mailer.  How did I get on this nutjob mailing list?  Yeah I’m going to send them a check, where’s my pen?

Thank you American law schools.

December 20, 2011
By WALTER E. WILLIAMS
INVESTOR’S BUSINESS DAILY

Republicans and Democrats, liberals as well as conservatives, have bought into anti-Chinese trade demagoguery. (more…)