Garfield County: Drilling requirement legal

Garfield County is defending the legality of its requirement that an energy company remove drilling cuttings from natural gas operations within the Battlement Mesa housing development.

County commissioners this week approved a letter responding to concerns raised by Williams Production RMT about the requirement. Williams contends the requirement is costly, violates limits on government takings of private property, and is pre-empted by state rules allowing the cuttings to be buried on site.

County commissioners imposed the requirement in December while granting land-use permitting for two Williams well pads where drilling already had been occurring. The action rectified an oversight by Williams and the county, which hadn’t been aware the permits were required for drilling in the 5,000-person community of Battlement Mesa.

Cuttings consist of rock and other material brought to the surface during drilling. In its written response to Williams, the county says the requirement to remove the cuttings is necessary because industrial land uses such as mineral waste disposal are prohibited under Battlement Mesa’s zoning.

Williams argues that cuttings with contaminant levels below limits set by the Colorado Oil and Gas Conservation Commission are not waste and may be buried on site. It also says managing the cuttings isn’t a separate activity, but rather a necessary component of natural resources extraction, which is permissible as a special use in Battlement Mesa.

When Garfield Commissioner Mike Samson pushed for removal of the cuttings in December, he acknowledged it could raise issues of state pre-emption. While standing by the requirement Monday, he added, “I think things are going to come to a head here somewhere.”

Williams challenged the measure under a state process for raising takings concerns. The county contends that if the company wants to argue the county provision is pre-empted by state rules, there’s a separate complaint process it needs to follow. It also cites a 1992 Colorado Supreme Court finding that there’s no implied legislative intent to pre-empt all aspects of county land use authority “merely because the land is an actual or potential source of oil and gas development and operations.”

Garfield County also is using the Williams example as an argument in support of state legislation that would clarify that takings concerns could be raised only when jurisdictions require money or land as conditions of zoning approval, Assistant Garfield County Attorney Deborah Quinn said.


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