Scope of new rules on federal land unclear

When the state Legislature approved new oil and gas rules last week, a plan to implement them on private lands Wednesday became a sure thing.

That’s anything but the case when it comes to the state’s plans to put the rules in place on federal land a month later.

Industry officials doubt the state and federal governments will reach agreement in the next month regarding how the state rules would work on federal land — if they reach an agreement at all.

“I’ll put money down that there’s going to be a need to delay” the May 1 implementation date, Stan Dempsey, president of the Colorado Petroleum Association, said in an interview.

The U.S. Bureau of Land Management and Colorado Oil and Gas Conservation Commission
have yet to meet on the matter.

“The federal government does not work fast when it’s working on agreements like this,” said Wayne Bankert, who now handles regulatory and environmental matters for Laramie Energy II but formerly helped regulate the industry as a BLM petroleum engineer.

Dempsey said during a recent legislative hearing that the industry needs clarity about the matter.

Dave Neslin, acting director of the oil and gas commission, has said the state is prepared to delay the federal lands implementation date if need be.

But timing isn’t the only issue; so is legality. The BLM last year warned that the state does not appear to have the authority to put some rules in place on federal land, such as geographic area plans that could conflict with federal land management plans, and surface-occupancy restrictions that exceed similar federal limits and that the BLM fears would impede energy development.

Neslin and other state officials say court rulings have made clear the state’s authority to impose its rules on federal land.

“I just don’t think it’s really debatable,” Neslin recently told lawmakers.

BLM spokesmen David Boyd said his agency looks forward to meeting with state officials.

“We definitely have concerns, and that’s why we want to sit down and work out the details,” Boyd said.

The federal and state governments have agreements regarding existing state oil and gas rules.

For example, a state drilling permit is needed for operations on federal lands. But Boyd said the new rules go further in their reach than the existing ones, which raises questions about how the rules would interact with federal regulations.


Neslin said some federal rules, including some pertaining to wildlife protection, already are stricter than the new state rules. The state rules are stronger in areas such as public drinking water supply protections, he said.

Colorado Division of Wildlife spokesman Randy Hampton points out the BLM imposes seasonal drilling restrictions to protect wildlife. That’s something the state considered doing under its new rules but ultimately backed away from under industry pressure.

Still, Hampton said the state rules’ wildlife consultation process would give the DOW the opportunity to communicate directly with energy companies and discuss habitat protection options.

Northwest Colorado has the nation’s largest mule deer herd and migratory elk herd. Although only about 15 percent of drilling permits statewide are for federal lands, Garfield County, which leads the state in drilling activity, consists of about 60 percent federal land.

The Colorado Wildlife Federation recently found that 46 percent of Garfield County land identified by the state as sensitive wildlife habitat is on federal land. Forty-five percent of what the state identifies as restricted surface occupancy areas in the county — places where it plans under its new rules to generally prevent drilling operations to protect wildlife — is on federal land.

Hampton said the new rules would ensure state wildlife officials are consulted when the BLM considers exemptions to wildlife protections. Now, sometimes they are consulted, and sometimes not, he said.

“I think we are seeing fewer and fewer situations where things might go astray, but we certainly look for the opportunity to be at the table,” he said.

BLM spokesman Steven Hall said there’s a mistaken impression that his agency frequently grants exceptions to its wildlife timing limits, when in fact that occurs in the case of probably less than 1 percent of federal oil and gas leases. As an example, an exception may involve delaying a seasonal restriction to let a company complete a drilling operation if no impact on wildlife is being seen. Hall said the BLM consults with state wildlife officials in such cases.

He said there have been instances, such as in Wyoming, where the BLM has allowed year-round drilling in sensitive habitats when proper mitigations are established. But such waivers occur only after a public planning process that includes input from state wildlife officials, he said.

“There’s just this perception out there that these are granted without much thought, much consideration, and that’s simply not true,” he said.


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