OUT: Sunday Column September 28, 2008

Tentative energy rules could be good for wildlife

With a little luck, the state’s wildlife no longer will take a back seat to energy development.

The Colorado Oil and Gas Conservation Commission this week gave initial OK to a set of wildlife-friendly rules directing how and where energy development can occur.

If the commission formally adopts the rules at its October meeting, it will be a precedent-setting move that will make this state a leader in the struggle to balance resource management against energy development.

Which in itself presents a bit of a conundrum — Colorado will have the tightest set of wildlife-protection rules in the development-affected Rocky Mountain West, yet still will be among the cheapest states in the region in terms of development costs.

No one disputes the need for natural gas, but protecting wildlife and wildlife habitat is in everyone’s interest.

The draft rules passed 8-1 by the commission provide some vital steps in reining in an industry that up to now has offered a hit-and-miss approach to wildlife concerns.

While everyone seems to agree the draft rules aren’t perfect, they are, in the words of Division of Wildlife Director Tom Remington, “light years ahead of where we were.”

One key provision in last week’s action, which was put in motion 15 months ago by House Bill 1298, would require developers to consult DOW biologists prior to drilling if mapping shows the area is considered sensitive wildlife habitat.

Additionally, certain areas, such as key spawning or breeding sites, may be off-limits to development if the wildlife factor is important enough and the mineral resource can be reached economically off-site.

These Restricted Surface Occupancy (RSO) areas encourage a company to use directional drilling when possible and to its credit, the Gas and Oil Commission made a key decision when it kept the surface-occupancy restrictions in the rules instead of requiring land-owner consent. 

Also, refueling and chemical storage sites will be moved farther from streams to protect fish and water quality, and road and pipeline rights of way will be consolidated where possible.

A push for timing restrictions to protect spawning fish, game-bird mating sites and big game during the fawning and calving season failed to get the gas commission’s approval. However, the DOW indicated similar restrictions will be included in future recommendations for development guidelines. 
Industry attorneys already have started crying foul and warned of lawsuits over the draft rules, citing private property rights and existing federal rules as over-riding the state’s authority.

Restricting development on private property is going to be particularly sticky, but given the broad-brush approach of the new rules, it’s unlikely there will be a conflict.

“We’re going to be pretty darn careful how we apply RSOs,” said Rick Kahn, the DOW’s representative during the meetings last week.

“If the (energy) company decides they cannot develop the resource economically without violating the RSO, then we would allow them to do it,” Kahn said.

He said some terrain limits the options for energy development and, in these cases, the RSO might be waived for economical and practical reasons.

“But you have to take into account how small most of these RSOs are,” Kahn said. “The most problematic is the Greater sage grouse.”

Developers already have energy leases in grouse habitat, including vast reaches of northwest Colorado, and Kahn indicated difficult decisions will have to be made when allowing development in key habitat. The

Greater sage grouse is being considered for protection under the Endangered Species Act.

“The reality is we are going to have some difficult choices between protecting habitat and allowing directional or cluster drilling in those areas,” he said. “If the grouse gets listed, the whole issue of energy development would have a lot fewer options for both industry and private landowners.”

The DOW and public and private stakeholders “have spent a lot of money to keep the bird off the ESA, so this isn’t going to be easy,” Kahn said.

But these rules at last give wildlife a place at the table, and not simply as the main course. 


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