CWF letter re wildlife technical sessions for COGCC rulemaking

March 9, 2008

March 4, 2008
Members of the Senate Agriculture, Natural Resources and Energy Committee
Members of the House Agriculture, Livestock and Natural Resources Committee
                        Re: HB 07-1298 COGCC Rulemaking
Dear Members of the Committee:
The purpose of this letter is to report to you the Colorado Wildlife Federation’s (CWF) assessment of the process and outcome of the wildlife technical stakeholders’ sessions that concluded on February 26. The sessions were originally scheduled to convene on six consecutive Tuesdays during January and early February. The sessions were transparent, and accessible to people who reside on the West Slope via video conference from Grand Junction and Durango. Participants decided to meet beyond the scheduled sessions, adding two sub-group meetings and two additional Tuesday meetings. Representatives of the Colorado Petroleum Association (CPA), BP, Williams, Encana, Exxon-Mobil, Chevron and Conoco Phillips participated in each meeting. Sportsmen and other conservationists also participated. Representatives of the Colorado Farm Bureau and of the Colorado Cattleman’s Association and a royalty owner participated in the last few meetings.
The Division of Wildlife (DOW) presented its first draft of standard operating practices (SOP’s) and best management practices (BMP’s) at the beginning of the process. DOW staff expended many hours developing them, using the results of scientific studies and observed impacts in Colorado and in neighboring states. As the discussions evolved, DOW revised the draft. CPA and representatives of the companies listed above proposed a consultation process that will require a substantially larger percentage of consultations by DOW than the agency had envisioned. Written comments to DOW’s second draft of standard operating practices and best management practices were submitted by CPA in conjunction with these companies on Friday, February 22. The Colorado Cattleman’s Association submitted written comments on the same day.    
A central dispute is whether seasonal timing limitations in important wildlife habitats and restricted surface occupancy areas should be included in the SOP’s as baseline operating standards to protect wildlife. Such baseline standards are important to ensure a level playing field for all the companies and to provide them the information they need to plan field development in an efficient manner. It provides them the assurance they seek that they can proceed in an orderly manner. The SOP’s that include these standards were developed to alleviate the need for companies to consult with the DOW unless very sensitive habitats for important species (e.g., critical winter range for mule deer) would be adversely impacted. The DOW does not have the staff to actively consult on the bulk of drilling permits. As the “consultation map” shows, very few areas east of I-25 are  within these consult areas. Companies and landowners have the option of initiating a consultation with DOW to request a waiver from any SOP that they believe is unreasonable or technically infeasible.   In the event that consultation with DOW is required, all SOP’s and any additional BMP’s are subject to negotiation.
 The statute (H.B.07-1298) specifically provides for establishment of standards as well as best management practices for the purposes of avoiding and minimizing impacts to wildlife resources. The Colorado Oil and Gas Association, CPA, and the participating companies demand that seasonal timing and restricted surface occupancy terms become relegated solely to a series of voluntary best management practices. The Bureau of Land Management currently has voluntary BMPs, which have been demonstrated time and time again to be inadequate. This problem was one of the main reasons for developing HB 07-1298. Therefore, CWF strongly believes that seasonal timing limitations and restricted occupancy standards are necessary to ensure that the rulemaking meets the basic purpose and objectives of the statute.  DOW will not “stack” species with respect to seasonal limitations.
The issue of the scope of the private landowner consent provision presents a legal question of statutory interpretation. We believe that the provision was intended to require close coordination and negotiation with the affected private landowners when they have an objection to any proposed site-specific BMP, such as location of drilling pads, roads, and mitigation areas, which would in effect require their consent. We also believe that the statutory language was not intended to require consent of the landowner in order to apply an SOP, such as seasonal timing limitations and restricted surface use in special situations (e.g., to protect sage grouse leks). DOW has a history of alleviating industry from timing stipulations when appropriate, and we view this option as extending to private landowners as well. As a final note, CWF notes that these rules apply only to facilities and operations that are directly related to energy development. The rules have no effect upon normal farming and ranching operations. Oil and gas companies are operating successfully in the face of various legal requirements (e.g., National Environmental Policy Act.). The SOP’s do not present a substantially greater burden. 
CWF believes that the wildlife stakeholder process has served to narrow the issues. In addition, the participants are close to reaching agreement on several draft standards, and numerous others have been deleted during the two-month wildlife stakeholder process. Therefore, we ask that you allow the rulemaking process to proceed as planned by the Department of Natural Resources and the Colorado Oil and Gas Conservation Commission.  We intend to continue reaching out to all interests to try to forge greater agreement in advance of the formal hearing. 

Executive Director


1410 Grant Street, Suite C-313, Denver CO 80203 (303) 987-0400 x1 Fax (303) 987-0200   



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