Fracking questions bubble to surface 

Council members put on their thinking caps, and find there's still a lot to learn

As of December, Colorado Springs City Council looked poised to pass an ordinance on oil and gas drilling regulations. Despite vociferous opposition outside and inside its chambers, the first reading of that ordinance passed fairly easily, 6 to 3.

But a funny thing happened on the way to a second reading: Council decided it had some more concerns. The second vote was postponed. And last Tuesday's work session on drilling, which featured Kyle Campbell, the city's local government liaison to the state Oil and Gas Conservation Commission, led to even more questions.

"I think that what Council is finding," says Council President Scott Hente, "is that the more you dive into it, the more information you feel like you need to have."

With Council elections coming up April 2, the pressure is on for its current members to settle the issue. As Councilman Val Snider explains, "there's the chance that we would have six new Council members. I would like to get it done before [the swearing-in on] April 15."

Hente adds that he wants to be sure his group handles the process well, but that he "would think that, one way or another, this Council would get it resolved."

Foremost among the questions that lingered after last week's meeting: Will the city be able to regulate where the oil and gas industry drills?

It would only make sense, argued Councilor Tim Leigh, who soon after the ordinance's first reading pledged to switch his vote from "yes" to "no."

Why, when the city is able to restrict car sales to specific zones, would it not be able to likewise regulate drilling?

"I just have a really hard time wrapping my arms around that," he said.

Hente expanded on the issue.

"If I own a vacant lot, I have a right to use that lot. I bought that lot, I have private property rights, but the city can restrict what I do on that lot," he said. "And in some cases you prohibit what I do on that. So if you can prohibit what I can do, and take away some of my private property rights, I don't understand why the same rationale isn't applied to private mineral rights."

Longmont lesson

The answer, Colorado Oil and Gas Conservation Commission director Matt Lepore told Council, isn't clear-cut.

"It's an undecided question of law, whether a local jurisdiction can ban drilling in a residential zone or any other zone," he said. "That's probably the key reason the state elected to sue Longmont."

As Longmont native and activist Sam Schabacker has told the Indy, citizens in the conservative Boulder County city of 87,000 were concerned in November 2011 to learn that an oil and gas company "wanted to come in and put a series of wells next to homes, a middle school and a reservoir."

These citizens pressured their city council into undertaking a months-long process of drafting the regulations, he says. When adopted in July 2012, they included, among other things, restrictions on residential drilling. Claiming that Longmont had overstepped its regulatory authority, the Colorado Attorney General's office filed a lawsuit.

But the group known as "Our Longmont" wasn't done. It put forward a ballot measure to ban fracking within city limits altogether, and it passed with 60 percent of the vote. The Colorado Oil & Gas Association responded by launching its own lawsuit in December, arguing that Longmont was illegally preventing industry from exercising its mineral rights.

These two suits highlight the complexity surrounding drilling: If a company owns the mineral rights under someone else's property, the surface owner is expected to allow the company to extract those minerals. Likewise, a community is expected to allow a company broad access to extract its minerals.

"Nobody's taking anybody's minerals," Schabacker contends. "We're prohibiting the specific process of hydraulic fracturing."

He compares it to fishing.

"You understand that you don't have the right to throw sticks of dynamite into the lake," he says. "Furthermore, you don't have the expectation that someone is going to compensate you for all those fish that you can't catch."

Regardless, as of now these court challenges are likely years from being settled.

For the Springs ordinance, Hente has asked the city attorney's office to provide case law on the matter.

Running out of time

Among myriad other questions:

Who owns the mineral rights under public parks? If an oil and gas company owns those rights and wants to drill, is there any way to prevent it? Can the city hire an inspector, or does it have to rely on the state's inspectors? Can a city pass additional air-quality monitoring requirements?

And can Council force oil companies to hold insurance for major disasters, such as fires, spills and the like? (The state has bonding requirements, according to Lepore, that the companies return the surface to its pre-drilling condition, but there is no insurance requirement for such specific, major problems.)

Council anticipates answers to these questions, provided by Campbell and the city attorney's office, for its Feb. 25 informal meeting.

It could decide to move forward with a second reading on the current ordinance, but more likely, says Council president pro-tem Jan Martin, the ordinance will have to be rewritten or amended.

In that case, she says, they'd have to "start all over again," with the ordinance going back for a first reading on March 12, with a second reading two weeks later.



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