Author Archives: James M. Tartaglia

In the Know: Update on Colorado’s Senate Bill 181

As discussed in our March 13 post, which can be found here, Senate Bill 181, introduced on March 1, proposed significant changes to Colorado’s long-standing oil and gas regulatory system.  After a number of amendments from Senate and House membership, Governor Polis signed S.B. 181 into law on April 16, 2019. 

Here’s an overview of key amendments that brought the bill to its final form:

(1)        More direction and support in implementing local regulation

S.B. 181’s original revamp of local authority under C.R.S. § 26-20-104, which gave localities the power of “regulating oil and gas development” in order to generally “minimize adverse impacts… on public health and the environment” remains mostly intact.  However, S.B. 181 amendments have limited that power to “regulating the surface impacts of oil and gas development,” and have also tailored local impact minimization measures “to the extent necessary and reasonable to protect public health, safety, and welfare and the environment…” 

S.B. 181 now creates C.R.S. § 29-20-104(3), which establishes atechnical review board procedure to provide qualified input on local well siting determinations. This new system will allow a locality or operator to request that COGCC-appointed experts report on the technical and operational suitability of the locality’s preliminary or final well siting decision. 

  • C.R.S. § 29-20-104(3)(b) makes clear that local governments will not be required to reconsider or amend siting decisions based on technical review board reports.
  • More specifics regarding technical review board procedures and membership can be found in the revised C.R.S. § 34-60-104.5(3).

(2)        More direction in enacting new emissions rules

S.B. 181 now includes important additions and refinements to the COGCC’s new mandate to adopt emissions regulations under C.R.S. § 25-7-109. 

COGCC rules to minimize emissions of methane, VOCs and NOx must be adopted under C.R.S. § 25-7-109(10)(a).

C.R.S. § 25-7-109(10)(b) now directs the COGCC to revisit its existing rules and consider stricter requirements with respect to: leak detection and repair; pipeline inspection; emissions from pneumatic tools (e.g. gas-driven pumps and compressors); and continuous methane monitoring “at facilities with large emissions potential, at multi-well facilities, and at facilities in close proximity to occupied dwellings.” 

  • Notably, S.B. 181 no longer requires emissions monitoring installation at every “oil and gas facility”in the state.

(3)        Future restructuring of COGCC

S.B. 181’s original changes to the nine-member COGCC, which de-emphasized oil and gas industry experience among the qualifications of its seven appointed, volunteer commissioners, will be effective until no later than July 1, 2020. By then, the COGCC will be restructured to seven total members, including five appointed commissioners of balanced credentials who will become full-time state employees.

  • At least one member of the restructured COGCC must have substantial experience or formal training in: the oil and gas industry; planning and land use; environmental and wildlife protection or reclamation; and public health.  More specifics regarding the future makeup of the COGCC are set out in the new C.R.S. § 34-60-104.3.  

(4)        Minor Adjustments to Pooling Application Amendments

S.B. 181 originally introduced amendments to C.R.S. § 34-60-116 that would have required a 50% minimum consent threshold on forced pooling applications and a 15% statutory royalty on oil and gas for non-consenting, unleased owners. The final bill instead requires consent to be pooled from parties comprising 45% of the interest of reasonably locatable owners and a statutory pooled royalty of 13% on oil and 16% on gas.     

In the Know: Primer on Colorado’s Senate Bill 181

On March 1, 2019, Senate Majority Leader Steve Fenberg and House Speaker KC Becker introduced Senate Bill 181, which proposes significant changes to Colorado’s oil and gas regulatory framework.  This bill has initiated immediate public debate that is sure to continue as it proceeds through the legislature. 

While it may undergo revision during that process, here is a summary of the changes that Senate Bill 181 (as originally proposed) would usher in:

(1)        Redefining the COGCC

  • C.R.S. § 34-60-102 articulates the legislative goals of the Oil and Gas Conservation Act (the “Act”), which currently declares it “in the public interest” to “foster” oil and gas development “in a manner consistent with protection of” public health and safety, and to promote oil and gas development in a way that avoids “waste” of the state’s natural resources.
    • S.B. 181 would amend that declaration by directing the COGCC to “regulate” oil and gas development “in a manner that protects” public health and safety, and redefining “waste” to establish that non-production of oil and gas does not constitute “waste” that the COGCC must work to minimize.
  • C.R.S. § 34-60-128 currently directs the COGCC to administer the Act “so as to minimize adverse impacts to wildlife resources affected by oil and gas operations,” and in doing so the COGCC must consider the “cost-effectiveness and technical feasibility” of its mitigation-based decisions.
    • S. B. 181 would amend the definition of “minimize adverse impacts” in C.R.S. § 34-60-103(5.5) to remove cost-efficiency and technical feasibility entirely from the COGCC’s necessary considerations in administering the Act.
  • S. B. 181 would also restructure the COGCC’s membership qualifications set out in C.R.S. 34-60-104 by (i) reducing the minimum number of those with industry experience from three to one (and in turn eliminating the mandate that industry member experience include petroleum engineering and geology); and (ii) increasing the membership qualifications that must be achieved with respect to public health and environmental protection.  The COGCC would remain at nine total members.

(2)        Expanding Local Control

  • S.B. 181 would overhaul C.R.S. § 29-20-104 by clarifying the power of local governments to regulate land use and the siting of oil and gas facilities and broadly expanding local authority to protect against potential, adverse impacts of operations, including the authority to conduct regular on-site inspections, monitor emissions and other externalities often associated with well sites, and impose administrative fees and non-compliance penalties.
    • In line with the above, S.B. 181 would end the long-standing exemption for oil and gas facilities from compliance with local noise ordinances [C.R.S. § 30-15-401].
    • Similarly, S.B. 181 would eliminate parts of C.R.S. §§ 24-65.1-202 and -302 that currently empower the COGCC to establish primary jurisdiction over designated “areas of state interest.”
  • S.B. 181 would also reconfigure the COGCC’s procedures under C.R.S. § 29-20-106 to introduce a new condition to the COGCC’s permitting procedure by requiring that, prior to filing any drilling permit application with the COGCC, all permit applicants provide evidence of prior application to and approval by relevant local governments authorizing the proposed drilling site.
  • S.B. 181 would also require under the amended C.R.S. § 29-20-106 that the COGCC establish a new regulatory process to conduct an “alternate location analysis” for new oil and gas facilities that may be proposed “near populated areas.”  

(3)        Increased Facility Monitoring

  • S.B. 181 would create a new legislative mandate that the state’s air quality control commission adopt new regulations that require on-site “continuous emission monitoring equipment” for all oil and gas facilities located in the state.
  • S.B. 181 would create a new legislative mandate that the COGCC establish rules “to ensure proper wellhead integrity” of production wells and revisit its existing rules governing flowlines and shut-in or abandoned wells in light of the commission’s redefined legislative directive. 

(4)        Revising Pooling Applications

In addition to the above general, fundamental changes sought by S.B. 181, the bill also makes notable revisions to Colorado’s compulsory pooling system: 

  • First, a pooling order could no longer be sought by “any interested person,” but instead would require that all pooling order applicants obtain consent to pooling from those owning more than half of the interest to be pooled.
  • Second, any pooling order issued by the COGCC must prohibit the operator from using any surface area owned by a nonconsenting, pooled owner (absent that owner’s written permission for such surface use).
  • Also, S.B. 181 would increase the statutory royalty due to nonconsenting, pooled owners from 12.5% to 15% [C.R.S. § 34-60-116(7)(c)].

(5)        Implementation Concerns

  • S.B. 181 includes the new C.R.S. § 34-60-106(1)(f)(III) that many see as a potentially lengthy moratorium on new drilling permits by allowing the COGCC to delay permit issuances until it “has promulgated every rule required to be adopted by legislation enacted in 2019” that may impact oil and gas development under C.R.S. Article 60, and all such rules have become effective.

As most local readers will know, the sweeping Senate Bill 181 has already become a topic of vibrant public debate in our state.  After clearing its first two Senate committees last week, the bill’s potential and final form should become clear in the near future. 

Please check back for updates on Senate Bill 181!

Guest post author: Jim Tartaglia