As "Local Control" of Fracking Dawns, Colorado Towns Become Battlegrounds

Jay Vollmar
The image that Dr. Maureen Barrett displayed on the projector screen looked a bit like paint splatter, a splotch of red against a green background. It took a moment for her audience — a crowd of about sixty residents of east Boulder County, packed into the small conference room of a rural fire station late last month — to process what they were seeing. When they did, some gasped.

“That’s downtown Longmont,” said an alarmed voice. “That’s, like, Main Street.”

The map on the screen showed some of the results of an air-quality modeling study that Barrett, an atmospheric scientist and engineer from Evergreen, performed for the residents of Niwot and Gunbarrel, two small communities that could be impacted by a massive fracking project planned along the far eastern edge of Boulder County. Using emissions and meteorological data recorded at other fracking sites along the Front Range, Barrett modeled the levels of nitrogen dioxide (NO2), a hazardous air pollutant, that surrounding areas could experience during the drilling process.

“The shaded area is the area that the model shows, for any one hour, that the concentrations will exceed the level of the ambient air-quality standard,” Barrett told the crowd. “We’re looking at basically an eight-mile extent of violations of the NO2 one-hour ambient air-quality standard, just from drilling.”

The audience, full of people who live within or just beyond the map’s shaded area, had gathered at the headquarters of the Boulder Rural Fire Protection District to hear the results of Barrett’s research. And while she noted caveats to some of her findings, there wasn't much good news in the presentation.

Proposed by operator Crestone Peak Resources in 2017, the project calls for up to 140 oil and gas wells to be drilled on three sites along a 1.5-mile stretch of County Road 52. In addition to nitrogen dioxide, Barrett told residents, these large well pads can be major sources of volatile organic compounds (VOCs), air pollutants that have been linked to a wide range of negative health effects, from respiratory problems to cancer.

“We’re surrounded by open space, and everyone really cherishes that,” says Gabrielle Katz, a Gunbarrel resident who had attended the meeting and who formed the anti-fracking group Lookout Alliance last November, after receiving notice of yet another proposed drilling operation near her home. (That project, separate from Crestone’s, hasn’t yet moved forward.) “Everyone was pretty up in arms. We don’t want drilling on our open space. There are isolated old wells all over eastern Boulder County, but what’s proposed is a whole other scale of development.”

The Lookout Alliance is among the latest in a long line of small community groups formed to oppose fracking in the last ten years, as Colorado’s thriving oil and gas industry has expanded southward from its traditional base in rural Weld County into dense, fast-growing suburbs north of Denver. For years, such groups faced an uphill battle in their efforts to halt the state’s runaway drilling boom, thwarted by state laws and court rulings that left them with few options and little power. But they now have hope that things are finally changing.

In April, Democrats at the State Capitol passed Senate Bill 181, a long-hoped-for series of reforms to Colorado oil and gas law aimed at strengthening environmental and community protections. Among its most crucial changes is granting city and county governments the authority to regulate drilling and other industry operations within their borders.

It’s a drastic shift after more than a century of Colorado oil and gas activity being regulated almost exclusively at the state level, where environmental advocates had long been frustrated by one-sided rulings and what they viewed as a cozy relationship between industry and state regulators. And it dramatically raises the stakes of local government proceedings in communities along the Front Range, where activists are still worried that the full weight of the industry’s influence will be brought to bear.

Even the circumstances of Barrett’s air-quality presentation to Gunbarrel and Niwot residents could be a sign of the contentiousness and strong-arming to come. Originally set to be presented before Boulder’s Board of County Commissioners, it was canceled after Crestone’s legal counsel raised concerns about "the timing/allowance of such [a] presentation" while commissioners consider the project's permit application; Boulder County and Crestone have been battling each other in court over the application since last year. Following the cancellation, Barrett agreed to present her findings at a public event hosted by the Lookout Alliance.

“The whole fight is now moving to the local level,” says Katz, who, along with other activists, pressured lawmakers to pass SB 181 earlier this year. “I think we’re lucky in Boulder County — our commissioners are educated; they know a lot about this issue; they’re committed to protecting us. But there are only three commissioners, and there’s a whole industry clamoring at the county line, trying to get in. And I think it’s going to be tough.”

click to enlarge Dr. Maureen Barrett briefs east Boulder County residents on the results of her air-quality modeling study on Crestone's drilling plan. - CHASE WOODRUFF
Dr. Maureen Barrett briefs east Boulder County residents on the results of her air-quality modeling study on Crestone's drilling plan.
Chase Woodruff

As a wave of oil and gas drilling swept across the Front Range over the past fifteen years, impacted communities were often left wondering what their powers were in dealing with it. There were things they clearly weren't allowed to do, like banning fracking entirely — the state, along with industry groups, successfully sued Longmont for passing a ban in 2012 — and things they clearly were, such as regulating the traffic impacts around drilling sites. But exactly where the line was drawn was never clear.

Moratoria were passed, then challenged in court by industry groups. Local ballot initiatives were contested. Rough compromises, often heavily tilted in the industry’s favor, were hashed out in the form of new comprehensive drilling plans or memoranda of understanding as operators sought to placate local governments in what remained a legal gray area.

In the immediate aftermath of SB 181's passage, that area has grown only a little less gray as communities again begin to figure out what the new law allows them to do. At least eight city and county governments across the state have enacted moratoria on new development; commissioners in Adams County didn’t even wait for SB 181 to become law, voting unanimously to impose a six-month “time out” on new permits shortly after the bill was introduced. For now, at least, industry groups are only issuing scolding press releases, not lawsuits, in response to these temporary bans.

“There are local governments that are recognizing that they have expanded rights under SB 181, and that they do need time to figure out what that means and make the overhaul they need to make,” says Anne Lee Foster, communications director for anti-fracking group Colorado Rising.

But not every local government is eager to challenge the industry’s power. In Republican-leaning Larimer County, commissioners formed a fifteen-member task force to advise the county on its first-ever set of local oil and gas regulations. The task force met for the first time in late June and will finalize its recommendations in October, but environmental groups are already crying foul over its makeup: Ten of the fifteen members are affiliated with the industry.

Weld County, home to over 90 percent of the state’s oil and gas production, has taken the concept of “local control” in the opposite direction. Commissioners voted unanimously last month to exercise so-called 1041 powers to create a county-level permitting framework intended to bypass the state process entirely — though it’s far from clear whether the law actually allows them to do so.

For many other local governments, things haven’t changed much in either direction. Earlier this month, city council members in Aurora voted 6-4 to approve an operator agreement with energy giant ConocoPhillips, which wants to drill at 45 sites along the eastern edge of the city. The agreement, which city officials and ConocoPhillips had been negotiating since 2017, could see up to 300 wells drilled, many within a quarter-mile of existing homes and planned residential developments in Aurora and unincorporated Adams County.

ConocoPhillips’s planned drilling sites, however, have yet to be approved by state regulators, making the proposal one of dozens that could be caught in an uneasy legal limbo while SB 181 is implemented. In May, the Colorado Oil and Gas Conservation Commission announced that it would delay permits for drilling sites that are within municipalities or meet other sensitive criteria, potentially putting them on hold while the commission undertakes a contentious rulemaking process that could last for a year or more.

That rulemaking has gotten off to a rough start, with a preliminary round that was scheduled to be wrapped up by last month now delayed until August, and the commission’s backlog of permit applications continues to pile up, currently standing at more than 400 proposed locations and over 6,000 potential new wells. Even under normal circumstances, such a backlog could take years to process; the lengthy rulemaking process at the state level, combined with dozens of new city and county regulations being drafted and enacted, complicates things even further. Two months into a new era of Colorado oil and gas law, neither the industry nor the fractivists are very happy.

“There’s been a lot of misinformation,” says Foster. “The state hasn’t done a great job of educating the local municipalities on what their options are, on what the new law means, and people are generally kind of confused.”

click to enlarge An image from a Comprehensive Drilling Plan filed by Crestone Peak Resources with Boulder County shows the company’s plans to drill at three sites along the county line, just east of Gunbarrel and Niwot. - BOULDER COUNTY
An image from a Comprehensive Drilling Plan filed by Crestone Peak Resources with Boulder County shows the company’s plans to drill at three sites along the county line, just east of Gunbarrel and Niwot.
Boulder County

At her presentation in Gunbarrel, Barrett outlined a list of policy recommendations for Boulder County as it overhauls its system for permitting and regulating operations like the Crestone project. She pointed out loopholes in state and federal law — like a lack of rules governing emissions from temporary, on-site gas generators — that county-level regulations could seek to close now that SB 181 is law.

“That’s what SB 181 is for,” Barrett said. “To go ahead and make sure we have all the bases covered, regardless of what the other existing regulations already say.”

A key question, as city and county governments test their new powers under SB 181, is whether local officials will seek only to close some loopholes, step up inspections and air monitoring and take other incremental steps — or take a more aggressive stance against drilling altogether.

Fracking opponents have spent years arguing not just that extraction sites near homes need to be better regulated, but that they don’t belong near residential areas at all. The new law stipulates only that local rules must be “necessary and reasonable” to protect health and safety; no one is sure exactly what that phrase — added late in the legislative process at the urging of industry groups — means. For activists, a crucial test of the new law's strength will be whether state and local officials, after years of rubber-stamping, begin to outright reject some of the most controversial drilling proposals.

“There are sites that will be bellwethers for whether the state and local municipalities are actually willing to stand up to the oil and gas industry,” says Foster.

She points to the Acme Pad, a thirty-well site planned in Erie, as one of those bellwethers. Another Crestone project, the proposed location sits just 531 feet from the nearest home — just over the minimum setback currently mandated by state law — and not much farther from large subdivisions in nearby Broomfield. Crestone’s application for the Acme Pad is currently pending before the COGCC.

“I don’t think anyone in their right mind can say that a highly industrial site 500 feet from homes is really in the best interest of the public,” Foster says. “There are definitely sites that are egregious enough that anyone looking at this through a public-health and safety lens would say, ‘No, you can’t do that.’ We have yet to see if anyone is willing to stand up and say, ‘This is the line in the sand.’”

“We’ll take it to the fullest extent of the law,” says Boulder Commissioner Matt Jones, who frequently battled the industry while serving in the state Senate and was elected to the board of commissioners last year. “Some of this is uncharted territory, but it is really clear that our priority is to protect people, and Senate Bill 181 gives us the ability to do it even more than we did before.”

Jones says he won't "prejudge" whether Crestone's east Boulder County project and others like it need to be stopped altogether, but adds: "Generally, putting these large, industrial oil and gas operations in people’s back yards is a real problem.”

Katz and other east Boulder County residents are prepared to push their commissioners to take a hard line against the industry.

“Does the new law allow an extended moratorium? Does it allow a ban?” asks Katz. “That remains to be seen.
click to enlarge A map from the City and County of Broomfield showing the location of the Acme Pad, a 30-well site planned in southern Weld County that would sit just 531 feet from the nearest home. - CITY AND COUNTY OF BROOMFIELD
A map from the City and County of Broomfield showing the location of the Acme Pad, a 30-well site planned in southern Weld County that would sit just 531 feet from the nearest home.
City and County of Broomfield
“SB 181 is supposed to set a floor, and we can go above and beyond that, in terms of stricter and safer conditions,” she adds. “The county should be empowered to protect the health and safety of its residents, and I think that empowerment should include denying permits, as well as banning certain kinds of oil and gas development.”

On June 28, three days after Barrett's air-quality presentation, Jones and his fellow commissioners voted unanimously to impose a nine-month moratorium on new drilling permits in Boulder County. The window, said Deputy County Attorney David Hughes, would give the county time "to complete the necessary work and public process to have new regulations in place."

With the new state-level regulations required by SB 181 potentially years away from being fully enacted, activists and community groups are counting on local governments like Boulder County's to begin to implement the law's vision — and to set the tone for a new era of oil and gas regulation.

“We knew throughout the process of SB 181 that this was a punt to local governments, in some ways,” Foster says. “So it’s definitely important for local governments to step up, to put the brakes on, and make sure that they are doing their sworn duty to protect the health and safety of their constituents."