{"id":3090,"date":"2012-08-28T13:23:37","date_gmt":"2012-08-28T20:23:37","guid":{"rendered":"http:\/\/elbertcounty.net\/blog\/2012\/08\/28\/elco-planning-to-usurp-water-rights\/"},"modified":"2012-08-29T09:09:58","modified_gmt":"2012-08-29T16:09:58","slug":"elco-planning-to-usurp-water-rights","status":"publish","type":"post","link":"https:\/\/elbertcounty.net\/blog\/2012\/08\/elco-planning-to-usurp-water-rights\/","title":{"rendered":"ElCo usurping property rights"},"content":{"rendered":"

A right is only as valuable as your ability to protect it.\u00a0 I recently wrote about water rights<\/a>, and I had no plans to revisit the subject so soon.<\/p>\n

At the last BOCC meeting, the Director of Community and Development Services [CDS] announced a meeting to be held this evening at 6:30 p.m. in the commissioners chambers to discuss the draft Oil & Gas Regulations [OGR].\u00a0 The Director indicated the proposed zoning was nearing completion.\u00a0 I stopped at CDS today to pick up a copy of the current draft prior to tonight’s meeting, which they provided for $.25 a page.\u00a0 56 pages.<\/p>\n

I was also informed that the purpose of tonight’s meeting is to discuss a Memorandum Of Understanding [MOU] to be submitted by CDS to the COGCC.\u00a0 I presume that MOU hinges on having the OGR largely resolved.\u00a0 See Followup here<\/em><\/strong><\/a>.<\/p>\n

I found some major problems with the Draft OGR.<\/p>\n

I.<\/p>\n

The first one is in Section 26.2 A, a. Suitability<\/u>.\u00a0 This section forms the corpus of planning review criteria to be used to evaluate all OGR development.\u00a0 It says, “factors will be evaluated in accordance with applicable State, County, and Federal standards.”\u00a0 What standards<\/em>?\u00a0 It doesn’t say<\/strong>.\u00a0 The applicable ones I guess.\u00a0 Which ones are applicable?\u00a0 Who knows.<\/p>\n

Next, Section 26.2, A, c. Site Characteristics<\/u>.\u00a0 “Factors for consideration include: topography, natural hazards (landslides, flooding, wildfire, etc.), cultural and historical uses of the proposed site, and current resource values (open space corridor and wildlife habitat).” \u00a0 Again, what defines these factors<\/em>?\u00a0 It doesn’t say.<\/strong><\/p>\n

These two sections are meant to guide CDS, the Planning Commission and the BOCC throughout the implementation of these proposed zoning laws.\u00a0 They are a blank check, without an anchor in any specified written law, in the hands of the government.<\/p>\n

Zoning that is not founded on published statutes or objective sources of law is a license for government to do as it pleases.\u00a0 There is no property right protection under such a scheme.<\/p><\/blockquote>\n

II.<\/p>\n

Turning to Section 26.2 B, 1. Minor Oil & Gas Facility Defined<\/u>.\u00a0 “Land use applications for a proposed Minor Oil & Gas Facility shall be processed administratively by [CDS] without a public hearing before the Elbert County Planning Commission or the Board of County Commissioners.”<\/p>\n

However Section 26.2 B, 2. Review Process for Minor Oil & Gas Facilities<\/u>, specifies adjacent property notice procedures and refers to “appearing at the hearing or by submitting a written waiver to the Director prior to the hearing.”<\/p>\n

Now, there’s either a public hearing process for Minor O&G facilities, or there’s not, but the Draft OGR is internally inconsistent on the question.<\/p><\/blockquote>\n

III.<\/p>\n

The largest objection I have to these regulations is in Sections 26.3 G. 5 – 9. Water Supply Plan and Surface Water \/ Aquifer Protection<\/u>.<\/p>\n

Section 5, “Prior to commencement of any drilling operations, the Operator will contact, by certified mail, all surrounding property owners with active domestic, irrigation or livestock wells … and ask permission to conduct water sampling and analysis pre-drilling, post drilling, post completion, and post production every (3) years for a period of fifteen (15) years.”<\/p>\n

“The Director of Community and Development Services may require further water well sampling at any time in response to complaints from water well owners.”<\/p>\n

“Additional testing, for cause as determined by CDS<\/em>, will be done at any interval for any resident within the test area.\u00a0 A request for further testing must be submitted in writing and must include reason for request.”<\/p>\n

The section continues and even specifies allowable methane levels in your water before CDS will require an Operator to investigate the source of the gas.<\/p>\n

So, to summarize, this zoning law gives away your rights to protect your water quality to Elbert County bureaucrats, who may require an Operator to determine the source of gas in your water, if they agree with your written request, and if the test results meet their standard for water pollution.<\/p>\n

Perhaps what most offends my sensibility is that this surrendering of your ability to enforce your own water quality comes in the form of asking permission<\/em> by a non-governmental entity.\u00a0 A prospective operator asks you permission to test your water.\u00a0 If you give it, Elbert County steps in and becomes the arbiter and enforcer of your water quality.\u00a0 The county owns your water quality thereafter, and with that, they might as well own your water.<\/p>\n

What if you don’t like the quality of water that the county finds acceptable for you?\u00a0 What if you think .9 mg\/L of methane tastes funny in your water and you want a remedy, but the county doesn’t think your water pollution rises to the level it is willing to defend?<\/p>\n

Don’t do it Elbert County citizens.\u00a0 Don’t give up your ability to protect your property interest in your water quality to government planners.\u00a0 Their interest in your property is just not as personal as yours.<\/p><\/blockquote>\n

These Draft OGR zoning laws undermine your property interest in owned mineral wealth by subjecting that process to an arbitrary set of laws.\u00a0 And they undermine your property interest in protecting your water quality directly.<\/p>\n

Fail.<\/p>\n

B_Imperial<\/p>\n","protected":false},"excerpt":{"rendered":"

A right is only as valuable as your ability to protect it.\u00a0 I recently wrote about water rights, and I had no plans to revisit the subject so soon. At the last BOCC meeting, the Director of Community and Development Services [CDS] announced a meeting to be held this evening at 6:30 p.m. in the […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"nf_dc_page":"","_genesis_hide_title":false,"_genesis_hide_breadcrumbs":false,"_genesis_hide_singular_image":false,"_genesis_hide_footer_widgets":false,"_genesis_custom_body_class":"","_genesis_custom_post_class":"","_genesis_layout":"","footnotes":""},"categories":[11,99,17,86],"tags":[],"class_list":{"0":"post-3090","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-planning","7":"category-socialism","8":"category-water","9":"category-zoning","10":"entry"},"_links":{"self":[{"href":"https:\/\/elbertcounty.net\/blog\/wp-json\/wp\/v2\/posts\/3090","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/elbertcounty.net\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/elbertcounty.net\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/elbertcounty.net\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/elbertcounty.net\/blog\/wp-json\/wp\/v2\/comments?post=3090"}],"version-history":[{"count":0,"href":"https:\/\/elbertcounty.net\/blog\/wp-json\/wp\/v2\/posts\/3090\/revisions"}],"wp:attachment":[{"href":"https:\/\/elbertcounty.net\/blog\/wp-json\/wp\/v2\/media?parent=3090"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/elbertcounty.net\/blog\/wp-json\/wp\/v2\/categories?post=3090"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/elbertcounty.net\/blog\/wp-json\/wp\/v2\/tags?post=3090"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}