{"id":3301,"date":"2013-01-12T14:39:32","date_gmt":"2013-01-12T21:39:32","guid":{"rendered":"http:\/\/elbertcounty.net\/blog\/2013\/01\/12\/the-misunderstood-mou\/"},"modified":"2013-01-13T12:45:11","modified_gmt":"2013-01-13T19:45:11","slug":"the-misunderstood-mou","status":"publish","type":"post","link":"https:\/\/elbertcounty.net\/blog\/2013\/01\/the-misunderstood-mou\/","title":{"rendered":"The misunderstood MOU"},"content":{"rendered":"

“Under Bowen\/Edwards, state preemption by reason of operational conflict can arise where the effectuation of a local interest would \u201cmaterially impede or destroy the state interest.\u201d Bowen\/Edwards, supra, 830 P.2d at 1059.” (http:\/\/caselaw.findlaw.com\/co-court-of-appeals\/1394587.html<\/a>)<\/p>\n

At Thursday’s Planning Commission public meeting, in response to a question about the material differences between items in the proposed Memorandum of Understanding<\/a> (MOU) and COGCC regulations, Richard Miller said that (paraphrasing), “If it’s in the MOU then it is a higher standard than called for by the COGCC.”<\/p>\n

There are at least 22 such items<\/a> and some of them cost drillers, developers, and mineral rights owners substantial sums of money and lost property.<\/p>\n

In addition, Best Management Practices (BMP) references in the proposed MOU have no definition.\u00a0 When asked what authority is responsible for defining these standards, Mr. Miller said that their incorporation into the MOU came about through informal discussions by the editing committee.<\/p>\n

Informal discussions?\u00a0 No ISO<\/a>?\u00a0 No ASTM<\/a>?\u00a0 No ANSI<\/a>?<\/p>\n

The Bureau of Land Management is one source of definition<\/a> for these standards.\u00a0 A scan of the Air Resource BMPs<\/em> pdf shows a wide range of operational practices that may not be congruent with COGCC regulations.<\/p>\n

The Natural Resources Law Center at CU Boulder publishes the Intermountain Oil and Gas BMP<\/a> project.\u00a0 These standards appear to be closely coupled to objectives generally found in the environmentalism rubric.<\/p>\n

Elbert County’s proposed MOU incorporates numerous expensive and open ended directives that are undefined by any measurable standard that could provide a means to enforce them.\u00a0 By its own terms, the MOU contract<\/em> fails for lack of specificity.\u00a0 Moreover, this game of hiding county zoning dictats inside a compulsory agreement in order to sidestep COGCC’s occupation of the field of oil and gas regulation reeks of petty magisterial hubris.\u00a0 “Yeah, that’s the ticket, we’ll call it a contract<\/em>. . .”<\/p>\n

On the proposed setback scheme alone, Ric Morgan’s analysis presented at Thursday’s planning commission illustrated that all drilling would be preempted in most of Elbert County.\u00a0 Moreover, the impact of drilling envelopes on subsequent property development, post oil and gas development, has not even been addressed.<\/p>\n

“The mission of the Colorado Oil and Gas Conservation Commission<\/a> (COGCC) is to foster the responsible development of Colorado’s oil and gas natural resources.”\u00a0 It is fair to say that Elbert County’s proposed MOU completely frustrates this mission, and this represents an operational conflict in toto<\/em>.<\/p>\n

All of this MOU environmentalism, however, is probably a moot point because, as the COGCC representative indicated after the meeting, “Not a driller in the country<\/em> would accept these terms.”<\/p>\n

This means that the special use review<\/em>, 6-month long, expensive, planning roadblock is the only ostensible means to get an oil well approved in Elbert County.\u00a0 Compared to approval time frames in other parts of the state and country measured in days rather than months, Elbert County is effectively closed for oil and gas business.<\/p>\n

Since, as one planning commission member recently noted, the county has already been closed for business for the past 5 years, this should come as no surprise.<\/p>\n

A year ago, Arapahoe County, similarly situated to Elbert County today, made the right decision<\/a> by shutting down a local oil and gas planning process that had run amok, and affirming COGCC authority.<\/p>\n

In Elbert County, it is not enough to end the MOU madness and default to special use review<\/em>.\u00a0 We already know that special use review<\/em> is a deal killer too.<\/p>\n

Will Elbert County be able to break the stranglehold the environmentalist no-growth movement has on the county and do something economically beneficial for the citizens?\u00a0 Based on the preliminary moves made by the new BOCC majority<\/a> floated on a tide of regulation seeping through CDS and the Planning Commission, don’t bet on it.<\/p>\n

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

“Under Bowen\/Edwards, state preemption by reason of operational conflict can arise where the effectuation of a local interest would \u201cmaterially impede or destroy the state interest.\u201d Bowen\/Edwards, supra, 830 P.2d at 1059.” (http:\/\/caselaw.findlaw.com\/co-court-of-appeals\/1394587.html) At Thursday’s Planning Commission public meeting, in response to a question about the material differences between items in the proposed Memorandum of […]<\/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":[118,11,86],"tags":[],"class_list":{"0":"post-3301","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-oil-gas","7":"category-planning","8":"category-zoning","9":"entry"},"_links":{"self":[{"href":"https:\/\/elbertcounty.net\/blog\/wp-json\/wp\/v2\/posts\/3301","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=3301"}],"version-history":[{"count":0,"href":"https:\/\/elbertcounty.net\/blog\/wp-json\/wp\/v2\/posts\/3301\/revisions"}],"wp:attachment":[{"href":"https:\/\/elbertcounty.net\/blog\/wp-json\/wp\/v2\/media?parent=3301"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/elbertcounty.net\/blog\/wp-json\/wp\/v2\/categories?post=3301"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/elbertcounty.net\/blog\/wp-json\/wp\/v2\/tags?post=3301"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}