My favorite parts about the BOCC meeting yesterday were the many bias revelations by members of the planning commission, the oil & gas regulation edit committee, and the planning department [not mutually exclusive sets of people].<\/p>\n
In contrast, all three members of the BOCC appeared to coalesce around the notion that MOU contract language should not be adversarial as a matter of policy, and that MOU subject matter should be determined between the negotiating parties at the time an MOU is memorialized.\u00a0\u00a0 Frankly, people I know were encouraged to see the BOCC take an objectively reasonable approach on the MOU.<\/p>\n
But hold on, Thayer, Crisan, Dorman, Brown, Corrado, Thomasson, Fenner, and Parkinson, all but two involved with drafting the regulations, had real trouble letting go of the county enacting an official baseline MOU.<\/p>\n
All of them seem heavily vested in the notion of a self-fulfilling prophecy.\u00a0 Even though they went to great lengths to explain just how negotiable each MOU will be, for them an MOU is not so negotiable that the process to write one can begin without the county’s green policy terms already incorporated into the document.<\/p>\n
What the county would forego by adopting a pro-forma MOU without such terms built in, according to this gang of 8, is protection of water and protection of property values.\u00a0 The BOCC didn’t agree with that argument, preferring to see, instead, a non-adversarial MOU format.<\/p>\n
Moreover, It looks like COGCC enforcement of MOU terms is an unsettled practice.\u00a0 The gang of 8 are pushing to include MOU language into the well owners’ COGCC regulatory paperwork on the belief that inclusion will bring COGCC support in enforcement of the county’s MOU terms, perhaps over time elevating the effect of MOU terms to a regulatory status, or perhaps bringing help from the state on policing and discovery of MOU compliance.<\/p>\n
But none of that is certain.\u00a0 The COGCC told the county in several previous meetings that MOU compliance is the county’s responsibility to enforce in civil court.\u00a0 How much help COGCC would provide to the county on enforcement of MOU terms that exceed COGCC’s statewide regulatory standards, which would basically be all of the MOU terms, appears to be a grey area at this time.<\/p>\n
A larger question is what value operators would put on a 6 month zoning approval delay, and what increased costs they might consider accepting in an MOU to avoid spending that value.\u00a0 There is no general answer to this question since no two sets of operational circumstances will be identical — further reason for there not to be an MOU template that includes a set of one-size-fits-all terms.<\/p>\n
The MOU is part of an unsavory proposition that Elbert County is planning to present to all potential operators — “To do business here instead of somewhere else where COGCC rules control without exception, you can lose X or you can lose Y.\u00a0 Choose your poison.\u00a0 And here’s the bill for our fees.”<\/p>\n
The BOCC is right to insist on removing the adversarial components of the pro-forma MOU.\u00a0 Our zoning will have already told operators they are unwelcome in Elbert County.\u00a0 No need to rub it in with the MOU.\u00a0 It’s much better to use the MOU as an opportunity to mitigate what will have already started out to be a bad deal.<\/p>\n
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