First Regular Session Sixty-seventh General Assembly STATE OF COLORADO INTRODUCED LLS NO. 09-0152.02 Kate Meyer HOUSE BILL 09-1255 HOUSE SPONSORSHIP Gardner C., McKinley, Baumgardner, Bradford, Looper, McNulty, Sonnenberg, Tipton SENATE SPONSORSHIP Kopp, Brophy House Committees Senate Committees Agriculture, Livestock, & Natural Resources A BILL FOR AN ACT Concerning limitations on the conditions imposed by the Colorado oil and gas conservation commission on oil and gas operations to implement recommendations made by state entities other than the commission. Bill Summary (Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments that may be subsequently adopted.) Specifies that an oil and gas operator is not required to consult with the division of wildlife in the department of natural resources (division) to determine whether wildlife mitigation requirements are reasonably practicable, and requires the Colorado oil and gas conservation commission (commission) to make that determination. Includes technical and economic feasibility under the term "reasonably practicable". Prohibits the commission from proposing restricted surface occupancy for oil and gas operations upon private lands without the consent of the surface owner. Prohibits the commission from denying an application because the surface owner did not consent to a wildlife mitigation requirement. Requires that wildlife habitat mitigation best management practices (BMP) are presumptive conditions for operations in the units for which they are established, and prohibits the commission from requiring a BMP that has not been so established unless the commission demonstrates the need for the BMP. Requires the commission to conduct a cost-benefit analysis of a mitigation measure proposed by the division in an appeal of a permit, rule, or order, and prohibits the commission from upholding such measure unless the commission demonstrates that the benefits of the measure outweigh its costs. Prohibits the executive director of the department of natural resources from participating in an appeal of a mitigation measure proposed by the division, and prohibits the executive director of the department of public health and environment (department) from participating in an appeal of a mitigation measure proposed by the department. Requires the commission to grant or deny a variance from a wildlife mitigation measure within 5 days after receipt of a written request for the variance. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. 34-60-128 (3) (a), (3) (b), and (3) (c) and the introductory portion to 34-60-128 (3) (d) (III), Colorado Revised Statutes, are amended, and the said 34-60-128 is further amended BY THE ADDITION OF A NEW SUBSECTION, to read: 34-60-128. Habitat stewardship - rules. (3) In order to minimize adverse impacts to wildlife resources, the commission shall: (a) Establish a timely and efficient procedure for consultation with the wildlife commission and division of wildlife on decision-making that impacts wildlife resources. An operator shall not be required to engage in such consultation or the consultation established pursuant to subparagraph (I) of paragraph (d) of this subsection (3) to determine whether permit conditions or other mitigation requirements are reasonably practicable, and such determination shall be made by the commission. As used in this section, "reasonably practicable" includes technically or economically feasible. (b) Provide for commission consultation and consent of the affected surface owner, or the surface owner's appointed tenant, on permit-specific conditions for wildlife habitat protection. Such conditions shall be discontinued when final reclamation has occurred. The commission shall neither propose nor designate no-surface occupancy areas or restrict surface occupancy for oil and gas operations upon private lands without the consent of the surface owner. The commission shall not deny a permit or other application as a result of a failure to obtain the consent of the surface owner to any permit condition or other mitigation requirement. (c) Implement, whenever reasonably practicable, best management practices as specified in subparagraph (III) of paragraph (d) of this subsection (3) and other reasonable measures to conserve wildlife resources; (d) Promulgate rules by July 16, 2008, in consultation with the wildlife commission, to establish standards for minimizing adverse impacts to wildlife resources affected by oil and gas operations and to ensure the proper reclamation of wildlife habitat during and following such operations. At a minimum, the rules shall address: (III) Minimizing surface disturbance and fragmentation in important wildlife habitat by incorporating appropriate best management practices as specified in this subparagraph (III). Best management practices established pursuant to sub-subparagraph (A) or (B) of this subparagraph (III) shall be presumptive conditions for operations in the units for which they are established, and the commission shall not require a best management practice that has not been so established unless the commission demonstrates the need for the practice: (5) (a) Upon request of the applicant in an appeal of a mitigation measure proposed by the division of wildlife pursuant to this section for a permit, rule, or order, the commission shall conduct a cost-benefit analysis of the measure, giving consideration to the factors specified in section 24-4-103 (4.5) (a), C.R.S., and provide all parties to the hearing with written notice of the analysis at least five days before the hearing. The commission shall not uphold such measure unless the commission demonstrates that the beneficial effects of the measure outweigh its costs. (b) In an appeal to the commission of a mitigation measure proposed by the division of wildlife pursuant to this section for a variance, permit, rule, or order, the executive director of the department of natural resources shall not participate in the appeal. (c) The commission shall grant or deny a variance from a condition imposed pursuant to this section within five days after receipt of a written request for the variance. SECTION 2. 34-60-106 (1) (f), the introductory portion to 34-60-106 (11) (a), and 34-60-106 (11) (a) (II), Colorado Revised Statutes, are amended to read: 34-60-106. Additional powers of the commission - rules - repeal. (1) The commission also has authority to require: (f) That no operations for the drilling of a well for oil and gas shall be commenced without first giving to the commission notice of intention to drill and without first obtaining a permit from the commission, under such rules and regulations as may be prescribed by the commission, and paying to the commission a filing and service fee to be established by the commission for the purpose of paying the expense of administering this article as provided in section 34-60-122, which fee may be transferable or refundable, at the option of the commission, if such permit is not used; but no such fee shall exceed two hundred dollars; (11) (a) By July 16, 2008, The commission shall: (II) (A) Promulgate rules, in consultation with the department of public health and environment, to protect the health, safety, and welfare of the general public in the conduct of oil and gas operations. The rules shall provide a timely and efficient procedure in which the department has an opportunity to provide comments during the commission's decision-making process. This rule-making shall be coordinated with the rule-making required in section 34-60-128 (3) (d) so that the timely and efficient procedure established pursuant to this subsection (11) is applicable to the department and to the division of wildlife. (B) In an appeal to the commission of a mitigation measure proposed by the department of public health and environment pursuant to this subparagraph (II) for a variance, permit, rule, or order, the executive director of the department of public health and environment shall not participate in the appeal. SECTION 3. Applicability. This act shall apply to acts occurring on or after the effective date of this act. SECTION 4. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.