Colorado’s nonpartisan Office of Legislative Legal Services (OLLS) has caused an uproar in the state legislature after it suggested repeal of one of the new rules that will govern future natural gas and oil drilling in the state.

The Colorado Oil & Gas Conservation Commission (COGCC) formally approved a revamped rules package for the energy industry in late 2008, and most of the rules are slated to take effect beginning in April and May (see Daily GPI, Dec. 10, 2008). Before their enactment, however, several legislators have attempted to dull their impact both because of the downturn in the economy and because of criticism from the energy industry.

An opinion by the OLLS, issued last week, has led to some maneuvering between opposing groups in the state legislature after the legal services office stated that one of the most controversial rules should be removed. That rule, to require producers to consult with the Colorado Division of Wildlife (DOW) on ways to protect habitat before obtaining a permit to drill, has been hotly contested for months.

The opinion said the rule puts the burden to protect habitat on industry. However, the opinion stated that when legislators passed bills in 2007 that initiated the rulemaking, they intended the burden to be on the DOW to initiate consultation for habitat protection.

It was the intent of the legislature “to place the duty to consult on the Division of Wildlife, not on operators,” wrote legislative attorney Thomas Morris in his memorandum to the state legislature’s Committee on Legal Services. The rule, he said, conflicts with the 2007 statute and should be repealed.

Some legislators are scrambling to determine whether they have the power to revise the rules before they are implemented. It took the COGCC 18 months to write the rules, and there was a lengthy public consultation process before they were finalized.

Democratic Gov. Bill Ritter, who has long defended the revised rules package, vowed to keep the rules as they are written. And David Neslin, acting director of the COGCC, said the commission is examining ways to make the legal opinion a moot issue.

“The duty to consult rests with the Division of Wildlife,” Neslin said. The only dispute is over the order in which the consultations are held, and he said it was the intent of the COGCC that the DOW would provide input to the commission, not that drilling companies had to consult with the DOW. “We don’t think the transposition of these words is a significant change.”

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