Despite the threat of a lawsuit by the energy industry, Colorado regulators Tuesday tentatively approved new rules designed to protect the state’s wildlife habitat from some oil and natural gas drilling operations.

The rules, which are set for final approval by the Colorado Oil and Gas Conservation Commission (COGCC) in December, are part of a comprehensive revamp of the state’s regulations, which is a priority for Democratic Gov. Bill Ritter. The legislature mandated changes to the state’s oil and natural gas drilling rules and directed the COGCC last year to revise them to balance drilling and wildlife protection. So far COGCC has proposed approval for about 100 regulations (see Daily GPI, Sept. 10).

Under those proposed rules approved Tuesday, the state’s oil and gas operators would be required to consult with the Colorado Division of Wildlife (DOW) before drilling in certain areas of the state that have critical wildlife habitats.

The COGCC, which spent months meeting with industry and affected stakeholders, already had deleted some regulations strongly opposed by the energy industry that would have required producers to shut down operations for 90 days during periods of sensitive winter grazing or during mating periods if other mitigation plans were not possible.

Instead, the commission Tuesday tentatively adopted regulations that would require drillers to check state maps to determine whether their operations are within sensitive wildlife habitat areas. If the drilling is within a sensitive area, the operator would be required to file comprehensive drilling plans with DOW to detail the mitigation measures to be taken to prevent any adverse drilling impacts. The wildlife rules also restrict surface occupancy areas, primarily for sage grouse habitat, where operators would be required to limit drilling to the “maximum extent technically and economically feasible.”

COGCC’s Mark Cutright, who is a petroleum engineer, was the lone member of the nine-member commission to vote against the wildlife rules. Protecting wildlife is acceptable, he said, but the proposed rules are “fraught with problems.” Colorado Oil and Gas Association attorney Ken Wonstolen also warned that the trade group could sue to prevent the rules from being implemented as written. Under the proposals, the state would be allowed to “take” property already awarded to energy companies for exploration and development, Wonstolen said.

Several conservation groups and hunting organizations said the rules offered a balanced compromise to protect critical habitat and species.

“The future looks a lot brighter for wildlife than it did two years ago,” said National Wildlife Federation executive director Steve Torbit. “Industry will find these rules are workable and reasonable. Factoring in wildlife conservation will become a natural way of doing business for the [oil and gas] industry.”

Hunting enthusiasts said the wildlife rules would encourage comprehensive drilling plans and directional drilling technology “to create smaller industrial footprints in regions crucial to deer and elk herds, as well as the sage grouse.” The sage grouse, whose numbers are dwindling throughout the West, is being considered for listing by the Endangered Species Act, and several states are working on ways to preserve their habitat in lieu of a federal listing as “threatened” or “endangered.”

Still being resolved is the standoff between the state and the Colorado office of the Bureau of Land Management (BLM) as to whether the state rules would apply to federal land. The COGCC has taken a position that the state’s rules would supersede federal rules, but the BLM does not agree.

The COGCC is scheduled to discuss the waste pit regulations on Oct. 26-27, and the entire package of drilling rules is set for final consideration by the commission Dec. 9-11.

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