BEFORE THE OIL AND GAS CONSERVATION COMMISSION
OF THE STATE OF COLORADO
IN THE MATTER OF THE PROMULGATION ) CAUSE NO. 1
AND ESTABLISHMENT OF FIELD RULES TO )
GOVERN OPERATIONS IN BACA COUNTY, ) ORDER NO. 1-164
REPORT OF THE COMMISSION
This cause came on for hearing before the Commission at 9:00 a.m. on February 22, 2011, at the Chancery Building, 1120 Lincoln Street, Suite 801, Denver, Colorado on the application of the County of Baca for an order granting a variance from Rule 804., Visual Impact Mitigation, to exempt all operators within the county from painting production facilities, which are observable from any public highway, with uniform, non-contrasting, non-reflective color tones and with colors matched to but slightly darker than the surrounding landscape by September 1, 2010.
The Commission finds as follows:
1. Baca County (the “County”), as applicant herein, is an interested party in the subject matter of the above-referenced hearing.
2. Due notice of the time, place and purpose of the hearing has been given in all respects as required by law.
3. The Commission has jurisdiction over the subject matter embraced in said notice and the parties interested therein, and has jurisdiction to promulgate this Order.
4. Rule 804. of the Oil and Gas Conservation Commission requires production facilities, regardless of construction date, that are observable from any public highway to be painted with uniform, non-contrasting, non-reflective color tones, and with colors matched to but slightly darker than the surrounding landscape by September 1, 2010. Further, Rule 801. provides that any Colorado county, home rule or statutory city, town, territorial charter or city and county may, by application to the Commission, seek a determination that any rules and regulations of the 800-Series should not apply to oil and gas activities occurring within its boundaries, or any part thereof. Such determination must be based upon a showing by any Colorado county, home rule or statutory city, town, territorial charter or city and county that, because of conditions existing therein, the enforcement of the rule and regulation is not necessary within the relevant boundaries for the protection of public health, safety and welfare.
5. Rule 503.b.(5) provides that any local government within whose jurisdiction the affected operation is located may seek a variance from the Commission.
6. On December 21, 2010, the County filed a written request, by its attorney, for a Commission hearing to seek an exemption from Rule 804. for all lands within its boundaries. The County alleges that the enforcement of Rule 804. is not necessary within the boundaries of the County for the protection of public health, safety and welfare.
7. Production facilities associated with oil and gas operations are located within the County’s boundaries.
8. The County states in its application that the Application Lands should be exempted from this rule because the County is not densely populated, so aesthetics of the tanks and other production facilities are not a concern.
9. The County request is made pursuant to, and consistent with, authority granted in Rule 801.
10. At the hearing, Mark Schmidt, Baca County Attorney, appeared to explain the County’s application for relief from Rule 804. for all lands within its boundaries. Also appearing by telephone were: Troy Crane, County Commissioner; Glen Asmus, County Commissioner; Peter Dawson, County Commissioner; Gayla Thompson, Baca County Assessor; and Erin Dubois, Baca County Clerk and Recorder. Mr. Schmidt stated the basis for the Application was as follows:
a. The Baca County Board of Commissioners (the “Board”) unanimously adopted its Resolution 2010-20 in support of the application on September 1, 2010;
b. The Board believes that the enforcement of Rule 804. is not necessary to ensure protection of health, safety, welfare and aesthetic values;
c. The ad valorem taxes collected from the operators of producing oil and gas wells are an important source of revenue for the County, and strict enforcement of the Rule 804. could result in abandonment of numerous economically marginal wells and a reduction in this important revenue;
d. There have been no complaints in the County regarding the equipment; and
e. Aesthetic values in Baca County are not threatened by an exemption under Rule 804.
11. The Commission should defer to the judgment of locally elected officials in this case, in what it considers to be a land use matter.
NOW, THEREFORE IT IS ORDERED, that all lands within Baca County are declared to be exempt from Rule 804., as that rule exists as of this date.
IT IS FURTHER ORDERED, that the provisions contained in the above orders shall become effective immediately.
IT IS FURTHER ORDERED, that the Commission expressly reserves its right, after notice and hearing, to alter, amend or repeal any and/or all of the above orders.
IT IS FURTHER ORDERED, that under the State Administrative Procedure Act, the Commission considers this Order to be final agency action for purposes of judicial review within thirty days after the date this Order is mailed by the Commission.
IT IS FURTHER ORDERED, that an application for reconsideration by the Commission of this Order is not required prior to the filing for judicial review.
ENTERED this 14th day of March 2011, effective February 22, 2011.
OIL AND GAS CONSERVATION COMMISSION
OF THE STATE OF COLORADO
Robert A. Willis, Acting Secretary
Dated at Suite 801
1120 Lincoln Street
Denver, Colorado 80203
March 14, 2011