In 2007, the Colorado Legislature enacted HB07-1341, which provides that the production of oil and gas in Colorado must occur in a manner "consistent with the protection of public health, safety, and welfare, including protection of the environment and wildlife resources". This legislation directed the Colorado Oil and Gas Conservation Commission (COGCC) to promulgate rules in consultation with the Department of Public Health and Environment (CDPHE) "to protect health, safety, and welfare of the general public in the conduct of oil and gas operations", and to "provide a timely and efficient procedure in which the [CDPHE] has an opportunity to provide comments during the [COGCC]'s decision-making process". The rule-making hearings occurred during the summer and fall of 2008. The COGCC adopted amended rules in December 2008. The rules take effect July 1, 2009 for federal land and April 1, 2009 for all other land.
Authority is granted to the COGCC by House Bill 07-1341 codified at sections 34-60-106 of the Oil and Gas Conservation Act (Act). Additional authority for the promulgation of the Rules is provided by sections 34-60-102, 34-60-103, 34-60-104, and 34-60-108, C.R.S. of the Act.
COGCC Rules 305 and 306d set forth how CDPHE consultation is to occur. Specifically, the consultation process is triggered by the following circumstances for individual Form 2As applications:
the oil and gas operator requests a variance from certain provisions of the Rules that are designed to protect public health, safety and welfare or the environment; or
if the local government designee requests, within 14 days, consultation by CDPHE.
In these situations, the CDPHE consulation process must be completed within forty (40) days of the start of the public comment period or the requirement to consult is waived.
Consultation with CDPHE is also triggered in the following cirucmstances; however, the forty (40) day requirement does not apply:
when an operator requests a modification of an existing Commission order to increase well density or otherwise proposes to increase well density beyond one (1) well per forty (40) acres;
when the COGCC develops a basin-wide order; or
when the operator invites CDPHE to participate in the development of a Comprehensive Drilling Plan.
Under all circumstances, the CDPHE may make written recommendations to the COGCC regarding conditions of approval and may waive the right to consult.
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