2 Colo. Code Regs. § 404-1-1203

Current through Register Vol. 47, No. 20, October 25, 2024

Section 2 CCR 404-1-1203 - COMPENSATORY MITIGATION FOR WILDLIFE RESOURCES

a. In High Priority Habitats listed in Rule 1202.d, the Operator will complete compensatory mitigation to Mitigate direct and Unavoidable Adverse indirect Impacts pursuant to Rules 1203.b-d. Direct impacts to wildlife are unavoidable and occur from direct mortality or displacement during construction activities and habitat conversion to industrial facilities. Indirect impacts to wildlife occur over time from the cumulative functional habitat loss from fragmentation and modified habitat use as development density increases. Indirect Impacts may be Avoided or Minimized through the application of alternative siting and Rule 1202 operating requirements. The Director, after consultation with CPW, will have discretion to determine whether compensatory mitigation proposed by the Operator is sufficient to protect wildlife from direct and Unavoidable Adverse indirect Impacts. An Operator may fulfill the obligation to complete compensatory mitigation by:

(1) Completing or causing to be completed a project approved by CPW and the Director as described in a Compensatory Mitigation Plan pursuant to Rule 1203.b; or

(2) Paying a habitat mitigation fee to CPW, as provided by Rules 1203.c & 1203.d. Any fee pursuant to Rules 1203.c & 1203.d will be calculated to reimburse all reasonable and necessary direct and indirect costs that will be incurred by CPW in completing compensatory mitigation sufficient to offset the direct and Unavoidable Adverse indirect Impacts to Wildlife Resources caused by the proposed Oil and Gas Operations.

(3) The Director may grant an exception from the compensatory mitigation requirement set forth in this Rule 1203 after consulting with CPW pursuant to Rule 309.e.

b. If an Operator chooses to complete or cause to be completed compensatory mitigation to Mitigate the direct and Unavoidable Adverse indirect Impacts to Wildlife Resources:

(1) The Operator will submit a Compensatory Mitigation Plan to the Director with a level of detail commensurate with the scale, scope, intensity, and duration of the impacts to Wildlife Resources that includes, as appropriate:

A. Plan objectives or mitigation goal, including a description of how the plan will address equivalence, timeliness, duration, durability, and additionality;

B. Coordination and concurrence with CPW;

C. Site selection;

D. Site protection instrument;

E. Baseline information on Wildlife Resources;

F. Mitigation schedule and workplan;

G. Maintenance plan;

H. Performance standards;

I. Monitoring and reporting requirements;

J. Long-term management plan;

K. Adaptive management plan, if necessary;

L. Financial Assurances; and

M. Other information as required by the Director.

(2) The Director will consult with CPW about the adequacy of the proposed Compensatory Mitigation Plan.

(3) The Director may accept the Operator's Compensatory Mitigation Plan if it meets the criteria of Rule 1203.b.(1) and, in the Director's judgment, based on the consultation described in Rule 1203.b.(2), provides adequate compensation for direct and Unavoidable Adverse indirect Impacts to Wildlife Resources from the proposed Oil and Gas Operations.

c.Direct Impact Habitat Mitigation Fee. An Operator may fulfill its obligation to Mitigate direct Adverse Impacts to wildlife caused by new ground disturbance within High Priority Habitat types listed in Rule 1202.d by paying to CPW a habitat mitigation fee in the amount listed in Table 1203-1 no less than 30 days prior submitting a Form 42, Field Operations Notice - Notice of Construction or Major Change pursuant to Rule 405.b. The direct impact habitat mitigation fee is subject to update on a periodic but no more frequent than annual basis and will be modified only through the Commission's rulemaking process described in Rule 529. Notice of such rulemaking proceeding will be provided by January 15 of each year.

Table 1203-1 - Direct Impact Habitat Mitigation Fee

Total Disturbance Acres	Fee
1.0-10.99	$13,750
11.0+	Determined based on site-specific conditions and consultation with CPW

d.Indirect Impacts.

(1) In High Priority Habitats listed in Rule 1202.d with a density of Oil and Gas Locations less than 5 per square mile, CPW will recommend to the Director whether compensatory mitigation is required to address the Unavoidable Adverse indirect Impacts of habitat fragmentation caused by the proposed Oil and Gas Development Plan.

(2) When determining whether to recommend that compensatory mitigation be required for Unavoidable Adverse indirect Impacts on Wildlife Resources, factors that CPW may consider include, but are not limited to:

A. The existing landscape context, and extent to which the proposed Oil and Gas Operations are within land already used for residential, industrial, commercial, agricultural, or other purposes, and the existing wildlife disturbance associated with such land uses;

B. The estimated lifespan of the proposed Oil and Gas Operations;

C. The extent to which the proposed Oil and Gas Operations incorporate alternative siting of Oil and Gas Facilities or Oil and Gas Locations to Avoid and Minimize Adverse Impacts;

D. The extent to which the proposed Oil and Gas Operations incorporate the use of existing Oil and Gas Facilities, Oil and Gas Locations, roads, or Pipeline corridors to limit new surface disturbance and habitat fragmentation;

E. The extent to which the proposed Oil and Gas Operations use technology and practices which protect Wildlife Resources, including but not limited to:

i. Seasonal construction and drilling limitations;

ii. Noise limitations;

iii. Remote operations; or

iv. Measures to reduce traffic volumes, including but not limited to transport of liquids through the use of Pipelines and storage in large Tanks.

(3) If the Director determines that compensatory mitigation for Unavoidable Adverse indirect Impacts to Wildlife Resources is necessary, the Operator may fulfill its obligation to Mitigate the indirect Adverse Impacts of its proposed Oil and Gas Operations by either:

A. Completing or causing to be completed a project approved by CPW and the Director pursuant to Rule 1203.b; or

B. Paying an additional habitat mitigation fee to CPW.

(4) The Director will determine the amount of the fee for each proposed Oil and Gas Location based on CPW's estimate of costs to reimburse all reasonable and necessary expenditures to complete compensatory mitigation sufficient to offset the Unavoidable Adverse indirect Impacts to Wildlife Resources from the proposed disturbance.

2 CCR 404-1-1203

37 CR 16, August 25, 2014, effective 9/30/2014

38 CR 01, January 10, 2015, effective 2/14/2015

38 CR 03, February 10, 2015, effective 3/2/2015

38 CR 07, April 10, 2015, effective 4/30/2015

38 CR 16, August 25, 2015, effective 9/14/2015

39 CR 04, February 25, 2016, effective 3/16/2016

41 CR 05, March 10, 2018, effective 4/1/2018

41 CR 06, March 25, 2018, effective 5/1/2018

41 CR 23, December 10, 2018, effective 12/30/2018

42 CR 02, January 25, 2019, effective 2/14/2019

42 CR 17, September 10, 2019, effective 9/30/2019

42 CR 24, December 25, 2019, effective 1/14/2020

43 CR 17, September 10, 2020, effective 9/30/2020

43 CR 13, July 10, 2020, effective 11/2/2020

43 CR 24, December 25, 2020, effective 1/15/2021

45 CR 07, April 10, 2022, effective 4/30/2022

45 CR 09, May 10, 2022, effective 5/30/2022

45 CR 13, July 10, 2022, effective 7/30/2022