2 Colo. Code Regs. § 404-1-309

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

Section 2 CCR 404-1-309 - CONSULTATION

a. Unless otherwise specified below, all consultations required by Rule 309 will occur within 45 days after the Director posts the completeness determination on the Commission's website pursuant to Rule 303.d.(1), except that consultations will occur within 60 days for proposed Oil and Gas Development Plans or Form 2As located within a Disproportionately Impacted Community.

b.Surface Owners. The Operator will consult in good faith with the Surface Owner or the Surface Owner's appointed agent about the location of all surface disturbances, and in preparation for Reclamation and abandonment. The Surface Owner or appointed agent may submit relevant comments to the Director about any Oil and Gas Development Plan pursuant to Rule 303.d.(1).

(1)Information Provided by Operator. When consulting with the Surface Owner or appointed agent, the Operator will furnish, in writing:

A. All the information required for a complete Oil and Gas Development Plan;

B. The expected date of commencement of operations;

C. Topsoil management practices to be employed; and

D. The location of associated roads, Production Facilities, infrastructure, and any other areas to be used for Oil and Gas Operations.

(2)Waiver. The Surface Owner or the Surface Owner's appointed agent may waive, permanently or otherwise, their right to consult with the Operator at any time. Such waiver will be in writing and signed by the Surface Owner.

(3) Operators will conduct Oil and Gas Operations in a manner that accommodates the Surface Owner by minimizing intrusion upon and damage to the surface of the land.

c.Building Unit Owners and Tenants. An Operator will be available to meet for a Formal Consultation Process with residents (including owners and tenants) of Building Units located within 2,000 feet of the proposed Working Pad Surface. Building Unit Owners, their agents, their tenants, or a Relevant or Proximate Local Government may request such a meeting.

(1)Information Provided by Operator. When meeting with Building Unit owners or their appointed agent(s) or tenants, the Operator will provide the following information:

A. The date construction is anticipated to begin;

B. The anticipated duration of pad construction, drilling, and completion activities;

C. The types of equipment anticipated to be present on the proposed Oil and Gas Locations;

D. The Operator's interim and final Reclamation obligation;

E. A description and diagram of the proposed Oil and Gas Locations that includes the dimensions of the proposed Oil and Gas Location and the anticipated layout of production or injection facilities, Pipelines, roads, and any other areas to be used for Oil and Gas Operations;

F. Information relevant to potential health, safety, welfare, and environmental impacts associated with Oil and Gas Operations, including but not limited to security, noise, light, odors, dust, and traffic; and

G. Information about proposed Best Management Practices or mitigation measures to avoid, minimize, or mitigate those impacts.

(2)Waiver. The Building Unit owner, agent, or tenant may waive, permanently or otherwise, their respective right to receive notice pursuant to the Commission's Rules. Any such waiver will be in writing, signed by the owner, agent, or tenant.

(3) The Operator and the Director will consider all concerns related to public health, safety, welfare, the environment, and wildlife resources raised by Building Unit owners, their agents, or tenants during the Formal Consultation Process, including concerns raised during informational meetings or in written comments. The Operator will provide a written response to all such concerns to the Director as an attachment to the Form 2A prior to the Director making a Recommendation pursuant to Rule 306.

(4) All information provided pursuant to this Rule 309.c will also be provided in all languages spoken by 5% or more of the population in the census block group(s) within 2,000 feet of each proposed Oil and Gas Location within the Oil and Gas Development Plan.

d.Schools, Child Care Centers, and School Governing Bodies.

(1) No less than 30 days before the Operator submits an Oil and Gas Development Plan, an Operator will provide a pre-application notice of intent to conduct Oil and Gas Operations to any relevant School, Child Care Center, and School Governing Body within 2,000 feet as measured from the Working Pad Surface to:

A. The property line of a parcel currently owned by the School, Child Care Center, or School Governing Body as identified through county assessor records;

B. The property line of a parcel considered a Future School Facility as identified on the final approved plat that may be obtained from the planning department of the Local Government; or

C. What reasonably appears to be a School Facility (regardless of property ownership) based on the Operator's review of current aerial maps that show surface development or surveys of the area.

(2) The Notice will include:

A. The Operator's contact information;

B. The location and general description of the proposed Oil and Gas Location, including the cultural distances table as required under Rule 304.b.(3), and drawings, maps, and figures required under Rule 304.b.(7).

C. The Relevant Local Government contact information;

D. The anticipated date, by calendar year and quarter, that construction will begin and the expected schedule of drilling and completion activities;

E. A description of the status of the Relevant Local Government's siting disposition, if applicable;

F. Notice that the School Governing Body for the School Facility or Child Care Center may request a consultation to discuss the proposed operations by contacting the Operator, and that the Director may be invited to any meeting. A School Governing Body or Child Care Center may delegate the consultation process to the principal or senior administrator of a School or Child Care Center in proximity to the proposed Oil and Gas Location; and

G. Notice that the School, Child Care Center, or School Governing Body may submit comments regarding the proposed Oil and Gas Location to the Commission as part of the Rule 303.d.(1) public comment period.

(3) A School Governing Body may waive the right to receive notice under this provision for the School Governing Body and all Schools within the area subject to the School Governing Body's oversight at any time by providing written notice to the Operator.

(4) The Operator, School Governing Body, or Director may initiate consultation pursuant to this Rule 309. During the consultation, the School Governing Body may identify additional discrete facilities or areas it considers a School Facility or Child Care Center, and the Operator will provide relevant information regarding planned measures to avoid, minimize, or mitigate adverse impacts to the School Facility or Child Care Center.

e.Colorado Parks and Wildlife.

(1)The Purpose of Consultation. The purpose of consultation with CPW is to provide the Director the information necessary to determine whether an application protects Wildlife Resources and whether conditions of approval are necessary to Avoid, Minimize, or Mitigate Adverse Impacts to Wildlife Resources associated with High Priority Habitats, and protect against adverse impacts to Wildlife Resources resulting from Oil and Gas Operations. Factors that CPW may take into consideration during consultation include, but are not limited to, the following:

A. Anticipated adverse impacts of the proposed Oil and Gas Operations on Wildlife Resources;

B. The extent to which the proposed siting of facilities Avoids or Minimizes Adverse Impacts;

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

D. The extent to which the proposed Oil and Gas Operations use technology and Best Management Practices which are protective of Wildlife Resources, including but not limited to seasonal construction and drilling limitations, noise limitations, remote operations, equipment disinfection, and transporting and storing liquids through Pipelines and large Tanks or other measures to reduce traffic volumes;

E. The extent to which the proposed Oil and Gas Operations are within land used or designated to be used for residential, industrial, commercial, agricultural, or other purposes, and the existing wildlife disturbance associated with such use; and

F. The extent to which the proposed Oil and Gas Operations occur on federal or private lands for which the use and access of the lands in question may already be incorporated into a federal planning document, or the private Surface Owner designates the use of the land based on the function and utility of multiple use designations.

(2)When Consultation Must Occur. The Operator will consult with the Surface Owner (unless the Surface Owner has waived their right to participate pursuant to Rule 309.e.(4).C) and with CPW about a Form 2A, Oil and Gas Development Plan, CAP, or other matter where:

A. A proposed Oil and Gas Location or associated new access road, utility, or Pipeline corridor falls within High Priority Habitat, a State Park, or a State Wildlife Area;

B. A proposed Oil and Gas Location or associated new access road, utility, or Pipeline corridor falls within federally designated critical habitat or an area with a known occurrence for a federal or Colorado threatened or endangered species;

C. A proposed Oil and Gas Location or associated new access road, utility, or Pipeline corridor falls within an existing conservation easement established wholly or partly for wildlife habitat;

D. CPW requests consultation or because consultation is necessary to Avoid, Minimize, or Mitigate reasonably foreseeable direct, indirect, or cumulative Adverse Impacts to Wildlife Resources from a Form 2A, Oil and Gas Development Plan, CAP, or other matter where consultation is not otherwise required;

E. The Operator seeks a variance pursuant to Rule 502 from a provision in the Commission's 1200 Series Rules, or from wildlife-specific conditions of approval or Best Management Practices approved on a Form 2A; or

F. The Director determines that consultation would assist the Director in determining whether to recommend approving or denying an Oil and Gas Development Plan or CAP.

G. Notwithstanding the foregoing, the requirement to consult with CPW may be waived by CPW at any time. Any waiver will be based on a written finding by CPW that consultation is not necessary to protect Wildlife Resources from quantifiable adverse direct, indirect, or cumulative impacts from Oil and Gas Operations.

(3)When Consultation is Not Required. Consultation will not be required if:

A. The Director has previously approved a Form 2A or CAP and associated Wildlife Protection Plan or Wildlife Mitigation Plan that addresses the proposed Oil and Gas Location and the proposed operations are in compliance with previously approved plans.

B. CPW has previously approved, in writing, a Wildlife Protection Plan, Wildlife Mitigation Plan, or other conservation plan that remains in effect for the area that includes the proposed Oil and Gas Operations and the Oil and Gas Location is in compliance with such plan.

C. The Operator demonstrates and CPW agrees in writing that:

i. The identified habitat and species triggering the consultation is no longer present and unlikely to return to the area; or

ii. The proposed Oil and Gas Location is within an area either primarily or completely developed for residential, agricultural, commercial, or industrial use that makes the area incompatible with wildlife habitat.

D. The proposed new Oil and Gas Location would involve a one-time increase in surface disturbance of 1 acre or less contiguous with an existing Oil and Gas Location with a Wildlife Mitigation Plan or other conservation plan that remains in effect for the area.

E. A Commission Order limits the density of Oil and Gas Locations within a Drilling and Spacing Unit to 1 per section, and the Order includes a Wildlife Mitigation Plan or other conservation plan that remains in effect for the area.

(4)Procedures for Consultation.

A. The Operator will provide:

i. The Oil and Gas Development Plan or CAP, if applicable, or for consultations that do not involve an Oil and Gas Development Plan or CAP, a description of the proposed Oil and Gas Operations, including their location and the phasing and duration of operations consistent with Rules 303 & 304, and, if applicable Rule 314; and

ii. Any other relevant available information about the proposed Oil and Gas Operations and the affected Wildlife Resources, including the wildlife habitat drawing pursuant to Rule 304.b.(7).C and information required by Rule 1201.

B. The Operator, the Director, the Surface Owner, and CPW will have 60 days to conduct the consultation required by this Rule 309.e, recognizing that pre-consultation or consultation with Relevant Local Governments or federal land management agencies may shorten the process. The time period for consultation will begin at the start of the Rule 303.d.(1) or 314.f.(1).A public comment period, or when an Operator requests a variance. If the Operator has made no reasonable accommodation for consultation within such 60-day period, the Director will have discretion to postpone making a decision about an Oil and Gas Development Plan or CAP in order to allow consultation to occur if the Director believes the information from consultation is necessary to determine how to protect and Avoid, Mitigate, and Minimize Adverse Impacts to Wildlife Resources.

C. The Surface Owner may waive its right to participate in the consultation and is not obligated to provide access to its surface for such consultation. If access to the surface is not granted, the Operator will arrange a consultation meeting with CPW at a mutually agreeable time and location and the consultation will be based on best available data.

(5)Result of Consultation.

A. As a result of consultation required by this Rule 309.e, CPW may make written recommendations to the Director about how to protect Wildlife Resources and conditions of approval that are necessary and reasonable to Avoid, Minimize, or Mitigate direct, indirect, and cumulative Adverse Impacts to Wildlife Resources from Oil and Gas Operations pursuant to Rules 1202 & 1203.

B. CPW may also recommend, in writing, that the Commission deny an Oil and Gas Development Plan, Form 2A, Wildlife Protection Plan, Wildlife Mitigation Plan, Compensatory Mitigation Plan, or CAP due to reasonably foreseeable risks or Adverse Impacts to Wildlife Resources that cannot be Avoided, Minimized, or Mitigated to the extent necessary to protect these resources from Oil and Gas Operations.

C. Except for Rule 1202.c, CPW may waive, in writing, any operating or mitigation requirements otherwise required by Rules 1202 or 1203 based on CPW's analysis of potential Unavoidable Adverse Impacts.

D. For Rule 1202.c:

i. CPW may waive the application of and the Director may grant an exception to Rule 1202.c.(1).R for any new ground disturbance that meets the criteria of Rule 1202.c between 300 feet and 500 feet from the Ordinary High Water Mark ("OHWM") of cutthroat trout designated crucial habitat, and native fish and other native aquatic species conservation waters, if the Operator adheres to the following Best Management Practices:

aa. Contain Flowback and Stimulation Fluids in Tanks that are placed on a Working Pad Surface in an area with downgradient perimeter berming;

bb. Construct lined berms or other lined containment devices pursuant to Rule 603.o around any new crude oil, condensate, and produced water storage Tanks that are installed after January 15, 2021;

cc. Inspect the Oil and Location on a daily basis, unless the approved Form 2A provides for different inspection frequency or alternative method of compliance;

dd. Maintain adequate Spill response equipment at the Oil and Gas Location during drilling and completion operations; and

ee. Not construct or utilize any Pits, except that Operators may continue to utilize existing Pits that were properly permitted, constructed, operated, and maintained in compliance prior to January 15, 2021.

ii. CPW may waive the application of and the Director may grant an exception to Rule 1202.c.(1).S:

aa. For perennial streams, if the Operator adheres to the following Best Management Practices for any new ground disturbance that meets the criteria of Rule 1202.c between 300 feet and 500 feet from the OHWM of sportfish management waters:

1. Contain Flowback and Stimulation Fluids in Tanks that are placed on a Working Pad Surface in an area with downgradient perimeter berming;

2. Construct lined berms or other lined containment devices pursuant to Rule 603.o around any new crude oil, condensate, and produced water storage Tanks that are installed after January 15, 2021;

3. Inspect the Oil and Location on a daily basis, unless the approved Form 2A provides for different inspection frequency or alternative method of compliance;

4. Maintain adequate Spill response equipment at the Oil and Gas Location during drilling and completion operations; and

5. Not construct or utilize any Pits, except that Operators may continue to utilize existing Pits that were properly permitted, constructed, operated, and maintained in compliance prior to January 15, 2021.

bb. For ephemeral and intermittent streams, if the Operator adheres to the following Best Management Practices:

1. Contain Flowback and Stimulation Fluids in Tanks that are placed on a Working Pad Surface in an area with downgradient perimeter berming;

2. Construct lined berms or other lined containment devices pursuant to Rule 603.o around any new crude oil, condensate, and produced water storage Tanks that are installed after January 15, 2021;

3. Inspect the Oil and Location on a daily basis, unless the approved Form 2A provides for different inspection frequency or alternative method of compliance;

4. Maintain adequate Spill response equipment at the Oil and Gas Location during drilling and completion operations; and

5. Not construct or utilize any Pits, except that Operators may continue to utilize existing Pits that were properly permitted, constructed, operated, and maintained in compliance prior to January 15, 2021.

iii. CPW may waive the application of Rule 1202.c.(1).T.

iv. CPW may waive the application of and the Director may grant an exception to Rule 1202.c.(1) for a proposed location within an approved CAP that includes preliminary siting approval pursuant to Rule 314.b.(5).

E. Where applicable, CPW may also make written recommendations on whether a variance request pursuant to Rule 502 should be granted, under what conditions, and the reasons for any such recommendations, including requests for variances from Rule 1202.c.(1).Q-S. The Commission will consider the written recommendations of CPW and the relevant federal land management agency, if applicable, including recommended or final federal stipulations and conditions of approval.

(6)Conditions of Approval.

A. If the Director agrees that the conditions of approval or denial as recommended by CPW are necessary and reasonable to Avoid, Minimize, or Mitigate Adverse Impacts to Wildlife Resources, the Director will incorporate CPW's recommended conditions into the Director's Recommendation on an Oil and Gas Development Plan, Form 2A, or CAP.

B. The Director will not incorporate conditions of approval to Avoid, Minimize, or Mitigate Adverse Impacts to Wildlife Resources into the Director's Recommendation without consent of the affected Surface Owner. This provision does not apply to conditions of approval to Avoid, Minimize, or Mitigate Adverse Impacts to Wildlife Resources that do not directly impact the affected Surface Owner's property or use of that property including, but not limited to, off-site compensatory mitigation requirements.

C. If the Director determines that any conditions of approval or denial as recommended by CPW are not necessary to Avoid, Minimize, or Mitigate Adverse Impacts to Wildlife Resources, the Director will explain the grounds for the disagreement in the Director's Recommendation.

D. The Commission will determine whether to follow CPW's recommendation when making a final decision to approve or deny an Oil and Gas Development Plan or CAP.

(7)Notification of Decision to Consulting Agency. Where consultation occurs, the Director will provide the Director's Recommendation to CPW on the same day that it posts the decision to the Commission's website pursuant to Rule 306.c. CPW may petition the Commission to review the Director's Recommendation.

f.Consultation with CDPHE.

(1)When Consultation Will Occur.

A. The Director will consult with CDPHE if:

i. At any time during the Local Government consultation and comment period, a Local Government requests the participation of CDPHE in the Director's consideration of an Oil and Gas Development Plan or CAP based on concerns regarding public health, safety, welfare, or impacts to the environment; or

ii. An Operator requests a variance from the Commission pursuant to Rule 502 from a provision of Rules 303, 304, 314, 408.e, 411, 426, 427, 604, 615, 801, 802, 803.g, 803.h, 806.c, or the Commission's 900 Series Rules as part of an Oil and Gas Development Plan, Form 2A, CAP, or UIC Aquifer exemption application.

B. The Director may request consultation about any Oil and Gas Development Plan or CAP if the Director reasonably believes that consultation with the CDPHE would assist the Director in understanding the potential risks to public health, safety, welfare, or the environment.

C. The Director will consult with CDPHE if CDPHE requests consultation.

D. Notwithstanding the foregoing, the requirement to consult with CDPHE may be waived by CDPHE at any time.

(2)Procedure for Consultation.

A. The time period for consultation with CDPHE will begin at the start of the Rule 303.d.(1) public comment period, or when an Operator requests a variance from a Rule listed in Rule 309.f.(1).A.ii. If the public comment period is extended by the Director or the Commission, then the CDPHE consultation period may also be extended for the same amount of time that the public comment period is extended. Following conclusion of the initial consultation period, the Director may reopen a new consultation period with CDPHE if information pertaining to the Oil and Gas Development Plan or CAP changes or new evidence arises related to the public health or environmental impacts of the Oil and Gas Development Plan or CAP. The Director may extend the consultation period by 60 days upon the request of CDPHE if additional time is necessary to avoid, minimize, or mitigate adverse environmental impacts.

B. The consultation required by this Rule 309.f will focus on identifying potential impacts to public health, safety, welfare, or the environment from activities associated with the proposed Oil and Gas Development Plan or CAP, and development of conditions of approval or other measures to avoid, minimize, or mitigate those potential adverse impacts.

C. The consultation process may include, but is not limited to:

i. Review of the relevant Oil and Gas Development Plan or CAP application, variance request, Well-density application, or draft Commission regulation;

ii. Discussions with the Relevant Local Government(s) and Proximate Local Government(s) to better understand the Local Governments' concerns;

iii. Discussions with the Commission, Operator, Surface Owner, Surface Owner's tenant, emergency responders, School officials, hospital administrators, Public Water System administrators, or any other potentially Affected Person; and

iv. Review of public comments.

(3)Results of Consultation.

A. As a result of consultation called for by this Rule 309.f, CDPHE may make written recommendations to the Director about conditions of approval necessary and reasonable to protect public health, safety, welfare, or the environment. Such recommendations may include, but are not limited to, monitoring requirements or Best Management Practices. CDPHE may also recommend that the Commission deny an Oil and Gas Development Plan or CAP if necessary and reasonable to protect public health, safety, welfare, or the environment. Where applicable, CDPHE may also make written recommendations about whether a variance request should be granted or denied and the reasons for any such recommendations.

B.Standards for Consultation and Director Decision. If the Director agrees that the conditions of approval recommended by CDPHE are necessary and reasonable to protect public health, safety, welfare, or the environment, the Director will incorporate CDPHE's recommended conditions into approvals of an Oil and Gas Development Plan or CAP. If the Director determines that any conditions of approval recommended by CDPHE are not necessary and reasonable to protect public health, safety, welfare, or the environment, the Director will explain the grounds for the disagreement in the Director's Recommendation. The Commission will determine whether to follow CDPHE's recommendation when making a final decision to approve or deny an Oil and Gas Development Plan or CAP.

C.Notification of Decision to Consulting Agency. Where consultation occurs, the Director will provide the Director's Recommendation to CDPHE on the same day that it announces the decision. CDPHE may petition the Commission to review the Director's Recommendation.

g.Public Water Systems.

(1) The Operator will engage in a Formal Consultation Process with all Public Water Systems that receive notice pursuant to Rule 303.e.(1).H, unless the Public Water System waives its right to consultation.

(2) Groundwater Monitoring. Among other topics, consultations pursuant to Rule 309.g will address whether groundwater monitoring should occur pursuant to Rule 411.b.(4).B.

2 CCR 404-1-309

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