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Oil & Gas: My Stance and the Plan to Address the Topic in Erie
Andrew Sawusch • February 29, 2020
The topic of oil and gas must be addressed, but Erie's leadership has not dealt with the subject head on. Their only response has been inaction, which is a complete disservice to Erie's residents. Action is required, and I address how the Town can institute a plan which does so for both our current and future needs, which is solely based from an understanding of what can and cannot be done, as it relates to the health and safety for our community.
Please be sure to support my campaign for trustee by getting involved in a few different ways (click here to see how)!
Summary
While the topic of Oil and Gas is polarizing within the community, I believe that action must be taken to find a solution that resolves the issue. To date, the current Board of Trustees have only extended a moratorium and created a single paragraph "policy statement" on the topic. They have not provided an actual resolution or laws which addresses this item in its entirety, and they have not addressed the topic as they said they would.
I believe that a plan, one that thinks outside the box and is understanding of what can and cannot be done, should be instituted by the Town. The plan that I recommend is not based on "land use" or being as stringent as possible to preclude a specific industry. Rather, it is solely based on and related to the concern for the health and safety of residents, as well as for the areas which are environmentally sensitive. It is based on a laundry list of various studies and points of view, coming from an understanding of all sides to the argument. As well, it takes into account the possibility of continuously evolving and addressing the topic further in the future, instead of just addressing the issue at this very moment in its current form.
The Current Board's Actions on the Topic
To date, the current Board of Trustees has not made a decision on the topic of fracking, drilling, or oil and gas. Instead, their solution so far has been to place a moratorium on the issuance of new permits, as well as to issue a "Policy Statement on Oil and Gas Development." Although they have said that the health and safety of residents is important to them, they have simply been kicking the can down the road, without any action related to the topic.
The moratoriums that have been placed by the Town's Board of Trustees have solely been done as a waiting game. First, they said the moratorium was placed in order to develop and set the proper regulations needed. Then, they said it was because they were waiting on the Colorado General Assembly to make adjustments to the current state laws through SB-181. This was followed by the Board saying it was in order to figure out how to create the regulations based on the passage of SB-181. Then again, they said it was to figure out regulations based on SB-181. The moratorium was initiated in July 2018, still exists today, and has been issued a total of 4 times (July 2018, January 2019, June 2019, November 2019).
If the current board were serious about the health and safety of residents, they would have already pushed on some sort of action regarding the topic of oil and gas operations. Instead, they have been kicking the can down the road, playing the waiting game, and not taking the topic seriously. If the current board does in fact want to see some actionable results come related to this topic, there would have been some ordinances created or resolutions passed which directly address this topic. Personally, it is my opinion that if the current Board of Trustees were to somehow attempt to create any resolutions a month before most of their terms expired, it would solely be a bandaid and be entirely politically motivated, as if to say "I am serious about this topic, but not really." It would not be a comprehensive plan that looks to the future, nor would it be to the extent that is possible based on the powers granted to us by the state, but rather something to appease the residents right now, without addressing the subject as it should be.
During the almost 2 years now that these moratoriums have been in place, the current Board of Trustees has not provided one single actionable response on the health and safety of residents, as it relates to oil land gas operations. Although they had an over 3 hours long study session
back in August where they addressed this item, they still have not passed anything to even place a dent into the matter. Again, they have simply dragged their feet on the topic, and played the waiting game. They have only provided a single ordinance or resolution, not including the 4 resolutions of a moratorium and extensions thereafter. This only ordinance which they passed was a single paragraph policy statement of what they say they will do, instead of creating something of actual substance:
Legality and Items to Consider Regarding Oil and Gas Regulations
Any time a governing body passes any laws or regulations, there are always many items to consider. Most importantly, the governing body must ensure that the laws do not impede on a citizen's constitution freedoms - both federally and at a state level - and that the laws do not create conflict with current provisions or preempting statutes.
Even before the passage of Colorado Senate Bill 19-181
in April 2019, which made adjustments and reforms to various state statutes including Title 34 of the Colorado Revised Statutes, there were already many powers granted to local municipalities that allowed for actions to be taken. Although the governing powers were provided and implied previously, the only difference now is that the statutes are expressly noted for local governments with jurisdictional powers, saying that they now 100% no questions asked provided and do not need any "interpretation". These laws allow local municipalities to regulate oil and gas operations in ways that are more stringent than current state laws. As long as the laws do not create conflict with current or preempting statutes, there are now two important considerations to remember when discussing the topic of regulating oil and gas - those being the potential challenges to any regulations made:
- Substantive Due Process Challenge: the regulation bears no rationale relationship to the means that it is trying to accomplish, and to protect certain fundamental rights from government interference, even if procedural protections are present or the rights are not specifically mentioned elsewhere in the US Constitution
- Regulatory Takings Doctrine: the regulation goes too far in restricting the owner's property rights, and creates a lost value of the owner's property right, or that the law is clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare
My Stance on Oil and Gas
We all want to live in a community where health and safety are at the forefront of our decisions. We as a town have the responsibility of taking ownership for the health and safety of our fellow residents. My position on oil and gas is that I am not for, nor against oil and gas. I believe that we should not have oil and gas operations so close to our homes, schools, and population. I also believe that they are a business which should be regulated, and should be responsible for their actions, just like any other industry. I believe that if oil and gas operations are going to be done in our community, it should only be within an area where there currently is not, nor will there be in the future, a current or planned development, or any other environmentally sensitive area.
I acknowledge that there are many health and safety concerns related to oil and gas operations, as well as the operations from other various industries. While the scientific evidence has varied regarding the long-term health risks between distances of 500-2000 feet, I do acknowledge that there is a general consensus that there are in fact health risks within a distance of 500 feet. I do also acknowledge that almost every one of the studies has indicated that the results are not "definitive" and there is a certain amount of "inconclusiveness" associated with them. For that reason, I do agree that there should be further studies done to determine a finality to the discussion of distance.
As well, I also acknowledge that this topic is one which contains many different factors, relating to both surface land use and sub-surface land use. Surface land use can be regulated as allowed by State and Federal Laws, but sub-surface land use does not have as many of these same allowances for regulation. Due to the technology available today, oil and gas operations do not have to solely be on top of a mineral deposit, but can be done from a greater distance away, and over a mile below ground.
How to Design a Plan that Addresses the Topic
Personally, I believe a well-thought out plan is necessary to address any topic, especially the concerns related to oil and gas. I believe that there are many ways to develop a solution that addresses an issue, after collaborating and discussing the topic with others. I also believe that the leaders of any form of government should have an understanding of what they can and cannot do, in order to create solutions that address an item fully, sometimes doing so in creative or unique ways that have not been done before.
As a statutory municipality, and through their already enumerated powers granted by the State, Erie can in fact address any number of the following items, as it specifically addresses to the oil and gas operations within the Town's jurisdiction: counter-drainage, emissions, noise, environmental and wildlife impact, location and proximity, production limits, protection of surface owner's rights, spacing of wells, plugging and abandonment of wells, corrective measures, hydraulic fracturing chemicals and additives used, presence and disposition of waste, occurrence of pollution, protection of coal seams and water-bearing formations, signage for drilling operators, storage and containers, comprehensive drilling plans, geological surveying, installed facilities, equipment, flowlines and pipelines, access easements, setbacks from other wells, and many other items.
Currently, the Town has the authority to enact a plan, and then adopt ordinances and regulations, which preserve the health and safety of residents. Any plan made should be comprehensive in nature, and tackle the wide range of items included, instead of cherry-picking a few items and only creating a temporary solution. The plans created must acknowledge that variances can be made, and that the regulations should be able to be changed from time to time as more studies are conducted, or as state or federal laws change. This plan that I propose is a starting point, which would then have many additional items to address, but can be done by thinking outside the box, and creating solutions that are not just temporary or what other municipalities are doing.
Related to this, it is again important to remember that this issue includes both a surface land rights issue, as well as a sub-surface land rights issue. The topic as a whole can be addressed and regulated, except that an outright ban on all oil and gas operations is illegal. This has already been determined, as oil and gas operations are a "state matter", and the courts have already expressly said a ban is not permitted, nor is a long-term moratorium. A local municipality can create regulations that for the health and safety of residents, but these ordinances and provisions may not be done solely in a way which is detrimental to the rights held by land owners, nor to devalue the land held by owners. The plan must solely be based on the health and safety aspect for both current and future residents, as well related to the impacts made on any environmentally sensitive areas, and then can be in relation to specific industries that are applicable.
My Plan to Provide the Basis for Local Regulations
Based on the Town of Erie Comprehensive Plan Map, the Town of Erie Zoning Map, and using it in conjunction with the Town of Erie Residential Activity Map, we can see exactly where there is currently, or will be in the future, a planned development. Based on this information, we can create provisions where we mitigate potential risks to residents, and where residential or population areas, or other types of sensitive areas, are well beyond the reach from any harmful effects.
To do this, the Town could create an additional zoning map, one that starts out with a clean slate. This would not be based on "structural use", "industry", or "type of use", but rather specifically designed for the health and safety of residents, as it relates to the conditions created from any industry, regardless of what that specific industry is. The zones would be mapped out, and could be something to the effect of "Prone Areas", "Susceptible Areas", and "Non-Susceptible Areas".
"Prone Areas" could include areas such as native areas, rivers and creeks, environmentally sensitive land, wildlife or conservation areas, parks and recreation areas, as well as current residential developments as defined by the Residential Activity Map. "Susceptible Areas" could include future residential developments, as defined by the Residential Activity Map. "Non-Susceptible Areas" would be any other area that is not falling within a "Prone Area" or "Susceptible Area".
"Prone Areas" would disallow the inclusion of any industry that creates a health or safety risk for residents and the surrounding community. "Susceptible Areas" would allow for any industry, as long as the health or safety risks have been properly resolved prior to becoming a "Prone Area" at a later date. "Non-Prone Areas" would allow for any industry as there would be minimal to no effects on the community in terms of health and safety.
Since the Town currently already requires a setback or easement related to a development, residential structure, and many additional distance considerations, the plan would ensure that the amount of distance between the boundary of a development or piece of land within a "prone area" is at a minimum of 500 feet. From there, additional provisions can be made as it relates to specific industries and concerns, or in respect to the needs of the type of land and its use. The various setback distance provisions would need to be included based on the type of industry, and the distance measurements based on CDPHE and EPA limits, or until there are further studies which determine the appropriate and reasonable distance required.
The Town's Municipal Code would need to also indicate that it could provide variance to these zoning laws, as deemed fit on a case-by-case basis. As well, the Town would need to revise the current Municipal Code so that the current Town laws related to the types of “use” zones (ie. Industrial, Commercial, Planned Development, etc.) are overridden or supplemented by these zoning areas. Finally, there would as well need to be provisions instituted regarding, among others, pipeline safety, transportation and railway safety, as well taking into consideration aspects such as emergency preparedness and response.
Current Laws that Allow for This Type of Plan
There are many laws currently in place which affirm that regulations can be made based on the health and safety of local residents. As well, the current laws affirm that a local municipality can regulate the municipal zoning, ordinances, and codes in order to ensure that the health and safety of residents is in fact protected. This means that the Town of Erie currently has the right, among their many other enumerated powers, to affect the regulation of land use, structure type, and zoning as it relates to health and safety. The current state laws, among the numerous others, which actually provide the basis for a plan like mine are as follows:
- "Nothing... shall prohibit or limit a municipality or county of this state, in the reasonable exercise of its police power, from adopting codes that maybe necessary for the protection of the inhabitants of the municipality or county." [C.R.S. 12-130-117 (2)]
- "Nothing... shall prevent, prohibit, or limit any municipality or county of this state, home rule or otherwise, from adopting such building codes as may, in the reasonable exercise of the police power of said governmental unit, be necessary for the protection of the inhabitants of the municipality or county." [C.R.S. 12-120-403 (2)]
- "The powers ... are granted to all counties and municipalities... to provide a procedure which can relate the type, design, and layout of residential, commercial, and industrial development to the particular site" [C.R.S. 24-67-102 (1)]
- "Towns... are hereby authorized to enact local air pollution resolutions or ordinances. Every such resolution or ordinance shall... include emission control regulations which are at least the same as, or may be more restrictive than, the emission control regulations adopted pursuant to this article" [C.R.S. 25-7-128 (1)]
- "No local air pollution control authority shall institute any system or program that... Is more stringent than a corresponding state provision with respect to hazardous air pollutants; except that this... shall not limit local zoning powers and ordinances enacted; [C.R.S. 25-7-128 (7-c)]
- "Each local government within its respective jurisdiction has the authority to plan for and regulate the use of land by:
- (a) Regulating development and activities; (b) Protecting lands from activities; (c) Preserving areas; (e) Regulating the location of activities and developments; (g) Regulating the use of land on the basis of the impact of the use; (h) Regulating the surface impacts of oil and gas operations in a reasonable manner to protect and minimize adverse impacts to public health, safety, and welfare and the environment... (and) to regulate air quality" [C.R.S. 29-20-104 (1)]
- "For the purpose of promoting health, safety, morals, or the general welfare of the community... the governing body of each municipality is empowered to regulate and restrict the... location and use of buildings, structures, and land for trade, industry, residence, or other purposes." [C.R.S. 31-23-301 (1)]
- "The governing body of any municipality... may condition any zoning regulation, any amendment to such regulation, or any variance of the application... or the exemption of any building or structure... upon the preservation, improvement, or construction of any storm or floodwater runoff channel" [C.R.S. 31-23-301 (3)]
- "The governing body may divide the municipality into districts... as may be deemed best suited... (to) regulate and restrict the erection, construction, reconstruction, alteration, repair, or use of buildings, structures, or land... The regulations in one district may differ from those in other districts." [C.R.S. 31-23-302]
- "Such regulations shall be made in accordance with a comprehensive plan and designed... to secure safety from fire, panic, floodwaters, and other dangers; to promote health and general welfare; to provide adequate light and air; to prevent the overcrowding of land; ...and to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements. Such regulations shall be made with reasonable consideration, among other things, as to the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality." [C.R.S. 31-23-303 (1)]
- "The governing body of such municipality shall provide for the manner in which such regulations and restrictions and the boundaries of such districts are determined, established, enforced, and, from time to time, amended, supplemented, or changed." [C.R.S. 31-23-304]
- "Nothing... shall be construed to prohibit... a governing body of any... town... which has control over zoning from zoning or rezoning land to permit a certain use, if said use does not permit erection of permanent structures upon, or otherwise permanently preclude the extraction of commercial mineral deposits by an extractor from, land subject to said use. [C.R.S. 34-1-305 (3)]
- "Local governments... have regulatory authority over oil and gas development. A local government's regulations may be more protective or stricter than state requirements." [C.R.S. 34-60-131]
- "Nothing... prohibits a local government from granting a variance from its zoning rules, resolutions, or ordinances for such uses of the property." [C.R.S. 40-5-101 (3)]
Conclusion
I believe that leadership is about action. I do not believe true leaders sit on their hands and play the waiting game, or simply enact resolutions which are only made in order to kick the can down the road. I believe that true leaders understand the topic in its entirety, comprehend what it is that can and cannot be done, and then develop decisions which are in the best interests of all those that they represent. Currently, our Town is lacking the leadership required, as the current Board of Trustees have not created action on the items that they have said they would.
Real change happens when everyone comes together and works collaboratively. I want to bring people together and hear from all sides. In order to do this, I want to create an environment where people feel comfortable voicing their opinions. In this respect, my campaign is about positivity, without any negativity or calling out of others. In the past, there have been many individuals who have disrespected others, which is something I do not stand for. We should all respect varying views, regardless if we disagree with them or not. The Town's leaders should use views from all angles to approach an issue, developing creative, unique, outside the box ideas that create solutions.
If given the opportunity to be Trustee, I would use the experience and understanding that I have gained over the years to provide positive change for the Town. As someone who is a natural problem solver and leader, I would utilize my skills in organizational operations to serve the town in the best way possible that leads to success for the Town and all of its residents. However, this can only be done from my remaining transparent and open to feedback, listening to the residents, and then determining the best way in which to support the community through action.
I believe that Town Hall must also do a better job of creating an open dialogue with community members. There must be a better line of communication, openness, and transparency provided to residents. Currently, there are very important items where we have been kept in the dark, and only told about these major issues months after the fact. This is not public service, but rather a public disservice.
Thank you for taking the time to read this article! If you like the topics and stances that I have been discussing, please be sure to support my campaign for trustee by getting involved in a few different ways (click here to see the ways to contribute)!
Topic for Next Week: Candidate Q&A - Reader Submitted Questions
(submit your questions here)
*Just a side note to all of the items that I discuss: I am a solutions driven problem solver by nature. I wonder how things work, why they work the way they do, and how to make them better. This means seeking different, outside-the-box methods to figure out solutions to various issues. Accordingly, I am always open to learning new ideas, different ways of doing things, as well as constantly learning from others' experiences to make better decisions. When I see an issue, I view it in a holistic fashion, and then dive into specific areas to remove deficiencies and create efficiencies. If you, who are reading this, have some thoughts or ideas about any of the subjects I discuss, I would be more than happy to speak with you to hear your opinions. Please reach out to me here through my website. Listening, hearing, and understanding different perspectives is the only way that we can all grow and create positive change - by learning from others, and delivering ideas that push the needle to become Forward Thinking.
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As we all practice social-distancing and isolation due to COVID-19, what happens when we run out of activities to do around the house? Below are many different items - ALL COMPLETELY FREE - including educational materials for children, books, music, and virtual activities, in order to continue learning or simply pass the time. Have more items to add to the list? Send me a message here or on Facebook . (I will continue adding to the list as additional suggestions come in - but remember, they must be FREE!) ACTIVITIES Fitness 1440 - Erie Virtual training for its members on their Facebook page, to help stay mentally and physically active (On-Demand FREE for current members, Facebook video classes also posted for current and non-members) (just a side note: you can still also purchase their smoothies, picking them up curbside from 10am-12pm, by texting or messaging your order to them!) https://www.facebook.com/fitness1440erieco/ Virtual Field Trips Take a virtual trip to locations arround the world: View exhibits from The Louvre Museum in Paris, the Anne Frank House in Amsterdam, explore the surface of Mars, and more http://freedomhomeschooling.com/virtual-field-trips/ Virtual Disney World Rides Even though the Disney parks are closed, you can still ride their rides virtually online https://www.wesh.com/article/virtual-disney-world-rides/31782946 Paris Musées Virtual Exhibit Collection of 150,000 digital art reproductions in High Definition of works in the City’s museums http://parismuseescollections.paris.fr/en GoNoodle Movement and mindfulness videos created by child development experts https://www.gonoodle.com/ CHILDREN'S EDUCATIONAL MATERIALS - GAMES, LEARNING, & VIDEOS Khan Academy Expert-created content and resources for every course and level (requires sign-up) https://www.khanacademy.org/ Newsela content from the world's most trusted providers and turn it into learning materials that are classroom-ready https://newsela.com/ XtraMath Program that helps students master addition, subtraction, multiplication, and division facts https://xtramath.org/ Teachers Pay Teachers Online marketplace for original educational resources with more than four million resources available for use (requires sign-up) https://www.teacherspayteachers.com/ Create Printables Variety of worksheets and printables ideas to personalize for your child https://www.createprintables.com/ PBS Kids Educational games and videos from Curious George, Wild Kratts and other PBS KIDS shows https://pbskids.org/ Sesame Street Play educational games, watch videos, and create art with Elmo, Cookie Monster, Abby Cadabby, Big Bird, and more of your favorite Sesame Street muppets https://www.sesamestreet.org/ Education.com A library of games, activities, educational worksheets, and lesson plans for PK-5th, curated by educators (requires sign-up) https://www.education.com/ BrainPOP Animated Educational Site for Kids - Science, Social Studies, English, Math, Arts & Music, Health, and Technology https://www.brainpop.com/ (Normally this is a paid subscription service, but they are offering free subscriptions due to the COVID-19 pandemic) Starfall Allowing children to have fun while they learn - specializing in reading, phonics & math - educational games, movies, books, songs, and more for children K-3 https://www.starfall.com/ BOOKS (KIDS AND ADULTS) Magic Blox Offers a large library of free online books & children's stories https://magicblox.com/ Epic! Digital library for kids offering unlimited access to 35000 of the best children's books of all time (30-day free trial available) https://www.getepic.com/ Open Library Collection of books from the Library of Congress, other libraries, and Amazon.com, as well as other contributors https://openlibrary.org/ Project Gutenberg Library of over 60,000 eBooks, including free epub and Kindle eBooks, download them or read them online https://www.gutenberg.org/ TV & MOVIES Tubi Stream and watch movies and TV shows online in HD on any device https://tubitv.com/ Pluto TV Watch 250+ channels of TV and 1000's of on-demand movies and TV shows https://pluto.tv/ MUSIC Spotify Digital music service that gives you access to millions of songs https://www.spotify.com/us/free/ Pandora Music streaming and automated music recommendation internet radio service https://www.pandora.com/ TuneIn Radio Internet radio, sports, music, news, talk and podcasts https://tunein.com/
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There have been many discussions lately regarding Erie's agreement with Lafayette and the Nine Mile development. This post looks at Erie's local relationships with other municipalities and agencies, and specifically this Nine Mile agreement, in order to understand how it came to be, and why our current Town leaders are incapable of negotiation on behalf of Erie residents.