Carbondale watershed case could affect Rifle | PostIndependent.com
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Carbondale watershed case could affect Rifle

A court ruling last year involving the town of Carbondale could threaten Rifle’s attempts to protect its drinking water from energy development.At issue is a legal challenge to Carbondale’s efforts to protect its watershed from pollution. Garry Snook, owner of Performance, a leading bicycle retailer, contends other laws may allow him to use pesticides and herbicides despite the town’s ordinance.Lee Leavenworth, Rifle’s attorney, worries about the possibility of a state appeals court decision in the case last year being allowed to stand. If it does, the energy industry might use it to challenge Rifle’s attempts to protect its watershed from drilling impacts, arguing other laws prevail. “I think everybody’s waiting to see how the Carbondale case comes out before they jump on that kind of bandwagon,” he said.Ken Wonstolen, an attorney for an industry trade group, the Colorado Oil & Gas Association, said he wasn’t aware of the Carbondale case. But he said there already is well-established legal precedent that local rules are pre-empted where they conflict with other regulations applying to oil and gas development.In the case of water protection, Wonstolen said state law delegates that job to the Colorado Oil and Gas Conservation Commission. He said district courts have struck down portions of ordinances in Delta and Gunnison applying to the oil and gas industry, and the Gunnison decision is being appealed.Wonstolen said most companies want to meet local concerns about watershed development activities as long as they don’t duplicate or conflict with state regulations.Leavenworth said energy companies have willingly complied with Rifle’s ordinance. EnCana, one of Garfield County’s largest natural gas producers, recently agreed to pay $15,000 as a “late application fee” in lieu of fines after inadvertently failing to seek watershed permits from the city for 80 well pads.Carbondale’s ordinance doesn’t specifically address oil and gas operations, said town attorney Mark Hamilton. There is some possibility of the industry drilling to the west of town, but the city gets its water from Nettle Creek, north of Mount Sopris.Snook owns 55 acres above the town’s water treatment plant on Nettle Creek. After the town sued Snook in 2001, the two sides tentatively reached a deal on conditions for use of herbicides and pesticides on his land, but the town board refused to agree to it.The case went to trial in 2003, and Judge Thomas Ossola ruled in the town’s favor. But last September, the appeals court ordered the case back to trial. It found that Ossola should have let the defendants pursue the argument that Carbondale’s ordinance as it pertains to pesticides and herbicides is pre-empted by state law. Ossola had ruled that the argument was raised too late in the case and allowing it would have put the trial date in jeopardy.Hamilton said the town has appealed the order for a retrial to the Colorado Supreme Court. It probably will be months before the court even decides whether to review the case, he said.He said he doesn’t think the case should have any bearing on Rifle’s efforts to protect its watershed from oil and gas development. But Leavenworth said if courts support Snook’s pre-emption argument, it could result in yet another area in which local communities would have no control over oil and gas development.Frederick, Colo., already has lost in court in its attempt to regulate setbacks and noise and light levels associated with the energy industry. The appeals court cited the Frederick case in its ruling in the Carbondale case.Leavenworth said there’s little that local governments can regulate regarding oil and gas development because of past legal rulings. But he thinks Rifle’s watershed ordinance is fair to the industry.”We require that they follow best management practices to protect water quality. They have to date chosen to comply because what we do is very reasonable,” he said.He said Silt has an ordinance similar to Rifle’s, and it also hasn’t been challenged by the industry. He believes Rifle has given energy developers no reason to challenge its ordinance.”If we told them they can’t have a gas well they might have a different view,” he said.The industry has challenged local rules when they prevent access to oil and gas, Leavenworth said.EnCana spokesman Doug Hock agreed that Rifle’s ordinance doesn’t prohibit drilling.”It’s really just looking at how we go about it,” he said.He said he doesn’t believe EnCana has been following the Carbondale case. EnCana is used to working with multiple jurisdictions in terms of regulations, and tries to inform regulators about what other agencies are doing in order to minimize overlaps and inconsistencies, he said.Some people have criticized Rifle for letting EnCana off so easy on its recent violations. The company potentially could have faced millions of dollars in fines.Leavenworth said had the city hit EnCana with such a hefty penalty, he would have expected the company to challenge it. But he said the leniency wasn’t a result of fear over the legality of the ordinance. Rather, there were other mitigating circumstances, he said.He said Rifle originally implemented its ordinance to protect its watershed up Beaver Creek south of town from logging. Later the ordinance was applied to gravel operations in the Colorado River watershed, and the city began to look more closely at its potential applicability to gas drilling.EnCana’s case involved a misunderstanding about whether its wells were governed by the ordinance, Leavenworth said. The state allows city watershed ordinances to apply within five miles of their water sources, even if they are outside the municipal limits.EnCana has wells up Mamm Creek that are just within the area covered by the ordinance, although they pose only a remote possibility of causing a problem, Leavenworth said.He said EnCana didn’t appear to have tried to evade compliance with the ordinance, and it also took a while for the city to inform the company of the problem.Once it was discovered, EnCana sought to comply, but the process was slow because it had so many affected wells, Leavenworth said.”To catalogue everything they were doing in Mamm Creek took them a while,” he said.Contact Dennis Webb: 945-8515, ext. 516dwebb@postindependent.com


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