WORKING THROUGH THE LOCAL GOVERNMENT PERMIT PROCESS FOR OIL AND GAS OPERATIONS IN COLORADO

• Jurisdiction: United States

Surface Use for Mineral Development in the New West
(Feb 2008)
CHAPTER 11B
WORKING THROUGH THE LOCAL GOVERNMENT PERMIT PROCESS FOR OIL AND GAS OPERATIONS IN COLORADO
Barbara J. B. Green
Sullivan Green Seavey, LLC
Boulder, Colorado
lawgreen@earthlink.net

I. INTRODUCTION

Local government authority over the land use aspects of oil and gas operations comes from the "police power." The police power is the inherent power reserved to states and their political subdivisions to govern areas not specifically given to the federal government by the United States Constitution. The police power is the very broad power that a government has to protect the public health, safety, and welfare of its citizens. The power to plan and zone land is an attribute of the police power. The United States Supreme Court has long recognized that land use regulations such as zoning and subdivision laws are a valid exercise of this police power.¹

For statutory counties and municipalities in Colorado, and in most other states, the police power is delegated by the state legislature. (For home rule municipalities, the authority is an inherent attribute of their sovereignty). Colorado counties are considered to be arms of the state, whereas municipalities are "sovereigns" in their own right. State statutes delegate broad authority to local governments to regulate the use and development of land and the impacts associated with such use and development.

An operator seeking local government approval of an oil or gas activity needs to have a good understanding of the regulatory framework that applies to the proposed activity as well as the unique concerns of the local community. The concerns of a rural community located in the plains, for example, may be very different than those of mountainous communities that rely on tourism to support the economy, or an expanding municipality where residential growth is burgeoning around areas where oil and gas activities are likely to occur. Differences in topography, wildlife resources, local economy, rate and character of neighboring development, and similar local factors will color both the regulatory structure, and the attitude of the local government toward the proposed activity. Regardless of local attitudes, however, an operator should make every effort to understand and comply with local regulations.

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II. TYPES OF LAND USE REGULATION

When seeking a local government approval or permit for an oil and gas activity, it is important to first understand what type of land use regulation applies to the proposed activity and to become intimately familiar with those regulations. There are three basic types of land use regulations that might apply: zoning codes, overlay districts, and regulations specific to oil and gas activities. Different aspects of oil and gas development may trigger different types of regulations. Do not try to guess what applies; meet with the local planner as soon as possible to find out what regulations the staff thinks apply, and why, so that you can make your own independent evaluation of the regulations in light of the staff's opinion. In some jurisdictions, the staff may not be completely familiar with oil and gas activities or have the time to delve into the regulations that apply. In that situation, it is always to your advantage to become the expert.

A. Zoning.

A zoning regulation divides a local jurisdiction into zones that allow specific itemized uses of land such as residential, commercial, industrial and agricultural uses. Often, oil and gas activities are considered to be either an industrial...