House Bill 1176 (pdf), which has been assigned to the House Local Government Committee, is sponsored by Democrats Matt Jones, Dickey Lee Hullinghorst, Sue Ryden, Nancy Todd and Roger Wilson.

“The [Colorado Oil and Gas Conservation Commission] must require setbacks of at least 1,000 feet from any school or residence but allow a surface owner who is not located in an urban area to request a shorter setback than would otherwise apply,” reads the bill’s summary.

Current COGCC rules call for setbacks of 150 feet in rural areas and 350 feet in urban areas, but Jones says that’s not far enough away in densely populated Front Range areas where hydraulic fracturing, or fracking, is an essentially industrial process close to homes and schools.

“If three football fields from a school is good enough for medical marijuana, it’s good enough for oil and gas fracking,” Jones told the Colorado Independent earlier this month, comparing drilling setbacks to pot shops near schools. Jones also would like to see counties and municipalities take a more active role in regulating oil and gas drilling.

Republican state lawmakers Ted Harvey, Kevin Grantham and Scott Renfroe have introduced a bill aimed at stopping what even Democratic Governor John Hickenlooper has called a potential “patchwork” of local regulations overseeing stepped up drilling activities.

“The bill specifies that the regulation of oil and gas operations is a matter of statewide concern, the Colorado Oil and Gas Conservation Commission has exclusive jurisdiction to regulate oil and gas operations, and local regulation of oil and gas operations is preempted by state law,” reads the summary of Senate Bill 88 (pdf).

With regard to setbacks, COGCC director David Neslin told the Colorado Independent that such a bill is unnecessary because the vast majority of oil and gas wells already comply.

COGCC Director David Neslin

“Outside of Weld County – which is a different situation because you’ve had oil and gas and residential development growing up together there over the past 30, 40 years – in the balance of the state 90 percent of the wells are 1,000 feet or more from the closest building,” Neslin said.

Mike Chiropolos, lands program director for Western Resource Advocates, said setbacks are a valid issue with oil and gas booming in the Niobrara Formation beneath the state’s more densely populated Front Range.

“Even if it’s 90 percent, what about the 10 percent?” Chiropolos said. “You don’t want to leave those folks out in the cold. One Colorado family getting sick, one Colorado resident getting sick or having an avoidable negative experience because of a well being unacceptably close to a home is one too many.”

He added that new directional drilling techniques allow wells to be drilled 1,000 feet or even a quarter of mile away from homes and schools as opposed to predominantly vertically drilled wells in the past.

HB 1176 would require that “best management practices for new technologies be established by rule prior to use of the new technologies.”

As for greater local control of oil and gas drilling, Neslin disagrees with Jones, who recently told David Sirota on 760 AM in Denver: “If you want to not have a patchwork, you need to look at subdivision home building, cement plants, power plants. All of that is regulated by local governments. Local governments do land-use control all the time. This fits into that.”

Neslin recently told the Colorado Independent: “I don’t think it’s in the public’s interest or the state’s interest to wind up with a patchwork quilt of different regulatory regimes. I don’t think we want to Balkanize the regulatory program in that way.”

He added that oil and gas drilling is very different from other land uses.

“I would respectfully disagree with the representative that oil and gas wells are just another development activity like a subdivision or a cement plant,” Neslin said. “The state has decades of experience regulating [oil and gas] activity. Local governments have little such experience. So I just think there’s a fundamental difference there.”

But a bill like SB 88 blocking counties and municipalities from exercising any land-use control over drilling activity goes too far, says National Wildlife Federation attorney Michael Saul.

“That was basically the rule that the oil and gas commission passed in 2003 and then the Colorado Court of Appeals struck down in the Board of County Commissioners of La Plata County versus COGCC case,” Saul said. “It sounds to me like [SB 88 is] just an attempt to rewrite that decision.”

Saul says La Plata County in southwestern Colorado, where British Petroleum has been active for decades, has some of the most stringent local land-use regulations overseeing oil and gas drilling. There, the operator seems to have figured out how to work with county regulations without state preemption becoming an issue, he says.

“We’ve got 20 years of case law interpreting the existing state of the law on preemption and counties have learned pretty well how to follow that law,” Saul said. “Operators have been successful in navigating the permitting systems in those counties that have done so.

“Certainly there’s been a lot of successful drilling in La Plata County, which is arguably the most comprehensive [local] regulator.”

The local control question will likely continue to be litigated, but the issue of setbacks – which some critics say the COGCC punted during revision of the oil and the regulations in 2007-08 – will be the subject of a new round of stakeholder meetings.

“[Neslin] announced to the commission [last week] that COGCC will be convening stakeholder meetings on the issue of setbacks,” Colorado Department of Natural Resources spokesman Todd Hartman said.

“This is designed to get facts on the table, listen to all sides and determine whether changes are necessary or not. The meetings won’t begin with a preference for change or no change, but to educate all parties and see what adjustments — if any — to make.”

“If three football fields from a school is good enough for medical marijuana, it’s good enough for oil and gas fracking,” Jones told the Colorado Independent, referring to setbacks between oil and gas rigs and homes, schools and other public buildings.

Current state law requires that oil and gas rigs are set back at least 350 feet away from homes and public buildings in urban areas and 150 feet away in rural areas. It also requires medical marijuana dispensaries to be 1,000 feet from schools, and liquor stories to be 500 feet away.

U.S. Attorney John Walsh last week sent letters to 23 medical marijuana dispensaries in Colorado that are within 1,000 feet of schools, telling them to shut down by Feb. 27 or face criminal prosecution. He cited concern for the health of nearby school children.

The issue of setbacks from oil and gas drilling has been unresolved since the Colorado Oil and Gas Conservation Commission (COGCC) punted on it during an 18-month revision of state drilling regulations in 2007 and 2008. Conservation and citizen activist groups have been calling for a new rulemaking on the issue ever since.

A middle school in Longmont has become the poster child in the fight for expanded setbacks. Testing of a natural gas well 350 feet from the school in 2006 and 2009 found levels of benzene much higher than state standards.

Fracking — the process of injecting water, sand and chemicals into oil and gas wells to free up more hydrocarbons — has come under increased scrutiny by Colorado counties and municipalities as drilling takes off in the Niobrara Shale formation beneath the state’s Front Range. Halliburton on Thursday announced it’s building a $20 million sand facility in Windsor to support fracking operations in the area.

State Rep. Matt Johes, D-Louisville

Jones is undaunted, telling radio talk show host David Sirota on Thursday that he knows the bill faces an uphill battle but that he expects to get a fair hearing. Jones also said Hickenlooper’s concern about a “patchwork” of regulations is unfounded.

“That horse has left the barn,” Jones said. “If you want to not have a patchwork, you need to look at subdivision home building, cement plants, power plants. All of that is regulated by local governments. Local governments do land-use control all the time. This fits into that.”

Fracking, Jones added, is just another industrial land use that local governments should have more control over.

“With fracking, when they come in repeatedly to re-frack a well, it’s changed the activity from just simply drilling a well to a repeated activity, and it’s more of an industrial activity now,” Jones said.

Both Gunnison and La Plata counties have had varied degrees of success regulating oil and gas drilling, implementing local rules that have been backed up by court decisions. However, the state contends it has a legislative mandate to regulate oil and gas drilling, with its rules preempting most local regulations.

Colorado oil and gas industry officials have expressed nervousness about increased local oversight. State oil and gas officials could not be reached for comment.

“Under my administration, domestic oil and natural gas production is up, while imports of foreign oil are down,” Obama said, adding that trend will continue “in a way that benefits American workers and businesses without risking the health and safety of the American people and the environment.”

Obama wants more time to study the potential environmental impacts of the proposed Keystone XL pipeline, which would transport tar sands oil from Alberta, Canada, to the Gulf Coast of Texas, and he also wants to identify an alternative route that doesn’t cross Nebraska’s sensitive Sandhills region. Canadian Prime Minister Stephen Harper reportedly told Obama his nation will now look to China.

U.S. House Leader Eric Cantor, a Virginia Republican, chided Obama for his decision to keep studying the project: “There is no question that our belief is the President’s policies have consistently failed to create jobs. This decision is another wrong move for America and the small businesses that we need so desperately to start creating jobs again.”

But a little over a week ago the U.S. Department of Interior reported oil and gas production on federal land across the American West is at an all-time high, and Obama administration officials say that’s a sign their more enviro-friendly federal leasing reforms haven’t hurt domestic drilling.

In fact, Interior Secretary Ken Salazar, a former Democratic senator from Colorado, reported that leasing reforms on U.S. Bureau of Land Management (BLM) land led to a decrease in protests from environmental groups and a 20 percent increase in lease sale revenues in 2011 compared to 2010.

In 2011, the BLM conducted 32 onshore oil and gas lease sales, offering 1,755 parcels of land covering nearly 4.4 million acres. Nearly three-quarters of the parcels offered (1,296 parcels of land) were sold, generating nearly $256 million. The BLM plans another 32 lease sales this year.

“This is an example of the power of a common-sense approach to growing America’s energy economy on public lands,” Salazar said in a release. “The Obama Administration is moving ahead with a comprehensive energy plan for the country that is enhancing our energy security, creating jobs, and improving protections for our land, water and wildlife.”

Matt Garrington, Denver-based deputy director of the Checks and Balances Project, said the new onshore leasing numbers “show how responsible drilling, clean air and water protections, and increased revenues can all go hand-in-hand.” He added that onshore oil and gas production is booming on public lands.

“Leasing, permitting, and drilling continue to rise under the Obama administration,” Garrington said. “But facts don’t matter to the oil and gas industry, who whine for more of our public lands. The truth is that industry is sitting pretty on tens of millions of acres open for development and billions in profits.”

Garrington points to statistics showing federal onshore natural gas production in 2011 reached the highest level (5.3 million cubic feet) reported since the BLM started tracking production in 1984. He added that the BLM issued 150 more drilling permits in 2011 than the previous year.

“I find it amusing that the Wilderness Society, Checks and Balances and other activist groups with no actual experience developing energy fall over themselves to interpret any new data as a reason to call for slowing economic development and job creation in the energy industry,” said Kathleen Sgamma, vice president of government and public affairs for the Denver-based Western Energy Alliance.

“The information released [by the BLM] showing increased natural gas production is a testament to the productive capacity and innovation of the industry, which is part of the broader natural gas success story of 2011,” Sgamma said. “Because of the 5- to 10-year bureaucratic lead time on public lands, production today is the result of actions taken years ago in prior administrations.”

Garrington, however, counters that the oil and gas industry continues to call for more BLM lease sales despite failing to develop two thirds of the public lands currently leased for drilling. “America’s public lands are open for business when it comes to energy development,” he said, pointing to the fact that 4,380,275 acres of BLM land are leased for drilling in Colorado but only 1,467,839 (or about 33.5 percent) are currently in production.

Sgamma says that percentage is higher if exploration is taken into consideration. She references the Interior Department’s Oil and Gas Lease Utilization Report (pdf).

“That report showed that 43 percent of leased acreage is in production or exploration,” Sgamma said. “Exploration must take place before a lease goes into official, full production mode. Before both the exploration and production phases, the government must complete environmental analysis as required by NEPA, and currently there are long delays in that process.”

The Colorado Oil and Gas Conservation Commission (COGCC) has long contended its oil and gas drilling regulations trump any county or municipal rules and that the state attorney general may ultimately have to decide any such conflicts. The COGCC contends its supremacy stems from a state legislative mandate.

This month’s Gunnison County ruling comes as lawmakers consider legislation that would give more authority to cities and counties as oil and gas drilling – and its commonplace hydraulic fracturing of wells – picks up in the Niobrara Shale formation along the state’s populous Front Range.

Activists today announced a new Twitter hashtag (#CoFracking) to make it easier to follow such legislation and any news about local versus state control of oil and gas drilling.

On Jan. 3, Gunnison County District Judge Stephen Patrick issued an order on cross motions for summary judgment in a case brought by the oil and gas company SG Interests, which last summer sued Gunnison County. The company claimed the county could not regulate certain aspects of its operations because of preemption by state and federal regulations.

Thompson Divide (courtesy of the Thompson Divide Coalition).

“This is a huge win for the Colorado public and its local governments, acknowledging that preemption is not assumed,” writes Sonia Skakich-Scrima of the activist group What the Frack. “In effect, local governments can proceed to argue that closed-loop systems that capture all gases and emissions, sound barriers, non-toxic frack fluids and other mitigating measures do not present ‘material obstructions’ to the state’s interests, but rather that they ‘materially harmonize’ the local government need to control land use and protect public health and safety with the state’s interest in oil and gas extraction.”

However, Governor John Hickenlooper, in his State of the State address last week, warned against too many local regulations, saying, “… the state can’t have 64 or even more different sets of rules.” Colorado has 64 counties.

Industry representatives are also nervous about too much local control. The same day as the Gunnison County ruling, Tisha Conoly Schuller, president and CEO of the Colorado Oil and Gas Association (COGA), posted a blog entitled “Why Public Meetings Make Me Nervous.” She said she empathizes with the concerns, fear and anger of local citizens living near oil and gas drilling.

“So much emotion deserving of empathy,” Schuller wrote. “So much misinformation and little to no opportunity to correct it. The impotence of seeing scared citizens and uncertain decision makers taking in so much inaccuracy drives the blood to beat in my ears. In three minutes, how can I inspire them to look further, question the information, and participate in the conversation about responsible energy development?”

SG Interests is also at the heart of an ongoing debate on the Western Slope about drilling in the Thompson Divide area.

The size of small chickens, the wild, mostly ground-bound birds are found on up to 47 million acres of federal land managed by the BLM in 10 western states, including Colorado, Utah and Wyoming. Scientists say the bird is a key indicator species, but that populations have declined by up to 90 percent over the last century because of energy development, mining, grazing, residential development and invasive species of weeds in sagebrush country.

The U.S. Fish and Wildlife Service (USFWS) in 2010 recommended the sage grouse for listing under the Endangered Species Act (ESA), but the bird was essentially relegated to regulatory limbo when the agency declared that other species are higher priorities. But in September a federal judge approved a settlement with environmental groups requiring listing decisions on 253 species within five years.

That started the clock ticking on the sage grouse. ESA listing could have a significant impact on oil and gas drilling and other energy development on public lands, industry officials and government regulators say. The BLM guidance, part of a larger conservation strategy, is an attempt to head off that ESA listing.

“The aim of these science-based measures is to maintain and restore flourishing populations of greater sage grouse and sagebrush habitat,” BLM Director Bob Abbey said in a release. “We are working to do this in a way that protects the health of our land, while also facilitating safe and responsible energy development and recreational opportunities that power our economy.

“By proactively addressing sage grouse conservation concerns on BLM lands, we also hope to maintain the widest possible range of options for our neighboring landowners.”

The BLM issued two IM’s (Instructional Memorandums) on Tuesday, one of which outlines sage grouse policy for oil and gas leasing, mining, grazing and other approved uses of public lands. A second IM says the BLM must consider sage grouse habitat in long-term land-management planning. But some conservation groups aren’t impressed.

“In cases where BLM officials want to ignore the welfare of sage grouse and ram through projects that are detrimental, there will be little in the new policy to stop them,” Erik Molvar, a wildlife biologist with the Biodiversity Conservation Alliance, said in a release. “The interim policy is written with such loose language that BLM officials will have the latitude to do anything they want — or nothing at all — to protect the grouse.”

Colorado conservation groups also expressed concerns.

“Sage grouse are an iconic species of the West. When we see a lot of them, we know the ecosystem is healthy. But if they’re not doing well, we know it’s not healthy for the other critters, either,” said Bill Dvorak of Dvorak Expeditions in Nathrop, Colo. Dvorak is also a public lands coordinator with the National Wildlife Federation.

“Everyone – hunters, anglers, ranchers, energy companies, government — needs to work together for common sense solutions to saving a bird that’s an important part of the landscape and our Western heritage,” Dvorak added.

The BLM’s interim management plan won’t apply in Wyoming because the state’s guidance has already been approved by the USFWS and adopted by the BLM. Earlier this month, Interior Secretary and former Colorado Sen. Ken Salazar met with Wyoming Gov. Matt Mead and representatives from eight other states to hash out next steps in the sage-grouse habitat preservation strategy.

Matt Copeland of the Wyoming Wildlife Federation was just happy to see the federal government taking action in a productive way.

“As a Wyoming sportsman personally and working in that capacity, I’m excited to see anything going forward that’s going to protect the greater sagebrush steppe,” Copeland said. “Sage grouse is one of the iconic species and it’s the one getting the legal and media attention, but taking steps to protect that bird can protect critical habitat for so many species.”

Colorado oil and gas regulators say holding ponds like this one in Pennsylvania cause much more groundwater contamination than hydraulic fracturing (www.industrialscars.com photo).

WRA now wants the Colorado Oil and Gas Conservation Commission (COGCC) to implement recommendations (pdf) made in October by a group called the State Review of Oil & Natural Gas Environmental Regulations (STRONGER) suggesting minimum surface casing depths for oil and gas wells that are fracked.

It’s been suggested that the failure to properly case and cement natural gas wells to depths below the groundwater aquifer may have been to blame in Pavillion, Wyo., where a report last week by the U.S. Environmental Protection Agency (EPA) linked fracking chemicals to well-water contamination.

“[STRONGER] recommends that the COGCC work with stakeholders to review how available information is used to determine minimum surface casing depths and how those depths assure that casing and cementing procedures are adequate to protect fresh groundwater,” the October STRONGER report reads.

COGCC director David Neslin said on Tuesday that fracking chemical “disclosure is not our first line of environmental defense. It’s important for transparency, it’s important to build public confidence, but our first line of environmental defense is the integrity of the wellbore. It’s the work that our engineers and environmental staff do in reviewing the permit applications.”

Neslin has long said that disclosure won’t stop spills caused by bad cement jobs of wellbores, pipeline problems or leaks from holding ponds that store fracking and other fluids. On Tuesday he said another line of environmental defense is “groundwater sampling, baseline sampling that we require our operators to do, and the prompt response that our field inspectors make when complaints or allegations of impact arise.”

WRA, however, would like to see another rulemaking on both the STRONGER recommendations and “a mandatory program for baseline testing, monitoring and tracers to protect our water quality.”

“Baseline testing can help eliminate the he said, she said arguments over contamination so that we can focus on keeping people safe,” WRA’s Chiropolos said. “One sick person is one too many. The [COGCC] should continue to be proactive in 2012 in order to protect Colorado families and our water.”

There are approximately 45,000 active oil and gas wells in Colorado, which is in the top five nationally for natural gas production and top 10 for oil. Huge reserves in the Niobrara Shale formation on the state’s populous Front Range have sparked a wave of drilling speculation and local fears about the impacts of fracking.

“Colorado citizens are justifiably worried about the practice of fracking and deserve full confidence that the state is protecting the quality of their air, water and soil,” said Josh Joswick, energy issues organizer of the San Juan Citizens Alliance. Joswick was a La Plata County commissioner when local drilling rules were implemented in that gas-rich area of the state.

Increased drilling activity on the Front Range from Colorado Springs all the way north of Denver to the Wyoming state line will occur where far more Coloradans live than on the sparsely populated Western Slope.

“This [disclosure] compromise means there is no free pass for drilling firms,” state Rep. Deb Gardner, D-Longmont, said in a release. “There is now a greater degree of checks and balances.”

Calls for more COGCC rulemaking on issues ranging from surface casing depth to increased baseline water-quality testing to greater setbacks for oil and gas rigs from homes and public buildings will likely increase along with the drilling.

The WRA Tuesday also called for “increased residential setbacks from the current minimum levels — 150 feet for rural areas; 350 feet for urban areas.” That’s an issue that some observers say was never properly resolved during the last significant revision of the state’s oil and gas drilling regulations.

Those revisions in 2007 and 2008 were so sweeping – including some of the first rules in the nation dealing with fracking – that they required the approval of the State Legislature after months of sometimes bitter debate.

Colorado’s senior member of Congress, Democrat Diana DeGette of Denver, has been trying for years to compel the public disclosure of fracking chemicals at the national level. Her Fracturing Responsibility and Chemical Awareness (FRAC) Act would remove a Safe Drinking Water Act exemption for the fracking process that was granted during the Bush administration in 2005.

She praised the new Colorado rule Tuesday, but also pointed to the Pavillion case.

“The fact that we have a proven case of a connection between hydraulic fracturing and the contamination of an aquifer underscores just how important it is that we take cautionary steps to protect our communities’ water supply,” DeGette said. “That is why I continue to encourage members of Congress to pass my FRAC Act, so communities across the country will have transparency in the drilling process as well.”

EnCana, the Canadian company drilling in the Pavillion area, has disputed the EPA’s findings, and Republican lawmakers and industry trade groups have questioned the agency’s methods and motivations.

Colorado oil and gas regulators say holding ponds like this one in Pennsylvania cause much more groundwater contamination than hydraulic fracturing (www.industrialscars.com photo).

Getting it right also means pre-disclosure of chemicals before fracking (which is required in Wyoming and Montana), full disclosure of any toxic chemicals (no trade secret exemptions) and full public access (requiring immediate website access so the public can sort by type of chemical, date and location of a frack job). In its draft rule, the Colorado Oil and Gas Conservation Commission (COGCC) may not require full sorting on www.fracfocus.org until 2013.

Most of all, says former oil and gas commissioner Trési Houpt, the COGCC should not adopt an inadequate rule on Tuesday in hopes that it can later revisit and correct deficiencies.

“Once a rulemaking has come to a conclusion, it will be years before they look at it again,” Houpt said Thursday. “So what I would encourage for the oil and gas commission, if they can’t find the right solutions on Monday, would be for them to continue the hearing but not come to a conclusion on this particular rule until they’re completely comfortable with it.”

Houpt was both a Garfield County commissioner (one of the most drilled counties in the state) and an oil and gas commissioner during the lengthy revision of the state’s drilling regulations in 2007 and 2008. Several critical issues were left unresolved then and have never been revisited since, said Houpt, whose Glenwood Springs-based Sustainable Solutions is a paid consultant on this issue for the Western Colorado Congress environmental group.

“It absolutely does not work to postpone putting together a rule that addresses all of the needs,” Houpt said. “We found that when the staff asked us to postpone the rulemaking on setbacks from homes, reclamation and riparian areas, with the notion that they would be addressed in three to four months, they never were addressed. It’s been years and those issues have never been addressed by the oil and gas commission.”

As for the Pavillion case, it falls just short of definitively concluding fracking contaminated groundwater. But the EPA’s ongoing investigation seems headed toward that finding, which will undermine a longstanding industry argument that the process occurs so far below the surface that it does not communicate with groundwater and drinking water supplies. EnCana, the Canadian company drilling in the Pavillion area, as well as numerous locations in Colorado, once again denied any responsibility.

Trési Houpt

The timing of the latest EPA report, which came out Thursday after Republicans had already started attacking the agency’s long-running probe of the Pavillion situation, makes it a hot topic ahead of Monday’s COGCC decision.

“Industry likes to say contamination from fracking is inconceivable,” Colorado Environmental Coalition energy organizer Charlie Montgomery said. “The EPA’s finding tells a different story, that contamination is a very real possibility and that communities today might be dealing with the fallout right now.

“While the announcement isn’t full confirmation of a missing link, the announcement suggests this is the time for maximum care and caution in how Colorado regulates fracking in our state.”

However, the Petroleum Association of Wyoming issued a statement blasting the EPA (pdf):

“The draft report coming out of the EPA [Thursday] is reckless,” said Bruce Hinchey, president of the Petroleum Association of Wyoming. “Let me be clear, the EPA’s findings indicate that there is no connection between oil and natural gas operations and impacts to domestic water wells.

“Unsubstantiated statements coming from the EPA [Thursday] stretch the data and cause unwarranted alarm and concern about a proven technology that allows our industry to safely extract oil and natural gas. The EPA’s announcement is irresponsible and leads us to call into question its motives.”

The EPA pointed out that the geology in the Pavillion area is unique and findings there might not be valid in other parts of the country where fracking is a concern. The agency published its preliminary report to garner public comment and seek independent scientific review.

Pavillion operator EnCana has been fined by the COGCC for past spills in Colorado, including in the West Divide Creek area of Garfield County, but state regulators said fracking was not to blame in that notorious case.

The COGCC on Monday listened to 11 hours of testimony on its draft fracking chemical disclosure rule. The commission convenes again on the issue at 8 a.m., Tuesday, at the Chancery Building (Suite 801), 1120 Lincoln Street, in Denver. There will be no additional public comment or evidence introduced.

Editor’s note: This post has been revised to reflect a Friday afternoon decision to switch the meeting from 8 a.m., Monday, to 8 a.m. Tuesday, in the COGCC hearing room in the Chancery Building. The parties needed more time to “attempt to resolve the remaining rulemaking issues.”

Louis Meeks’ well water near Pavillion, Wyo., contains methane gas, hydrocarbons, lead and copper (Abrahm Lustgarten/ProPublica).

“EPA’s highest priority remains ensuring that Pavillion residents have access to safe drinking water,” Jim Martin, EPA’s regional administrator in Denver said in a press release. Martin is the former head of the Colorado Department of Natural Resources. “We will continue to work cooperatively with the State, Tribes, Encana and the community to secure long-term drinking water solutions.

“We look forward to having these findings in the draft report informed by a transparent and public review process. In consultation with the Tribes, EPA will also work with the State on additional investigation of the Pavillion field.”

Pavillion is within the Wind River Indian Reservation. Residents there have been warned not to drink the local well water, and the Canadian oil and gas company EnCana has been supplying clean drinking water. However, the company disputes that fracking has led to well water contamination.

At the request of area residents, the EPA has been testing two deep water monitoring wells.

“EPA’s analysis of samples taken from the agency’s deep monitoring wells in the aquifer indicates detection of synthetic chemicals, like glycols and alcohols consistent with gas production and hydraulic fracturing fluids, benzene concentrations well above Safe Drinking Water Act standards and high methane levels,” the report states.

“Given the area’s complex geology and the proximity of drinking water wells to ground water contamination, EPA is concerned about the movement of contaminants within the aquifer and the safety of drinking water wells over time.”

The EPA also conducted new sampling of drinking water wells in the area.

“Chemicals detected in the most recent samples are consistent with those identified in earlier EPA samples and include methane, other petroleum hydrocarbons and other chemical compounds,” the EPA reports. “The presence of these compounds is consistent with migration from areas of gas production. Detections in drinking water wells are generally below established health and safety standards.”

Republican politicians have already started attacking the EPA’s ongoing investigation in Pavillion, but the agency is taking great pains to point out that geological conditions are different all around the country and that what’s true in the Pavillion case may not apply to other areas where fracking is suspected of tainting groundwater.

“The draft findings announced today are specific to Pavillion, where the fracturing is taking place in and below the drinking water aquifer and in close proximity to drinking water wells – production conditions different from those in many other areas of the country,” EPA officials said in a release.

Anti-drilling activists in Colorado have also pointed to a 1984 EPA report on fracking in West Virginia as evidence that the process can contaminate drinking water supplies with carcinogenic chemicals. But the Pavillion case represents the most clear-cut contemporary example.

Colorado Gov. John Hickenlooper this summer said with certainty that fracking fluids don’t communicate with groundwater, but he still ordered a new chemical disclosure rule to be drafted. That rulemaking process is still under way.

A radiation warning sign at the Project Rulison blast site.

During the most recent oil and gas boom in Garfield County, Canadian drilling giant EnCana – a company involved in a couple of the most notorious oil and gas water contamination cases in both Colorado and Wyoming – applied to drill within a three-mile radius of the Project Rulison blast zone.

That understandably made modern-day residents still living near the former federal experimental blast area quite nervous, given that no one, including state oil and gas regulators, was exactly sure what would come to the surface if drilling began again in the area.

Citizen activist and environmental groups sought to intervene with the state’s lead regulatory agency – the Colorado Oil and Gas Conservation Commission (COGCC) – but were rebuffed. The COGCC contends such groups have no official standing in such matters, and that only local governments can protest drilling permit applications in places like Project Rulison.

Last week the Colorado Supreme Court heard arguments from both the state and groups that filed a lawsuit in the matter – Western Colorado Congress (WCC) and the Grand Valley Citizens Alliance (GVCA).

The state’s highest court is expected to make a decision in the matter by the end of the year – a ruling that’s being watched carefully by grassroots activists around the state who are lining up to oppose the latest oil and gas boom in much more populous places along Colorado’s Front Range.

“Right now, only industry, mineral interests and local government have ‘legal standing’ to request a public hearing on a matter before the [COGCC],” WCC’s Frank Smith told the Colorado Independent. “But two of our member families live on top of the Garfield County 43-kiloton blast site. The COGCC has a duty to protect public health, and it’s too bad that citizens had to take them to court.”

COGCC officials declined to comment on the case, which was argued by lawyers for the Colorado attorney general’s office. AG’s office attorney Daniel Domenico reportedly told Supreme Court Justice Gregory J. Hobbs Jr. that allowing citizen groups to request hearings could unnecessarily bog down the permit process, and that such groups can make their concerns heard at the county level.

“There is some resistance to the rabble, if you will, getting in the way,” GVCA attorney Martha Tierney told Hobbs.

But other citizen groups have sued the COGCC because they say their concerns are being ignored at that level. Those groups are also closely watching the Supreme Court case.

“We are fighting for the right to be in the room when matters concerning our health, safety, air and water are being decided,” said Citizens for Huerfano County (CHC) attorney Julie Kreutzer, who attended the recent Supreme Court hearing.

CHC sued the COGCC over a Shell exploration well permit process in which state officials later admitted they failed to provide proper notice to county officials. Such cases are stirring citizen groups across the state to demand more county-level intervention.

Colorado Springs, one of the most conservative and pro-business municipalities in the state, recently imposed a moratorium on fracking. But not all towns and counties are so receptive to citizen concerns on the issue.

And COGCC director David Neslin, an attorney, has long maintained the state’s supremacy on drilling issues. While he would not comment for this story, Neslin in the past told the Colorado Independent any conflict between state and local regulations might have to be decided by the courts.

“Obviously, at some level the State Legislature has assigned to the oil and gas conservation commission the responsibility for facilitating the development of the state’s oil and gas resources in a way that’s safe and protects the environment,” Neslin said, “and at some point, local government actions or decisions that conflict with that legislative mandate could be preempted.

“As to any particular instance that’s going to raise a legal issue, then we’d have to look to the attorney general’s office for advice on it.”

Colorado oil and gas regulators say holding ponds like this one in Pennsylvania cause much more groundwater contamination than hydraulic fracturing (www.industrialscars.com photo).

COGCC director David Neslin defended staff positions on “trade-secret loopholes” that would allow companies to claim exemptions for certain proprietary chemicals in hydraulic fracturing, or “fracking,” mixtures.

He reiterated that a very small percentage of companies now voluntarily disclosing fracking chemicals on the www. FracFocus.org website, run by two intergovernmental agencies, actually even claim the trade-secret exemption.

COGCC director David Neslin

“[Fracking chemical disclosure is] only one tool. We have other tools that provide more direct protection,” Neslin told the COGCC commissioners Monday, according to the Associated Press. “The game is not over when you take action on this proposal.”

Fracking is the high-pressure injection of millions of gallons of water, mixed with sand and sometimes carcinogenic chemicals, deep into oil and gas wells to fracture tight geological formations and free up more oil and gas. Industry denies it, but critics for years have pointed to a growing body of anecdotal and hard evidence showing fracking can and does pollute groundwater.

A number of conservation and citizen activist groups in Colorado have called on the COGCC to strengthen proposed disclosure rules – first requested by Gov. John Hickenlooper last summer – by requiring “pre-disclosure” before a frack job occurs. The current proposal does not require pre-disclosure, and Neslin said that’s because companies often change fracking formulas right up until the moment the mixture is actually injected into the ground.

Current COGCC rules, adopted after a lengthy public debate in 2007 and 2008, require a list of chemicals used in drilling operations to be kept on-site and turned over to emergency responders and regulators upon request within 24 hours. Critics of the current disclosure proposal want chemicals to be made public during the permitting process.

“State and local public health agencies should have the opportunity to monitor and address potential risks to air and water quality before they result in life-threatening emergencies,” Pitkin County Commissioner Rachel Richards said in pre-hearing comments.

The cities of Grand Junction and Palisade adopted regulations requiring pre-disclosure of chemicals used in drilling within their respective municipal watersheds. They also weighed requiring chemical tagging so that any future pollution could be traced back to a particular company.

State officials have been largely dismissive of that concept, but the issue came up again during Monday’s hearing in Denver. Neslin said the COGCC board could consider adding rules for tracers and for dealing with other issues in a separate rule-making process in the future. But activists want the toughest possible disclosure rule now, especially as drilling expands into more densely populated parts of the state.

“When pollution occurs, we need to hold polluters accountable,” said Clean Water Action’s Gary Wockner. “Putting chemical markers in fracking fluids will let the public and regulators know who caused the pollution and who needs to pay to clean it up.”