In August, Broomfield joined other communities in Colorado who seek to ban hydraulic fracturing (“fracing”). Broomfield will vote on the five year fracing ban in November, as will other communities including Fort Collins, Lafayette, and Boulder. Many of the people opposed to fracing near their communities are concerned with public health and potential dangers to water quality. A recent Duke University study linked shale gas extraction in Pennsylvania to local groundwater contamination, fueling the controversy. In an effort to respond to public concern about the effects of fracing, the Colorado Oil and Gas Conservation Commission (“COGCC”) passed a new rule, Rule 609, early in 2013 to inform the public what effect, if any, oil and gas wells have on groundwater throughout the entire state of Colorado. The COGCC has statutory authority to make and enforce rules to regulate the oil and gas industry in order to safeguard public health and the environment, which includes groundwater.
Rule 609 requires statewide groundwater testing and works in conjunction with earlier Rule 318A.e(4), which mandates area-specific water sampling in the Greater Wattenberg Area (“GWA”), an area south and southeast of Fort Collins. When passing Rule 609, the COGCC amended Rule 318A.e(4) to acknowledge the large amount of existing oil and gas activity within the GWA region and the large quantity of groundwater samples that parties had already collected, analyzed, and reported to the COGCC. The amended rule requires operators in the GWA to take one groundwater sample before drilling a new well unless sampling previously occurred in that location within the last five years, and that sampling data is already on file with the COGCC. Therefore, while the new Rule 609 does not regulate the GWA, the dual effect of the amended rule 318A.e(4) and the large quantity of existing water samples makes the application of the new rule redundant.
COGCC’s New Rule
Developing Rule 609 began last fall when the COGCC worked with industry representatives and several local governments during stakeholders meetings to discuss changes. In addition to the stakeholder meetings, the COGCC staff held pre-hearing conferences to gather additional input and comments from the industry and other parties.
Rule 609 requires that before any new oil or gas well is drilled, the operators must first collect baseline samples at two different groundwater sources within one-half mile of the well site. Then, after drilling the well, the operator must take subsequent water samples to ensure no groundwater contamination occurred during drilling or after production. The operator can pick the sample sites based on five criteria: (1) the type of water feature, (2) local topography and hydrogeology, (3) orientation of locations with respect to the well site, (4) multiple identified aquifers available, and (5) previously sampled domestic wells.
The baseline sampling must occur prior to the commencement of drilling. In addition, Rule 609 also requires baseline water sampling for any facility installation, even if no drilling is planned. For well re-stimulations, an operator must take new baseline water samples if more than twelve months passed since the first baseline sampling took place.
Rule 609 requires operators to take the first water sample twelve and eighteen months after well completion or facility installation. The operator must then take the next sample between sixty and seventy-two months after the operator’s first sample after drilling. The new rule may require operators to take additional samples if water quality changes during any subsequent sampling. Finally, the COGCC Director may require further sampling in response to a complaint from water well owners.
All water quality data generated under the new and existing rules will be available to the public on the COGCC website. The groundwater samples record: pH levels, total dissolved solids, presence of bacteria, total petroleum hydrocarbons, and hydrogen sulfide, as well as other data. This publicly available data will inform oil and gas stakeholders, political officials, and concerned citizens about the groundwater quality near drilling operations.
In addition to monitoring oil and gas activities, the systematic groundwater testing required under Rule 609 should discover any existing contamination resulting from non-drilling activities, such as agricultural activity, septic system use, household chemical use and disposal, plumbing systems, or industrial activity. Therefore, a benefit of this required groundwater sampling will identity contamination and mitigate damages because of early detection.
COGA’s Voluntary Program
While creating Rule 609, the COGCC staff also gained valuable guidance from examining the older Colorado Oil & Gas Association (“COGA”) Voluntary Baseline Groundwater Quality Sampling Program (“COGA program”). The COGA implemented the nation’s first statewide voluntary groundwater sampling program and continues to supply the public with groundwater information by publishing data that shows the oil and gas industry’s commitment to protecting groundwater through testing and safe practices.
The main difference between COGA’s program and COGCC’s new rule is that the COGA program is voluntary, while COGCC Rule 609 is mandatory. Although only voluntary, many operators have participated in COGA’s program in an effort to demonstrate that drilling operations do not compromise Colorado’s groundwater quality. COGA’s program, like the COGCC’s, asks operators to take baseline samples before beginning any oil and gas operations. In addition, both programs require initial water samples from two existing groundwater features located within a half mile of the new drilling site or a new well on an existing well pad and subsequent samples after well completion.
Passing Rule 609 shows that Colorado is serious about protecting the state’s groundwater resources. The new rule not only pleases environmental advocates focused on protecting our water, but Rule 609 also provides operators with the opportunity to showcase safe operating methods. And if the collected data fails to convince the public of the operations’ safety, then operators have the chance to adjust their methods and remedy any problems at an early stage.