Below is a transcript of Commissioner Messner’s testimony during the March 26, 2025 deliberations on the Draco Oil & Gas Development Plan (OGDP). Please excuse any transcription errors.
Commissioner Messner: Thanks, Mr. Chair. I’m going to have a little different perspective, I think. You know, we’ve been doing this a while now, and there’s a point—and we’ve been seeing it—where oil and gas development and subdivisions are colliding with one another. I think this is a really good example of where that’s happening, and I think we’re starting to see it more often. It’s certainly a challenging situation for all sides. You know, I think you can argue chicken or the egg on these, but the fact is that significantly sized new development, both on the housing side and the oil and gas side, are colliding with one another right now. The areas around the town of Erie is one of those places.
We’ve reviewed this application a couple of times now. I do want to give a lot of credit to the applicant for being diligent in their approach to this application. I think that they’ve done a lot of hard work, they’ve done outreach, they’ve been creative with some of the BMPs that they’ve proposed, and certainly did a thorough job in evaluating what we asked them to evaluate in Alternative 4.
I do think Alternative 4, when initially contemplated, was a viable option that had significantly less receptors than what is being proposed originally. Although now with the restrictions that are being placed on the landfill by CDPHE, which I think are appropriate because they’re the experts in hazardous materials and clearly understand what needs to be put in place there to ensure the safety of public health, safety, welfare, the environment, and wildlife resources—and the need to be able to abide by those, I think that’s really important.
It appears to me that that piece of it may or may not be able to be met in evaluating a potential opportunity for Alternative 4. It’s not totally clear whether there’s not an engineered solution that would allow it to happen, but I certainly understand that it created a significantly higher level of complexity in evaluating that alternative.
I think from a local government land use perspective, if we took that CDPHE restriction out of the picture, it does seem like there’s a path forward. Although I will express some frustration at the town of Erie that there wasn’t a clear path presented to the applicant for how they needed to meet the town’s land use planning process to determine whether there would be a possibility to site this location in that particular area.
I fully understand that there is no certainty in any application process and that all of these have to go through their own process, but given an opportunity to control their own destiny in this particular situation that does have jurisdictional challenges associated with it—being in an area that borders both Weld County and the town of Erie—I don’t feel like the town of Erie really took its opportunity to control its own destiny regarding the potential for reviewing this location within its jurisdictional boundaries.
But having said that, the additional complexity of the CDPHE land use restriction, I think, really in my mind ultimately makes that Alternative 4 moot. Certainly, Alternative 4.1 has some of the same challenges associated with the originally proposed pad.
So with that, I go back to what the applicant originally wanted us to look at, and that’s the original Draco pad. I thought there was a potential path forward with Alternative 4, but if I’m asked to review the original application, I don’t think anything’s changed as far as my concerns associated with what’s being proposed.
While I went through some of this in my previous deliberations, I feel the need to highlight it again. From my perspective as a commissioner, we can only approve applications that protect and minimize impacts to public health, safety, welfare, the environment, and wildlife resources, and protect against adverse environmental impacts on any air, water, soil, or biological resource resulting from oil and gas operations.
The concern here for me is not the 66 or 72 RBUs that have not been built, but clearly are being built. They are being built—it’s been acknowledged by the developer, it’s been acknowledged by the applicant, it’s been acknowledged by the town of Erie—they’re being built.
We spent a long time during the mission change rulemaking debating the 2,000-foot setback and the importance of distance as an avoidance measure associated with being protective of public health, safety, welfare, the environment, and wildlife resources. So as I’m reviewing this, I feel compelled to go back and emphasize what we determined during that process.
The Statement of Basis and Purpose, page 219, states: “Based on substantial evidence in the administrative record, the Commission determined that a 2,000-foot distance was necessary and reasonable to avoid, minimize, and mitigate potential impacts to public health and welfare.”
SB19-181’s changes to the Commission’s mission and statutory authority direct the Commission to regulate oil and gas operations in a reasonable manner to protect and minimize adverse impacts to public health. It also defined “minimize adverse impacts” to mean “to the extent necessary and reasonable to protect public health, safety, welfare, the environment, and wildlife resources to:
- Avoid adverse impacts from oil and gas operations, and
- Minimize and mitigate the extent and severity of those impacts that cannot be avoided.”
Thus, Senate Bill 19-181 required the Commission to first avoid any potential impacts and then minimize and mitigate those potential impacts that can’t be avoided. While distance is not the sole or predominant method to avoid, minimize, or mitigate adverse impacts, it can avoid impacts or significantly reduce the severity of those impacts.
It goes on to say, “The Commission’s choice of 2,000 feet is a conclusion based on the Commission’s review of all of the evidence in the administrative record and on weighing the relative merits and critiques of each peer-reviewed scientific study.”
A core justification, though not the only justification, for the Commission’s choice of the 2,000 feet is the final report “Human and Health Risk Assessment for Oil and Gas Operations in Colorado” published by CDPHE on October 17, 2019. The study used monitoring modeling techniques to identify pollutant concentrations above the acute health risk thresholds at distances of 2,000 feet from oil and gas facilities under some scenarios. The CDPHE study supports the Commission’s cautious approach to protecting people’s health and provides evidence that the Commission’s choice of a 2,000-foot setback is appropriate.
Again, it goes on on the next page to say, “For all of these reasons, the Commission determined a 2,000-foot distance met the standards set by Senate Bill 19-181. The Commission’s statutory mandate is to protect public health and welfare by first avoiding adverse impacts. Substantial evidence in the record demonstrated that a 2,000-foot distance would avoid a significant number of impacts and is therefore necessary, particularly for school facilities and childcare centers.”
Although protecting public health was one reason that the Commission chose to adopt a 2,000-foot distance in Rules 604.A.3 and 604.B, it was not the only reason. The Commission also chose the 2,000-foot setback because of its statutory mandate to protect and minimize adverse impacts to public welfare and public safety. Each of these reasons discussed below is a standalone reason for the Commission’s decisions to adopt a 2,000-foot setback in Rules 604.A.3 and 604.B.
First, as discussed in Rule 423, Commission staff review of the applicable literature demonstrated that most noise from oil and gas operations dissipates to a point that is no longer disruptive to human receptors at 2,000 feet.
Second, oil and gas operations result in substantial amounts of truck traffic. While the Commission has the authority to regulate traffic on access roads, it has limited authority to regulate most aspects of traffic from oil and gas development. The Commission determined that a 2,000-foot distance is an important measure to protect safety from potential traffic impacts.
And finally, oil and gas operations also result in a range of other adverse impacts to public welfare, including light, dust, and odors. The Commission determined that a 2,000-foot distance will provide better protections and better avoid and minimize impacts from each of these categories as well.
I think one other thing with this particular application that I struggle with is the proximity to the deeded school land and the potential for a school to be sited within 1,500 feet of this location. I acknowledge that the school board has not made a decision on that, but between that and having an outdoor recreation concentration area within proximity to this, and the potential for school children and school AG kids to be congregating in a known area this close to a park and a school—and understanding that other deeded land within the St. Vrain School District in the town of Erie has seen schools built upon it, and the acknowledgment that that particular area is seeing some of the greatest growth in not only Colorado but the nation right now—I think that is an important consideration in my decision-making as well.
It’s also supported by conversations and decisions that we made during the mission change rulemaking included in the Statement of Basis and Purpose, where it says, “For the reasons discussed above and here, the Commission determined that a 2,000-foot setback from school facilities and childcare centers that did not allow for any exceptions was necessary and reasonable to protect and minimize adverse impacts to public health and welfare.”
First, children have developing respiratory systems that may be more sensitive to some pollutants. Moreover, schools and childcare centers are areas with high concentrations of especially sensitive receptors, and they are also areas where concentrated outdoor activity occurs.
Second, noise impacts are especially important for the Commission to consider at schools and childcare centers. Noise adversely impacts children’s ability to learn, and schools and childcare centers are therefore a uniquely important noise receptor to protect. The Commission accordingly determined that the importance of a quiet learning environment further supports its decision to extend the school setback to 2,000 feet.
Third, traffic impacts may pose significant safety risks, particularly if heavy truck traffic occurs near schools. Children are less able to observe traffic safety procedures than adults and are more difficult for drivers to see because of their small stature and often rapid and erratic movements. Increased distance will reduce oil and gas development’s contribution to congestion around schools during crowded pickup and drop-off times. Accordingly, the Commission determined that increasing the school setback to 2,000 feet without exception will provide better protections and better minimize the adverse impacts to schools and childcare centers, which again are especially sensitive receptors, from each of these categories of impact.
So in conclusion, I find that the proposed location is not protective. As I indicated, the evidence in the administrative record clearly supports the conclusion that there are health impacts that are highly likely to be attributable as a result of proximity to oil and gas development. The body of peer-reviewed scientific literature documenting potential health impacts that are likely attributable to proximity to oil and gas development is robust and growing, and peer-reviewed studies have identified a range of different adverse health outcomes with a high degree of statistical likelihoods, and that those adverse health outcomes are likely to occur at a variety of distances from oil and gas activities.
That’s SBP page 219. SBP 221 states the substantial evidence in the record demonstrates that a 2,000-foot distance would avoid a significant number of impacts and is therefore necessary, particularly for school facilities and childcare centers. I reiterate the CDPHE study supports the Commission’s cautious approach to protecting people’s health and provides evidence that the Commission’s choice of a 2,000-foot setback is appropriate.
The Commission chose the 2,000-foot setback because of our statutory mandate to protect and minimize impacts to public welfare and safety. And that SBP 2019, we determined that with this substantial evidence in the administrative record, the Commission determined that a 2,000-foot setback was necessary and reasonable to avoid, minimize, and mitigate potential impacts to public health and welfare.
Proximity to homes, schools, outdoor concentration areas is a problem whether they are built today or not. There are 77 building units, one school, and outdoor concentration areas all within 2,000 feet of this location. It could not have been clearer what was being proposed in those locations when the applicant submitted the application. The school site is in the town’s comprehensive plan, 7 years of review process for the housing development, state school requirements were all known and all need to be considered and addressed. These are reasonable, foreseeable known receptors, and the 2,000-foot setback is not just for pre-production operations but rather for oil and gas operations for the lifetime of the wells.
With that, I would not be in support of this, although I do want to acknowledge the amount of work that the applicant has provided on this application and the BMPs that are being proposed. But the known proximity to that many homes in the area that also is sitting in the 96th percentile for air quality, I think, does not make it a protective location in this particular situation.