BMP of Oil and Gas Development

Law & Policy

Overview

Federal Lands
The Federal government owns a large percentage of the land within each of the intermountain states:

Colorado - 36.9%
Montana - 29.9%
New Mexico - 41.8%
Utah – 57.5%
Wyoming - 42.3%

From: Federal Real Property Profile, 2004

Oil and gas development is regulated by all levels of government -- Federal, State, and local. Some statutes deal with oil and gas operations directly, while others are more generally concerned with protecting human health, air, land, wildlife, water or other resources and incidentally apply to oil and gas. After laws are passed by Congress or a state legislature, it is the task of an administrative agency such as the Bureau of Land Management, the Environmental Protection Agency, or a state agency or commission, like the Colorado Oil and Gas Conservation Commission, to issue regulations, further defining, and consistent with, the original law. Beyond their regulations (also called rules), the agencies might also issue policy or guidance documents to further explain the law. At the local government level, the law itself, usually called an ordinance, is the most detailed provision of law.

Which laws are applicable to a particular development depends in part on who owns the land and who owns the minerals. For federal lands or minerals, the process can involve all three levels of government. For private or state lands and minerals, the process is mostly state and local, although all development needs to comply with the national environmental laws like the Clean Air Act and Clean Water Act. For additional information on the Clean Air Act, Clean Water Act, and other laws applicable to oil and gas development, click on one of the links at the top of this page (e.g., Federal Laws: Oil and Gas). Or go to the index page of the Oil and Gas Development section on the Red Lodge Clearinghouse website and choose a topic.

Where there is a “split estate” -- different parties owning the surface of the land and its minerals -- regulation can be even more complex. Confusion and frustration can also arise where more than one level of government claims jurisdiction. When Federal, state, and local governments all try to regulate development and their laws conflict with one another, the doctrine of preemption dictates that the federal laws will prevail over conflicting state or local laws, and that state laws will prevail over conflicting local laws. While this hierarchy may appear clear-cut, it is not always clear whether there is an actual conflict of law that would trigger preemption.

Comparing Law Among Jurisdictions

LawAtlas: Comparative Legal Database

The BMP Project is in the process of creating a database comparing various oil and gas regulatory provisions across the country – the LawAtlas Oil and Gas Project. This database will include federal, state and local regulations on a variety of topics. The first component of this project addressed water quality. The second database examined water quantity regulations and was added in the fall of 2014. The next database will focus on air quality laws.

Water Quality & WATER QUANTITY:

Water Quality and the Interaction of Federal, State and Local Regulation of Oil and Gas in Colorado This document addresses some of the issues, including overlapping regulatory regimes and preemption, that local governments may want to consider as they respond to new development in their areas. While the examples are specific to Colorado, they may be applicable, at least in part, to local governments in other states.

The comparative legal databases of water quality and water quantity includes statutes and regulations from Colorado, Louisiana, Montana, New Mexico, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Texas, Utah, West Virginia, and Wyoming. These states overlay major shale formations such as the Bakken, Eagle Ford, Greater Green River, Haynesville, Mancos, Marcellus, Niobrara, Permian, Piceance, Powder River, San Juan, Uinta, and Woodford. State and local governments in these jurisdictions are experiencing new or increased oil and gas development, and there is tremendous value in looking at other jurisdictions to guide statutory construction and rulemaking.

To explore statutes and regulations pertaining to water quality issues related to oil and gas activities, please visit: www.lawatlas.org/oilandgas

Multi-Jurisdiction Law Comparisons

While the LawAtlas project is being developed, the following provides some of the preliminary information gathered. Please note that these comparisons have been prepared over a period of time and are not necessarily up to date.

Colorado Rulemaking Stakeholder Meetings

The following five-state comparisons of oil and gas regulatory provisions were created by University of Colorado Law student volunteers in conjunction with a 2009 Colorado rulemaking process.  These summaries were designed to provide background information for post-rulemaking stakeholder meetings.

Groundwater

Presumption of Liability Bills

Public Safety

 

Federal, State, and Tribal Law

Our federal, state, and local laws pages provide brief summaries of the laws, regulations, and agency policies and guidelines of particular importance to regulation of oil and gas development.  They also provide links to the codes, regulations and to the agencies in charge of regulating the industry.  

For law and policy of a specific jurisdiction, click on one of the following links or on one of the links at the top of this page.

Federal: Oil and Gas | Air | Water
Colorado: State | Local
Montana: State | Local
New Mexico: State | Local
Utah: State | Local
Wyoming: State | Local
Other Laws: Tribal | Water Case Law

How do Best Management Practices fit into “Law”?

“Best management practices (BMPs) are state-of-the-art mitigation measures applied on a site-specific basis to reduce, prevent, or avoid adverse environmental or social impacts.”
- Bureau of Land Management BMP website

For more explanation of our designation of BMPs as “Required” or “Recommended”, see Use of “Required” versus “Recommended” for BMPs.

Many people associated with oil and gas development think of BMPs as strictly voluntary practices. In the Intermountain Oil and Gas BMP Project Database, we have taken a more expansive view of BMPs, in part because what is voluntary today may be required tomorrow or may change from one jurisdiction to another. Consequently, we have included both voluntary and required practices in our database. We designate BMPs as either “Required” or “Recommended” in the database and provide our rationale for this designation in our bibliography.

Only a small percentage of BMPs are designated as “required” practices because they are codified in law or regulation. Many more BMPs are required by regulatory agencies but not through statute or regulation. For example, the practice may be required BMPs because they are stipulations on leases, conditions of approval on permits, or otherwise agreed to by industry as mitigation during the environmental impact analysis process. Still more BMPs are designated in the BMP Database as “Recommended” -- simply voluntary practices being implemented by industry or recommended by various entities to minimize the impacts of development.

To learn more . . .

About the federal, state, and local regulation of oil and gas extraction, please see Federal, State and Local Regulations on the Oil and Gas Resource Development page of the Red Lodge Clearinghouse website.

For an in-depth view of the preemption issue from a Colorado local government perspective, see the article Preemption Is Not Assumed.

Add Information

If you have or think we should have additional information for any of our laws pages, please contact us. Go to ADD INFO.

Warning: We do our best to keep this section current, but please check with the appropriate jurisdiction for the final word on current laws and regulations!

Intermountain Oil & Gas
BMP