The Federal government owns a large
percentage of the land within each of the intermountain
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 – and by Indian tribes. 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), federal or state agencies might
also issue policy or guidance documents to further explain the law. The process of regulating oil and gas varies among Indian tribes with some developing legal codes and others regulating directly through their constitution, management plans or ordinances.
At the local government level, the law itself, usually called an ordinance,
is the most detailed provision of law. Some jurisdictions, whether state or local use Memorandums of Understanding and Watershed Agreements to regulate oil and gas.
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.
For more information on split estates, the reasonable use and reasonable accommodation doctrines, and clarifying state and federal rules, see Split Estates.
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
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.
Presumption of Liability Bills
Federal, Indian, State, and Local Law
Our Federal, Indian, State, and Local Laws webpages 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
Indian: Laws and Codes
Colorado: State | Local
Montana: State | Local
New Mexico: State | Local
Utah: State | Local
Wyoming: State | Local
Other Laws: 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.”
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.
If you have or think we should have additional information for any
of our laws pages, please contact us. Go to ADD
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!