HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 10/01/2013 - ITEMS RELATING TO A CITIZEN INITIATIVE ON THE NOVDATE: October 1, 2013
STAFF: Laurie Kadrich, Steve Roy, Darin
Atteberry, Dan Weinheimer
AGENDA ITEM SUMMARY
FORT COLLINS CITY COUNCIL 21
SUBJECT
Items Relating to a Citizen Initiative on the November 5, 2013 Ballot.
A. Resolution 2013-084 Urging the Registered Electors of the City to Vote in Favor of a Proposed Moratorium
on Hydraulic Fracturing and the Storage of its Waste Products Within the City of Fort Collins or under its
Jurisdiction at the November 5 Special Election. (Option #1)
B. Resolution 2013-085 Urging the Registered Electors of the City to Vote Against a Proposed Moratorium on
Hydraulic Fracturing and the Storage of its Waste Products Within the City of Fort Collins or under its
Jurisdiction at the November 5 Special Election. (Option #2)
EXECUTIVE SUMMARY
The purpose of this item is to encourage voters to vote for or against, depending upon on the option chosen by
Council, during the upcoming election.
STAFF RECOMMENDATION
none.
BACKGROUND / DISCUSSION
On August 20, 2013 Council adopted Resolution 2013-072 submitting a citizen-initiated question of whether to place
a five-year moratorium on the use of hydraulic fracturing to extract oil, gas and other hydrocarbons and on the storage
of the waste products of hydraulic fracturing within the City or on lands under the City's jurisdiction on a November 5,
2013 Special Election Ballot. Staff was directed by Council to prepare two Resolutions for Council consideration
related to the election. Resolution 2013-084 (Option #1) is a Resolution urging voters to vote in favor of the
moratorium whereas Resolution 2013-085 (Option #2) urges voters to vote against the moratorium.
Current City Code (Section 12-135 and 136) requires any oil and gas operator in the City limits to obtain an operator
agreement approved by the City Council in order to use hydraulic fracturing as part of operations and development.
The existing Operator Agreement provides increased protection for operations conducted by Prospect Energy or
others in the Fort Collins Field and on described undeveloped lands (UDA). Any other oil and gas operator would be
required to negotiate a separate agreement in order to utilize hydraulic fracturing to extract oil or gas. Such agreement
would need to be approved by the City Council and may contain similar conditions as the Prospect Energy Agreement
and/or other conditions unique to the type of operation being considered.
Option #1: Reasons to Consider Adoption
During numerous Council meetings related to Oil and Gas regulations, Council heard from citizens that they are
concerned about the potential health risks associated with hydraulic fracturing and oil and gas extraction. Residents
have specifically voiced concern over the toxicity of chemicals used in the process of hydraulic fracturing, the release
of methane gas into the air or its migration to drinking water and questioned whether it is safe to store waste products
under any conditions. Since the Colorado Oil and Gas Act requires oil and gas resources to be extracted in a "manner
consistent with protection of public health, safety and welfare, including protection of the environment and wildlife
resources”, Councilmembers may conclude that supporting the moratorium would be the best way to safeguard city
residents and city property.
Option #2: Reasons to Consider Adoption
Previous Council decisions and subsequent actions include: the imposition of a moratorium on any new oil and gas
permits (which moratorium has expired); the imposition of a ban prohibiting hydraulic fracturing and the storage of
October 1, 2013 -2- ITEM 21
liquid wastes and/or flowback unless stringent public protections measures were adopted through a Council-approved
Operator Agreement; and, the approval of an operator agreement with Prospect Energy that requires more stringent
local controls in addition to requirements of the Colorado Oil and Gas Commission, Colorado Department of Public
Health and Environment, and Federal guidelines and includes strict controls on the release of methane gas. Based
on these actions, Councilmembers may conclude that the adoption of the ballot measure would be inconsistent with
the Operator Agreement and the other local measures (City Code 12-135 and 12-136) enacted to protect the health
and safety of city residents and property. Further, Council may conclude that such action could result in costly,
protracted litigation against the City and establish legal precedents damaging to the interests of other Colorado
municipalities. In addition, Natural Areas Department staff has consistently asked to remain outside any local
restrictions related to oil and gas extraction since the Department has participated in a collaborative “Energy by
Design” process with the State Land Board and other entities (a process endorsed by Council through a Memorandum
of Agreement with the State) designed to protect biological, cultural, scenic, and recreational conservation goals while
allowing reasonable access to the mineral estate. Staff believes Energy by Design provides the best strategy for
protection for areas of land under the City's jurisdiction outside of the City limits. If the ballot measure were approved
the result could undo the “Energy by Design” process; may result in more significant negative impacts to Natural Areas;
and, potentially subject Natural Areas lands to litigation.
ATTACHMENTS
1. Powerpoint presentation
1
1
Resolution Options to consider for
November 5, 2013 Special Election
Laurie Kadrich
Director, Community Development & Neighborhood Services
Dan Weinheimer
Policy and Project Manager
October 1, 2013 Council Meeting
2
Background Summary:
1. Resolution 2013-072 placed a citizen-initiated
question into a Special Election.
2. The question to voters is whether to place a 5-
year moratorium on the use of hydraulic
fracturing within the city or on city-owned lands.
3. Colorado Statutes allow the City Council to pass
a Resolution taking a position on the ballot
measure.
ATTACHMENT 1
2
3
Resolution Options:
1. Resolution 2013-084
• Option #1: Urge registered voters to vote in favor
of the ballot measure
or
2. Resolution 2013-085:
• Option #2: Urge registered voters to vote against
the ballot measure
4
Resolution 2013-084:
1. Reasons to consider adopting:
• Citizens expressed concern about the potential
health risks associated with hydraulic fracturing
measure especially the use of toxic chemicals
used in the process, the release of methane gas
into the air or its migration to drinking water
• Council may consider the moratorium to be the
best way to safeguard city residents and city
property
3
5
Resolution 2013-085:
1. Reasons to consider adopting:
• Council may believe there are already sufficient
safeguards in place through adopted local
regulations,
• Council has secured a stringent agreement with
the only local operator,
• Council has endorsed the Energy by Design
process for city-owned lands,
• A five-year moratorium may prompt costly,
protracted litigation.
OPTION #1
RESOLUTION 2013-084
OF THE COUNCIL OF THE CITY OF FORT COLLINS
URGING THE REGISTERED ELECTORS OF THE CITY TO VOTE IN FAVOR
OF A PROPOSED MORATORIUM ON HYDRAULIC FRACTURING AND THE
STORAGE OF ITS WASTE PRODUCTS WITHIN THE CITY OF FORT COLLINS
OR ON LANDS UNDER ITS JURISDICTION AT THE NOVEMBER 5 SPECIAL ELECTION
WHEREAS, under Article X, Section 1 of the City Charter, the registered electors of the
City have the power to propose a measure to the City Council, and if the City Council fails to adopt
a measure so proposed, then to adopt or reject such ordinance or resolution at the polls; and
WHEREAS, an initiative petition to place a five-year moratorium on the use of hydraulic
fracturing and the storage of its waste products within the City of Fort Collins or on lands under its
jurisdiction was submitted to the City (the “Initiated Measure”), and the City Clerk has certified
said petition as sufficient for submission of the initiated ordinance to a vote of the people at a
special municipal election; and
WHEREAS, the City Clerk presented said petition to the City Council as provided in
Article X, Section 5(f)(4) of the City Charter; and
WHEREAS, by Resolution 2013-072, the City Council submitted the Initiated Measure to
the registered electors of the City for their consideration at a special election to be held in
conjunction with the November 5, 2031 coordinated election; and
WHEREAS, the Colorado Constitution confers on all individuals in the state, including the
citizens of Fort Collins, certain inalienable rights, including “the right of enjoying and defending
their lives and liberties; of acquiring, possessing and protecting property; and of seeking and
obtaining their safety and happiness”; and
WHEREAS, the Colorado Oil and Gas Act requires oil and gas resources to be extracted in
a “manner consistent with protection of public health, safety, and welfare, including protection of
the environment and wildlife resources; and
WHEREAS, the well stimulation process known as hydraulic fracturing is used to extract
deposits of oil, gas, and other hydrocarbons through the underground injection of large quantities
of water, gels, acids or gases, sands or other proppants, and chemical additives, many of which are
known to be toxic; and
WHEREAS, the people of Fort Collins seek to protect themselves from the harms
associated with hydraulic fracturing, including threats to public health and safety, property
damage and diminished property values, poor air quality, destruction of landscape, and pollution
of drinking and surface water; and
WHEREAS, representatives from the State of Colorado have publicly stated that they will
be conducting a health impact assessment to assess the risks posed by hydraulic fracturing and
unconventional oil and gas development; and
WHEREAS, the people of Fort Collins have determined that the best way to safeguard our
inalienable rights provided under the Colorado Constitution, and to ensure the “protection of
public health, safety, and welfare, including protection of the environment and wildlife resources”
as provided under the Colorado Oil and Gas Act, is to place a five-year moratorium on hydraulic
fracturing and the storage and disposal of its waste products within the City in order to fully study
the impacts of this process on property values and human health; and
WHEREAS, Section 1-45-117(1)(b) of the Colorado Revised Statutes authorizes the City
Council to pass a resolution taking a position on the Initiated Ballot.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT
COLLINS, as follows:
Section 1. That, for the reasons stated above, the City Council believes that it is in the
best interests of the City that the proposed citizen-initiated ordinance placing a five-year
moratorium on the use of hydraulic fracturing to extract oil, gas and other hydrocarbons and on the
storage of the waste products of hydraulic fracturing within the City or on lands under the City’s
jurisdiction be approved.
Section 2. That the City Council strongly urges the registered electors of the City to
vote in favor of the Initiated Measure.
Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 1st
day of October, A.D. 2013.
_________________________________
Mayor
ATTEST:
_____________________________
City Clerk
OPTION #2
RESOLUTION 2013-085
OF THE COUNCIL OF THE CITY OF FORT COLLINS
URGING THE REGISTERED ELECTORS OF THE CITY TO VOTE AGAINST
A PROPOSED MORATORIUM ON HYDRAULIC FRACTURING AND THE
STORAGE OF ITS WASTE PRODUCTS WITHIN THE CITY OF FORT COLLINS
OR ON LANDS UNDER ITS JURISDICTION AT THE NOVEMBER 5 SPECIAL ELECTION
WHEREAS, under Article X, Section 1 of the City Charter, the registered electors of the
City have the power to propose a measure to the City Council, and if the City Council fails to adopt
a measure so proposed, then to adopt or reject such ordinance or resolution at the polls; and
WHEREAS, an initiative petition to place a five-year moratorium on the use of hydraulic
fracturing and the storage of its waste products within the City of Fort Collins or on lands under its
jurisdiction has been submitted to the City (the “Initiated Measure”), and the City Clerk has
certified said petition as sufficient for submission of the initiated ordinance to a vote of the people
at a special municipal election; and
WHEREAS, the City Clerk has presented said petition to the City Council as provided in
Article X, Section 5(f)(4) of the City Charter; and
WHEREAS, by Resolution 2013-072, the City Council submitted the Initiated Measure to
the registered electors of the City for their consideration at a special election to be held in
conjunction with the November 5, 2013 coordinated election; and
WHEREAS, the geographic areas of the City that are likely to be the subject of oil and gas
mining operations are very limited, both because of the geology of the area and because of the state
rules and regulations governing such operations; and
WHEREAS, nonetheless, on December 18, 2012, several months prior to the submission
of the Initiated Measure to the City Clerk’s office, the City Council had adopted Ordinance No.
145, 2012, imposing a temporary moratorium on the acceptance, processing and approval of any
land use applications relating to new oil and gas development in the City, which moratorium has
expired; and
WHEREAS, the purpose of the temporary moratorium was to allow adequate time for City
staff to develop and recommend to the City Council any local regulations that might also be
necessary and advisable to protect the health, safety and welfare of City residents; and
WHEREAS, on March 5, 2013, by the adoption of Ordinance No. 32, 2013, the City
Council enacted Section 12-135 of the City Code prohibiting the use of hydraulic fracturing in the
City, as well as the storage in open pits of solid or liquid wastes and/or flowback and, through the
enactment of City Code Section 12-136, exempted from the prohibition any oil or gas wells or pad
sites existing within the City as February 19, 2013, that become the subject of an operator
agreement between the operator of the same and the City as long as such agreement includes strict
controls on the release of methane gas, and, in the judgment of the City Council, adequately
protects the public health, safety and welfare; and
WHEREAS, on May 21, 2013, by Resolution 2013-036, the City Council approved an Oil
and Gas Operator Agreement with Prospect Energy, LLC (the “Operator Agreement”), the sole oil
and gas operator in the City and, on May 21, 2013, also adopted Ordinance No. 57, 2013,
exempting Prospect Energy from the ban imposed under Code Section 12-135; and; and
WHEREAS, the Operator Agreement requires that Prospect Energy utilize 48 "best
management practice,” many of which exceed the current requirements of the Colorado Oil and
Gas Conservation Commission and all of which are designed to protect the citizens of the City; and
WHEREAS, in approving the Operator Agreement, the City Council determined that the
Agreement adequately protects the public health, safety and welfare, not only because of the
stringent controls contained in the Agreement, but also because, based upon past experience,
Prospect Energy’s operations are not likely to produce methane gas in significant quantities, and
the fracking activities that may be performed by Prospect Energy are not likely to infiltrate fresh
water supplies; and
WHEREAS, imposing a new five-year moratorium on Prospect Energy would be
inconsistent with the fact that the City and Prospect Energy have entered into the Operator
Agreement, and could result in costly, protracted litigation against the City; and
WHEREAS, in addition, significant concerns have been raised by the City Manager with
respect to the impact that a five-year moratorium would have on the City’s natural areas because
the City has participated in a collaborative “Energy by Design” process with the State Land Board
and other entities which is designed to protect biological, cultural, scenic and recreational
conservation goads for the natural areas, while allowing reasonable access to the mineral estate;
and
WHEREAS, the “Energy by Design” process provides the best strategy for protection of
areas of land under the City’s jurisdiction and outside of the City limits, and if the Initiated
Measure is approved, such approval could undo the “Energy by Design” process and result in more
significant negative impacts to the natural areas; and
WHEREAS, for the foregoing reasons, the City Council believes that the adoption of the
Initiated Measure under these circumstances is unnecessary, is not in the best interests of the City,
and could result in litigation that, if not resolved in the City’s favor, could not only work to the
detriment of the City, but could also establish legal precedents that would be damaging to the
interests of other Colorado municipalities.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT
COLLINS that, for the reasons stated above, the City Council believes that it is in the best interests
of the City that the Initiated Measure not be approved by the voters and the City Council strongly
urges the registered electors of the City to vote against the Initiated Measure.
Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 1st
day of October, A.D. 2013.
_________________________________
Mayor
ATTEST:
_____________________________
City Clerk