City of Brighton
500 S. 4th Avenue
Brighton, CO 80601
Meeting Minutes
Tuesday, February 17, 2015
7:00 PM
Amended
Council Chambers
City Council
MAYOR - RICHARD N MCLEAN
MAYOR PRO-TEM - KIRBY WALLIN
COUNCIL MEMBERS:
LYNN BACA, REX BELL, JW EDWARDS
MARK HUMBERT, JOAN KNISS, KEN KREUTZER
CYNTHIA A MARTINEZ
1. CALL TO ORDER
Mayor McLean called the meeting to order at 7:00 p.m.
A. Pledge of Allegiance to the American Flag.
Mayor McLean led the recitation of the Pledge of Allegiance to the American Flag.
B. Roll Call.
Present: 9 - Mayor McLean, Mayor Pro Tem Wallin, Councilmember Baca,
Councilmember Bell, Councilmember Edwards, Councilmember Humbert,
Councilmember Kniss, Councilmember Kreutzer, and Councilmember
Martinez
2. CONSENT AGENDA
A. Approval of the January 20, 2015 City Council Minutes
City Clerk Natalie Hoel read the Consent Agenda into the record.
Motion by Mayor Pro Tem Wallin, seconded by Councilmember Kreutzer, to approve the
Consent Agenda as presented. Motion passed by the following vote:
Aye: 9 - Mayor McLean, Mayor Pro Tem Wallin, Councilmember Baca, Councilmember
Bell, Councilmember Edwards, Councilmember Humbert, Councilmember Kniss,
Councilmember Kreutzer, and Councilmember Martinez
3. APPROVAL OF REGULAR AGENDA
City Manager Esquibel reported that the Agenda has been amended to remove the Executive Session.
Motion by Councilmember Humbert, seconded by Councilmember Bell, to approve the Regular
Agenda as amended. Motion passed by the following vote:
Aye: 9 - Mayor McLean, Mayor Pro Tem Wallin, Councilmember Baca, Councilmember
Bell, Councilmember Edwards, Councilmember Humbert, Councilmember Kniss,
Councilmember Kreutzer, and Councilmember Martinez
4. CEREMONIES
A. Introduction of New Employees by Human Resources Director Karen Surine
There were no employees present to introduce.
5. PUBLIC INVITED TO BE HEARD ON MATTERS NOT ON THE AGENDA
(Speakers limited to five minutes)
6. PUBLIC HEARINGS
A. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BRIGHTON
AMENDING CHAPTER 17 OF THE BRIGHTON MUNICIPAL CODE, COMMONLY
KNOWN AS THE LAND USE AND DEVELOPMENT CODE, PROVIDING FOR THE
REPEAL OF SEC. 17-20-70, OIL AND GAS WELLS IN ITS ENTIRETY AND
READOPTION AS SEC. 17-20-70, SET BACKS, OIL/GAS FACILITIES; THE
ADOPTION OF A NEW ARTICLE 17-64, OIL AND GAS FACILITIES REQUIRING
CONDITIONAL USE APPROVAL FOR OIL AND GAS WELLS AND OTHER
RELATED FACILITIES OR ADMINISTRATIVE APPROVAL SET FORTH IN A
MEMORANDUM OF UNDERSTANDING APPROVED BY THE CITY MANAGER;
SETTING FORTH APPLICATION REQUIREMENTS, GENERAL STANDARDS,
PLANS FOR SITE DEVELOPMENT, ENVIRONMENTAL PROTECTIONS,
CONTROL OF NUISANCES, TRAFFIC PROTECTIONS, PROHIBITED FACILITIES,
FEES, CITY INSPECTION, APPEALS, ENFORCEMENT; AMENDING SEC.
17-8-30. PROCEDURES REQUIRING A MAP OF OIL AND GAS FACILITIES AND
NEIGHBORHOOD NOTICE; AMENDING SEC. 17-12-20. DEFINITIONS;
AMENDING SEC. 17-8-60. CONDITIONAL USE RELATIVE TO ASSIGNABILITY
OF A CONDITIONAL USE PERMIT; AMENDING SEC. 17-20-30 FENCE AND
SIGHT TRIANGLES EXEMPTING TEMPORARY NOISE BARRIERS AT OIL AND
GAS FACILITIES; AMENDING SEC. 17-32-15. TABLE OF USES; AND SETTING
FORTH DETAILS RELATED TO THE FOREGOING (First Reading, Public Hearing
Continued from December 2, 2014)
Mayor McLean read the title of the Ordinance into the record.
City Attorney Margaret Brubaker welcomed everyone to the meeting and explained that City Council
values participation of its citizens. City Attorney Brubaker reviewed the rules for the public hearing. The Mayor will open the public hearing and the City Clerk will verify that the necessary postings and
publications have been met. The City staff will present an Ordinance as read by the Mayor that sets
forth certain requirements and processes for the receipt and consideration of permits to conduct oil and gas operations within the City. As will be explained in the staff presentation the Ordinance provides for a Memorandum of Understanding (MOU) that is approved through an administrative process. The MOU document will not be approved by the City Council tonight. A [draft] MOU was provided for informational purposes only. After the Ordinance is presented and staff has made their presentation the Mayor will ask for questions from the audience. All questions should be directed to the Mayor who has the discretion to determine whether they are relevant to the issues before the Council tonight. The questions will be answered by staff as appropriate. The Mayor will then recognize anyone in the audience who wishes to speak in favor of the Ordinance. When recognized by the Mayor please come forward to the podium, state your name and address for the record and you will be given five (5) minutes to state comments to City Council. The City Clerk will keep time and let the speaker know when there is one (1) minute left. If a person’s comment is the same as one that has already been presented, you have the right to state whatever you would like, but Council would encourage you to acknowledge that you agree with another. One can make their statement if it is the same as another, but the Mayor has the discretion to try to keep the public hearing process moving forward and not have redundant or repetitive comments. City Council does want to acknowledge the fact that if you have a statement in that regard they know that is what you wanted to say. The Mayor will recognize anyone that is in opposition to the Ordinance and the same procedure is followed. City staff will be given the opportunity to clarify any comments made by the public. The City Clerk will be asked if any correspondence has been received regarding this matter, if so these documents will be forwarded to the Mayor and if deemed appropriate he will read those into the record. City Council will ask any questions they want to of the staff for clarification purposes. The Mayor will close the public hearing and the matter is before the City Council for discussion and action. An Ordinance under the City Charter requires two (2) readings so the Council will consider this matter twice. When the Ordinance is considered for the second time the City Council will only receive comments that were not presented at the public hearing.
City Manager Esquibel reported that there is a translator available if needed.
Mayor McLean opened the public hearing on December 2, 2014 at 7:10 p.m. and City Clerk Natalie
Hoel verified the required postings and publications (October 23, 2014 in the Brighton Banner) for this
public hearing were completed.
City Manager Esquibel reported that the City Council has been involved in oil and gas discussions for
the past two (2) years. It has been beneficial for Council and staff to become informed as to what is the
actual involvement in activities relating to the oil and gas industry relating to extraction of oil and gas
from the ground near and around the City of Brighton. There has also been extensive discussion with
the State Oil and Gas Commission who has helped determine what is currently regulated and the
City’s role relating to the implementation of the Ordinance. January 6, 2015 staff asked the Council to
continue the public hearing in order to allow negotiations to occur with the oil and gas industry. The
added time was beneficial to staff to get an understanding of what staff feels they need to present and
how it relates to the ability of the oil and gas industry to perform their process and do business in the
City of Brighton. This time also allowed staff the opportunity to look at what is before them. When the
first Ordinance was presented staff assumed that Council knew a lot about the oil and gas industry but
Council realized that further education was necessary so that Ordinance was tabled at the time. An
interesting dialogue has taken place over the past several weeks and it has allowed City staff to begin
recognizing how this regulatory process needs to be presented to allow for the oil and gas industry to
conduct their business. That has come from an Ordinance strictly regulating the process to an
Ordinance that contains a Conditional Use permit and also incorporated in that Ordinance the
Memorandum of Understanding (MOU). This is an Ordinance that allows for the Conditional Use
Permit and the MOU which would be approved administratively. During these discussions
the distinguishing factors between the Conditional Use permit and MOU in terms of what the Council is
asking to be adopted became confusing. As the dialogue continued time ran out and the information
had to be put together for the meeting. This continued dialogue is something that needs to take place
regardless of the action that is taken by City Council this evening. City Manager Esquibel introduced
Community Development Director Holly Prather and Special Legal Counsel for Oil and Gas Matt Sura.
Community Development Director Holly Prather entered her staff report and presentation into the record (attached as Exhibits A and B). Director Prather reported that she will cover what the request
is, what the purpose of the request is, the background or history related to oil and gas regulations in
Brighton, the Colorado Oil and Gas Conservation Commissions (COGCC) Order, staff’s
recommendation and Matt Sura’s presentation. The request is to hold a public hearing for a Land Use
and Development Code amendment, Chapter 17 of the Municipal Code, and to consider at first reading the draft Ordinance. Director Prather noted that the Memorandum of Understanding (MOU) is provided as information purposes only and will not be approved by Council, the form and substance will be approved by the City Manager.
The last time the oil and gas regulations in the Land Use and Development Code were updated was in
2005. The City Attorney’s Office did a great job of amending those regulations at that time to be
consistent with the State regulations at that time, but a lot has changed since then. Since 2008 the
COGCC regulations regarding setback and groundwater rules have been enacted (2012) and there
have been a lot of court cases regarding preemption. There have been technological advancements in
directional drilling and hydraulic fracturing which allows for operators to get to more of those resources
in more areas. There is a lot of increased pressure in the Weld County and Adams County areas to
drill.
City Council began studying issues related to oil and gas development in 2012 and have had the
following person’s present information to them: William Fleckenstein P.E, PhD, Colorado School of
Mines Professor and he presented “Best Practices in Hydraulic Fracturing”; Sarah Landry, Colorado
Oil and Gas, “Moving Beyond Misinformation - Education and Engagement”; Abel Montoya, Adams
County Planning and Development Director, “Oil and Gas Drilling in Adams and Arapahoe County”;
Weld County Staff, “Weld County Niobrara Oil and Gas Development”; Altus Environmental, “Oil and
Gas Development Environmental Issues”; Greeley Staff, “Oil and Gas Development Review and
Regulations”; Patricia Silverstein, “Development Research Partners, “Economic and Fiscal Impacts of
the Oil and Gas Industry in Adams and Weld Counties”; and Geoff Wilson, CML Attorney, “State Task
Force on Cooperative Strategies Regarding State and Local Regulation of Oil and Gas Development,
Policies and Protocol Recommendations”. City Council has taken two (2) tours of oil and gas sites in
various stages of development. In 2012 City Council visited several sites in Greeley and in 2014 visited the Synergy Site just north of Brighton.
Per City Council direction in 2013 the City Attorney and City staff drafted an Ordinance to amend the
oil and gas regulations. At the December 3, 2013 public hearing the COGCC and the Colorado Oil and
Gas Association (COGA) expressed concerns regarding the draft Ordinance. At the December 17,
2013 meeting the City Council tabled the draft Ordinance to allow the City Attorney and staff to
continue discussions with the COGCC and COGA and to continue monitoring developing issues.
During this same time period other cities, counties and towns in the State were facing similar
challenges. Reactions by others were to enact extended moratoriums on oil and gas development, or
to place a ban on hydraulic fracturing. Others allowed oil and gas development to occur through
adopting and implementing regulations that provided two options to operators. Option 1 is to go
through a Special Use or Conditional Use process or Option 2 which is to enter into a Memorandum of
Understanding (MOU) wherein the operator agrees to perform best management practices that are
more stringent than the COGCC regulations.
In January, 2014 Brighton met with the COGCC and expressed its concerns regarding adequate
protection of its municipal water supply. It is important to note that over 70% of Brighton’s domestic
municipal water supply is based on shallow groundwater wells. The wells are typically 60 to 80 feet
below the surface. Directional drilling or hydraulic fracturing takes place below the surface thousands
of feet beyond that but it is important to note that this is still an issue because the City gets the majority
of its water supply from the ground, whereas other municipalities get their water from reservoirs.
Special Legal Counsel Matt Sura was hired to assist with the preparation of new regulations utilizing
the two (2) option approach (Conditional Use or MOU) and staff spent the next six (6) months working
with representatives from the COGCC and the Colorado Department of Public Health and Environment
(CDPHE) to draft an order to establish a system of requirements and Best Management Practices to
protect the water supply. Throughout that time various representatives of the oil and gas industry with
direct interest in drilling in and around Brighton were included in the order drafting process. The result
of these meetings is that on July 28, 2014 the COGCC passed Order 1-189 to protect the Brighton
Public Water System providing new protections for the City of Brighton’s water wells and ditches.
The water protection order accomplished the following: 1) created an exception zone around the
Brighton City water supply, does not allow oil and gas facilities within 500’ of its water wells or 300’
from rivers and streams; 2) created a ground water sampling zone from ½ mile from the City’s water
supply as well as 500’ from rivers, lakes and streams Brighton relies on for its water supply; and 3)
created a buffer zone that is within ½ mile of all water facilities where best management practices will
be utilized to protect water quality. Once the COGCC order was approved legal counsel and City staff
focused attention on drafting updated regulations. For the past six (6) months and for a total of
fourteen (14) meetings staff met with representatives of the oil and gas industry and significant
revisions were made based on their input. Staff also met with the COGCC Director Matt Lepore and
Jake Matter from the State Attorney General’s Office and revisions were made based on those
discussions as well.
After more than two (2) years of research and review, receipt of information from both governmental
and private entities and the spectrum of operators, COGA, the COGCC, input from citizens, significant
discussions with representatives of the oil and gas industry, staff believes that this Ordinance creates
the necessary balance of interests between the health, safety and welfare protections of the citizenry
and business and responsible oil and gas development in the City of Brighton.
Director Prather read a letter into the record from the Colorado Oil & Gas Conservation Commission
dated February 17, 2015. “Dear Mayor McLean: I understand the Brighton City Council will give final
consideration this evening to new City oil and gas ordinances. I wish to thank City Manager Manuel
Esquibel and his staff for engaging with Colorado Oil and Gas Conservation Commission staff during
development of the proposed ordinances. I and other COGCC staff members met, spoke, or
corresponded with Mr. Esquibel or City staff members, including the City Attorney and outside counsel,
on numerous occasions as the ordinances were being developed. The City Manager has been
consistently receptive to COGCC staff’s input regarding the ordinances and, as a result, all of
COGCC’s issues or concerns with earlier iterations of the ordinances have been addressed. We
greatly appreciate Mr. Esquibel’s leadership and his willingness to work collaboratively with COGCC in
developing the ordinances. I understand City staff has been working with the regulated community to
address industry’s remaining concerns with the proposed ordinances. Without addressing any specific
concerns, I encourage you to work toward collaborative solutions where possible as you finalize the
City’s new oil and gas ordinances. We would be happy to continue working with City staff if the City
Council has any questions or concerns. Sincerely, Matt Lepore, Director”.
Special Legal Counsel Matt Sura [using a power point presentation] explained that he will be covering the goals of the regulations, Brighton’s authority to regulate, why additional protections are necessary beyond what the State already has in place, the process of writing the revised Code, and the outline of the revised Code, focusing on the Conditional Use process and the Memorandum of Understanding (MOU). The goals of the City Council have been very clear, Council wants to see responsible development of oil and gas in the City, it is also Council’s charge to protect the health, safety and welfare of the environment and there has been specific emphasis on water quality, air quality, noise and visual impacts.
The City’s authority to regulate stems from many sources, primarily Brighton is a Home Rule
Municipality and the authority to regulate industries and land use comes from the Colorado Constitution where Home Rule Municipalities enjoy the full right of self-government. Land Use authority has been granted by the legislature. General Police Powers allow the City to declare what is a nuisance and then regulate the impacts to the constituents to prevent those nuisances from occurring. The City has the ability to go beyond the State in many respects and one example is air quality regulations. The City is allowed to have regulations at least the same as or maybe more restrictive than the emission control regulations adopted pursuant to State law.
The State has a long history of oil and gas regulations and within the last two (2) decades there have
been a number of cases that have been found in certain instances the local government is preempted
from regulating the oil and gas industry if one is found to be in operational conflict with State law. To be in operational conflict one must be materially impeding or destroying the State interest. If the City’s
regulation is impeding or destroying the State interest or the industry’s ability to extract the resource
which is one of many State interests, then there is a potential problem and a potential liability and
exposure for lawsuit. There have been a number of lawsuits recently and most of them stemming from
full out bans or long-term moratoriums. Staff and legal counsel are trying to do everything to walk this
line while recognizing that the Council has been elected to protect the health, safety and welfare of its
citizens but staff also does not want to run afoul of preemption. A lot of cities begin with a
Memorandum of Understanding or Conditional Use Process and trying to get those additional
protections that staff feels are necessary, particularly for this community, that goe beyond State
regulations through the MOU, which is freely negotiated and entered into by the oil and gas industry.
It is important for the City of Brighton to go beyond the State regulations because City Council has a
responsibility to protect public health, safety and welfare; and prior to the last ten (10) years there has
not been a tremendous amount of [oil and gas] development within municipalities or the type of development that has occurred since 2008. These multi-well production facilities are different in kind to any oil and gas production that has been seen in Colorado. Director Lepore talks about this production being different in intensity, proximity and scale than anything that has been seen before and when it is happening in proximity to homes or within municipalities there is a need to address those concerns of residents and a need to try and prevent residential areas from becoming industrial areas because of the placement of oil and gas facilities in them. The Governor and COGCC members and the industry agree that local governments have an important role to play in the regulation of oil and gas development. There are regular and multiple articles in newspapers regarding the oil and gas industry and the conflict or potential conflict with some other land uses including agricultural, water use, or residential.
The City of Brighton is surrounded on all sides by oil and gas development and this is positive. There
are resources here and the residents that own their mineral rights and those that do not stand to gain
and the industry stands to benefit from getting those resources out of the ground. There will be
consequences for those living on the surface and the land uses and trying to find a balance between
the uses that already exist and this new industrial use that the industry is attempting to impose on
some already existing land that is being used for other things in some cases. Some of these wells go
down one (1) mile and can go out up to two (2) miles horizontally in the productive zone and through
hydraulic fracturing and horizontal drilling there can be up to eight (8) times more oil than has been
seen in a single well before.
Oil and gas is a highly industrialized activity and the sound walls and industrial activity can be very
close to homes. The drilling typically lasts from seven (7) to fourteen (14) days but a recent well in Erie
took twenty-one (21) days to drill. The hydraulic fracturing typically lasts three (3) days per well and
requires a tremendous amount of water which needs to be trucked in (if not piped in). The biggest
impact of hydraulic fracturing is the noise. Each truck is forcing pressure down a hole to try to ensure
that the geologic formation can be fractured and broken to produce the oil and gas. What is left on the
surface after they leave is production activity including compressor engines, condensate tanks, up to
three (3) or four (4) per well, glycol dehydrators which refines the oil and gas.
On September 8, 2014 Governor Hickenlooper signed an Executive Order which listed the tasks that
the Oil and Gas Task Force should be looking at and they include: 1) distances between oil and gas
wells and any occupied structures needs to be considered, there is a current regulation on the books
which states that they need to be as far as possible from homes if they are within 1000’; 2) adoption of
laws or regulations by local jurisdictions and State jurisdictions and what that balance is; and 3)
adjustments to regulations that reflect the intensity, the proximity and the scale of these industrial
operations recognizing that different considerations will be needed when there is an oil and gas
multi-well production facility being located in the middle of a municipality like Brighton or in some
agricultural land in Weld County. The Governor’s Task Force will be wrapping up its meetings by the
end of the month.
COGCC Commissioner DeAnn Craig is one of three (3) commissioners on the COGCC that represents oil and gas interests; there are nine (9) members of that body. At the COGCC meeting on August 7, 2014 Commissioner Craig said “These multi-well pads are effectively off-shore platform on shore” and she was lamenting the fact that when they were doing setback regulations they did not consider the issue of multi-well production facilities. She went on to say “To me, this is about safety…This is about making sure you don’t lose control of several wells, and distance is going to really matter. Particularly if you are in a populated area.” COGCC Director Matt Lepore at one of the last Task Force meetings on January 15, 2015 stated that “We just changed the comment period (for local governments) but honestly, for large production facilities in proximity to populations, maybe we have to look at that again. Maybe the planning process (for local governments to participate in this process) needs to be 90 or 120 day planning process…” Director Lepore went on to say later that it may need to be as long as six (6) months. Director Lepore has stated that he thinks local governments need more of a role in ensuring that these multi-well production facilities are sited properly and if they must be near residents that they are well mitigated so the impacts of the heavy industrial activity is mitigated. Brad Holly, Anadarko Vice President wrote a recommendation to the Governor’s Oil and Gas Task Force on January 28, 2015 and stated that the scale and intensity of multi-well production facilities that are in close proximity to neighborhoods has led to a need for local governments to represent their constituents to a greater degree than in the past.
Regarding the framework for Brighton’s regulations, Special Counsel Sura reiterates that we are dealing with the one (1) industry in the State of Colorado that the local government is not given free rein to regulate. There is no other industry that can come into the City of Brighton and can determine where they want to drill or to put an industrial complex and the City is not at free liberty to say that is not where this use is allowed. The State and the Supreme Court has said that in some cases the City is preempted and we do not want to come close to that line of being preempted.
The COGCC has a database with a number of complaints and over a period of six (6) months the
complaints seen the most were noise, air quality and odor, water quality and property damage. Those
issues about public health, safety and welfare that Brighton residents feel Council should be looking
out for and regulations should be drafted to take care of. The reality is that the Colorado oil and gas
industry has the ability to drill in any land use zone that they choose to according to the oil and gas
industry and the State. So to not pick a fight, the City [regulations] has allowed them to drill in every zone, it does not matter what type of residential zone, and there will be a Conditional Use required. At the same time that it is allowed by Conditional Use staff wants to make sure that there is some balance and one way to achieve that is to give them the opportunity to go beyond State regulations when necessary to try to get some larger distances between the heavy industrial sites and residences to address noise and visual quality. One way to accomplish this is to provide them with an MOU, not limited to the regulations through the Code but through a contract that they are freely negotiating and entering into. There are two (2) options: 1) go through the Conditional Use process; or 2) an administrative approval through the MOU. This is being done in several jurisdictions including Broomfield, Erie, Boulder County, La Plata County, Arapahoe County and many others.
Community Development Director Holly Prather explained that the Ordinance generally provides for
the process for Conditional Use and for the MOU and it is entirely up to the operator which process
they choose. The Conditional Use process is a public approval process. The first step is to make the
submittal to the City of their application, staff will check for completeness and it will be referred out to
the Development Review Committee (DRC) entities which include internal City staff and external
agencies. These external agencies could include Adams County or a ditch company if the ditch was in
the area. Step two allows the DRC a review period of approximately fourteen (14) days. A DRC
meeting will be scheduled at City Hall where the operator will meet with the committee and receive
feedback on the application. Step three sends an official comment letter to the operator after the
fourteen (14) day time period. Step four allows the operator to have as much time as they need to
resubmit their application back to the City. The Conditional Use process would repeat steps two
through four which include the DRC review time, the official comment letter and the resubmittal of the
application from the operator until the DRC members sign off on their plans. Step five for the
Conditional Use requires a fifteen (15) day legal notice publication in a local newspaper, sign posting
on the property and notice to property owners within 1000’ fifteen (15) days prior to the hearing. Since
the local newspapers only publish once per week in the City this notice will be backed up one (1) week
which creates a three (3) week timeframe for the legal noticing requirements. Step six is the City
Council public hearing. Most Conditional Uses in the City from the submittal to the public hearing is
typically a 90 to 120 day process, three (3) to four (4) months.
The MOU process is an administrative process so it is not reviewed by City Council. After step four [same as Conditional Use] for the MOU process and within ten (10) days of a complete application staff would send out notice of a neighborhood meeting, this notice goes to property owners within 1000’, a sign is posted on the property and the meeting is held fourteen (14) days after the notice is sent out and posting of the property. The final step is the finalization of the MOU. During this time the DRC is reviewing the information, a meeting takes place with the applicant, the comment letter is sent and revisions are made. Staff has thirty-eight (38) days or less to complete the MOU process. The Ordinance does state on page 24, section 7, Action to Approve, Conditionally Approve or Deny. Staff has twenty-one (21) calendar days or less. It is noted in the Ordinance that it can take less time to process the request depending workload and staff availability.
Special Legal Counsel Matt Sura explained that there is a Conditional Use process and an
administrative process set forth through the revised Code and these are both paths giving the approval
to develop oil and gas in the city limits of Brighton. Both of these options include a pre-application
process and this is important because most Conditional Use processes in the City include this process. It is an opportunity for the applicant to sit down with City staff and go over what the regulations do, how to get through this process painlessly and what will need to be done to get through approval. The City needs this pre-application process to ensure that by tying it to the application that the operator gives to the State, there is an opportunity to see what is being proposed to the State before the [City] process goes too far and the operator feels tied to whatever location they have chosen in the application presented to the COGCC. Staff would like to have the opportunity to speak with the operators as early as possible during this process so a good location can be found for these facilities. Staff is asking for thirty (30) days to allow time to review prior to the operator initiating the form 2A process. The operator is asked to provide a description of the proposal, a vicinity map and an alternative location analysis. The alternative location process will only be needed if the proposed site is within ¼ mile from a home. Both the Conditional Use process and the MOU process allow for this pre-application process.
The application process will require a site plan, operating plan, storm water management plan, reclamation plan, utilities report so the City will know if the operation will be connecting to power, plan for noise and light mitigation, traffic management plan, visual mitigation plan, air quality mitigation plan, emergency response plan and a weed control plan. Requesting the traffic management plan and the emergency response plan are the responsibility of the local government. Staff hopes that the operators will want to go through the MOU process and have a collaborative relationship with the City to determine what goes into the plans, together with the industry. Other requirements in the Code include recording of flow lines (pipelines carrying liquid), fencing, geological hazard, flood plain, floodway restrictions, transportation and access roads, well water protection and notice requirements.
The model MOU document is not part of the Code and it is important to take note that in Section 17-64-310 (2) regarding the Model MOU, the City Manager is authorized and shall prepare a Model MOU which shall contain best management practices to address issues including, but not limited to, surface owner involvement setbacks for oil and gas locations. There are also some examples of what may be negotiated. This is the only language that deals with setbacks, noise mitigations, water quality monitoring, visual impacts, etc. in this Code. All of the other issues that will be discussed [with the operator] are considered as the best management practices that operators are already doing in Colorado and staff feels should be applied when drilling in the City of Brighton. The Model MOU is a work in progress. Staff is still meeting with the oil and gas industry and will continue to do so. The individual operators have the option of deciding if they want to go through the MOU process or the Conditional Use process.
In this voluntary agreement [MOU] staff has put forward the following suggested best management practices:: 1) staff does not believe that waste pits or production pits should be located in the City as some can carry toxic materials; only fresh water or emergency pits should be allowed; 2) containment berms around tanks should be steel rimmed and lined; 3) to reduce truck traffic if it is possible to find a water supply that can be accessed by water lines to save wear and tear on city roads and save the industry trucking costs; 4) regarding noise, the operator shall provide a noise mitigation plan to meet as low a standard as possible as a goal, but not as a mandate; 5) setbacks for new wells - operator agrees to use its best efforts to locate the center of a wellhead or production facility at least 1000’ from the closest corner of the closest building unit. In the event that the parties determine that locating a well or oil and gas location outside the buffer zone is not reasonably practicable, the operator shall maximize equipment and wellhead setbacks from occupied buildings and residences beyond the setbacks required by the COGCC to the greatest extent reasonably practicable; 6) discharge valves, in a residential area the area should be fenced and if practicable the discharge valves will be locked down; 7) no open burning or extended flaring unless permission is given by the City; 8) no chemical storage onsite after completion operations have ceased; 9) water monitoring shall abide by the COGCC Rule 609; this is followed in 95% of Colorado. 5% of Colorado has been carved out as the Wattenberg exception, and the City of Brighton falls in the southern part of this exception which means that instead of knowing that a well is going to be drilled there are at least four (4) locations that are monitored for water quality before drilling, six (6) months after and five (5) to six (6) years after that. There is sampling involved to make sure nothing is showing up in the groundwater. Because the City of Brighton relies heavily on groundwater, more than any other city in Colorado it was felt this is important for Brighton; 10) flood plain protections; 11) visual impacts and aesthetics; 12) electric equipment - the operator shall take all reasonable efforts to use electric-powered engines for motors, compressors, and drilling and production equipment; 13) air quality mitigations - these are only being applied to those mitigations that go beyond State law in those areas where there are facilities that are proposed within ¼ mile of a home. The City is asking for a required reduction in emissions and one inspection per year. The State allows five (5) to fifteen (15) days to fix a leak once it is found and the City is asking for a faster response to gas leaks; 14) fugitive dust suppression to help with dust from sand used in the process; 15) restrict flammable material around tanks; 16) flow lines siting; 17) removal of debris; and 18) removal of equipment. Staff is trying to be as reasonable as possible so the industry has access to the oil and gas in the area and also making sure that the residents of Brighton are protected.
City Attorney Margaret Brubaker gave a brief overview of the Ordinance. It is a thirty (30) page
document divided into seven (7) sections and six (6) divisions. The first few Sections of the Ordinance
are primarily housekeeping measures to repeal some existing definitions that are no longer applicable
and in conflict with the State regulations. Section 3 amends the Table of Uses to allow that gas, oil and
petroleum production is allowed as a Conditional Use in all zone districts of the City. This is important
to recognize because prior City regulations restricted where these operations could occur but as a
result of State law local jurisdictions are no longer authorized to restrict them to certain areas. Section
4 sets forth all of the regulations. Division 1 has general principals in it that emphasize the authority
that the City has under its police powers to protect the health, safety and welfare of the residents of the
City. It indicates that it is applicable to oil and gas exploration, drilling and production operations
proposed or located in the City and sets forth certain exceptions for existing facilities. There is an
extensive definition section and there is a specific provision that indicates that if any of these
definitions that are otherwise defined by the Colorado Oil and Gas Conservation Commission then the
State regulations would govern. There are other provisions in Division 1 that deal with inspections,
requiring a review and approval process, addressing how a Conditional Use or MOU can be
transferred, abandonment of existing wells and that there would be certain fees assessed for the
application. Division 2 of the Ordinance sets forth the Conditional Use review process. This requires a
preliminary sight application, a detailed document that Mr. Sura indicated what needed to be included,
application requirements of all the different plans that were outlined by Mr. Sura. Many of these are
required by the State so the operator will only have to provide to the City what they provided to the
State. The Conditional Use review and approval criteria is the same as in any Conditional Use that
comes before the City and addresses such things as hours of operation, time, noise, dust, aesthetics,
traffic and environmental concerns. Other matters addressed in Division 2 Conditional Use talk about
seismic operations, signs, recording the flow lines, fencing, reclamation, flood plain restrictions,
transportation and notice requirements. Attached to that Conditional Use provision in the Ordinance is
the Order that was approved by the Colorado Oil and Gas Commission regarding water protection for
the City of Brighton. Divisions 3 and 4 of the Ordinance set forth the administrative approval for the
Memorandum of Understanding. The City Manager by the Ordinance is authorized to prepare a Model
MOU to address best management and best efforts regarding such things as setbacks, pits, water
quality, noise mitigation, flood plains, visual impacts and aesthetics. These are recommendations;
there is nothing in the Ordinance that requires that the MOU shall include these practices. These are
indications of matters that have been expressed by City Council regarding what they think are
important considerations, to give guidance to the City Manager to negotiate this document with each of
the operators. Attachment A to the MOU is site specific. There will be issues that arise because of
where it is proposed to be located that are intended to be addressed in the attachment, site specific for
that application. The approval of the MOU is valid for a term of five (5) years. If the MOU is terminated
the conditions in the MOU remain and the MOU becomes an attachment of conditions to the State
permit. It will be enforceable by the State and also by the City as a contract. Division 5 talks about
variances and operational conflicts with an operator in an attempt to try to abide by the regulations in
the Ordinance; then there is a process for a variance procedure as is available for any other application the City regulations have for development. The miscellaneous provisions are just boiler plate information and other housekeeping matters.
Mayor McLean called for a break at 8:21 p.m.
Mayor McLean resumed the meeting at 8:30 p.m.
Mayor McLean asked if there were any questions for the applicant from members of the audience.
Sarah Landry, Director of Operations, COGA, 1800 Glenarm Pl, #1100, Denver, CO 80206. Ms.
Landry reported that the oil and gas industry is a critical pillar of this community. Ms. Landry gave a
presentation to City Council at a Study Session in 2012. Since that time the most comprehensive water sampling rules in the country were implemented in Colorado, the State went through a yearlong
extensive stakeholder process for setback rulemaking with technical expertise to increase setbacks in
certain areas and implemented a buffer zone. There was an air [quality] rulemaking; Colorado is the first state to regulate greenhouse emissions in the country. Colorado is the model state when it comes to oil and gas regulations. Fines have been increased for oil and gas operators. The State regulations are the most comprehensive and stringent in the country and they apply to every permit applied for in Brighton. COGA has not opposed the process of MOU’s being used that have requirements that align with the State regulations. COGA supports the proposed regulations with edits. Ms. Landry presented a letter to City Council that outlines the changes COGA would like to see made to the regulations. None of the changes being requested lower any environmental, health or safety standards that the City is trying to put forward, what COGA wants to do is clarify the process and align the regulations with the State regulations. COGA is committed to open communication and transparency.
Jesse Staley, Representative from the Greater Brighton Chamber of Commerce, 4900 East Bromley
Lane, Suite 214, Brighton, CO 80601. Mr. Staley presented a Resolution approved by the Chamber
Board. The Chamber has been closely monitoring the discussions between the City and the oil and
gas operators and industry and was pleased to hear that negotiations were on track from City Manager
Manuel Esquibel and members of the Board. It was disappointing to hear that negotiations had ceased
recently without resolution. The Chamber supports the City Council’s right and responsibility to protect
the safety and health of the citizens and natural resources. Mr. Staley expressed his concern at not
being able to meet with City Council regarding this issue prior to the public hearing. It would be
detrimental to the City and business community to act on the proposed regulations tonight and
encouraged a return to the negotiation table. Mr. Staley entered the Chamber Resolution into the
public record (attached as Exhibit C).
Erik Hansen, 2608 East 148th Drive, Thornton, Colorado 80602. Mr. Hansen is familiar with this issue
and was on Thornton City Council when they adopted regulations ten (10) years ago because of an
issue with a well in the middle of a park. The developer bought out the mineral rights and the well was
eliminated. As local government representatives it is Council’s job to help people. Mr. Hansen has
managed to live with an oil well in his neighborhood next to an elementary school and there are ways
to work together to make the community a better place. In Adams County an MOU was signed by the
oil and gas operators before the regulations were adopted. When the Commissioners adopted the
regulations they knew exactly what was being approved. Mr. Hansen recommended that City Council
continue negotiations with the oil and gas industry and do what is best for the industry and the
community.
Jamie Jost, 1675 Larimer Street, Suite 420, Denver, Colorado 80202. Ms. Jost is acting regulatory
Counsel for COGA and has been working with COGA on the draft Ordinance and she also has been
advising operators on the proposed MOU and its Attachment A and has made many red-line changes
to the MOU. Ms. Jost acknowledges that several changes have been made to the Ordinance but
expressed her concern regarding the recommendation of staff about setbacks above the current State
regulations and allowing housing development to encroach on oil and gas facilities within 150’. Ms. Jost feels this is unreasonable and in contradiction to the City staff’s prior position to allow oil and gas
facilities near buildings. Ms. Jost feels that language relating to the CUP or Preliminary Site
applications submittal requirement connected to the date an operator submits the COGCC form 2A
should be deleted. Ms. Jost feels this requirement would interfere with an operators business and
potential contractual negotiations for surface use and mineral development. Attachment A of the MOU
should also be removed as it does not incentivize an operator to sign an MOU with Brighton. The
Brighton operators have raised concerns regarding an expedited process for the MOU less than
thirty-eight (38) days. Regarding the Model MOU in the packet the Brighton operators have asked to
make one statement clear, although the operators have met with City staff on numerous occasions the
Model MOU and Attachment A still remain a substantial concern to the operators. In fact from the initial
discussions with the City, the operators are under the impression that the Model MOU will be approved
by Council and yet on Thursday, February 10th Mr. Sura informed them that the City Council would not
be voting on the MOU, it is now a policy document and has an internal completion deadline of March
17th. This 11th hour change in course my Mr. Sura is discouraging and frankly deceptive when the
Brighton operators as well as City staff and Mr. Esquibel have been pursuing an agreement on the
MOU at a frantic pace in light of an artificial January 26th deadline. Each of the concerns has been
addressed in the letter handed out from Ms. Landry. Ms. Jost thanked City Manager Esquibel for his
work during these discussions.
Scot Donato, Environmental Health and Safety Manager with Great Western Oil and Gas, 1801
Broadway, Denver, Colorado 80202. Mr. Donato explained that he is generally in support of the
Ordinance but the industry has some issues with it. Mr. Donato supports local government taking local
control over oil and gas issues but there is one issue with the Ordinance and that is with the
preliminary site application process. The industry feels it is impractical to work under that process prior
to the COGCC 2A permit process. This upsets the process the industry is forced to use under the
State rules and that is that most operators submit the 2A application long ahead of when they will drill
in those locations. There has to be an inventory of locations to go to because of all of the changes so
choices can be made. In discussing that the City would like to discuss those potential site locations
puts an operator like Great Western at a competitive disadvantage. If a landowner knew that the City
wanted his location for an oil and gas facility the landowner could hold the company hostage for
negotiating an agreement. Mr. Donato feels there is still work to do on the Ordinance and the MOU.
Kent Craig, Representative from Ward Petroleum, 215 West Oak, Suite 1000, Ft. Collins, CO 80521.
Mr. Craig reported that he has issues with the need to record flow lines. Flow lines are used onsite and
contained within the pad and run from the well head to the separator, to the water tank, to the oil tank
and to the flare stack. It is almost impossible to record them because the flow lines can change
position and location depending on the number of wells onsite. Mr. Craig recommends that the
operator complete an ‘as-built’ diagram after the fact and provide that to the City. There is a distinct
difference between a flow line, a gathering line and a pipeline. The gathering lines run from well head
to well head and then to a tank battery, these require an easement and right-of-way. A right-of-way is
also required for a pipeline whether it is public or private. The gathering line and pipeline are both
recorded. Mr. Craig feels that Mr. Sura played down the virtues of the multi-well site and how many
wells and pad sites would have been drilled twenty (20) years ago. Ward Petroleum wants to work with
the City and Mr. Craig feels all of these issues can be worked out.
Lauren Swain, Oil and Gas Specialist for the Sierra Club Denver Metro Network including Adams
County and Brighton, 3277 Raleigh Street, Denver, CO 80212. Ms. Swain reported that the Sierra Club believes that this toxic industry that injects toxins into the ground, puts massive amounts of toxins on the surface, releases toxins from the earth, has spills and has dangerous emissions does not belong in neighborhoods. Ms. Swain urges Council to protect its citizens from these dangerous emissions, spills, risks of explosions and fires. The City had previous regulations that prohibited this activity in certain areas and those were wise and appropriate regulations. The State has seen fit to destroy local rights to prohibit this activity in certain areas but that can change and it is expected to change. Ms. Swain urged Council to hold onto the notion that these activities are inappropriate and to stand with the citizens in the neighboring communities that have attempted to stand up to the oil and gas industry and wait for the day to come when the citizens will be protected from benzene emissions that have been detected over the Front Range. Oil and gas production elevates carcinogenic benzene pollution along the Front Range as reported in the Denver Post multiple times. A University of Colorado team found benzene emissions from oil and gas operations at about three hundred eighty (380) pounds per hour, nearly eight (8) times higher than CDPHE estimate of fifty (50) pounds per hour. These are poisonous toxins that do not belong in neighborhoods, please stand up for your citizens and for what is right and the State will follow. Wait until the end of the legislative session before oil and gas drilling is allowed in the City of Brighton.
Amanda Griffin, 4900 East Bromley Lane, Suite 214, Brighton. Ms. Griffin reported that she is not pro
fracking but is pro communication, decision making and regulations. Ms. Griffin was interested in Mr.
Sura’s statement that regulations are necessary in the residential areas but not the agricultural areas; if this is dangerous for homes it should be considered dangerous for agricultural areas because this is
our food source. Regarding the statements made about teenagers going into drilling areas and blowing
things up, is the City also going to regulate gas stations and train crossings where hazardous materials
are being transported. Ms. Griffin urged City Council to continue communication and address the
issues and work toward a responsible agreement that protects both sides.
Phillip Doe, Environmental Director for Be the Change, 7140 South Depew, Littleton, Colorado. Mr.
Doe explained that he works almost full time on fracking issues with citizens along the Front Range
opposed to oil and gas industries rights to come into people’s back yards. It has been said tonight that
it is important that the oil and gas industry come into Brighton. This state is 104,000 square miles and
Brighton probably represents less than 100th of 1% of that land mass so the oil industry cannot
possibly depend on the backyards of citizens for its survival. New York State has banned horizontal
fracking, but it did not ban oil and gas development. The reason horizontal fracking was banned is
because four hundred (400) peer reviewed papers were reviewed and 96% said that horizontal
fracking posed a threat to human health and the environment, especially a concern for groundwater
contamination. This has not been a big concern in Colorado because most water supplies are from
surface water. Groundwater contamination is prevalent in Pennsylvania, the first thousand (1000) wells
tested resulted in 10% already leaking and those wells have only been there a few years. There are
geologists that maintain that eventually all wells will leak and will contaminate groundwater. There have been recent reports in California where the industry is illegally dumping their waste into usable
groundwater. One of the major suppliers for the industry says that 6% of wells leak the first year, 30%
leak in ten (10) years and all wells will ultimately leak. By allowing the industry to dump its waste into
our groundwater supply is contaminating the future. The Constitution gives the City of Brighton the
right to determine what the City looks like and these rights cannot be taken away. These rights have
been taken away through preemption, but the Constitution still stands. Mr. Doe encouraged Council to
stand with Longmont, Erie, Lafayette, and Broomfield and what they are trying to do by asserting their
rights as citizens and sovereigns over the rights of the oil and gas industry.
Wes Wilson, Be the Change, 2505 Yates Street, Denver. Mr. Wilson explained that he is not being
paid to be here tonight. Mr. Wilson spent decades in the Environmental Protection Agency and since
retirement has been looking at the regulatory, economic and environmental public health issues
surrounding oil and gas development. Mr. Wilson encouraged Council to look at the legal basis of
whether the claim that the State has of preempting a Home Rule community from controlling the pace,
timing and location of that preemption doctrine will be sustained. The Voss case did not deal with
preemption; it did not deal with the right of a Home Rule community to determine its community’s fate.
What rests in Council’s hands is the definition of residential zoning and the City should not be
bamboozled into this. Council should get a briefing for Longmont’s defense as joined by Boulder and
Boulder County. The State cannot protect citizens near drilling from noise, water pollution or air
pollution. An oil and gas company went into Erie and violated the State’s noise criteria at up to 60
decibels 24/7; the State inspected eight (8) times and asked the operator to come into compliance and
they did not for twenty-one (21) days. Matt Lepore went to Erie and apologized. Brighton is vulnerable
to water supply contamination. It has been documented that 7% of casings fail within the first year of
cementing and 40% of casings fail after thirty (30) years. The biggest issue is air pollution because
nothing need go wrong for citizens to be harmed. Dr. John Agate and his colleague Lisa McKenzie at
the Colorado School of Public Health took a peer review of 125,000 births in Colorado and found a
30% increase in birth defect outcomes from mothers living within ten (10) miles of oil and gas wells. Mr. Wilson encouraged Council to make sure air quality monitoring is done at all locations and to table this item and do something that is protective of Brighton’s citizens and future.
Mick Richardson, 200 West Hampden Avenue, Suite 201, Englewood, Colorado. Mr. Richardson
recognizes and appreciates the need to protect the welfare of citizens and understands that this is a
difficult decision for Council. Mr. Richardson would like Council to recognize from a property owner and land division process that is gone through it is a difficult process when the mineral interests are
severed from the land. In many cases the mineral interests are owned by someone other than the
property owner. When going through the development process work has to be done with the oil and
gas lessee to come up with a surface lease. There is a need to have a collaborative process where the
needs and welfare of the community are addressed, the mineral operator’s needs are addressed as
well as the property owners and severed mineral owners needs are addressed. The current MOU is
missing bringing the property owners and mineral owners to the table. Mr. Richardson hopes that this
will be addressed in the MOU. Mr. Richardson thanked city staff for working with him regarding these
issues.
Mayor McLean asked if staff would like to respond to any of the comments that were made.
Community Development Director Holly Prather responded to the comments made by Jamie Jost
regarding the process and her belief that it could take fifty-eight (58) days because the re-submittal
process could take an additional fourteen (14) days and whatever additional time the operator would
take. Director Prather feels that the operator would be quick to make their re-submittals and keep the
process moving. The fourteen (14) days is folded into and not in addition to the overall process
timeframe. Director Prather explained that the MOU is not part of the approval tonight and it is fair to
say that staff plans on continuing discussions and negotiations with COGA and the operators to
continue moving forward. What is before Council tonight is the draft Ordinance that City staff, Special
Legal Counsel and the City Attorney believe meets the best interests of the citizens, business and
responsible oil and gas development in Brighton.
Special Legal Counsel Matt Sura took issue with some strong language used by Ms. Jost; she used
the word deceptive in the representation that Council would not be deciding on the MOU. Mr. Sura feels that Ms. Jost chose some strong language and the word deceptive indicates that staff or Mr. Sura was trying to deceive on purpose. If Ms. Jost did not understand then Mr. Sura bears some responsibility because he was involved in those negotiations. Mr. Sura called attention to page 19, Section 17-64-310 which states clearly that the City Manager is authorized to come up with a Model MOU and is not therefore something that Council will be deciding on. Mr. Sura feels that he and staff were very clear when they met with COGA representatives and went through what it is that would be decided at this meeting. Mr. Sura apologized for any confusion.
Mayor McLean asked if any correspondence was received. City Clerk Natalie Hoel presented Mayor
McLean with the correspondence that was received for this public hearing.
Mayor McLean read the following into the record:
“Hello Everyone! I hope that this email finds you doing well. I would love to attend the City Council
meeting and again express my displeasure at the idea of fracking inside and near Brighton, Colorado,
however, I can not because I have class. I urge you all to please, please consider the long term
impacts on future generations, not only for community health, but also to ensure that the water will be
clean and that oil and gas exploration will stay away from schools. Please continue to disallow the
placement of wastewater injection wells anywhere in or near Brighton. Please do not hesitate to get in
touch if you have any questions. Thank you, Keya Horiuchi”.
Comments and questions received by Communications Specialist Kaitlin Gault from Dawn Blohm,
303-655-8358. “I received notification from an oil and gas company regarding entering into an oil and
gas lease. Is the City aware that some of their citizens are receiving these notifications? They are
asking for my social security number. The City should be notifying us if they know we are going to
receive these letters, it is scary and seemed like a scam. If I don’t agree to the lease agreements can
they take my house?”
“City Council Members Lynn Baca and Ken Kreutzer - I had planned on attending the February 17th
City Council meeting and giving my comments on the Draft Oil/Gas Ordinance; however, unexpected
family matters have arisen and must take precedence. I am sending this email to each of you with
comments. My comments are based on the draft 12.02.14 version as viewed on the City website
February 16, 2015. No modifications of this version are posted on website. Also, I was looking for the
Air emission mitigation plan (Sec. 17-64-170) and was not able to find the draft. Was this posted on the website for Public information? I read the Draft Ordinance with the main question in mind - ‘Does this Ordinance as written protect the groundwater of the City of Brighton?’ I found several inconsistencies; however, the following are the larger issues and more concerning - 1. Page 12 Section under Conditional Use review, application requirements Sec. 17-64-120,(15), h. within emergency response plan concerning ‘all current Material Safety Data Sheets (MSDS) for all chemicals used or stored on a site. The MSDS sheets shall be provided immediately upon request to City officials, employees or agents; a public safety officer; or a health professional as required by COGCC Rule 205.’ Comment - This requirement in the Draft Ordinance differs significantly from the COGCC Rule 205 (d). ACCESS TO RECORDS…if the Chemical Product is considered a Trade Secret by the vendor or service provider. Question - How will first responders respond without the necessary and timely information? I suggest reading COGCC Rule 205. ACCESS TO RECORDS for information on by whom and when access to chemical information can be made. Also, one should ask which local oil/gas companies classify their chemical products a Trade Secret. 2. Page 14 - ‘subsection 14) A water quality monitoring plan if required’ Comment - if concerned about water quality, a monitoring plan should be required. 3. Page 21 - Groundwater Sampling - Reference to COGCC Order No. 1 - XXX, Groundwater Sampling Zone, 4., b. vii. ‘If no water sample can be obtained from the boring, or refusal is encountered, the Operator shall inform the Commission and propose an alternative method for sample collection or request a variance from this requirement. Provided good faith effort is made, failure to obtain access to a groundwater sampling will not be grounds for permit denial by the Commission.’ Comment - Does this give permission to drill without water sampling or minimal collection effort? What happens to any baseline information necessary for Brighton? ***A third-party professional should be hired by the City and paid for through oil/gas fees. Sampling should not be done by the oil/gas operator. Is this a conflict of interest for the operator? Oil and/or gas drilling generate concerns about potential effects on ground water quality. Baseline water quality sampling, before and after oil and/or gas drilling should be required to establish the pre-existing quality of the groundwater and drinking water wells. The sampling and analysis of water wells should be of groundwater and water wells in proximity to the drill site. Without such analysis, it is difficult to pinpoint the cause of water-supply degradation, if any should occur. Collecting a groundwater sample for chemical analysis should be a specialized skill requiring specific training to ensure date quality and reliability. A third-party professional should collect groundwater samples NOT the oil/gas operator. Groundwater sample analysis should be done by an accredited laboratory. Some laboratory analysis may have to begin within a short time of sample collection due to type of testing. Result should be given to City of Brighton within days of collection and analysis NOT ‘within three (3) months of collecting the samples’ (see Draft Ordinance, Page 21-22., Groundwater Sampling, Subsection 2), c). What can happen in three months to water supply if tainted? Comment - Missing in the Draft Ordinance is information on the history of earthquakes that have occurred in Commerce City area, north to Northglenn, Thornton and Brighton. The earthquakes were caused by the Rocky Mountain Arsenal by the injection of liquid into a well. An earthquake occurred in 1967 and was felt in Laramie, Wyoming, east to Goodland, Kansas and south to Pueblo, Colorado. This earthquake had been felt in Brighton and also linked to the Arsenal and their injection of liquid into a well. The largest known earthquake in Colorado occurred on November 7, 1882 and had an estimated magnitude of 6.6. The location of this earthquake was in the northern Front Range west of Fort Collins. More than 700 earthquake tremors of magnitude 2 or higher have been recorded in Colorado since 1867. **If Brighton has had earthquakes in the past, will the increase in pressure from water injection cause any existing fault to slip and create and earthquake? **Does Brighton have any contingency plan in the event of an earthquake and it’s effect on groundwater and the residents of Brighton? Can the City of Brighton furnish water if necessary to the residents of Brighton in the event of a damaging earthquake? Comment - According to City of Brighton - 2013 Drinking Water Quality Report - In 2011 Brighton provided 67% of its drinking water from alluvial wells. This proposed Ordinance seems to address the 67%; however, another question arises about how the other approx. 33% of Brighton water is protected. Comment - Does Brighton’s Home Rule status address the oil/gas drilling and/or groundwater concerns? Again, I ask myself the question - ‘Does this Draft Ordinance as written protect the groundwater of the City of Brighton?’ I answer the question - ABSOLUTELY NOT!! Thank you for your time on this important matter. Again, there are other questions on this Draft Ordinance and I have tried to address the larger concerns. Alex Duran, Brighton resident”
Mayor McLean asked if there were questions and comments from Council.
Councilmember Bell expressed his appreciation to COGA and the operators for the economic benefit
they have brought to the area. Oil and gas has brought negative and positive impacts and together all
are learning to lessen the negative. In 1974 in Rangely, Colorado the oil and gas lines were laid on top
of the ground and there was a foul odor and water contamination but it is better now. Brighton does
want the positive but City Council wants to lessen the negative. Council was told that 20% of citizens of Brighton receive income directly from energy and that is significant but one cannot forget the other
80% that live in the City and are served by Council. Councilmember Bell referenced an article from The Denver Post from January 14th that stated more than seven hundred (700) spills were reported in oil and gas operations in Colorado last year according to the latest data compiled from a State database. The spills that occurred on an average of two (2) per day released more than a million gallons of oil and other chemicals mainly in Weld County. The article explains that it was most often caused by equipment failure or human error. There will always be mistakes but we have to learn to guard against that and save our community. Councilmember Bell thanked the operators and COGA for making Weld County and Brighton better and thanked them for the jobs they provide, but you cannot jeopardize the health of the citizens of Brighton for money. Staff has worked diligently with COGA and the operators to bring about a compromise. Will thirty (30) days make a difference, possibly, but this has been talked about for a long time. Brighton is twenty-seven (27) miles of the three thousand (3000) miles in the Wattenberg Basin and Councilmember Bell feels it is not too much to ask for 1350 feet from any home in the City for the safety of the food and water that we all eat and drink.
Mayor McLean closed the public hearing at 9:42 p.m.
Motion by Councilmember Martinez, seconded by Mayor Pro Tem Wallin, to continue this item to
March 17, 2015.
City Attorney Brubaker answered questions from Council regarding:
- Modifications still being allowed to the Ordinance if approved at first reading tonight.
Councilmember Martinez withdrew her original motion and seconder Mayor Pro Tem Wallin
agreed.
Motion by Councilmember Edwards, second by Councilmember Kreutzer to go into Executive Session at 10:11 p.m. for a conference with the City Attorney for the purpose of receiving legal advice on specific legal questions under C.R.S. Section 24-6-402(4)(b) for clarification on this issue. Motion passed by the following vote:
Aye: 9 - Mayor McLean, Mayor Pro Tem Wallin, Councilmember Baca, Councilmember
Bell, Councilmember Edwards, Councilmember Humbert, Councilmember Kniss,
Councilmember Kreutzer, and Councilmember Martinez
Mayor McLean resumed the meeting at 10:29 p.m.
Motion by Councilmember Martinez, seconded by Mayor Pro Tem Wallin, to continue the first reading of the Ordinance to March 17, 2015 at 7:00 p.m. Motion passed by the following vote:
Aye: 8 - Mayor McLean, Mayor Pro Tem Wallin, Councilmember Baca, Councilmember
Edwards, Councilmember Humbert, Councilmember Kniss, Councilmember
Kreutzer, and Councilmember Martinez
No: 1 - Councilmember Bell
7. ORDINANCES FOR INITIAL CONSIDERATION
A. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BRIGHTON,
COLORADO, APPROVING A LOAN FROM THE CITY OF BRIGHTON CEMETERY
PERPETUAL CARE FUND TO THE CITY OF BRIGHTON CEMETERY FUND, IN
AN AMOUNT NOT TO EXCEED ONE HUNDRED FIFTY THOUSAND DOLLARS
($150,000.00) TO FUND THE CONSTRUCTION OF CREMATION GARDENS AT
ELMWOOD AND FAIRVIEW CEMETERIES; AUTHORIZING THE MAYOR AND
CITY MANAGER TO EXECUTE SUCH DOCUMENTS AS MAY BE REQUIRED TO
CONSUMMATE THE LOAN; SETTING FORTH CERTAIN FINDINGS REGARDING
SAID LOAN; SETTING FORTH THE TERMS OF SAID LOAN; AND SETTING
FORTH OTHER DETAILS RELATED THERETO
Mayor McLean read the title of the Ordinance into the record.
City Manager Esquibel introduced Parks and Recreation Director Gary Wardle and Cemetery Manager
Aaron Corr.
Cemetery Manager Aaron Corr explained that this Ordinance is requesting a loan from the Cemetery
Perpetual Care fund in the amount of $150,000.00 for cremation spreading gardens at Elmwood and
Fairview Cemeteries. The loan will be paid back in twenty (20) years at 2% interest.
Motion by Councilmember Kreutzer, seconded by Councilmember Kniss, to approve the
Ordinance. Motion passed by the following vote:
Aye: 9 - Mayor McLean, Mayor Pro Tem Wallin, Councilmember Baca, Councilmember
Bell, Councilmember Edwards, Councilmember Humbert, Councilmember Kniss,
Councilmember Kreutzer, and Councilmember Martinez
8. RESOLUTIONS
A. A RESOLUTION ADOPTING THE CITY OF BRIGHTON CEMETERIES RULES
AND REGULATIONS 2015
Mayor McLean read the title of the Resolution into the record.
Cemetery Manager Aaron Corr asked for City Council approval of the Cemetery Rules and
Regulations for 2015.
City Attorney Margaret Brubaker explained that the City Council received two documents in the Agenda packet and the final document not red-lined.
Motion by Councilmember Humbert, seconded by Councilmember Baca, to approve Resolution
2015-16. Motion passed by the following vote:
Aye: 9 - Mayor McLean, Mayor Pro Tem Wallin, Councilmember Baca, Councilmember
Bell, Councilmember Edwards, Councilmember Humbert, Councilmember Kniss,
Councilmember Kreutzer, and Councilmember Martinez
9. UTILITIES BUSINESS ITEMS
A. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRIGHTON,
COLORADO, ACTING BY AND THROUGH ITS WASTEWATER ENTERPRISE,
ACCEPTING THE TERMS OF A LETTER OF AGREEMENT WITH METRO
WASTEWATER RECLAMATION DISTRICT, CITY OF AURORA, CITY AND
COUNTY OF DENVER, AND SOUTH ADAMS COUNTY WATER AND
SANITATION DISTRICT REGARDING MASTER PLANNING OF THE SAND AND
SECOND CREEK BASINS, AUTHORIZING THE MAYOR TO EXECUTE SUCH
AGREEMENT, AND FURTHER AUTHORIZING CITY STAFF TO UNDERTAKE
SUCH TASKS OR EXECUTE SUCH DOCUMENTS AS MAY BE REQUIRED TO
CARRY OUT THE TERMS OF THE AGREEMENT
Mayor McLean read the title of the Resolution into the record.
City Manager Esquibel introduced Utilities Director Curt Bauers.
Utilities Director Curt Bauers explained that this Resolution authorizes the City to cooperate with Metro
Wastewater District in analyzing future wastewater conveyance and treatment needs in the Sand
Creek and Second Creek basins. The participants in the IGA are Aurora, City and County of Denver,
South Adams Water and Sanitation District, Metro and Brighton. The agreement requests no financial
commitment from the City, all funding will come from Metro. The agreement requires no future
commitment to adhere to the Master Plan; the City is simply agreeing to provide the City’s planning
projections to their effort. All other parties have agreed to the language as well as the City’s legal
counsel and staff recommends approval.
Motion by Councilmember Edwards, seconded by Mayor Pro Tem Wallin, to approve
Resolution 2015-17. Motion passed by the following vote:
Aye: 9 - Mayor McLean, Mayor Pro Tem Wallin, Councilmember Baca, Councilmember
Bell, Councilmember Edwards, Councilmember Humbert, Councilmember Kniss,
Councilmember Kreutzer, and Councilmember Martinez
B. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRIGHTON,
COLORADO, ACTING BY AND THROUGH ITS WATER ENTERPRISE, TO FIND
AND ACKNOWLEDGE THAT GOOD CAUSE EXISTS AND THAT IT IS IN THE
BEST INTERESTS OF THE CITY TO WAIVE THE FORMAL REQUEST FOR
PROPOSAL PROCEDURES FOR CONTRACT RENEWALS OF BRIGHTON’S
WATER RESOURCES PROFESSIONALS: FISCHER, BROWN, BARTLETT, AND
GUNN, P.C.; WHITE SANDS WATER ENGINEERS, INC; AND LEONARD RICE
ENGINEERS, INC.
Mayor McLean read the title of the Resolution into the record.
City Manager Esquibel introduced Utilities Director Curt Bauers.
Utilities Director Curt Bauers explained that the next four (4) items are related. The first Resolution
allows the City to waive the usual proposal process for the procurement of professional services for the City. The Utilities Department has significant needs in the water rights arena from acquisition and planning, procuring of water rights to the legal defense of existing water rights and protection of those rights from new water court applications and in the prosecution of those applications. Because these are ongoing issues the City has utilized the services of two (2) engineering firms and one (1) law firm for these efforts exclusively for many years. The firms of Leonard Rice and White Sands Engineers handle the City’s groundwater and surface water engineering issues respectively and the law firm of Fischer, Brown, Bartlett, and Gunn has historically handled all of the water rights issues from a legal standpoint. Staff is asking consideration of a Resolution allowing the City to continue using these firms with their experience and familiarity with the team members and the City’s portfolio without going through the usual proposal process which would leave other applicants at a significant competitive disadvantage. If Council agrees with the waiver of the process, there is a Resolution to approve each of the contracts.
Motion by Councilmember Kniss, seconded by Councilmember Kreutzer, to approve
Resolution 2015-18. Motion passed by the following vote:
Aye: 9 - Mayor McLean, Mayor Pro Tem Wallin, Councilmember Baca, Councilmember
Bell, Councilmember Edwards, Councilmember Humbert, Councilmember Kniss,
Councilmember Kreutzer, and Councilmember Martinez
C. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRIGHTON,
COLORADO, ACTING BY AND THROUGH ITS WATER ENTERPRISE, TO
APPROVE A PROFESSIONAL SERVICES AGREEMENT WITH FISCHER,
BROWN, BARTLETT, AND GUNN, P.C. FOR THE PROVISION OF WATER
RELATED LEGAL SERVICES TO THE CITY; SETTING FORTH THE FEES FOR
SAID SERVICES; AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT
ON BEHALF OF THE CITY; AND SETTING FORTH OTHER DETAILS RELATED
THERETO
Mayor McLean read the title of the Resolution into the record.
Utilities Director Curt Bauers explained that the contracts for Items 9C, 9D and 9E are currently
approved in the budget for 2015 and the 2015 Fee Schedule is attached to the Resolutions as well.
Motion by Councilmember Humbert, seconded by Councilmember Bell, to approve Resolution
2015-19. Motion passed by the following vote:
Aye: 9 - Mayor McLean, Mayor Pro Tem Wallin, Councilmember Baca, Councilmember
Bell, Councilmember Edwards, Councilmember Humbert, Councilmember Kniss,
Councilmember Kreutzer, and Councilmember Martinez
D. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRIGHTON,
COLORADO, ACTING BY AND THROUGH ITS WATER ENTERPRISE, TO
APPROVE A PROFESSIONAL SERVICES AGREEMENT WITH WHITE SANDS
WATER ENGINEERS, INC. FOR THE PROVISION OF WATER RELATED
ENGINEERING SERVICES TO THE CITY; SETTING FORTH THE FEES FOR SAID
SERVICES; AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT ON
BEHALF OF THE CITY; AND SETTING FORTH OTHER DETAILS RELATED
THERETO
Mayor McLean read the title of the Resolution into the record.
Utilities Director Curt Bauers reported that White Sands has been doing work for the City some time
with a lot of the same team members. The budget is in place to support this contract in the not to
exceed amount of $270,750.00.
Motion by Councilmember Edwards, seconded by Councilmember Martinez, to approve
Resolution 2015-20. Motion passed by the following vote:
Aye: 9 - Mayor McLean, Mayor Pro Tem Wallin, Councilmember Baca, Councilmember
Bell, Councilmember Edwards, Councilmember Humbert, Councilmember Kniss,
Councilmember Kreutzer, and Councilmember Martinez
E. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRIGHTON,
COLORADO, ACTING BY AND THROUGH ITS WATER ENTERPRISE,
APPROVING A GENERAL SERVICES AGREEMENT WITH LEONARD RICE
ENGINEERS, INC. FOR THE PROVISION OF WATER RELATED ENGINEERING
SERVICES TO THE CITY; SETTING FORTH THE FEES FOR SAID SERVICES;
AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT ON BEHALF OF
THE CITY; AND SETTING FORTH OTHER DETAILS RELATED THERETO
Mayor McLean read the title of the Resolution into the record.
Utilities Director Curt Bauers explained that this contract will not exceed $167,000.00. Director Bauers
answered questions from Council regarding:
-The necessity for each of the three (3) contracts.
Motion by Councilmember Humbert, seconded by Councilmember Kniss, to approve
Resolution 2015-21. Motion passed by the following vote:
Aye: 9 - Mayor McLean, Mayor Pro Tem Wallin, Councilmember Baca, Councilmember
Bell, Councilmember Edwards, Councilmember Humbert, Councilmember Kniss,
Councilmember Kreutzer, and Councilmember Martinez
10. GENERAL BUSINESS
11. REPORTS
A. By the Mayor.
Mayor McLean attended the E-470 Board meeting.
B. By Department Heads.
C. By the City Attorney.
City Attorney Brubaker informed City Council that a complaint was received regarding the qualification
of City Council members and asked for direction from City Council to find outside counsel to represent the City regarding this issue.
Motion by Councilmember Baca, seconded by Councilmember Humbert, to allow City Attorney
Brubaker to seek outside Counsel to represent the City regarding challenges to qualifications of City Council Members. Motion passed by the following vote:
Aye: 9 Mayor McLean, Mayor Pro Tem Wallin, Councilmember Baca,
Councilmember Bell, Councilmember Edwards, Councilmember Humbert,
Councilmember Kniss, Councilmember Kreutzer, and Councilmember
Martinez
D. By the City Manager.
City Manager Esquibel announced that tomorrow is the 3E’s Chili Cook-off at 11:00 a.m. at the
Recreation Center. The State of the City is Thursday at 7:30 a.m. at the Armory. Thursday at 6:00 p.m.
at City Hall is the Eye for Art reception. The Brighton Sustainable kickoff is Saturday from 10:00 a.m. to
2:00 p.m. at the Armory.
12. REPORTS BY COUNCIL ON BOARDS & COMMISSIONS
Councilmember Bell attended the CML meeting.
Councilmember Humbert attended the Parks and Recreation Advisory Board meeting.
Councilmember Baca announced that the Brighton Fire District voted to increase terms by one (1)
term.
Mayor Pro Tem Wallin attended the Historic Preservation Commission public hearing regarding the
repair of the stairs at 575 Bush Street and it was approved by everyone. The Brighton Youth
Commission attended a training regarding how to ask businesses for donations given by Melissa Rippy
and Lloyd Worth.
Councilmember Kreutzer thanked everyone for attending the Sister Cities event.
13. EXECUTIVE SESSION
14. ADJOURNMENT
Motion by Councilmember Martinez, seconded by Mayor Pro Tem Wallin, to adjourn at 10:59
p.m. Motion passed by the following vote:
Aye: 9 - Mayor McLean, Mayor Pro Tem Wallin, Councilmember Baca, Councilmember
Bell, Councilmember Edwards, Councilmember Humbert, Councilmember Kniss,
Councilmember Kreutzer, and Councilmember Martinez
CITY OF BRIGHTON, COLORADO
_______________________________
ATTEST: Richard N. McLean, Mayor
_______________________________
Natalie Hoel, City Clerk
_______________________________
Approval Date