Boulder County voters, year after year, decade after decade, happily voted yes nearly every time they were asked to tax themselves to acquire more open space, land they believed would forever be protected from development.
Dozens of parcels along the county's eastern edge were purchased as part of this nationally recognized conservation program.
Thousands of acres of pastures, historic farms, wetlands and legacy landscapes offering stunning views of the plains and foothills of the Rocky Mountains were brought into the county's open space portfolio.
Taxpayers thought the parcels would carefully be shielded from unsightly strip malls and subdivisions.
Few could see a future where a much bigger threat would emerge: high-tech, high-intensity oil and gas development.
Now, roughly 16,000 acres of open space in that region have been targeted for drilling. All told, taxpayers spent $74 million to buy and protect this land, according to records reviewed by the Daily Camera and Times-Call.
Since Boulder County's moratorium on drilling applications was lifted earlier this year, two major Denver-based oil and gas companies have moved forward with plans for large-scale drilling programs on some of those open space lands, making it clear for the first time that this cherished region was more vulnerable to development than anyone had imagined.
"The taxpayers in Boulder were not made aware when they decided to spend their tax money on open space that fracking could happen on that land," said anti-fracking activist David Paul, a member of Boulder County Protectors. "It's the most recent egregious example of corporations crushing local democracy."
The two projects must win approval from the state and Boulder County before drilling can begin, something that could occur in roughly 18 months.
Now the push is on to see whether the companies — Crestone Peak Resources and Extraction Oil & Gas, along with its subsidiary 8 North — will be stopped, as county officials and some taxpayers hope, or sharply limited in what they are allowed to do, as others believe is the proper approach.
"I know there is a lot of concern," said Ron Stewart, the former longtime director of the county's open space program, who is now retired. "I share that concern. I look at the monstrous things that have developed across the border in Weld County (the largest oil producing county in Colorado) and it's appalling."
How did this occur?
Decades ago, Boulder County open space laws sought to stop traditional commercial and residential development. None were crafted to protect against a time when world oil markets and new technology would make the mineral deposits under the land along the county's eastern edge ripe for drilling.
Some drilling already has occurred in the region, but with much less intensity. Where a well pad might have had two to four wells, newer technology makes it possible to put dozens of wells on a single pad.
"Traditionally our largest well pad was four wells," said Kim Sanchez, senior planner with Boulder County. "We're talking about a trend switch, to 18 and 36 per well pad."
In addition, Colorado law gives oil companies express rights to access surface lands in order to reach minerals they own which lie below. The laws also allow oil companies to develop other minerals they don't own under what is commonly referred to as a forced or statutory pooling law.
That law says that an oil company that directly owns mineral rights in an area can also pool, or develop, other mineral interests nearby, even if the other mineral owners are opposed.
As Boulder County went out to buy land, it bought mineral rights when they were available, but it wasn't always possible because the rights were owned by others.
A survey of county-owned mineral rights in the area indicates that roughly one-third of the lands along the eastern edge include mineral rights.
Should it have tried to buy more? Boulder County officials say it would not have mattered, because even mineral rights the county owns can be developed by oil companies using the forced pooling law now on the books.
These state laws, thus far, have trumped any county laws.
Lapse in foresight?
State and other county officials are watching the Boulder County drilling proposals closely, knowing that they could affect other open space programs should new court cases or state laws change the legal landscape.
Michele Frishman oversees the open space program for Great Outdoors Colorado, an agency that uses lottery proceeds to help protect open space and outdoor recreation sites statewide.
Frishman said GOCO, as the organization is known, requires all proposed purchases to undergo a mineral assessment before it agrees to fund them. If the assessment shows even a "minimal" chance that the property's minerals would be developed, GOCO won't fund them.
But Boulder County officials say if they had used that standard in their own purchasing program, thousands of acres would have gone unprotected.
"That's fine for GOCO," Stewart said. "But if Boulder County had taken that position there wouldn't be any open space on the eastern side of the county. A standard like that would not have served very well the people of Boulder County."
Jefferson County Open Space Director Tom Hoby said his county has seen little interest from oil and gas companies, although it has had to negotiate access and development issues with other corporate interests, such as utilities and telecommunication companies.
"It's an interesting conundrum for all of us," Hoby said. "We try to understand what people think about these projects. We conduct fairly extensive environmental reviews of our properties and we try to be reasonable when evaluating those requests.
"But we've also been entrusted to be the stewards of these public lands for 45 years now. We take that responsibility very seriously."
Environmentally friendly drilling?
Crestone Peak Resources has the most ambitious plan in the county, and it is using a new comprehensive approach sanctioned by the state to encourage more public input and better planning.
Jason Oates, Crestone's vice president of public affairs, said the company is already responding to environmental concerns by agreeing to move its five pads close to the heavily traveled Colo. 52 corridor and away from residential areas.
In addition, after projecting that it would drill more than 200 new wells, it now says it likely will drill just 140.
"We're trying to address some of those environmental concerns by moving our sites closer to Highway 52," Oates said. "The noise and air quality impacts are already occurring there, and so we believe our incremental addition to that will be minimal."
Oates also said Crestone is working with the Colorado Department of Transportation to see if changes to the highway at the intersection of Colo. 52 and East County Line Road can be made to minimize traffic disruption.
Extraction Resources, which has targeted one area in the southeastern portion of the county, as well as another area nearer to Longmont.
"Extraction Oil & Gas is among the foremost industry leaders when it comes to introducing and utilizing industry best management practices that minimize the effects of development and ensure the protection of our natural environment," said spokesman Brian Cain. "Innovations like electric drilling rigs, sound walls, closed-loop transfer equipment and quiet completions fleets, all of which Extraction Oil & Gas has introduced to the Front Range in recent years, are designed to reduce and eliminate inconveniences, and ensure our natural surroundings are protected."
Just say no
Among those most opposed to any oil and gas production on open space is the group Boulder County Protectors, which last month unfurled a banner on the Flatirons saying "Do Not Frack Open Space."
Protectors member David Paul also has projected an anti-fracking message onto the Boulder County Courthouse on the Pearl Street Mall, and is now involved in a legal battle over whether his action was legal under the First Amendment, or whether it violates city ordinance.
Regardless of legal concerns, Paul and other activists say they have no intention of backing down in their quest to stop Crestone and Extraction.
"People have said they don't want it on our public lands, near our homes, our hospitals our schools," Paul said. "What is required now is mass action on the part of the people of Boulder County in order to stop this."
A move to the courts?
Boulder County Attorney Ben Pearlman said the changes in the industry not only have left the county in a tough spot, but the state as well.
"A lot of what the Colorado Oil and Gas Conservation Commission is struggling with and what we're all struggling with is that these rules were designed for a very different pattern of development — small, individual wells. Now you see this tremendous consolidation of large projects in centralized areas.
"This raises issues we are all trying to resolve," Pearlman said. "There should be state legislation to clarify or court cases that will do the same. The people of Boulder County have been using our pennies and quarters for a long time to protect this land. It's pretty important."