Bald eagles are the national bird of the United States since 1782 and a protected species, but not protected enough to survive energy development in west Weld County.

Over 20 bald eagles used to roost in the “Middle Nest” cottonwood trees on Boulder creek from October to April. Their “roosting network” settled in trees above ponds that hold fish that supply a reliable food source. The place was bald eagle heaven.

But the Middle Nest eagles don’t rule that roost anymore because they don’t write oil and gas regulations. That’s the job of the Colorado Oil and Gas Conservation Commission (COGCC).

The Middle Nest eagles were chased out by Crestone Peak Resources, now renamed and rebranded as Civitas Resources – a combination of Crestone Peak Resources, Bonanza Creek Energy, and Extraction Oil and Gas, a bankrupt enterprise, into the largest “pure play energy producer” in Colorado. Civitas is Latin for community, no kidding.

This story has history. Crestone Peak Resources purchased a lease for more than 20-plus wells on a pad off Boulder Creek before the passage of SB-181 legislation on oil and gas drilling protections for people, water, land, air, and wildlife. The company received its permit from the COGCC to drill in 2019 with a proviso that it wouldn’t begin operations until after the 2019-2020 eagle mating season.

Low oil and gas prices put the kibosh on the 2019-2020 plan. If Crestone didn’t finish its work in the 2019-2020 time frame, the company had to return to the Colorado Division of Parks and Wildlife (CDPW) for next steps. The company met with CDPW in October 2020 but didn’t document the meeting as required by its permit. The meeting ostensibly resulted in recommendations to manage water transfers so the eagles and their roosting would make it through 2021.

By November 2020, with energy prices rising, Crestone hired subcontractor A and W Water Services. This company has had several owners over the last couple of years, including Superior Energy Services, bankrupt in December 2020, Complete Energy Services, and now Select Energy Services. A and W Water Services started its water extraction from a pond next to the breeding eagle nests in late 2020.

Front Range Nesting Bald Eagle Studies, a research entity working to maintain and grow eagle populations in threatened Front Range territory, observed the impact of the water extraction on the Middle Nest bald eagles. In 2018 and 2019, they counted over 20 bald eagles in the Middle Nest trees. From 2020 to 2021 during water extraction, they counted one eagle once during the six month breeding and roosting period.

Front Range Eagle brought a complaint to the COGCC asking the commission to stop the water pumping during the eagle nesting period. Apparently, CDPW asked Crestone to limit fueling the water transfer compressor to the hours of 10 a.m. to 2 p.m. to give the birds a chance of making it through their propagation.

That didn’t happen. A and W ran its pumps 24 hours-per-day. Front Range Eagle performed noise measurements that showed that out of eight night-hours measured, four exceeded the 60 dBA allowance. Crestone says that only COGCC can perform these regulatory measurements for compliance decisions. Even so, the noise from the compressor and other drilling preparation drove the eagles out.

COGCC director Julie Murphy had her staff analyze the complaint and nixed it. According to her decision, the COGCC does not have authority to regulate subcontractors who contract with oil and gas entities to move water not located on the pad site to the tanks that hold the water for hydraulic fracturing. Jeff Robbins, commission chair, said at the recent review hearing that he stands by the staff. He didn’t elaborate.

Now, there was considerable legal argument from the Front Range Eagle side that it’s illogical and unreasonable that water transfer entities, generally subcontractors, are not regulated by the COGCC. Sand brought in for fracking and dumped next to well pads is regulated, as is water brought in by trucks. But, according to four of five commissioners, water pumped through pipes a short distance to tanks on the well pad may not be regulated by COGCC.

If that decision holds, no state agency has authority to regulate subcontractor water transfers by pipe to well pads. The COGCC has been thumbing its nose at the legislature and SB-181 since it passed. In 2022, someone on capitol hill should show the COGCC who rules the roost, and let’s hope it’s the eagles.

Paula Noonan owns Colorado Capitol Watch, the state’s premier legislature tracking platform.