When Santa Fe County — spooked by the specter of impending oil and gas development — first began writing new regulations to govern the industry, the county's public information officer said the county would probably get sued no matter what type of ordinance it developed.

The no-drill attitude of many of the residents of Santa Fe County combined with the must-drill track record of the energy industry, Stephen Ulibarri reasoned in the fall of 2007, was bound to result in a situation in which neither party could be satisfied and one would legally challenge whatever the county approved.

The county Development Review Committee voted unanimously Thursday to recommend that the County Commission approve the most recent version of the evolving oil and gas ordinance being developed by contract planners and attorneys. By Ulibarri's logic, that puts Santa Fe County one step closer to a lawsuit.

But land-use attorney Robert Freilich, one of the primary authors of the proposed regulations, assured the committee Thursday that the ordinance he and his team had written was legally defensible. "We think there is very little basis for a facial attack on this ordinance," Freilich said.

He wasn't talking about someone trying to harm the eyes, ears, nose or mouth of the regulation. He was using the legal definition of the word, meaning that taken as a whole, it would be hard to argue that the ordinance was unconstitutional.

Freilich — who went on to use the word "facial" numerous times to the apparent bafflement of many — was referring to the fact that the ordinance doesn't outright ban oil and gas drilling anywhere in the county.

Instead, it requires potential oil and gas developers to meet an extensive and complicated checklist of requirements, some of them costly, that together will make developers think long and hard before deciding to explore in Santa Fe County.

That, Freilich said, would make it near impossible for a mineral-rights owner to claim the rules constituted a legal taking of a assets.

"It's a very good, environmentally protective ordinance," said Michelle Henrie, an attorney who represents the owner of most of the 65,000 acres of mineral rights in the Galisteo Basin that have been leased for exploration by Tecton Energy. "It's very unlikely that oil and gas development would be able to go forward for a variety of reasons, most of which are financial. And it would be hard to claim a taking, which leaves my client with nothing."

Freilich — who said he incorporated hundreds of public comments into the ordinance — called it "the most comprehensive ordinance that this county has ever seen."

Freilich said he compared his ordinance to rules being developed for the Galisteo Basin area by the state and found very little overlapping, a good sign, he said, because that means Santa Fe County can't be accused of treading on the territory of the Oil Conservation Division, the only entity that has the authority to regulate the oil and gas industry in New Mexico.

But county resident Kim Sorvig said language in the ordinance limiting the number of wells in high sensitivity areas to 10 percent of those allowed by the OCD, could put the county at risk of being charged in overstepping its authority.

"If we don't change that, we are in trouble with the OCD," Sorvig said. "That is not our purview to limit the number of wells. What we can do is limit the amount of surface area they can disturb."

Thursday's meeting was the second public hearing the CDRC held on the ordinance, but public comment was minimal, partially because Thursday's meeting on the revised version was held mere hours after the revisions were released to the public.

Many in the audience, including attorneys and activists on both sides, seemed a little lost in the legal lingo contained in the 150-page document. Several said they would submit written comments at a later date, after having more time to review it.

Bruce Frederich, staff attorney for the Environmental Law Center, said he was still wading through the "huge" document. At first glance, he said, it appeared the changes that had been made since it was first released were "more drafting issues than legal ones."

"There are some ambiguities that need to be cleared up," Frederich said. "But I don't see any fatal flaws."

The County Commission will consider the ordinance at its next meeting, which begins at 3 p.m. Tuesday in the County Commission Chambers at 102 Grant Ave.

Contact Phaedra Haywood at 986-3068 or phaywood@sfnewmexican.com.