STEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTERSON, pa. forall Wear 401 Eat Joton Set Ste 205 Poa Ones hn 299 Tango FLS3601 vec 12225002 Foe (819, 222-5019 nal roomie on June 25,2015 VIA E-MAIL & US. MAIL (Ben Nelson(@eitvoTbonitasprings ore, Audrey Vance(@vityofbonitasprings. ors) ‘The Honorable Mayor Ben L Nelson, Jr ‘Audrey E. Vance, Esquire City of Bonita Springs 9101 Bonita Beach Road Bonita Springs, FL 34135 RE: Proposed Ordinance Amending City of Bonita Springs LDC Section 4-1380, First Reading Scheduled for July 1, 2015 Dear Ms, Vance and Mayor Nelson: We represent Collier Resources Company’ and its related entities (collectively, “Collier Resources"), who own land and thousands of acres of mineral rights in the City of Bonita Springs. Collier Resources has owned much ofthis real property and associated mineral rights since the early 1900s, before the existence of the City of Bonita Springs and its proposed anti- well simulation ordinance. Collier Resources hus been inthe business of leasing its minerals for oil and gas exploration since the 1940s, and believes viable extractable hydrocarbon resources ‘exist within the City of Bonita Springs.” See Pollastro, 1995 USGS National Oil and Gas Play- Based Assessment of the South Florida Basin, Florida Peninsula Provinee, U.S. Geological Survey Digital Data Series 69-A (Nov. 2001) (Ailpulpubs uses govidds/dds-069/des-069. WREPORTS/SFB1995 pd). Collier Resources’ lessee has paid substantial sums for options to lease additonal mineral rights within the City of Bonita Springs Hydraulic facturing is « dynamie subject. It curently isthe intense focus ofboth federal and state regulation, legislation and study. The United States Environmental Protection Agency (EPA) just issued a drat report this month regarding the science of hydraulic fracturing which i the subject of public hearings set for September and October 2015, The Florida Legislature, within its inherent sphere of statewide interest, concem and jurisdiction, passed a bill in the Florida House to regulate well stimulation, but was net voted on in the Florida Senate due to early sdjoumment, Sponsors in both the Senate and House have stated their intentions to -MIAML + FORTLAUDERDALE + TAMPA * TALLAHASSEE‘The Honorable Mayor Ben L. Nelson, It. ‘Audrey E. Vance, Esquire June 25,2015 Page? reintroduce legislation in the 2016 session, The federal and state governments ere conscientiously trying to get the science right, before enacting regulations that comply with constitutional parameters, ‘The EPA's preliminary Assessment of the Potential Impacts of Hydraulic Fracturing for (it and Gas on Drinking Water Resources (June 2015) concluded thet “The number of identiied cases where drinking water resources were impacted are small relative to the number of ‘hydraulically fractured wells.” This may warrant comprehensive health and safety regulations, consistent with scientific, legal and constitutional authority, but not an outright illegal ban on ‘well stimulation, ‘The proposed ordinance inevitably will be lightning rod, drawing expensive lawsuits against the City that would become moot or unnecessary once the federal and state governments hhave had an opportunity to digest the state ofthe seience on this subject. There is no reason for the City of Bonita Springs, without conducting any reliable scientific studies of its own regarding purported water, geology and soil composition concems, to rush to judgment on this complex, ‘dynamic topic, and essentially lead the charge against hydraulic acting in the State of Feria, OU & Gas Dring Generally, most diling, even conventional, requires some form of “well stinustion” Hydraulic fracturing in veri wells hasbeen wed commercially since the 1940s. Conventional driling has used scidizing techniques for decades. In the 190s, hyralie facturing was effectively epled to horizontal wells in developing “tight” oil or gut reserves (hydrocarbons dispersed in rocks of low permeability and porosity, which makes i more difficult recover than conventional hydrocarbon deposit). This recovery of oil and gas deposits nt otervise recoverable by tational metod i part of our ations campaign to rede its dependence on foreign cil, ‘This mission is implemented through sate laws such as Chapter 377, Flora Statutes, which prevents waste of natural rescues and the inefcient dling of wells which results in educing the quantity of ol and gas ulimatly recovered nance 4-1380 ‘As worded, the proposed amendment to Section 4-1380 of the City of Bonita Springs Land Development Code will affect all driling for oil and gas, including conventional driling, ‘The proposed ordinance effestvely bans horizontal and vertical wells within the City. The proposed ordinance will undoubtedly diminish, if not extinguish, the value of Collier Resources" ‘mineral rights, resulting ina loss of tens of millions of dollars ‘The proposed ordinance purporting to ban al well stimulation is unconstittionally over broad. In general, oil exploration and drilling always includes the injection of fluid. tis our understanding that the City uses an “acidizing” process to obtain its own drinking water. If Collier Resources is prohibited from “acidizing” its oil and gas wells, then even conventionalThe Honorable Mayor Ben L. Nelson, J. ‘Audrey E. Vance, Esquire June 25,2015 Page3 2 constitutional violaon. ‘There is no legitimate public purpose to ban all well stimulation within ‘the City limits, just like the City cannot completely ban all other allegedly deleterious land uses, ‘suchas chlorine storage or electric power lines. Hydraulic fracturing has not been declared an environmental hazard or nuisance. The recent draft EPA report indicates the rsk of drinking water contamination is small, This E>A report isnot even final, because hundreds of the brightest minds are primed to comment on ‘he science of hydraulic fracturing during the federal public hearings set for September and October 2015. ‘The City of Bonita Springs has not conducted any scientific studies regarding hydralic fracturing and has no competent substantial evidence to suppor its proposed ordinance. To ban all wel stimulation techniques under these circumstances is overreaching beyond the authority of the police power. Procedural Due Process Violation Proposed ordinance improperly overrides the permit application process required by Fe Stat, § 377.24. Further, proposed 4-1380 lacks objective, discernible standards as to what fowners may do with theit property. The proposed amendment vaguely bans well stimulation, and stops the efficient consolidation of mineral resources. For example, it fils to identify what ‘magnitude of well stimulation is acceptable, or which pH level constitutes “acidizing.” As \written, the propased ordinance is invalid. See Drexel v. City of Miami Beach, 64 So. 24 317 (a, 1953). Conclusion Proposed Ordinance 4-1380 impermissibly casts a broad ban on all well stimulation ‘techniques inthe exploration of oil and gas. The ordinance is nat supported by scientific dat. Tt lacks objective standard. It also constitutes per se taking and inverse condemnation and voles Doth prongs ofthe Bert Harris Act. STEARNS WEAVER MILLER WEISSLER ALHADERT & SITTERSON.‘The Honerable Mayor Ben L. Nelson, Jr. Audrey E. Vance, Esquire Jane 25, 2015 Page 7 In addition, te legal ban on well stimulation conflicts with State statutes and policy regarding the efficient recovery of Florida's oil and gas resources, a8 ruled under similar circumstances in New Mexico and Virginia. Swepi, 2015 WL 365923; Opinion No, 12-102, 2013 WL 208897 (Va.A.G Jan. 11,2013), ‘The EPA has issued a draft report suggesting that a ban on hydraulic fracturing is unnecessary. The EPA’s preliminary report will be subject to rigorous peer evaluation and public comment within four months. ‘This constitutionally flawed ordinance will unnecessarily launch the City of Bonita Springs to the forefront ofthe complex science, regulatory, and policy debate associated with hydraulic fracturing. Enactment of 4-1380 will expose the City 0 numerous lawsuits and clas actions, ftom Collier Resoutoes and others, all of which will likely be rendered moot by ‘imminent federal and state actions. The expensive defense of these claims likely wil be sound and fury signifying nothing, when the ordinance is superseded by federal andor state oversight FFor these reasons, itis respectfully requested that the City of Bonita Springs exercise sound judgment and not move forward with the proposed amendment to 4-1380 at this time. Sincerely, Kes lac RLWiaw STEARNS WEAVER MILLER WEISSLER ALHALEFE 6 S1V-194S0N 04