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Local ordinances apply to gas wells throughout the United States. Zoning applies to gas wells in New York State both by statute and by case law.1 The state regulates how a gas well is drilled, zoning controls where they may be prohibited. The court rulings in both Anschutz v Dryden and Cooperstown Holstein v Middlefield are clear on that. 2 To that end, the New York Department of Environmental Conservation (DEC) has consistently deferred to local ordinances.
The DEC has always acknowledged that land use planning and land use ordinances are the proper responsibility of municipalities. 3 This policy of deference to local ordinances
http://www.scribd.com/doc/82596365/Gas-Well-Zoning-in-New-York http://www.scribd.com/doc/82732762/Middlefield-decison 3 Environmental Forum: “Sustainable Development and Mining”, Perspectives on New 1
is identical to those of other states and has been clearly articulated at land use and legal conferences by the head of the DEC’s oil and gas section:
The DEC has token safeguards for the built environment – because it defers to local ordinances to supply those protections.4 For instance, there are no setbacks from housing proposed for shale gas wells, which would fall under the GEIS setback of only 100 feet. Such a setback of a shale gas well from a house would be illegal under any zoning ordinance that addresses gas well setbacks. 5 In that regard, New York has the worst regulations in the United States.6 New York towns have had to take action to protect their water sources and the built environment – including protecting housing that is subject to being forced into participating in gas wells,7 which would render the house uninhabitable,8 and un-financeable.9 The DEC regulates gas drilling as an activity, but not as to where gas wells may be located within the context of a lawfully adopted land use ordinance – that is the proper role of municipalities – like Denver, Santa Fe, Fort Worth, Ithaca, Buffalo, Syracuse, Albany, Dryden, Middlefield. etc. Land use
York’s Mined Land Reclamation Law Albany Law School April 17, 1998 Gregory H. Sovas, Director, Division of Mineral Resources, DEC http://www.dec.ny.gov/docs/materials_minerals_pdf/albanyla.pdf 4 http://www.scribd.com/doc/65308566/SGEIS-Community-Impacts 5 http://www.flower-mound.com/env_resources/pix/pdf/oilandgas_factsheet.pdf 6 http://www.scribd.com/doc/72545747/Worst-Fracking-Regs 7 http://www.scribd.com/doc/74790533/Compulsory-Integration-in-New-York 8 http://www.propublica.org/article/forced-pooling-when-landowners-cant-say-no-todrilling/single 9 http://www.scribd.com/doc/70784790/Fracking-the-Homestead 2
planning and land use laws are done locally. Across the county, municipalities regulate all oil and gas land uses that do not fall under the controls of eminent domain.10 While head of the DEC’ mineral management section, Gregory Sovas wrote that : “DEC has consistently advocated a strengthened and enhanced role for local governments in the review and control of mining operations that can have significant, localized environmental impact, particularly with regard to dust, noise, and traffic.”11 A DEC Administrative Law judge wrote this in a June 16, 1997 ruling on Amenia Sand & Gravel, Inc.: "Impacts on real property values is not a matter to be adjudicated at a DEC hearing. Local governments, through their ability to regulate land uses by zoning, are the proper agencies to deal with impacts to real estate values and consequent impacts to a community's tax base...As a matter of home rule, it is the Town's prerogative and responsibility to ensure compliance with its own laws. It would be inappropriate for the State Department of Environmental Conservation to attempt to usurp such powers from the Town. Even in instances where the DEC approves projects, such approvals are only indications that the proposals meet the requisite State standards to receive a permit. All DEC permits are conditioned on the basis that an applicant must comply with any and all other applicable laws and regulations, and that a DEC approval does not absolve an applicant from making proper application and receiving whatever other approvals are applicable, whether at the federal or local government levels."12
Gregory H. Sovas, “New Mined Land Amendments Provide Opportunities for Local Governments.” Talk of the Towns, Fall, 1991, pages 16 and 21. 12 [http://www.dec.ny.gov/hearings/10963.html]
Thomas Jorling, former head of DEC stated that: “The MLRL supersedes all other state and local laws related to the mining industry operations, except general local zoning ordinances. ”13 More from Greg Sovas: [DEC has] “little or nothing to say” [about the siting of mines. If the public does not want a mine in its community] “the public needs to focus its attention on its local officials to ensure that prospective zoning and planning are accomplished in our communities...What we [DEC] continue to want and need is local government comprehensive planning and zoning, including the prohibition of mining if the community believes that is in their best interests.” 14 The DEC’s recommended critical area protection programs in its Upstate Groundwater Management Plan has this to say about groundwater and local control: "Land use controls are among the most important mechanisms available to effectively manage groundwater resources. Land use is a very basic determinant of potential groundwater contamination as well as of groundwater use…where protection of critical groundwater resources is a sufficiently important and valid public purpose, there appears no reason why carefully developed local land use controls should not be an essential part of a local groundwater protection program."
New York State Department of Environmental Conservation Commissioner’s Determination of Lead Agency Under Article 8 of the Environmental Conservation Law, Proposed Sand and Gravel Mine, Parsons Road, Town of Barker, Broom County, by Fahs-Rolston Paving, Thomas C. Jorling Commissioner, March 22, 1990, page 2.
Gregory H. Sovas, “Environmental Forum: ‘Sustainable Development and Mining,’ Perspectives on New York’s Mined Land Reclamation Law,” Albany Law School, April 17, 1998, page 7.
FINAL Upstate New York Groundwater Management Program (Division of Water, 1987 4
None of this would come as a surprise to any of the major exploration companies – such as Anschutz, who would have to go to City Hall to get a permit to drill a gas well in its home town of Denver. Or Range Resources, who would have to get a drilling permit from the City of Fort Worth. Or Chesapeake from Oklahoma City. Home rule applies to gas wells in almost all the states. The only two exceptions, Ohio and Pennsylvania, prove the rule. New York will be no exception, even if the issue has to be settled in court16 instead of clarified by the Legislature.17 Many New York cities and towns have taken the initiative to exercise their rights to protect their citizens – the way towns and cities do in other states. Figures 1 and 2 show some of the jurisdictions that have been active in this regard.18 To not do so would leave them vulnerable to the predations of shale gas industrialization- as regulated by the DEC, whose history of regulating oil and gas development is deplorable.19 When audited in 1994, during Greg Sovas’s tenure as head of the department responsible for oil and gas regulation, the DEC’s regulatory practices were found severely deficit. The problems cited by the audit were never sufficiently addressed, and the department has undergone staff cuts that have left it in worse shape than when it was audited. Given the DEC’s deplorable record, municipalities would be remiss to not exercise their right to Home Rule. Absent local ordinances, any part of the town would be exposed to the negative impacts of shale gas industrialization. Accordingly, many New York cities and towns20 have acted to protect themselves from shale gas industrialization.21
http://otsego2000.org/documents/FellerfinalMemoGasDrilling.pdf http://open.nysenate.gov/legislation/bill/S5830-2011 18 http://my.brainshark.com/Prohibit-Fracking-Through-Zoning-926534928 19 http://www.scribd.com/doc/76085928/Worst-Practices-at-the-DEC
Categories of State and Local Control Most states combine state and local control, where the state minerals management agency issues the permits subject to local zoning and other ordinances – such as noise ordinances. The question of preemption has either been settled by custom, typically where the state defers to the municipalities, by state law, or by the courts. Most states cede control over oil and gas drilling locations to municipalities by custom, such as California and Texas. Meaning local land use ordinances can control (or prohibit) drilling locations, and the state does not engage in local land use planning. This is the case in New York, both according to case law and the relevant statutes.22 Colorado’s state agency does land use reviews for oil and gas development “basin wide” by fields – similar to an SEQR - but includes local authorities in that process and defers to recognized local authorities on well locations or prohibitions. Zoning is not per se incompatible with responsible gas production. New York gas drilling proponents tend to grossly over-exaggerate the impact of zoning on drilling. The oil and gas industry pays billions in taxes directly to the State of Texas in the form of a production tax, and billions more in property taxes to the local municipalities and school districts. The majority of counties in Texas produce oil or gas in some quantities. All this has been accomplished without sacrificing Home Rule. Texas municipalities have the clear right to apply local ordinances to oil and gas industrial uses - as do towns in California, New Mexico and Colorado.23 Like New York, Texas is a “Home Rule” state, meaning a municipality has broad powers to protect the health, safety
and welfare of its citizens. The police power to zone extends to oil and gas activities in Texas, with the exception of public pipelines, as noted below. This is evidenced in state law and is reflected in the zoning ordinances of Texas cities. For instance, the zoning ordinance of the City of Southlake, which is in the Barnett Shale area, specifically states24: “The drilling and production of gas and/or oil within the city shall only be permitted by specific use permit in accordance with section 45 of the zoning ordinance. A separate specific use permit shall be required for each pad site, and shall apply to all wells permitted by such specific use permit on that pad site. All applications for a specific use permit shall be accompanied by an application fee in the amount set in the city's fee schedule. A site plan is required with the specific use permit application and must include all information required by sections 40 and 45 of the zoning ordinance.”25 Other Texas cities, such as Fort Worth, have similar ordinances regulating oil and gas drilling. Up until 2009, Fort Worth restricted oil and gas drilling to its Heavy Industrial zoning districts; now drilling can be done by SUP in other districts. The important point is that local ordinances controls. Meaning a driller could (in theory) get a drilling permit from the state minerals management agency, the Texas Railroad Commission (TRRC), and be unable to drill due to local zoning restrictions. As a practical matter, they will refer to the local zoning code first. The laws that give municipal governments their authority is Texas Local Government Code.26 This code describes the different types of local governments and the authorities that they have. Its wording is antiquated (“tanneries,
blacksmiths, tallow, slaughterhouses,” etc.) and does not specifically address natural gas drilling. In Texas, natural gas development has come to be treated like any other noxious hazardous industrial activity, and is regulated as such. Most local drilling ordinances require a permit from the TRRC before applying for a permit by the municipality. As a practical matter, if the applicant knew they were not going to get the permit from the municipality, they would not apply for it at the TRRC. There is long standing case law that supports local authority over drilling operations. In Texas, the municipality is allowed to permit and regulate drilling with no exemptions under state law. Gas wells involve substantial permanent above-ground structures, including gas separation units required by the DEC at each well site. Also gas processing plants, compressors and pipelines to each well. These are permanent industrial structures, and are classified as such by the DEC. In Texas, the only exception to municipal authority is for intrastate midstream pipeline companies, which are treated as quasi-utilities under state law. Pipeline companies are supposed to be independent of the operating companies (drillers); however, many operating companies have purchased or started pipeline companies. In Texas, the pipeline companies have been given significant authority, which includes above ground appurtenances such as compressors, treating, or metering stations. See Texas Utilities Code.27 This authority has been subject to legal constraints by Texas municipalities. Chesapeake entered into litigation against the city of Grand Prairie and the courts found that municipal governments could regulate noise and aesthetics on above ground appurtenances of pipelines. Municipalities can also require mapping of the pipelines.
New York Faces Unique Environmental and Land Use Challenges In New York faces unique challenges – the potential for environmental damage, particularly to groundwater, is much greater than in the West.28 Localized risks to water supplies have been addressed by numerous scientists, including by the USGS. 29 The protections offered by the DEC are grossly inadequate. The DEC has invoked municipal zoning standards, notably from the City of Fort Worth in crafting its proposed generic regulations, the dSGEIS. Implying on the one hand that what works within the corporate limits of Fort Worth is applicable to the entire state of New York, in a “one size fits none” approach. Curiously, the DEC’s proposed 500 foot set back from a water well is less than the 600 foot set back Fort Worth’s zoning ordinance. There is no other justification on the draft SGEIS for the proposed 500 foot limit. New York is patterning a critical catch-all regulation on a city with municipal water services in a semi-arid region in Texas. This as it pertains to testing: “Water Well Testing Preliminary Revised Draft SGEIS 2011, Page 8-58 Of the jurisdictions surveyed, Colorado and the City of Fort Worth have water well testing requirements specifically directed at unconventional gas development within targeted regions. Fort Worth’s regulations pertain to Barnett Shale development, where horizontal drilling and high-volume hydraulic fracturing are performed, and address all fresh water wells within 500 feet of the surface location of the gas well.” There are legal problems with this that are painfully obvious. First, there are very few private water wells in Fort Worth 28 29
which is entirely served by municipal water lines – in accordance with state law. Of the few private water wells in the city limits (typically golf courses), none are shallow residential groundwater wells – of the type found in rural New York. These Upstate groundwater wells are uniquely vulnerable to surface pollutants – from spills, etc. and from methane migration of gas drilling operations. Texas wells tap deep aquifers – not groundwater. Accordingly, a 500’ setback that might be appropriate in a municipality in a semi arid part of Texas would be wholly inadequate for Upstate.30 The DEC ignores setbacks for shale gas wells in other jurisdictions, proposing 100 feet from a house or 150 feet from public buildings – setbacks that would not be legal in any other jurisdiction that regulates shale gas well setbacks.31 Regulatory Models For New York Unlike Texas and New York counties, counties in New Mexico can control land use – and they do so over predominately rural areas. For instance, Santa Fe County’s regulations have comprehensively planned and limited drilling in certain areas of the county. 32 The Santa Fe County plan addresses local features the way a township might in New York – slope, vegetation, soil conditions, land uses – at a level of detail that are impossible for the SGEIS, but that would be of critical importance at the local level.33 In most oil and gas states, the task of addressing local land use conditions is left up to municipalities (Texas and Kansas) or to both counties and municipalities (New Mexico ). Most states do not attempt to do area wide similar to the DEC’s proposed SGEIS. One exception is Colorado – whose oil and gas regulations are comparable to an area-wide SEQR – taking into consideration local conditions - slope, vegetation,
http://www.scribd.com/doc/65224175/SGEIS-NYC-Reservoirs http://www.flower-mound.com/env_resources/pix/pdf/oilandgas_factsheet.pdf 32 http://www.santafecounty.org/county_attorney/oilandgas 33 http://www.santafecounty.org/userfiles/file/oilandgas/OilGasElement093008.pdf 10
land uses – in a comprehensive review by gas “basin”.34 These Colorado state regulations are augmented by local ordinances in some counties and most cities.35 Since county plans are generally for rural areas, like Santa Fe County in New Mexico, they could serve as precedents for some rural Upstate township land use ordinances – where shale gas wells are not prohibited outright. The Colorado “basin” model might be applicable to New York, since in areas where there are no municipal ordinances, the SGEIS would control based on regional SEQRs. In areas where there are town or city ordinances that address gas industrialization, the local ordinances would control. Applied to well permitting, the New York mining law would track existing practice and save the applicant the trouble of getting a drilling permit from the state prior to subsequent review by the municipality. The DEC is removed from the position of having to opine on local land use laws, but defers to them in its permitting process. The DEC’s “one-size-fitsfew” SGEIS is not appropriate to all local conditions. Fortunately, it will not be applicable at all in municipalities will carefully crafted land ordinances. Conclusions The DEC has always deferred to local land use ordinances when issuing permits because it regulates how a well is drilled, not where. Such a deference to local ordinances reflects shale gas regulations other states – including the home states of all the major shale gas companies. “Home Rule” is the norm when it comes to drilling permits. And Home Rule will apply to shale gas industrialization in New York, where groundwater is uniquely vulnerable to being polluted by shale gas drilling.36
http://cogcc.state.co.us/ http://www.oilandgasbmps.org/laws/colorado_localgovt_law.php 36 http://www.scribd.com/doc/65577477/SGEIS-Well-Construction 11
Home Rule is the municipal equivalent of the 2nd Amendment. It should not be taken away by the state nor surrendered by a municipality. It should be used with care, but it should not be denied.
James L. “Chip” Northrup Cooperstown, New York http://www.scribd.com/northrup49
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