Friday, April 6, 2012 at 10:59AM City Council amendment would ban oil-gas activity in water-protection area
Measure introduced despite state law that reserves oil and gas regulation to the ODNR
In an act of defiance of state law for the sake of protecting the city's drinking water, Athens City Council introduced an ordinance Monday night that bans oil and gas drilling within its wellhead protection zone.
The likelihood of companies attempting to bring the controversial horizontal hydraulic fracturing drilling technique to the wellhead protection zone is slim. Nevertheless, Ohio Revised Code relegates all oil and gas drilling and wastewater disposal regulatory authority to the Ohio Department of Natural Resources' Division of Mineral Resources Management.
In introducing revisions to its wellhead protection plan in the form of an ordinance Monday night, City Council chose to include provisions banning fracking in that area anyway.
The ordinance was originally introduced with two provisions banning oil and gas drilling in the protection zone. They were then struck out. During the meeting, Third Ward member Michele Papai moved to once again include that language. It was seconded by Second Ward member Jeff Risner.
The first provision bans "drilling, mining, exploration and extraction operations, including but not limited to, petroleum gas and minerals," while the second bans "the storage and/or disposal of wastewater and other byproducts associated with drilling, mining, exploration and extraction operations."
At-large member Chris Knisely said that she has spoken to several citizens who expressed concerns about adding the provisions back in.
"It's a difficult situation, but I also know that we have a ruling from our law director from the city, who has stated that the Ohio Department of Natural Resources has the jurisdiction in this area," she said.
Lang said Monday that local government has no bigger responsibility as far as he concerned than working to do everything in its power to protect the drinking water.
"That said, the position of law director is not a policy-making position; I'm an adviser, and it is you, the members of council, that have the legislative authority vested in you," he said. "It is not the duty of a law director to tell you what you can or can not do. But I do feel it is appropriate to make sure that you are aware of the relevant laws, and I feel I've done everything I can to do that."
He distributed a copy of Ohio Revised Code to council members with the relevant passages highlighted, reading from that the division "has the sole and exclusive authority to regulate the permitting, location and spacing of oil and gas production operations in the state."
When questioned about whether the language in the ordinance is "not defensible," Lang said he wouldn't use those words, simply because he'd be obliged to defend the language if push came to shove.
"I will say that I think that certain portions of the wellhead protection ordinance are more problematic, potentially, than others," he said.
Fourth Ward member Christine Fahl expressed concern that if the questionable provisions are put forth, and a court case results, that other aspects of the ordinance will be held under injunction until the court proceedings come to a conclusion, thereby making the wellhead protection area vulnerable during that time.
The city has requested an opinion from the ODNR on whether they would ever approve a drilling request within a municipality's wellhead protection area in the first place, but Athens Mayor Paul Wiehl said Monday that the city has not yet heard back from them.
Risner said that he does not see the ODNR taking the city of Athens to court if this ordinance is passed.
"It's more likely if a company came to town and decided, 'I want to put a well here,' and they read the ordinance, then they would take us to court," he said. "The problem I would have is that if I were a company looking to drill a well, I would want to make money. Lawsuits cost money. They take time. Two-year injunctions means for two years I can't do anything. I'm injuncted, too."
He said that it doesn't seem worthwhile for a company to pursue that avenue.
"I think if we put this tool in our toolbox it's just something else that will prevent someone from coming in and (drilling)," he said. "If we don't do it, then there's really nothing."
At-large member Elahu Gosney said that his view is that the state law contradicts the city's responsibility to protect the city's water supply.
"If this is passed, the amendments may be difficult to defend it in court, but it may not," he said. "But that being said, my opinion is that we have to do an all-of-the-above when protecting our water supply."
The motion to re-include the language banning drilling activity passed 5-2 with Fahl and Knisely casting the dissenting votes.
Recent state geology reports suggest that Athens County may not see a big boom in oil and gas drilling.
http://blog.cleveland.com/letters/2012/04/dont_stifle_ohio_energy_produc.html
Reader Comments (1)
The end does not justify the means. By deliberately and publicly disregarding state law to pass an ordinance that has near zero chance of holding up in court, Athens City Council is promoting a feel-good measure that will have no practical effect except to lull Athens into a false sense of security. In so doing, they are undermining the respect for law and that will come back to bite them; such actions always do.
The Ohio state law upholding the state's sole authority to regulate this activity has been tested in court and has prevailed. Ohio SB165 passed with an overwhelming majority under a Democratic Governor and a Democratic Senate, and essentially preserved the status quo. The Athens City Council ordinance is tilting at windmills.
Athens City Council hasn't even contacted the chief of the permitting office in Ohio DNR! That, and working with the corresponding EPA office, is the hard work that the City Council should be doing.