Tuesday, May 1, 2012 at 9:50AM Local fracking control often lacking
A pump capable of extracting nearly 5,000 gallons of water per minute sits idle adjacent to a bridge over the Licking River near the Licking-Knox county line.
A black hose, attached on one end to the pump, snakes next to a township road for a half-mile before entering a drilling site closed to the public.
Millions of gallons of water from the river, later combined with sand and chemicals, will be used to blast open fissures in a mile-deep shale formation to free fossil fuels, a process known commonly as "fracking."
Officials in Newark, where the Licking River is the primary source of water, say the loss of water won't be a problem unless there's a drought, but the law says that if it reached that point the government would have no authority to make drillers stop withdrawing from the river.
Some of that frack water will return to the surface and must by law be transported to an injection well where it will be deposited deep underground, presumably never to see the surface again.
There are 177 injection wells in Ohio and two more have been proposed for Mansfield. Despite vocal opposition at the local level, the decision as to whether the well can be drilled rests in Columbus.
Whether it's the procurement of water necessary to drilling operations, or how that water is disposed after the well is fracked, or just the wells themselves, local government has little statutory power over oil and gas development within their boundaries.
One rule book
While local governments may not have legal authority over the industry, they are not left in the dark, said Tom Tugend, deputy director of the Ohio Department of Natural Resources' Division of Oil and Gas Resources Management.
Tugend said local officials are often apprised of developments and invited along on site reviews. But strictly speaking, roads are the only domain of local government as it relates to oil and gas drilling.
Counties, townships, cities and villages are all empowered to negotiate road-use maintenance agreements, or RUMAs as they are sometimes called, Tugend said.
Much of the power granted to the natural resources department comes from a state law passed in 2003. That law gave the department sole authority over permitting, location, and spacing of wells and repealed all provisions that gave local governments power to require more of oil and gas operators than the state does.
The impetus for such a change? Some local governments were developing their own ordinances that "effectively blocked drill-ing," Tugend recalled of the debate in the early 2000s.
"There was some concern that might expand."
Limited control
Local governments' ability to stop oil and gas development is murky at best, but they can make a driller's margins smaller, said Nathan Johnson, staff attorney for the Buckeye Forest Council, an environmental advocate.
Cities can levy their own fees and taxes on drillers operating within their boundaries, he said. They can refuse to accept brine, which is different from fracking fluid and sometimes used to treat dusty or icy roads, thereby forcing the company to store it or inject at their expense.
"Cities can pass their own severance taxes if they wanted," Johnson said, referring to the levy paid for removing a natural resource, such as oil or timber. "Another thing they can do, municipalities can take fines (for violating a regulation) and increase them."
Steve Strauss, a county commissioner in Muskingum County, said local government wants to be involved in the process and wants to be heard by the multi-billion dollar energy companies operating down the street.
Muskingum County has a notification system that keeps every official from the township level up abreast of activity.
As for control, Strauss said it may not be codified, but they have influence. He points to a stop sign on at the intersection of an access road for the well and Paisley Road near The Wilds.
Strauss said the county felt it was a safety issue to have these big trucks merging onto the main road without stopping first. Anadarko Petroleum Corp., the well's owner, agreed and a stop sign was put in.
"They want to be good neighbors," Strauss said.
Water impact
Devon Energy, an Oklahoma City firm, plans to pull 3 million gallons from the Licking River over the course of a week.
The water will be mixed with sand and chemicals and blasted underground at high pressure to break open the shale and allow natural gas, liquids and oil to escape.
Devon spokesman Chip Minty said they had considered buying water from landowners with ponds or drilling a well for water, but decided on the Licking River as the best option. They are following the state's protocol on water withdrawals, he said.
For every inch of rain over a square mile area, about 17 million gallons of water comes from the clouds into the river basin and about half of that, depending on a few variables, will run off into the river, according to Jim Kiracofe, administrator of the Licking County Soil and Water Conservation District.
Even a withdrawal of 10 million gallons from the Licking River is not likely to be noticed, but the loss of that much public water during a period of extreme drought would be a different story.
"We don't get the five inches (of rain) that Hebron got very often," Kiracofe said, referring to flooding in the southern Licking County village last month. "We don't get severe droughts very often, but they do happen."
The withdrawal of water from unincorporated public lands is regulated by a separate division of the natural resources department.
A company must notify the state that it is taking water within 90 days of when extraction first begins and of the exact amount withdrawn by the end of the year, said Mike Hallfrisch, supervisor in the department's Division of Water Resources.
However, there is no limit on withdrawals, no charge for the water and no legal obligation to stop even during a drought.
This is in stark contrast to the deal reached between Gulfport Energy and Muskingum Watershed Conservancy District, a multi-county public body which owns property around 14 man-made reservoirs including several in heavily prospected eastern Ohio. In that instance, Gulfport agreed to pay $9 per 1,000 gallons of water, up to a total of $99,000. The contract also stipulates that the district can require them to stop during periods of little rain.
Fracking waste
State law puts licensing of injection wells, just like any other oil and gas well, exclusively in the hands of the natural resources department.
Mansfield Law Director John Spon thinks otherwise. He believes certain powers granted by the state constitution to municipalities and villages, collectively called "home rule," give Mansfield the right to reject injection wells.
Attorney Matt Warnock of the law firm Bricker & Eckler said he wasn't sure how a judge would receive the home-rule approach, but that the law is pretty clear in its assignment of responsibility.
"If it's permitting, if it's drilling, if it's disposal wells, those types of things, there is a pretty strong argument based on that statute that ODNR only has power over it," said Warnock, who co-chairs Bricker's Shale Task Force.
Ohio Rep. Jay Goyal, D-Mansfield, has introduced legislation that would allow a city council or board of township trustees to veto an injection well permit issued by the state. The bill has been assigned to the House Agriculture and Natural Resources committee.
Spon's plan for now is to add a temporary ordinance banning injection wells. A more permanent solution, in the form of an amendment to the city charter, would follow in November.
He doesn't dispute that he's employing untested arguments. He expects them to end up in court.
"We will raise legal issues that have never before been raised in the state," he said. "Never before has a city taken this position. We think these are very valid legal issues."
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