Evolving Zoning Laws To Ban Drilling Subject To Supercedure By State Law

By: Melissa deCordova

NORWICH – Attempts by government officials to zone the natural gas industry, beyond creating road use ordinances and determining real property taxes, is superseded by New York State Oil, Gas, and Solution Mining Law, says a former director of mineral resources for the New York State Department of Environmental Conservation.

Gregory H. Sovas, president of XRM, LLC, and the primary author of amendments that were made to the law, was on hand in Norwich earlier this month to clarify that point for government officials attending a Chenango, Otsego, Delaware, Madison Regional Natural Gas Collaborative meeting.

Members of the Chenango County Natural Gas Advisory reviewed Sovas’ presentation this week and discussed moves in Otsego and Tompkins counties’ towns to ban the controversial hydraulic fracturing means of extraction. Most have forged ahead to regulate on their own while waiting more than three years for the New York State Department of Environmental Conservation to complete its regulations, which it began to do just yesterday.

Chenango County’s ad hoc advisory committee has been monitoring the Norwegian company, Norse Energy, Inc., since 2008 on behalf of the county. Though Norse has not employed the high water volume hydraulic fracturing that is in dispute today, they have leased property, conducted seismic testing, been permitted to drill, built pipeline and extracted natural gas from standstone in three northern towns.

To release gas from shale formations, such as the abundant Marcellus and Utica, millions of gallons of highly pressurized water mixed with sand and chemicals are pumped underground. Those against the practice fear drinking water contamination at the expense of monetary rewards – from both the fracturing fluids and formation water and tailings that come back up with unknown levels of radioactivity – and have suggested that current law gives them municipal zoning authority.

Chenango County has itself been under pressure from opposition groups who want to keep hydraulic fracturing from happening. Growing numbers of them – from within and outside of the county’s borders – have crowded town halls in Guilford, Coventry, and Afton hoping to pressure lawmakers into moratoriums on drilling. In Guilford, members of Chenango Community Action For Renewal Energy asked for a ban to prevent the gas industry from using Guilford Lake as a water source. In Coventry, two public hearings on a company’s natural gas pipeline proposal drew large numbers, and in Afton, a special board appointed by the town supervisor is creating yet a second road use law that it hopes will regulate the numerous trucks required for drilling. The first new ordinance was in effect for just four months before being rescinded.

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Not only are some lawyers for environmental groups under the impression that towns could end up with the right to zone the location of well pads, seismic activity on town roads and other gas drilling-related activities, but so, too, are many elected officials. The New York State Assembly passed a bill that would clarify the right of communities to use home rule zoning and ordinances, in addition to statewide environmental regulations, to put limits on hydraulic fracturing. While the bill was not taken up in the Senate, James L. Seward, the Republican Senator from Oneonta, also introduced a bill to that effect, one that he said “is clearer and mirrors state law on mining.”

But Sovas’ clearly states that it is pointless for local governments to pursue litigation concerning their zoning authority:

“My view, as the primary author of the 1981 amendments to the NYS Oil, Gas and Solution Mining Law, almost 30 years later, is that localities are superseded from any and all regulation of the oil and gas industry with the exception of local roads and real property taxes.

“Lawyers’ attempts to cite New York Mined Land Reclamation Law for zoning authority on regulating aspects of natural gas development misunderstand the differences between that state law and Oil, Gas and Solution Mining Law, he continued. What’s different is that oil and gas wells constitute a temporal land use as opposed to a surface mining activity that is a consumptive land use lasting years, decades and centuries,” he wrote.

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