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City
Strictest Possible Ordinance for Gas Drilling?
Local Attorney Argues City Falls Short
Drilling in Denton

Sara Bagheri – 07.20.10

Call it what it is. The proposed city gas drilling ordinance falls short of being the strictest legal ordinance.

In the past few years, a new presence has been added to skylines across urban and suburban North Texas- the gas rig.  Without a doubt, as a nation we need domestic sources of energy- the cleaner the better. So it goes without saying that the gas industry is here for the long haul. Living, as we do, in a civilized society, we expect a certain decorum among our neighbors to keep the peace. The same should be said for our industries, including gas drilling.

Gas drilling in its current incarnation as hydraulic fracturing, is messy business, and that holds to true for the regulation of it as well.  Contrary to popular belief, there is very little regulation of hydraulic fracturing. The regulatory structure governing gas drilling in Texas is an unholy marriage of Wild West lawlessness and bureaucratic buck-passing, shape-shifting and all-around obfuscation at every level.  The few regulations that do exist are often “interpreted” away to the point of irrelevance by our civil servants in government.

Even within this profoundly broken framework, however, there is some room to protect the citizens. At the city level, that comes in the form of ordinances governing land use. Denton is currently rewriting its gas drilling ordinance in response to the rapidly changing energy production landscape. Proponents of drilling are quick to point out that drilling is as much a part of Texas’s heritage as cowboys and longhorns. That is undoubtedly true, but what has changed is the way we drill and where we drill.  Hydraulic fracturing is a new technology and is very much a part of the urban landscape in North Texas. Our city leaders were right to recognize that our rules need to catch up with the new rules of the game.

On April 20, 2010 the City Council met in a work session to address the issues surrounding a new gas well ordinance for Denton. In that session the City Council members, again and again, charged the staff with researching and drafting the strictest possible gas drilling ordinance.  After that work session, city staff met and decided to divide the process into two phases.  According to the Planning and Zoning Agenda Information Sheet for July 14, the staff determined that “due to the magnitude and complexity of the topic, it would be best to approach the task [of drafting a new gas drilling ordinance] in two (2) phases.”

During Phase I, the city makes “initial amendment[s]” to the ordinance regarding: 1) a new fee structure; 2) revised noise levels; 3) increased screening requirements; 4) setback increases; 5) amended language regarding urban gas well plats, permits and site plans.  In Phase II, approximately six months will be devoted to a comprehensive rewrite of the gas well ordinance accomplished while “consulting with various gas well experts.” On July 14, 2010 city staff publicly presented their proposed ordinance to the Planning and Zoning Committee.


STRICTEST POSSIBLE ORDINANCE?

While doing their homework, city staff discovered the following information: each gas well development plat costs $4,930.00 for the city and each gas well special use permit costs $12,435.00. Currently, the fees for these are $260.00 and $2,150.00, respectively. That means that each gas well costs the city taxpayers $4670.00- unless a Special Use Permit is required, in which case it costs the taxpayers $10,285.00.  Fortunately, the proposed ordinance attempts to close this gap by increasing the fees assessed to $4,670.00 and $10,285.00. Unfortunately, these fees don’t cover the millions of dollars in subsidy the Denton taxpayers have already paid for gas companies to drill here.

Besides the subsidy, there are other glaring omissions.  Notably, there is no requirement for “green completion.” This means that flaring will still be allowed under the rewrite. Flaring is not allowed in Southlake or DFW Airport.  Further, there is no requirement that a gas company drill using best available practices, like a “closed loop system” which is used to prevent avoidable waste and contamination during the drilling process. Additionally, the city staff recommended a variance from the 1000 foot setback rule, which, thankfully, the Planning and Zoning Committee recommends be denied.

City attorney Jerry Drake, who, like his co-worker Mark Cunningham, was inappropriately and inexplicably seated in between Planning and Zoning Committee members, made no effort to address these glaring omissions in the proposed code.  Instead, he offered a warning to those opposing the proposed ordinance. Basically, if citizens oppose this ordinance, we have to keep our old useless ordinance for the foreseeable future. Is that what we want? Well is it?

With respect to Mr. Drake and the city staff who put hard work into this proposal, please do not insult our intelligence with these false choices. It was city staff- not the city council- who created the two-phase process.  Everyone understands the complexity and enormity of this task, so why is the city determined to rush through it with a watered-down ordinance? The city council gave the staff one charge time and time again- draft the strictest possible ordinance for Denton. Why is it that we are modeling our ordinance off of cities that have suspended gas drilling until they can sort their code out?

Perhaps the real question is, which is worse? For a city staff to ignore its public charge or for there to be no explanation to the public of why that charge has been ignored? The silence on this issue is deafening.

In all likelihood, the proposed ordinance will be passed by City Council. What remains to be seen is if we have lost all hope for the “strictest possible ordinance” or if the City Council will have the intestinal fortitude to stick to their word and accept nothing less than the strictest possible ordinance in “Phase II” of the rewrite.

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Sara Bagheri is a Denton attorney with a degree in Environmental and Natural Resources Law. She currently represents Texans for Responsible and Accountable Energy Development. If you have questions for her regarding gas drilling regulation, she can be reached at sara.bagheri.law@gmail.com.