Fracking ban overturned, Morgantown considers zoning instead - Business, Government Legal News from throughout WV

Fracking ban overturned, Morgantown considers zoning instead

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MORGANTOWN, WV -

Thwarted by a court ruling in its attempt to ban hydraulic fracturing with horizontal drilling within a mile of its border, the city of Morgantown will try, instead, to limit it through zoning.

"Our objective is not to single out this particular industry, but to allow them to go where industrial-type development is allowed, and regulate them from a zoning or land-use standpoint as similar as possible to other uses," said Christopher Fletcher, city director of development services.

Morgantown City Council passed an ordinance in June banning hydraulic fracturing for a mile around the city.

The ban came in response to residents' worries about two Marcellus shale wells that had been permitted to Northeast Natural Energy of Charleston just outside the city.

Although hydraulic fracturing previously was allowed with conventional vertical gas wells in the city, residents reacted to the far larger scale of hydraulic fracturing of horizontal wells. They went to council with concerns about spills of hydraulic fracturing flowback and releases of air pollutants near populated areas, as well as about noise and truck traffic.

Council takes this action in the absence of effective state regulation, then-Mayor William Byrne said at the time. He mentioned in particular the need for public notice and comment on gas well permits to avoid similar surprises in the future.

In response to legal challenge from NNE, Monongalia County Circuit Court overturned the ban in August, ruling that regulation of oil and gas activity lies in the purview of the state.

The ordinance remains on the books, though without effect. And, in December, the state Legislature passed broad legislation regulating horizontal drilling and hydraulic fracturing — including a provision for public notice and comment.

As an alternate approach to a ban, City Council asked city staff to look at zoning as a means of limiting the activity to certain areas. At a Jan. 12 Planning Commission workshop, the commission asked the Planning Services office to come up with a plan for restricting horizontal drilling with hydraulic fracturing to the city's six industrial districts — as is all other oil and gas activity in the city.

"What we need to do is, through GIS (mapping), we need to try to map it out," Fletcher said.

"If we limit it to industrial districts for instance and then use some of the state's distance requirements in the legislation from December, particularly the 625 feet from an occupied structure, does that leave no places inside Morgantown?" he asked.  "We cannot do an outright ban using zoning, and we can't say, ‘You can do it here,' and then put so many restrictions on it that there's nowhere they can do it."

The Planning Commission will host a public workshop, probably in February, to present its ideas to industry, environmentalists and interested residents and get their reactions.

"If that goes well, we'll finalize it in ordinance format and put it before the Planning Commission," Fletcher said. "If they're comfortable, they'll make a recommendation to City Council. Council will have two readings before it would enact those provisions."

The aim is to place horizontal drilling with hydraulic fracturing as much as possible within existing zoning requirements, relying only where necessary on additional limitations established by the state.

"We don't want to single out that use," Fletcher said.

He noted that zoning regulates only surface uses.

"We can't say what the drilling can and can't go under," he said. "If in fact we get to the point where we're saying, ‘You can only go in the industrial districts, that's where your wellhead can be,' once it goes below the surface we can't regulate it."

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