Local officials dig into fracking
RELATED: ‘A lot of fear’ about fracking
Essex County officials were so concerned about protecting the northern part of their county from development that they put strict zoning ordinances in place more than 15 years ago.
Farmers who want to subdivide property along the Rappahannock River are allowed only five homes per 1,000 acres.
“That’s it. Forever,” said Jeffrey Hodges, the county’s building and zoning administrator.
Essex wanted to preserve its pristine farmland along U.S. 17 in upper Essex, which runs from the outskirts of Port Royal in Caroline County to Tappahannock.
“It’s a scenic highway, and it’s beautiful,” he said.
It’s also the part of the county where Shore Exploration and Production Corp. of Texas has acquired leases to drill for natural gas.
Despite Essex’s strict ordinances, there’s nothing in its code that addresses the prospect of drilling. The thought of losing the pastoral beauty of rolling hills and green spaces to rigs and pipelines bothers Hodges.
He’s worked for the county for 36 years and remembers when Shore first came to the area to do exploratory drilling in the 1980s.
“We thought it was the greatest thing since sliced bread,” Hodges said, adding that there was a lot of enthusiasm for drilling at the time. “But all of that was before fracking.”
Fracking, or hydraulic fracturing, is the process of injecting high volumes of water and chemicals deep into the ground to fracture the rock and release the oil and natural gas deposited there. Opponents fear the process can cause water, air and noise pollution and turn scenic farmland into industrial zones.
Shore Exploration, which has an office in Bowling Green, has acquired leases on more than 84,000 acres in the Taylorsville basin, east of Fredericksburg.
Like other localities where leases have been acquired, Essex officials are reviewing county ordinances to determine how to address possible drilling.
But as Westmoreland County Administrator Norm Risavi has discovered, there often are more questions than answers.
“What happens if for some reason the water is contaminated?” he asked. “How do you purify it? What does it cost, and who pays for it? How do we deal with this if something goes wrong because, invariably, something will go wrong.”
Shore drilled some exploratory wells in the region in the late 1980s, but no production wells have ever been dug in the Tidewater area so close to the Chesapeake Bay and its tributaries.
Friends of the Rappahannock held two informational meetings on fracking in December. Most area counties in the Taylorsville basin—which includes Caroline, Essex, King George, King and Queen and Westmoreland—sent representatives.
FOR also formed the “Taylorsville Basin Partners,” which include several environmental groups as well as former state legislator Albert Pollard, who moderated the meetings.
Pollard told King George residents in January that they can’t rely on state and federal regulations to address all the issues drilling would bring with it. He talked about “the industrialization of the rural landscape” and showed photos of well pads next to a church or in the middle of farms.
Pollard advised local governments to set their own specifications on drilling. Tippett agrees.
“It’s critical,” he said. “That’s what everybody in a position of authority in local government should be doing.”
Any company that wants to drill in the Taylorsville basin would have to apply for a special-exception permit from each county—after satisfying state regulations.
The Virginia Department of Mines, Mineral and Energy regulates the industry.
Shore’s lease specifies that it won’t drill within 200 feet of a house or barn. Counties can impose other restrictions that speak to the timing, pace and scale of activity as part of their “traditional zoning powers,” said Greg Buppert, an attorney with the Southern Environmental Law Center.
“Counties regulate industrial activity all the time,” said Buppert, who’s also a member of the Taylorsville partners. “Gas drilling is an industrial activity that can be regulated.”
TO BAN OR NOT TO BAN
But is fracking an activity that counties can prohibit altogether?
No, said Ken Cuccinelli, the former state attorney general, in January 2013.
He said counties could adopt zoning ordinances that restrict the location of wells as long as they’re consistent with the Virginia Gas and Oil Act and the Commonwealth Energy Policy. But, he added, they can’t ban them.
Buppert, the attorney, disagrees. His nonprofit group works in six states—Alabama, Georgia, North Carolina, South Carolina, Tennessee and Virginia—on issues pertaining to clean energy, air and water.
He said he believes Cuccinelli’s decision overlooks a key case from the Virginia Supreme Court that speaks to the power of local ordinances. It’s from 1989 and involves Prince William County’s decision to prohibit debris landfills. The company that wanted to build the landfill challenged the decision, saying the Virginia Waste Management Act pre-empted the county’s action.
The Supreme Court ruled that localities have the full scope of zoning powers available to them, including an outright ban.
“And landfills are regulated under state statute just like gas drilling is,” Buppert said.
The issue hasn’t been tested in the courts, and Buppert doesn’t know of any county that has instituted a ban on gas and oil drilling.
None of the counties in the Taylorsville basin mentions gas and oil drilling in its Comprehensive Plan. Drilling is defined in Westmoreland’s zoning ordinances, but in the others, it’s either limited to the exploratory drilling done in the 1980s or not addressed at all, according to officials.
Counties typically list permitted uses in their codes, “and unless it’s specified, it’s not allowed,” said Mike Finchum, Caroline County’s planning director.
However, his interpretation of Cuccinelli’s statement clearly differs from that of the environmental lawyer—and speaks to some of the confusion surrounding the issue.
“I believe the language in the state code says local governments can’t outright prohibit it,” Finchum said about drilling. “We’re trying to figure out exactly what the landscape is in terms of local regulations.”
Westmoreland, Essex and King and Queen counties are doing the same.
King George’s County Attorney Eric Gregory concluded in January that gas drilling would not be allowed under current ordinances. His findings concurred with Buppert, that state law did not override a locality’s ability to prohibit the activity through zoning.
Still, because the regulations are vague and ambiguous, Gregory suggested—and the supervisors agreed—that the Planning Commission review what’s on the books. If gas drilling is to be allowed under the county’s special-exception process—and it hasn’t been determined if it will be—Gregory suggested King George develop evaluation standards.
‘A PROACTIVE APPROACH’
Risavi, Westmoreland’s county administrator, wishes that each locality didn’t have to reinvent the wheel in terms of understanding regulations regarding fracking.
It’s an expensive use of staff time to have each county attorney examine the same state code and local ordinances, he said.
“I just think it’s important for each of us who are going to be dealing with this issue … to be informed and to understand what we can do,” Risavi said. “Hopefully we can obtain some assistance so each of us doesn’t have to go out and get this technical expertise.”
The Taylorsville Basin Partners already have gathered a lot of information and resources. Some they’ve borrowed from the Shenandoah Valley Network, which started its research in 2010 when a company wanted to drill a well in Rockingham County.
The partners offer examples of specific language that counties can put in their comprehensive plans. They suggest zoning options counties can consider and questions officials can ask of the Virginia Department of Mines, Mineral and Energy.
Megan Gallagher, who’s a Taylorsville partner and a member of the Shenandoah network, said counties can be as specific as they like. If they don’t want truck traffic on roads the same time as school buses or the companies building drilling facilities during a farmer’s growing season, they can specify that in their ordinances, she said.
“Taylorsville needs to have a proactive approach,” she said, adding that if counties “make it hard” for oil and gas companies to do business in an area, “they’ll go where it’s easy.”
—Staff reporter Rusty Dennen contributed to this story.
Cathy Dyson: 540/374-5425
Shore Exploration and Production Corp. has leased 84,388 acres in the region in the Taylorsville basin for possible drilling.
CAROLINE COUNTY: 40,733 acres
WESTMORELAND COUNTY: 13,864 acres
ESSEX COUNTY: 13,338 acres
KING GEORGE COUNTY: 10,443 acres
KING AND QUEEN COUNTY: 6,010 acres
—Friends of the Rappahannock
The Taylorsville Basin Partners includes these members:
FRIENDS OF THE RAPPAHANNOCK: Bryan Hoffman, Richard Moncure and John Tippett
SOUTHERN ENVIRONMENTAL LAW CENTER: Greg Buppert and Rick Parrish
VIRGINIA LEAGUE OF CONSERVATION VOTERS: Emily Francis and Albert Pollard
SHENANDOAH VALLEY NETWORK: Megan Gallagher and Kate Wofford
CAROLINE COUNTY COUNTRY ALLIANCE: Nancy Long of Port Royal, who worked to get landowners to informational meetings in December
Examples of resources the partners have gathered for county governments are available at fredericksburg.com on the blog News from King George.
MONDAY: Texas oilman disputes the ‘nightmare scenario’ presented about fracking.