West Virginia Gov. Earl Ray Tomblin said he was concerned about the Morgantown City Council's decision Tuesday night to pass an ordinance banning hydraulic fracturing (fracking) within the city and an adjacent one-mile buffer zone, and requested the city to "confine its governance to its city limits."
The ordinance targets two Northeast Natural Energy (NNE) Marcellus Shale natural gas wells being drilled in the Morgantown Industrial Park, which lies within the buffer zone. The city said it is concerned about the possibility of an accident at the wells, which are also near the Monongahela River and the city's municipal water intake (see Shale Daily, June 2).
In a letter Tuesday to city officials, Tomblin said that while he understood the city's concern for the safety of its municipal water supply, the two NNE wells were being drilled under the regulatory oversight of the West Virginia Department of Environmental Protection (DEP).
"Of significance to me, the DEP has already granted the permitting necessary for this project," Tomblin said. "It sends a negative signal to business to change the rules after permitting has already been completed."
Morgantown Mayor William Byrne told NGI's Shale Daily that dozens of people spoke on both sides of the issue during Tuesday night's public hearing, which lasted until midnight. The City Council then passed the ordinance by a 6-1 vote.
"We took the step that we felt was appropriate," Byrne said Wednesday, adding that NNE President Michael John was also at the meeting. "[John] testified very professionally and frankly did an excellent job presenting the company's position. We listened to him intently and his testimony was considered fully."
NNE spokesman Brett Loflin told NGI's Shale Daily the company has retained counsel and is in the process of evaluating its options.
"We expected the vote to be like it was last night," Loflin said Wednesday. "But we were very surprised at the initiation of even the drafting of this ordinance, given the fact that we had been working with the city on additional safeguards at the wells and had been in negotiations with them on actually purchasing some water for our fracking operations."
Loflin said the company had not started fracking at either of the two wells. He said the lateral section of the first well was underway, and NNE had planned to drill the second well in its entirety before fracking both wells at the same time.
"It's my understanding that we are not banned from drilling the wells, but the City Council's intention is to keep us from hydraulically fracturing the wells," Loflin said.
Mike McCown, president of the Independent Oil and Gas Association of West Virginia (IOGA), said he read Tomblin's letter aloud to the City Council before the vote and was critical of members' actions.
"It's one thing if NNE's wells would have been denied initially, but they have already started drilling," McCown told NGI's Shale Daily on Wednesday. "They have already invested $7 million in this process. It almost seems to me to be a double cross. NNE worked arm in arm with the city all along the way, and now at this late stage of the game they've done this. It's disappointing."
McCown said he had not heard from NNE since Tuesday's meeting but had instructed the organization's legal counsel to learn the company's intentions.
"NNE is going to have to take the forefront of this because they're the ones that are impacted the most," McCown said. "But they're one of our members and we're going to assist them in any way we can. It could include assisting them with legal representation. We're also going to do everything we can to assure that this doesn't spread into other areas. There have been some other cities that have called for actions like this, but none as significant as Morgantown."
Asked if he thought NNE was financially prepared for a long legal battle against the city, McCown said "Yeah, I would think. They are a Marcellus Shale developer. You have to have pretty good financial capability to be playing that game these days."
As for the city, Byrne said, "We'll see what the company does. We fully expect this to get resolved in litigation in the courts and we are prepared for that.
"Obviously when the governor writes you a letter, you read it and you consider it," Byrne said. "But I don't think he said anything that we did not already understand. It didn't change anybody's opinion."
Morgantown officials contend that the West Virginia Code -- specifically Section 8:12:19, also known as "Extraterritorial Exercise of Powers and Authority" -- gives them the power to enact legislation covering a one-mile buffer zone around the city. The ordinance was discussed with officials from neighboring Monongalia County and the City of Westover on June 15, but Morgantown ultimately declined to make any changes to the measure (see Shale Daily, June 15).
Byrne said he hoped the city's actions would motivate Tomblin to call a special session of the West Virginia legislature to discuss Marcellus Shale regulatory reform (see Shale Daily, June 17).
"For my part, I'm hopeful that it really does move the ball way down the field so that we get a comprehensive set of state regulations," Byrne said. "We need to consider all of the potential environmental impacts. Let's put something together and find a way to develop this important natural resource in a way that's responsible and environmentally sound."