For the second time since its ordinance banning hydraulic fracturing was ruled illegal, the Morgantown City Council voted to table a decision to repeal the ban in order to make a "political statement" against the West Virginia state government.
After a lengthy debate, the city council voted 4-3 to keep the illegal ban on the books. The issue was also tabled by the city council on Nov. 1 by a 6-1 vote (see Shale Daily, Nov. 10).
"We consider ourselves to be very progressive and cutting edge on this stuff," Councilman William Byrne, who voted to table the measure, told NGI's Shale Daily on Tuesday. "We want to be heard. We want the legislature and the governor to know that we don't think that we're adequately protected yet. This is a political statement, a mark in the sand. We want people to know that we still don't think that they've done their job in Charleston."
Morgantown Mayor Jim Manilla told the Dominion Post that he wanted the city to rescind the ban, a measure he said he had concerns with shortly after replacing Byrne as mayor in July (see Shale Daily, July 13). "I'm not talking about Marcellus Shale," Manilla said. "I don't think it is right to infringe or try to put regulations on someone else's property."
Manilla and council members Wes Nugent and Linda Herbst voted against tabling a decision to repeal the ban. None could be reached for comment Tuesday.
Morgantown enacted the ban over fears that operations at two Marcellus Shale gas wells owned by Northeast Natural Energy (NNE) could foul the Monongahela River and the city's municipal water intake (see Shale Daily, June 28; June 23). The wells, located in the Morgantown Industrial Park, are about 2,000 feet from the river and an additional 1,500 feet from the intake.
Monongalia County Circuit Court Judge Susan Tucker struck down the city's ordinance -- which banned fracking within the city and an adjacent one-mile buffer zone -- on the grounds that the state Department of Environmental Protection has exclusive dominion over the regulation of natural gas drilling (see Shale Daily, Aug. 16).
"This is no longer a legal issue," Byrne said. "It's been resolved by the courts that this is an area that needs to be regulated at the state level. I don't disagree with that. It doesn't make sense for individual municipalities to try to manage Marcellus Shale. But it's got to be done responsibly."
Byrne conceded that NNE has been a model neighbor so far. "We got a very well executed well as a result of what we did," Byrne said. "[NNE] has done a very good job, with the help of our Morgantown Utility Board, to make sure that the maximum level of protection was put in place. We've had no trouble, and I think we have a model well over there. But the issue still remains that we don't have adequate laws to protect surface owners, municipalities and dense populations."
He added that he believed Morgantown's ordinance was what prompted the state to get serious about crafting a Marcellus Shale regulatory reform bill. But he said the Natural Gas Horizontal Wells Control Act -- which Gov. Earl Ray Tomblin signed into law on Dec. 22 -- wasn't an improvement over a bill crafted by a bipartisan committee, a sentiment shared by advocates for surface owners' rights, the environment and the shale gas industry (see Shale Daily, Dec. 16).
"All of the protections that the select committee put together for surface owners and municipalities were taken out of [Tomblin's] bill," Byrne said. "We still don't have adequate regulations in West Virginia."
Byrne said Morgantown would join other municipalities in lobbying the legislature to amend the new law, and wants to see setback and notification requirements tweaked before the city takes the ordinance off the books. "We're going to be down at the legislature asking for amendments to this and urging the governor to be receptive," Byrne said. "We've made it clear that as soon as there is an adequate response that [the ordinance] would be taken off. The governor needs to put a number of things back in."
He admitted that there was one downside to leaving the ordinance on the books. "Somebody from the [shale gas] industry may think that we are not being friendly," Byrne said. "I would counter that there's probably no member of the city council more positive about this [industry] than me. But we need to protect our interests. The companies are protecting theirs."
Byrne said the city was continuing to look at creating a zoning ordinance. "We hope that will stand up in court, because the current statute doesn't even acknowledge the legitimacy of a city doing its own zoning," Byrne said. "Under current law, [companies] could put a well anywhere they want."