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West Virginia County, Cities to Discuss Fracking Ordinance

Elected officials from Monongalia County, WV, will meet their counterparts from the cities of Morgantown and Westover for a work session Wednesday to discuss Morgantown's proposed ban on hydraulic fracturing (hydrofracking).

Meanwhile, West Virginia University's Faculty Senate -- 115 faculty of the Morgantown-based university -- has joined the call for Democratic Gov. Earl Ray Tomblin to order a special session of the West Virginia Legislature to take up Marcellus Shale regulatory reform.

Bill Bartolo and Eldon Callen, two of the three members of the Monongalia County Commission, told NGI's Shale Daily that the commission would meet officials from both cities after the county's regularly scheduled meeting concludes, probably around 10:30 a.m. EDT. The meeting will be held at the Monongalia County Courthouse and is open to the public.

"Tomorrow we will just be sharing information," Bartolo said Tuesday. "Hopefully we will find out more and resolve this issue tomorrow."

At issue is a proposed ordinance before the Morgantown City Council that would ban hydrofracking within the city and an adjacent one-mile buffer zone, which would affect two Marcellus Shale natural gas wells owned by Northeast Natural Energy (NNE). The ordinance passed a first-reading vote on June 7 and is headed toward a public hearing and a final vote on June 21 (see Shale Daily, June 10).

"It's not a Marcellus Shale issue," Callen said Tuesday. "It's a jurisdictional issue as to when it's proper for a town to exert extraterritorial jurisdiction."

Morgantown officials contend that language in 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 that would cover the Morgantown Industrial Park, where the two NNE wells are located.

"I'm not saying the ordinance on its face is unconstitutional, but the way the city wrote it violates certain due process protections within the West Virginia State Constitution," Callen said. "The city arbitrarily -- and without any research, hearing or evaluation -- said they were going to go one mile [out]. The code doesn't say that."

Bartolo concurred. "There's a rush to conclusion on this matter," he said. "The code does have provisions in it for a [municipality to enact legislation] up to one mile beyond their borders, but there are some criteria inherent in that code that must be met."

Bartolo said the county has statutory legal counsel but has so far not referred the matter to them for a legal interpretation.

"But if we get to the point to where we're viewing this issue from different perspectives, and there's a question of legalities, then I would strongly support referring this to counsel for an interpretation and an opinion. We have an obligation as a county commission to seek competent legal advice before instituting any expenditure of taxpayer monies against a municipality."

But Bartolo added that he didn't want to see the dispute escalate into a court proceeding.

"That's an airless balloon. I'm not in favor of taking any municipality to court, especially when we haven't even tried to resolve the issue. I still would look to alternatives rather than do that."

Bartolo added that even if Morgantown enacted a ban on hydrofracking, it would do nothing to prevent other counties upstream along the Monongahela River -- namely Marion and Harrison counties -- from allowing the practice to be performed at wells there.

"This is all hypothetical, but now we would have used taxpayer money to fight each other over a resolution that's not even going to be effective in protecting the water supply," Bartolo said. "This is a state issue. We don't have any water experts, and no one expects any of us to be experts on fracking. If the regulations need to be more stringent then they need to be changed at the state level."

Callen said that if the city is willing to amend the ordinance to include only the areas that would affect the city's water supply, he would be satisfied.

"Then I would have done my part as a county commissioner," Callen said. "We are obligated to protect people that have absolutely no involvement and own property in areas that in no way affect the water supply. The other issues that may arise by drillers and landowners in that watershed would be private issues and would not call for the power of the county to fight a jurisdictional battle."

According to the Associated Press, West Virginia University's Faculty Senate has joined Morgantown, Monongalia County and other jurisdictions in asking Tomblin to convene a special session of the legislature. The Faculty Senate statement calling for the special session reportedly cited the potential hazards to public health, including toxic chemicals, noise, odor and traffic congestion. Representatives with the Faculty Senate could not be reached Tuesday.

Morgantown Mayor William Byrne hinted that the city would take NNE to court if the ordinance passes and the Charleston, WV-based company performs hydrofracking at its two wells. The city has also voted on a resolution calling for the West Virginia Department of Environmental Protection (DEP) to issue a stop-work order for the wells, but DEP Secretary Randy Huffman said that request was unlikely to be granted (see Shale Daily, June 6).

The DEP amended NNE's two well permits on May 19, after the company negotiated with Morgantown's utility board to include closed-loop drilling systems for both the air-drilled and fluid-drilled portions of the wells (see Shale Daily, May 25).

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