The Pennsylvania Public Utility Commission (PUC) issued its first two nonbinding advisory opinions on local drilling ordinances, part of its new responsibilities to ensure that localities are in compliance with Act 13, the state’s new omnibus Marcellus Shale law.
In separate letters Wednesday to officials in Bradford and Fayette counties, the PUC warned that the ongoing legal challenge to Act 13 could complicate matters and advised them to insert specific language into their ordinances to avoid any regulatory uncertainty.
“Due to the pending litigation regarding [Act 13], the commission recommends incorporating the following provision into the proposed ordinance: ‘To the extent any term or provision of this ordinance is in conflict with Act 13…the Act shall supersede,'” the PUC said.
“Essentially we are just acknowledging that portions of the law are still under appeal before the court system, and reminding the municipalities of them,” PUC spokeswoman Jennifer Kocher told NGI’s Shale Daily on Friday. She added that the agency has so far received 35 requests for advisory opinions from counties and municipalities across the state.
Act 13, which became law in February, empowered the PUC to evaluate local ordinances for compliance with the provisions outlined in Act 13 itself (see Shale Daily, Feb. 15). But on July 26, the Commonwealth Court ruled 4-3 that Act 13’s zoning restrictions were unconstitutional on the grounds that they violate municipalities’ right to substantive due process (see Shale Daily, July 27).
The court also said the law violated the constitutional right to clean air and water, and said the state Department of Environmental Protection’s (DEP) ability to waive setback requirements was also unconstitutional. An appeal before the state Supreme Court is in progress (see Shale Daily, Sept. 6).
The PUC told Bradford County Planning Director Raymond Stolinas Jr. that two sections of North Towanda Township’s local ordinance did not appear to comply with Act 13. Specifically, the PUC said North Towanda must amend one section to specify that its setback requirements are only applicable to unconventional gas wells, rather than to oil and gas wells in general.
North Towanda’s ordinance also currently prohibits water impoundment areas within floodways designated by the Federal Emergency Management Agency. But Act 13 allows drilling within a floodplain, which may include water impoundment areas, if a waiver is obtained from the DEP.
Meanwhile Fayette County Planning Director Sara Rosiek was notified that her county’s ordinance appeared to comply with Act 13.
Fayette and Bradford counties had requested advisory opinions from the PUC on April 12 and 13, respectively.
Two additional municipalities — South Fayette Township in Allegheny County and Robinson Township in Washington County — are still waiting to receive advisory opinions from the PUC. Both are plaintiffs in the legal challenge to Act 13 (see Shale Daily, April 2).
Act 13 also gave the PUC administrative control for the state’s new impact fee, and became the “state agent” for the U.S. Pipeline and Hazardous Material Safety Administration, giving it oversight of nonutility gathering lines.
© 2021 Natural Gas Intelligence. All rights reserved.
ISSN © 2577-9877 | ISSN © 2158-8023 |