Tag: Hydraulic Fracturing

Local Government Regulation of Large-Scale Hydraulic Fracturing Activities and Uses

Ross Hammersely and Kate Redman, attorneys with the Traverse City law firm, Olson, Bzdok & Howard, have done a marvelous service for local government officials, planners, administrators, property owners, industry, and the public in publishing a cogent, objective article on the scope and nature of local government regulation, including zoning and police power ordinance tools, to address oil and gas development, including recent large-scale hydraulic fracturing. This is a must read for those interested in land use planning, local government, proper development, and the protection of neighborhoods, farms, recreational lands and uses, and the environment and quality of life in Michigan. – Jim Olson Click here to view and download the article as a PDF, or read on below. See original article also at michbar.org.

Local Government Regulation of Large-Scale Hydraulic Fracturing Activities and Uses

The development of oil and natural gas resources using high­volume hydraulic fracturing (fracking) has become an increasingly politicized and controversial issue in re­cent years. The attention is due to a profound industry shift from the relatively shallow, vertical wells used for several decades in Michigan to significantly deeper well bores requiring unprece­dented volumes of chemically treated water and sand, as well as other support activities and uses.1 The intensified scale of this type of well has resulted in nearby communities experiencing new and greater effects from fracking operations including increased noise levels, traffic volumes, water use, and hazardous chemical trans­portation, among others. As a result, whether a community wel­comes or opposes fracking, local governments have a growing in­terest in exercising regulatory control over fracking and its ancillary activities, uses, and effects. This article explores the extent to which local governments have authority to exercise police power and zoning approval to regulate fracking in light of evolving state and federal regulation.

State and federal regulation of fracking

Local governments in Michigan may only exercise powers dele­gated by statute or the Michigan Constitution, and powers that can be fairly implied from those sources.2 Once granted, a power should be liberally construed in favor of local governments but is subject to preemption by state or federal law.3 An important thresh­old question in determining local authority to regulate fracking is the extent of federal and state regulation.

Federal regulation of fracking

Federal regulation of fracking could have the effect of preempting state or local regulation under the Suprem­acy Clause of the United States Constitution.4 However, oil and natural gas development via fracking is largely exempt from major federal environmental laws and reg­ulations including the Safe Drinking Water Act,5 Clean Water Act,6 Solid Waste Disposal Act,7 Clean Air Act,8 and the Emergency Planning and Community Right ­to ­Know Act.9 Accordingly, regulation of fracking and its related activities and uses falls primarily to the states.10

State regulation of fracking

The Michigan Department of Environmental Quality (MDEQ) is the primary agency regulating fracking in the state, and issues permits under authority of Part 615 of the Natural Resources and Environmental Protection Act and its associated regulations.11 Part 615 grants authority over the “administration and enforcement of all matters relating to the prevention of waste and to the conser­vation of oil and gas,” as well as jurisdiction over per­sons and things necessary to enforce this authority.12 The MDEQ asserts authority to regulate many components of fracking under this provision, including well location and spacing, drilling/construction timetables, certain production operations, waste and emissions management, well plugging, and site resto­ration.13 A permit holder under Part 615 is exempted from certain other regulations, including soil erosion permits and the water withdrawal statute.14 The water withdrawal statute also expressly preempts local governments’ authority to regulate large water withdrawals to the extent provided in the statute.15 Some commentators have suggested that the MDEQ’s authority preempts all local regulatory authority,16 but the Michigan Su­preme Court has rejected this conclusion. State law preempts local ordinances when the ordinance directly conflicts with a statute or the statute “completely occupies the field that [the] ordinance attempts to regulate” either explicitly or by implication, which can be assessed by looking at factors such as pervasive state regulation, legislative history, or a need for uniformity. Applying these standards to Part 615, the Michigan Supreme Court held that “the exclusive jurisdiction of the Supervisor of Wells applies only to oil and gas wells and does not extend to all aspects of the production process,” and affirmed the ability of local governments to regulate other aspects of oil and gas development if not ex­pressly preempted by another statute.17 Under this precedent, there is a role for local regulation of oil and gas wells and ancillary activities, facilities, and uses, and water withdrawal wells, as long as the regulation does not directly con­flict with Part 615 and is not limited or preempted by Part 615 or another statute.18

FAST FACTS: The development of natural gas resources by high-volume hydraulic fracturing, or “fracking,” is exempt from most federal regulation under environmental laws. Fracking regulation is left primarily to the states. In Michigan, the supervisor of wells has exclusive jurisdiction to regulate and control the drilling, completion, and operation of oil and gas wells. Subject to statutory limits, local governments retain police power and zoning authority to regulate certain ancillary activities and effects related to fracking, including truck traffic, unsafe material transportation and storage, certain types of pipelines, and other similar effects.

Permissible scope of local regulation of effects of fracking

Michigan’s oil and gas regulations do not address many of the effects of fracking and its ancillary activities, facilities, and uses that would ordinarily be issues of local concern subject to local regulation. For example, fracking requires the transport, storage, use, and disposal of large volumes of water, sand, and potentially unsafe chemicals, resulting in perhaps as many as 100 additional truck trips a day per well during certain active periods,19 with at­tendant noise, pollution, wear and tear on roads, and environ­mental risk. The scope of local authority to regulate in these areas under (1) the Michigan Zoning Enabling Act (zoning act) and (2) the police power to control for the public health, safety, and welfare is subject to both the usual reasonableness constitutional limits on police power authority20 and some limits unique to oil and gas wells. However, there is likely still ample room for care­fully designed and reasonable local regulation of these types of activities, facilities, and uses.

Zoning regulation

The zoning act delegates broad authority to local governments to regulate land use for public health, safety, and welfare pur­poses, including the expressly stated authority to zone and regu­late land use related to energy and transportation based on a mas­ter plan that includes consideration of energy uses.21 However, the act limits this authority when it comes to oil and gas wells.22 First, the act states that “[a] county or township shall not regulate or con­trol the drilling, completion, or operation of oil or gas wells… and shall not have jurisdiction with reference to the issuance of permits for the location, drilling, completion, operation, or aban­donment of such wells.”23 It’s notable that, on its face, this limi­tation does not apply to villages or cities, extends only to wells themselves, and does not include zoning of all ancillary activi­ties, facilities, and uses associated with fracking or zoning of water wells and pipelines. Second, the statute does not allow local gov­ernments to exclude or ban a land use if there is a demonstrated need for it in the area unless an appropriate location for the use does not exist; fracking or its ancillary uses cannot be banned without meeting this stringent test.24 The Michigan Supreme Court has af­firmed that, subject to Part 615 preemp­tion, the zoning act provides limited authority for a local government to adopt zoning regulations for fracking and par­ticular ancillary activities, facilities, or uses not otherwise regulated by Part 615.25 The Court has not provided further guidance on the scope of this author­ity or the preemptive effect of the water withdrawal statute, but there are a few particular areas that likely remain subject to local regulation, both in terms of the subject areas of regulation and special zoning tools provided by the zoning act.

Areas of Regulation. First, local gov­ernments could address ancillary frack­ing facilities and uses not included in the definition of the “operation” of a gas well by Part 615 regulations.26 A court may not agree with the MDEQ’s defini­tion of this term, but it is at least a safe starting point and might include, for example, transportation of certain materials to and from the well pad, the use of roads other than the access road to the well pad, and regulation of ancillary storage tanks and other facilities. Local governments can likely place zoning regulations on water withdrawal wells and pipelines as long as they do not regulate the withdrawal quantity or the adverse effects on sur­face water regulated by the water withdrawal statute.27 Second, the Part 615 regulations themselves incorporate provisions of lo­cal zoning codes that authorities could better inform and affect through local zoning regulations. For example, Part 615 regula­tions provide that a person shall not cause a “nuisance noise” in the production or handling of gas, and take into account an area’s environmental values. As such, the definition and measurement of what constitutes nuisance noise and environmental value could be informed by the local government’s clear development of these concepts in its zoning and master plan.28 Finally, land uses in zoning districts with oil and gas resources can be limited to uses compatible with the noise, pollution, traffic, and risk of hazard­ous spills generated by fracking.

Tools for Regulation. The zoning act provides useful tools unique to a local government’s zoning authority. Most notable are (1) amending a master plan to identify the environmental re­sources and the location of natural gas resources relative to other land uses that might be inconsistent with fracking and its ancil­lary facilities and uses, such as residential areas, parks, and natu­ral areas;29 (2) identifying ancillary fracking facilities and uses and nonexempt water well uses as “special land uses” subject to a more rigorous review of traffic flows and other public health, safety, and welfare effects of the activity;30 and (3) imposing con­ditions and escrow requirements on the approval of these special uses in a manner designed to protect the public health, safety, and welfare from the identified risks of the activity.31

Police power regulation

It is fundamental that local governments have broad authority to adopt ordinances for the benefit of the public health, safety, and welfare, and there is a presumption in favor of the constitu­tionality of an ordinance exercising police power.32 Subject to the specific state­level preemption detailed previously, fracking effects may be subject to regulation under this broad police power. For example, police power regulations might be adopted to address truck traffic, hazardous material transport, and various pipelines. The sharp increase in roadway activity and the pos­sibly hazardous nature of the cargo carried on many of those trips present risks and concerns that a local unit of government could regulate by designating certain allowable routes for ship­ments of specific chemicals regulated as hazardous by the U.S. Department of Transportation to avoid and protect high­risk areas in the jurisdiction such as schools, residential areas, and commer­cial districts. Designating such routes and allowable truck staging and parking areas could also ensure that supporting infrastruc­ture is available in the event of an accident. Local governments could also apply the requirement in Michigan’s Fire Prevention Code (Act 207) that any company handling hazardous chemicals provide the local fire chief certain information on written request, including a list of the hazardous chemicals on site, a material safety data sheet for those chemicals, and disclosure of the quan­tity and location on site of any such chemicals.33 Further, local governments would arguably be permitted to adopt ordinances governing “flow” or “gathering” lines, water or certain gas trans­mission pipelines, compressors, and other processing and asso­ciated equipment, as well as the construction, installation, relo­cation, alteration/modification, operation, or closure of pipelines off the well pad and over surrounding lands. Finally, emergency contacts and other locally focused accident planning require­ments could potentially be adopted and implemented.

Moratorium power

Inherent in the police power and zoning authority, courts have recognized that local governments may adopt temporary morato­riums for a reasonable period pending research and adoption of regulation in that subject area.34 Local governments may use this authority to allow time to carefully design practical fracking reg­ulation as described in this article.

Part 615 grants authority over the “administration and enforcement of all matters relating to the prevention of waste and to the conservation of oil and gas,” as well as jurisdiction over persons and things necessary to enforce this authority.

Conclusion

Police power and zoning tools remain available to communi­ties and officials interested in exercising local decision­making authority to regulate the increasingly localized effects of expand­ing fracking; its ancillary activities, facilities, and uses; and wa­ter withdrawal wells in Michigan. However, any local regulations should be carefully crafted and designed to reasonably address specific risks imposed by fracking operations and to fit within the scope of local authority not otherwise limited or preempted by state law.

Ross A. Hammersley is an attorney with Olson, Bzdok & Howard, P.C., an environmental and municipal law firm in Traverse City, where his practice focuses on land use and zoning matters, oil and gas leasing and development issues, energy policy and utility regulation, environmental conservation, and Brownfield redevelopment. He is a co-chair of the Great Lakes and Inland Waters Committee of the SBM Environmental Law Section.

Kate E. Redman is also an attorney with Olson, Bzdok & Howard, P.C., where her practice focuses on land use, local government, small business, non-profit, and appellate law. Kate assists local governments throughout the state with developing and implementing zoning and police power ordinances.

ENDNOTES 1. Crawford, Fracturing Rocks to Unlock New Oil, 135 Mechanical Engineering 27 (December 2013), available at asme.org (accessed May 15, 2014). 2. See City of Taylor v Detroit Edison Co, 475 Mich 109, 115–116; 715 NW2d 28 (2006). 3. Const 1963, art 7, § 34; Ter Beek v City of Wyoming, 495 Mich 1, 8; NW2d (2014). 4. See generally Ter Beek v City of Wyoming, 495 Mich 1; NW2d (2014). 5. 42 USC 300h(d). 6. 33 USC 1362(24) and 1342(l)(2). 7. 42 USC 6921; see also 53 FR 25447 and 58 FR 15284. 8. Most fracking is unlikely to be subject to air quality regulation because oil and gas production sites do not qualify as “major source[s]” of hazardous air pollution. 42 USC 7412. 9. 42 USC 11023(b); 40 CFR § 372.23. 10. For a more expansive review of these exemptions, see Brady, Hydraulic fracturing regulation in the United States: The laissez-faire approach of the federal government and varying state regulations, 14 Vt J Envtl L 39, 43–52 (2013). 11. MCL 324.61501 et seq. and 1994 AC, R 324.101 et seq.; see also MCL 319.101–319.110; MCL 483.101–483.120; and MCL 483.151–483.162. 12. MCL 324.61505. 13. Rule 324.101 et seq. 14. Alcona Co v Wolverine Envtl Prod, Inc, 233 Mich App 238, 263; 590 NW2d 586 (1998); MCL 324.32727(1)(a). 15. MCL 324.32726. 16. Turrell, Frack off! Is municipal zoning a significant threat to hydraulic fracturing in Michigan?, 58 Wayne L R 279 (2012). 17. Addison Twp v Gout, 435 Mich 809, 813; 460 NW2d 215 (1990); see also Alcona, 233 Mich App at 263. 18. The Soil Erosion and Sedimentation Act has been held to preempt local governments from imposing stricter soil erosion requirements on the location of wellheads, access roads, pipelines, or processing facilities than is required under Part 615 because Part 615 is specifically exempted from the act. In contrast, Part 615 does not preempt a landowner from zoning regulations except to the extent specifically provided in the Michigan Zoning Enabling Act. See Alcona, 233 Mich App at 263. However, it should be noted that an operator with a Part 615 permit is expressly exempted from certain state-level regulations in addition to the soil erosion permits, including an exemption from the statute regulating water withdrawals, unless the withdrawal is a “diversion” under the act, meaning it is transferred into another watershed. MCL 324.32727(1)(a). The water withdrawal statute also explicitly preempts local governments from regulation of large water withdrawals. MCL 324.32726. 19. The state of New York prepared a comprehensive review of the roadway impacts and costs imposed by heavy truck traffic as well as numerous other potential environmental impacts related to fracking, which is available at dec.ny.gov; (accessed May 15, 2014).(For truck traffic discussion, see Section VI, Part B, pp 6-300–6-315.) 20. Plymouth Twp v Hancock, 236 Mich App 197, 199; 600 NW2d 380 (1999). 21. MCL 125.3101(1) and 125.3203(1). 22. Notably, fracking is probably not affected by the recent codification of the “very serious consequences rule” because the rule applies only to mining activities, and fracking does not fit within the common definition of “mining” or the definition set forth in the Natural Resources and Environmental Protection Act. MCL 125.3205(3)–(6) and 125.63201(g). 23. MCL 125.3205(2). Although not binding on a court for purposes of determining legislative intent, a court might look to the definition of these terms in the MDEQ regulations promulgated under Part 615, which provide that the “operation” of an oil and gas well includes production, processing, gathering, compressing, treating, transporting, conditioning, brine removal and disposal, separating, storing, injecting, testing, reporting, secondary recovery, and maintenance and use of surface facilities. See 1994 AC, R 324.103(c). 24. MCL 125.3207. 25. See Addison, n 17 supra. 26. See 1994 AC, R 324.102. 27. MCL 324.32723(c). 28. 1994 AC, R 324.504(4)(d) and 1994 AC, R 324.1015(1), (2), and (3)(c) and (d). These factors could include the identification of “quiet” as a primary consideration in use of public recreational sites near a well, or the identification of what level of noise will cause “injurious effects to human health or safety or the unreasonable interference with the comfortable enjoyment of life or property,” specific to areas around a well. These determinations are not necessarily binding on the MDEQ but may be informative. See also 1994 AC, R 324.505, 324.506, and 324.507. 29. MCL 125.3203 and 125.3843. 30. MCL 125.3502 and 125.3504. 31. See Cornerstone Investments, Inc v Cannon Twp, 239 Mich App 98, 106; 607 NW2d 749 (1999) (interpreting equivalent language in earlier zoning act). 32. Home-rule cities and villages enjoy all powers not expressly prohibited by law, and townships’ powers are to be liberally construed and include those fairly implied and not prohibited by the Constitution. Detroit v Walker, 445 Mich 682, 690; 520 NW2d 135 (1994); Hess v Cannon Twp, 265 Mich App 582, 590; 696 NW2d 742 (2005); see also Austin v Older, 283 Mich 667, 674; 278 NW 727 (1938). 33. See MCL 29.5p. However, there are exceptions and exemptions. See MCL 29.5p(4) and (6). 34. See Cummins v Robinson Twp, 283 Mich App 677, 719; 770 NW2d 421 (2009).

FLOW Marks First Two Protective Ordinance Packages

Click here to view and download the full press release PDF

FOR IMMEDIATE RELEASE

Contact: Liz Kirkwoood, Executive Director
231 944 1568 or liz@flowforwater.org

FLOW Marks First Two Protective Ordinance Packages:
Addresses Fracking Impacts for Two Michigan Townships

TRAVERSE CITY, MI — In late November, FLOW—the Great Lakes Basin’s only public trust policy and education center—will roll out two Protective Ordinance Packages for two separate townships in Michigan. The Protective Ordinance Packages are designed to protect the townships’ water, land, and air resources from impacts of the high volume hydraulic fracturing (HVHF) method for extracting oil and natural gas from deep shale reserves, commonly known as “fracking.”

Gun Plain Charter Township in Allegan County and Cannon Township in Kent County are the first two townships to participate in FLOW’s Local Government Ordinance Program. This participatory workshop series for citizens and local township and planning officials culminates in a tailor-made Protective Ordinance Package developed by FLOW to address community concerns and improve local regulations.

“Our goal was to educate our people and identify specific things we can do to alleviate the potential impacts and risks of fracking,” says Gun Plain Charter Township Supervisor Mike VanDenBerg. Gun Plain Charter Township partnered with FLOW in May to participate in the Local Government Ordinance Program.

The Program is unique because it enables communities to chart their own future, strengthen their existing local regulations, and preserve their rural and agricultural character. In a two-part workshop series, the program:

  • engages and educates local government official and residents about the risks and impacts of fracking and specific legal strategies for communities to consider;
  • identifies community priorities and related oil and gas activities to regulate (e.g., water withdrawals, chemical disclosure, roads/truck traffic impacts, pipelines, etc.); and
  • recommends optimal strategies for integrating and amending the community’s existing master plans, zoning and police power ordinances, and franchise agreements in the Protective Ordinance Package.

The local planning commission and township board then use the Protective Ordinance Package as the foundation for drafting and adopting substantive ordinances protecting water, air, and land from fracking impacts and preserving their community.

Based on the past months’ workshops and community input, the Gun Plain Charter Township Protective Ordinance Package identifies the following seven fracking related activities for the Township to regulate:

  1. truck traffic and routes,
  2. franchise agreements and consent to use roads,
  3. chemical disclosure for hauling and emergency response plans,
  4. surface water contamination,
  5. noise and dust nuisance,
  6. trout stream protections, groundwater conflicts, and the study of hydrogeologic impacts, and
  7. contamination issues for first responders in case of emergency.

Similarly, the Cannon Township Protective Ordinance Package identifies nine areas, including:

  1. high-volume water removal, on-site pumps, tanks, and handling facilities,
  2. chemical disclosure and use, mixing tanks, and air emissions,
  3. disclosure and consideration of impacts before permit approval,
  4. incompatible ancillary industrial-type land uses and facilities, such as production and sweetening facilities, mixing tanks, pump stations, and pipelines,
  5. access roads, truck traffic, and safety,
  6. road use, truck routes, indemnity and bonds for spills, wear and tear of roads,
  7. nuisance impacts, including noise, dust, light pollution, hours of operation, vibrations, and odors,
  8. flow lines, gathering lines, and pipelines, and
  9. accident prevention plans, fire and emergency response to chemical releases or related accidents.

“FLOW developed this program to both inform communities about the impacts and potential threats of fracking, and to provide local governments with solutions within the scope of their existing legal authority,” says FLOW Executive Director Liz Kirkwood.

“We get dozens of calls from township and county government leaders who want to address fracking threats but are concerned that it might be illegal to regulate all activities related to fracking.” she says, “Townships and counties do have the authority to regulate ancillary fracking activities, and FLOW’s program zeros in on these important local legal solutions in developing our Protective Ordinance Packages.”

After the several public meetings held in each township, FLOW evaluated the townships’ respective master plans, zoning and police power ordinances, and franchise agreements. Then FLOW considered the priorities identified by the community and leaders, and drafted the Protective Ordinance Package as a menu of recommendations for amending the existing laws and adopting new ordinances.

These Protective Ordinance Packages come at a time when both Gun Plain Charter Township and Cannon Township are in the process of their five-year review of their townships’ master plans.

Gun Plain Charter Township and Cannon Township first approached FLOW about participating in the program in March and April 2013, respectively.

FLOW President and Chair of the Board of Directors, Jim Olson, gave a presentation to a group of Supervisors in Allegan County back in March, speaking to the risks and impacts of fracking and the legal strategies and tools available to citizens and leaders. This is where Gun Plain Charter Township officials first learned of and showed interest in FLOW’s program.

Combined, FLOW staff Olson and Kirkwood have delivered this informative legal strategies and tools presentation to more than ten communities across Michigan in the past ten months, reaching hundreds of community leaders and citizens. FLOW has also partnered with land-use planner and hydrogeologist, Dr. Christopher Grobbel in making presentations and evaluating optimal ordinance strategies.

“Our phones are ringing off the hook,” says Kirkwood, “and the interest in our informational presentation and Local Government Ordinance Program continues to grow. People are really concerned about what is going to happen to their community’s natural resources after a fracking permit gets approved and they need solutions before this stage.”

Since 2010, the nature of fracking operations in Michigan have changed dramatically in terms of land-use impact and water used to fracture and release natural gas in the tight shale formations. For example, the Pioneer well in Missaukee County used 6.7 millions gallons of water, and now pending permit applications plan to use up to 35 million gallons of water forever lost to the water cycle.

“Regulating the industrial related impacts of fracking is just like regulating any other industrial activity at the local level.” observes Kirkwood, “Imagine if local governments allowed sand and gravel pits, shopping malls, cell towers and other industrial uses to come into their communities and do business unregulated.”

FLOW’s program is designed to protect the rural and agricultural character of the communities in Michigan that are most vulnerable to the negative spillover effects of fracking happening on adjacent state land or neighboring private land.

The package, program, and presentation all stem from FLOW’s November 2012 report: Horizontal Fracturing for Oil and Gas in Michigan: Legal Strategies and Tools for Communities and Citizens.

Early on, FLOW recognized the growing and urgent need to develop sound legal strategies and policies for local governments to safeguard their communities against the unprecedented, huge, and cumulative impacts of fracking.

Fracking occurs in the context of little to no regulatory oversight; the natural gas and oil industry is largely exempt from key federal environmental laws, including the Safe Drinking Water Act and Clean Water Act.

The industry is also largely exempt from key water statutes like Michigan’s codification of the Great Lakes Compact. Furthermore, under Michigan’s Zoning Enabling Act, local governments also are prohibited from enacting or enforcing an ordinance that regulates permit issues related to the location, drilling, operation, completion, or abandonment of oil and gas wells. Despite the Zoning Enabling Act’s prohibition to regulate oil and gas wells or operations, townships do maintain some zoning authority to regulate related oil and gas activities.

The two principal statutes delegating local government legal authority to address oil and gas development like hydraulic fracturing and related processes include the Michigan Zoning Enabling Act of 2006 and the
Township Ordinance Act of 1945.

The Township Ordinance Act authorizes a township to adopt police power ordinances, which are distinct from zoning ordinances, because they can only regulate harms and activities rather than land uses.

Thus, townships can adopt police power ordinances that reasonably relate to the transport, disposal, and transfer, diversion, use, or handling of “produced” water and chemical mixing for fracking.

After producing the legal report, it made sense for FLOW to produce a presentation of the findings and share it with concerned local government leaders.

“The overwhelming response we got to the first few presentations was that of ‘What can WE do?’ from citizens and officials alike,” says Olson. “That’s when we started to develop the program and work directly with townships to help them take the leap and take positive action,” he says.

For more information about FLOW’s work on legal strategies for addressing fracking at the local, state, and federal level, please visit flowforwater.org/fracking.

FLOW Chair Jim Olson, left, addresses Cannon Township Supervisors and citizens in June. Photo credit (c) Liz Kirkwood/FLOW 2013

FLOW Chair Jim Olson, left, addresses Cannon Township Supervisors and citizens in June. Photo credit (c) Liz Kirkwood/FLOW 2013

Allegan County News: Gun Plain Township Hosts Meetings on Fracking

Read the article on the Allegan County News here.

By Daniel Pepper, Interim Editor
Monday, July 15, 2013 10:38 AM EDT

Gun Plain Township invites all interested citizens to attend a discussion of the issues surrounding fracking.

The process of releasing natural gas trapped in rock deep beneath the earth, more properly known as hydraulic fracturing, will be discussed Wednesday, July 17, at the township hall.

Township Supervisor Mike VanDenBerg said the group For Love Of Water will be on hand to give a presentation to the township board and interested citizens at 7 p.m.

The non-profit, which describes itself as dedicated to protecting water in the Great Lakes basin, will give a presentation to the board on fracking and various suggested ordinances to regulate it. The practice has been controversial, with activists arguing its environmental costs are too high and the industry defending it as safe.

Michigan law does not allow local municipalities to ban fracking, but they can regulate it.

The board will also question the group’s representatives and allow the public to ask questions, as well as take public comment.

“Then, there’s another meeting in August, if you can’t get your comments in at this one,” VanDenBerg said.

In other business, the township board set a Truth in Taxation hearing for Thursday, Aug. 1, at the August regular board meeting.

Contact Dan Pepper at dpepper@allegannews.com or at (269) 673-5534 or (269) 685-9571.

UPDATE: Township Fracking Regulation Ordinance Program

Click here to view and download the full press release PDF

PRESS RELEASE

FOR IMMEDIATE RELEASE

June 14, 2013

Fracking Ordinance Development Program Continues in Cannon Township

Gun Plain Charter Township Program Launches

TRAVERSE CITY, MI – FLOW, the Great Lakes Basin’s only public trust policy and education center, will be traveling down state to both Cannon Township and Gun Plain Charter Township on June 19 to facilitate a three-part workshop on legal strategies to address the impacts of horizontal hydraulic fracturing, or “fracking.” FLOW will assist these townships, in Kent and Allegan Counties respectively, to develop protective ordinances to regulate activities and harms related to fracking. Additionally, on June 24, FLOW, in partnership with Dr. Chris Grobbel, will present a similar introductory program in Yankee Springs Township, Barry County; the event is open to the greater community and officials.

In the morning of June 19, FLOW will return to Cannon Township to lead the second of this three-part workshop series. FLOW will facilitate the discussion and decision-making process to help Cannon Township leaders identify the ancillary fracking activities that are most important for their community to regulate. Township authorities and participating citizens will work to identify existing ordinances and craft new ordinances that are protective of land, air, and water impacts associated with fracking. Read the MLive article about the first meeting in Cannon here.

In the evening of June 19, FLOW will launch the first of three workshops in Gun Plain Charter Township. In this workshop, FLOW will provide an educational overview about the process of fracking, potential risks, and what communities can actually do to protect against fracking. FLOW Executive Director Liz Kirkwood explains that the legal strategies in development through this program “include zoning and police power ordinances, moratoriums, bans, and Michigan Environmental Protection Act (“MEPA”), among others.”

FLOW was invited by the grassroots group Concerned Citizens of Barry County to give an educational introductory presentation about fracking to citizens and local leaders. Since the beginning of the year, FLOW has given more than half a dozen of these presentations to groups and communities throughout the state of Michigan. As more meeting and presentations emerge, FLOW is spreading information and legal strategies in an effort to protect the Great Lakes Basin’s communities from the potential water, air, and land-use impacts of horizontal fracking.

Horizontal fracking for oil and natural gas is exempt from many regulatory laws at both the federal and state levels, including the Clean Water and Safe Drinking Water Acts, the Great Lakes Compact and Michigan’s Water Withdrawal Act. These townships are setting a precedent by being the first in the state of Michigan to develop fracking regulation ordinances in consultation with FLOW. Despite zoning prohibitions to regulate drilling, construction production, and operation of oil and gas wells, townships still do maintain legal authority to regulate ancillary activities, including roads, truck traffic, pipelines, flow lines, gathering lines, location of wells, disclosure of chemical use, air pollution and more. Moreover, townships can rely on other sources of authority such as police power ordinances.

 

# # #

FLOW is the Great Lakes Basin’s only public trust policy and education 501(c)(3) nonprofit organization. Our mission is to advance public trust solutions to save the Great Lakes.

Thousands demand Lone Pine drop its NAFTA lawsuit against Québec’s fracking moratorium

Coalition for petition against LPR to drop NAFTA lawsuit vs. Quebec

PRESS RELEASE

For immediate publication

Thousands demand Lone Pine drop its NAFTA lawsuit against Québec’s fracking moratorium

(Ottawa, May 31, 2013) – Two weeks after the launch of a public petition, organizers have received over 3,000 signatures demanding that energy company Lone Pine Resources drop its $250 million NAFTA (North America Free Trade Agreement) lawsuit against Canada for Québec’s moratorium on fracking.

The petition sponsors—the Council of Canadians, the Réseau québécois sur l’Intégration continentale (RQIC), Sierra Club US, FLOW (For Love of Water), Eau Secours! and AmiEs de la Terre—sent three letters to Lone Pine today, each signed by 1,000 people, and will continue to collect signatures until the company agrees to drop the suit.

“People across Canada and the United States are outraged that a company would claim it has a ‘right’ to frack under trade deals like NAFTA, and that we might have to pay Lone Pine Resources not to drill in the St. Lawrence,” says Emma Lui, water campaigner with the Council of Canadians. “There should be no ‘right’ to frack, or to dig a mine, or lay a pipeline. Investment treaties cannot be allowed to override community decisions.”

“Governments must have the flexibility to say ‘no’ to fracking and other environmentally destructive practices without trade rules getting in the way,” said Ilana Solomon, Trade Representative with the Sierra Club. “The fact that a U.S. oil and gas corporation has threatened to bring a trade case against the government of Canada over a law intended to protect the health and well-being of its citizens shows just how backward our trade rules have become.”

In 2011, the Quebec government placed a moratorium on all new drilling permits until a strategic environmental evaluation was completed. When the current Quebec government was elected last year, it extended the moratorium to all exploration and development of shale gas in the province. Last fall, Lone Pine indicated that it planned to challenge Quebec’s fracking moratorium. Instead of going to court, the Calgary-based company is using its incorporation in Delaware to access the investment protection chapter of NAFTA, which is only available to U.S. and Mexican companies, to challenge the Quebec moratorium in front of a paid, largely unaccountable investment tribunal. The company says the Québec moratorium is “arbitrary” and “capricious,” and that it deprives Lone Pine of its right to profit from fracking for natural gas in Québec’s Saint Lawrence Valley.

“Lone Pine must drop its scandalous lawsuit against this legitimate policy of the Quebec government, who has just been listening to its people,” says Pierre-Yves Serinet, coordinator of the Quebec Network on Continental Integration (RQIC). “These provisions of such free trade agreements are direct attacks on the sovereign right of the Quebec government to govern for the welfare of its population. It’s astonishing that the negotiations between Canada and the European Union (CETA) follow the same blueprint. Time has come to end the excessive powers to multinationals,” added the spokesperson for RQIC.

“No trade tribunal should allow a company to sue a State that tries to protect water, which is a common good at the core of the survival and the health of the peoples and the ecosystems. Eau Secours! presses the Quebec government to also change its antiquated law on mining, to improve its water law and its sustainable development regulations to clearly reaffirm this willingness of protection,” declared Martine Châtelain, president of the coalition for a responsible management of water Eau secours!.

“Water in North America is part of a single system, starting with hydrologic cycle, and subject to generational public trust responsibility,” says Jim Olson, Chair and President of FLOW. “A moratorium that exercises this responsibility can hardly be challenged as a regulation: public trust and water have inherent limits.”

The NAFTA dispute and letter-writing campaign is happening as the Parti Québécois introduces legislation that would ban fracking in the St. Lawrence Lowlands for up to five years. The organizations involved in the letter-writing campaign are encouraged by the decision but support a complete Quebec-wide moratorium on fracking for oil and gas.

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MORE INFORMATION

Emma Lui, Water Campaigner, Council of Canadians,

613-298-8792elui@canadians.org

Twitter: @CouncilOfCDNs | www.canadians.org/fracking

FLOW Local Ordinance Program Brings Fracking Protection to Two Michigan Townships

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PRESS RELEASE

FOR IMMEDIATE RELEASE

May 23, 2013

FLOW Local Ordinance Program Brings Fracking Protection to Two Michigan Townships

Michigan Communities Seek Regulation of Horizontal Hydraulic Fracturing for Natural Gas

TRAVERSE CITY, MI – Two Michigan Townships—Cannon Township and Gun Plain Charter Township—signed up with FLOW to develop regulatory ordinances on horizontal hydraulic fracturing, or “fracking.” FLOW is the Great Lakes Basin’s only public trust policy and education center.  These townships, in Kent County and Allegan County respectively, are taking the lead in protecting their community from the industrial land-use impacts and potential risks of fracking.

Fracking for oil and natural gas is exempt from many regulatory laws at both the federal and state levels, including the Clean Water and Safe Drinking Water Acts, the Great Lakes Compact and Michigan’s Water Withdrawal Act. These townships are setting a precedent by being the first in the state of Michigan to develop fracking regulation ordinances in consultation with FLOW. Despite zoning prohibitions to regulate drilling, construction production, and operation of oil and gas wells, townships still do maintain legal authority to regulate ancillary activities, including roads, truck traffic, pipelines, flow lines, gathering lines, location of wells, disclosure of chemical use, air pollution and more. Moreover, townships can rely on other sources of authority such as police power ordinances.

Last week, Cannon Township enacted a fracking moratorium and will not consider any requests for fracking activities for a period of six months, so that the township has an opportunity to study potential impacts. On Wednesday, May 22, FLOW held the first of three educational meetings with Cannon Township officials and community members to facilitate the development of a fracking ordinance there. In this process, FLOW works with the township to determine what areas of concern are most pertinent to the community to regulate. FLOW will facilitate this same fracking ordinance development program in Gun Plain Township, and the first meeting there is scheduled for June 19.

“Whether you are for or against fracking, the important things for communities to know are the impacts we face with this high-impact and water-intensive technology, and be prepared in advance to handle it,” remarks FLOW’s founder and chair, Jim Olson.

Gun Plain Township was one of several townships present at the March 18 Allegan County Supervisors meeting at which FLOW was invited to present an educational overview of legal strategies and tools for local communities to regulate fracking. FLOW has delivered a similar educational overview program a dozen times throughout Michigan in the past three months. This informational presentation is based on FLOW’s November 2012 report, “Horizontal Fracturing for Oil and Natural Gas in Michigan: Legal Strategies and Tools for Communities and Citizens.” FLOW’s report highlights legal strategies and policies designed to assist local governments in safeguarding their communities against the unprecedented and cumulative impacts of fracking.

Horizontal fracking requires injecting a cocktail of up to 21 million gallons of water and over 750 chemicals under high pressure into wells in order to fracture deep shale formations and release oil and natural gas. A review of literature on fracking and its associated risks reveals several concerns: (1) massive water withdrawals; (2) groundwater contamination; (3) surface spills and leaks; (4) wastewater management; (5) land-use impacts; (6) truck traffic and burden on infrastructure; (7) lack of public disclosure.

The Collingwood/Utica deep natural gas shale formation spans across Michigan’s Lower Peninsula; since May 2010, around 752,260 acres of Michigan’s state land has been leased for oil and gas development. Grassroots and citizen organizations throughout the state have expressed their concern about fracking in their communities. While there are no producing fracking wells in either Cannon or Gun Plain Townships, most state lands in both counties and a significant portion of private lands have already been leased for exploration.  In response to concerned citizens, these townships are taking preventative action with FLOW’s assistance. FLOW encourages other concerned citizens and coalitions to alert their township Supervisors and examine the need for similar regulatory ordinances to protect against the industrial impacts of fracking.

For more information:
Liz Kirkwood, Executive Director, FLOW, (231) 944-1568
liz@flowforwater.org | @FlowForWater | www.flowforwater.org

# # #

FLOW is a 501(c)(3) nonprofit organization whose mission is to advance public trust solutions to save the Great Lakes. Through its law and policy work, FLOW is raising public awareness about the public trust doctrine and its principles as a unifying framework to protect the commons and address the systemic threats to water, public lands, and the environment throughout the Great Lakes.

Guest Blog: Ted Curran – “Make Them Pay”

Excelsior fracking operation in Kalkaska, MI

Preface from Jim Olson
Water in Michigan is recognized as a public resource or the “waters of the state.” Landowners or those leasing from them have a right to use water, but not unreasonably and it generally not by removing it permanently from watersheds. FLOW board member Ted Curran rightly calls on the state to start treating water as the valuable public resource that it is.

Make Them Pay

April, 2013

The oil and gas companies using millions of gallons of Michigan water to extract natural gas from fracturing shale should be required to pay a fee per gallon for the water used. So far, Michigan water has been used without cost; and, by the way, is no longer usable after it is ruined by the chemicals used in “fracking.” Also, the water taken will lower water tables at a time when Michigan water levels, including the Great Lakes, are at historic lows.

Natural gas exploration and extraction have become important factors in U.S. long-term energy needs, but it is vital that the method used do not create new environmental problems. Fresh water used in “fracking” is an example: Since the water is a public resource and the water used in gas drilling is removed from the water cycle and cannot be reused for human consumption or for agricultural purposes, it is vital that states—including Michigan—and local communities immediately begin charging a fee per gallon for fresh water used in “fracking” so that funds will be available to provide new sources of fresh water and or research the current practice of “fracking” water use to come up with a different natural gas extraction technology that protects groundwater and the Great Lakes.

A shorter version of this op-ed appeared in the Traverse City Record-Eagle Opinion section on April 10, 2013

Radio: Thirsty Natural Gas Wells Proposed — Jim Olson on IPR

Click here to listen

Jim Olson speaks with Peter Payette on on Interlochen Public Radio program Points North

“Attorney Jim Olson says Michigan is playing a guessing game when it comes to water use and the development of deep shale gas. He says the safeguards in place are inadequate when it comes to protecting rivers and streams. State regulators say they can and do deny water withdrawal permits when oil and gas companies want to take too much water from the ground to drill a natural gas well.”

Click here to listen