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Community Character Impacts of Shale Gas Industrialization

The proposed dSGEIS guidelines, if applied without the restraint of local ordinances, will virtually insure that the community character of many Upstate towns would be damaged irreparably.

The dSGEIS is nothing less than an industrial land use plan for those
communities.

It may be applied against their will and in potential conflict with their laws.
It may be applied the detriment of the built environment, existing land uses, the aspirations of a community, and to the detriment of local health. It seeks to supplant local ordinances with a one-size-fits-none set of guidelines.

The goals of a community, including most aspects of its character, are codified in its laws. Absent the protections afforded by such locally crafted laws, the community character of any community is put in jeopardy. If local ordinances are ignored by the DEC in granting well permits, then the DEC will be jeopardizing the legal foundations of a communitys character land use plans, ordinances and codes. 7.10 Mitigating Community Character Impacts The dSGEIS states that impacts on community character, defined by the DEC as the economic, demographic and social characteristics of the affected communities, (but conspicuously not the built environment, land uses, health1 or the natural environment, all of which help define the communitys character) are expected to be significant. But the dSGEIS states that the determination of whether these impacts are positive or negative cannot be made and that any attempt to do so would be subjective anyway. It is effectively admitting, that, while its dSGEIS would industrialize large sections of towns, it (the DEC) does not know whether this is good or bad for the town. Which clearly indicates this is something for the town to decide, not the DEC. Numerous court cases on the community character issue have outlined a proper level of analysis. The SEQR regulations are explicit that creation of a material conflict with a communitys current plans or goals as officially approved or adopted or the impairment...of community...character are significant adverse effects in the context of a significance determination. To adequately assess impacts on community character, there needs to be documentation and an evaluation of communities that have adopted
1

http://www.scribd.com/doc/63147811/Health-Impacts-of-Fracking

comprehensive plans and zoning regulations. This information is readily available from another State agency.2 The dSGEIS states that assessing impacts on community character is subjective. But once affected communities have been identified and using readily available information, an assessment can be made as to whether HVHF is compatible with a communitys goals, as properly evidenced by its ordinances. The Middlefield Land Use Analysis should provide some ideas for assessing impacts on community character.3 Local Ordinances Reflect and Help Define Community Character The DEC acknowledges local ordinances under 8.1.1.5., but it does not defer to them, as is the practice in most other oil and gas states. Since the DEC acknowledges them, a town or city is better off with such ordinances than without them. Absent local land use, drilling sites could be located anywhere and everywhere in a community, as this map of Bradford County, Pa. indicates. 4 The DEC is operating under the mistaken premise that the regulation of drilling, as defined in ECL 23 trumps all local controls, none of which regulate the drilling process. This is in need of legislative clarification, as suggested by the Seward Home Rule Bill, in order to bring New York state into the mainstream of other states in this regard.5 The dSGEIS refers to local ordinances in several places, but not defer to any of them, nor does it even require drilling permit applicants to conform to any of the local ordinances that the dSGEIS acknowledges, even road use ordinances. See for instance, 8.1.1.4 Road Use Agreements. The DEC should require the applicant for a drilling permit to show that they have complied with local county and town road use ordinances, if such ordinances are in place, or they should not issue the drilling permit, since the State and DEC have no authority to enter into or enforce such road use agreements, which are the purview of villages, towns, cities and counties. If the applicant is not in compliance with local road ordinances, they should not get the permit. The dSGEIS refers to local ordinances in several places: 1.7.5 Land Planning Documents The DEC proposes to take local laws into consideration: "Applications would compare the proposed well pad location to local land use laws,
2

http://www.dos.state.ny.us/lg/publications/Rural_Resource_Survey.pdf

http://www.greenplan.org/GREENPLAN_Website/Our_Work/Entries/2011/6/14_Land_Use_Analys is__Gas_Drilling_%26_Fracking.html
4 5

http://www.bradfordcountypa.org/Natural-Gas.asp?specifTab=2 http://open.nysenate.gov/legislation/bill/S5830-2011

regulations, plans and policies to determine if the proposed activity is consistent with these. If the applicant or local government informs the DEC of a conflict in this regard, the DEC would request additional information in considering whether significant adverse impacts relating to land us and zoning would result from permit issuance." 3.2.3.9 Local Planning Documents The DEC requires the permit applicant to show whether the proposed well site is effected by local land use ordinances. Such a requirement would be common practice in most oil and gas producing states, where local ordinances are used to control inherently local matters of community character and concern.6 6.10 Noise This section is meaningless from a regulatory standpoint - since the DEC proposes no regulatory standards over noise, nor does it refer to or defer to local ordinances on the matter. The regulation of noise is the proper function of a municipal noise ordinance. If a drilling operation is not in compliance with such an ordinance - despite the assertions to the contrary by the DEC in this section 6.10, the drilling operator will be subject to a fine because noise pollution is local matter, to be addressed by local laws. Any town reading this boilerplate is left to conclude that they must adopt a noise ordinance and enforce it. 6.11 Transportation Impacts Shale gas industrialization requires massive numbers of heavy haulage truck trips - which can materially harm village centers.7 Despite all the boiler-plate in this section, the DEC asserts no authority to impose road use permit fees on drilling operations - the towns and counties have that authority. The DEC has no authority to regulate local roads, the towns and counties do. The DOT has no funds to pay for the expected damage to state roads and bridges;8 nor is there any revenue source in the state budget to offset these costs, since gas production is state tax exempt.9 Any county, city of town reading this section is left to conclude that they must adopt a road use plan and a road use permitting ordinance.10

http://www.scribd.com/doc/63141534/NYzoning http://my.brainshark.com/Frack-Truck-Convoys-By-Chip-Northrup-142091865 http://williamahuston.blogspot.com/2011/07/wow-leaked-dec-document-on.html http://www.scribd.com/doc/63145742/NYSeveranceTax

10

http://my.brainshark.com/Road-Use-Ordinances-in-New-York-224232466

7.8 Protecting Visual Resources Unless required a condition of obtaining a drilling permit, it is not clear how the DEC proposes to protect visual resources. This can most effectively be done by a local land use (zoning) ordinances, that would keep shale gas industrialization from interfering with local visual resources a notion apparently lost on the obtuse DEC. 7.9 Mitigating Noise and Light Impacts Unless a clear regulation that is a condition of permitting, this should be the subject of local noise ordinances, since enforcement of municipal noise ordinances is local, not within the DEC's authority. If the driller ignored local noise or light pollution ordinances, that would put the DEC on the side of noise and light polluters, to the detriment of the health, safety and welfare of the citizenry. On balance, since the DEC proposes no light and noise pollution standards, nor is it capable of enforcing such standards, a town is better off enforcing noise and light pollution standards, in anticipation of a judicial or legislative clarification of how these can be applied to the activity. Noise ordinances are routinely applied to drilling in other states.11 The lack of noise standards in the dSGEIS is perfect argument in favor of applying local noise ordinances. 7.11.1.1 Development of Transportation Plans, Baseline Surveys, and Traffic Studies Since the DEC has no jurisdiction over state, county or town roads, this section reads largely as boilerplate. The applicant should be required to show that they have entered into a road use agreement with the county and town or demonstrate that the county and town have no such permitting and routing ordinances in place. As written, the applicant could get a well permit while ignoring local laws governing road use. Since the state and DEC have no authority to enter into road use agreements, the county and towns must be included in this process, since the DEC cannot enforce road routing and use permits. At a minimum, the DEC should require the applicant to show that they have entered into a county and town road use agreement prior to issuing the drilling permit. 8.1.1.3 Local Government Notification The DEC, for the first time, states that it will notify local governments when a well application is filed - not after the fact. While a step forward, this is short of the Home Rule protections in other states, where the applicant would have to get permission to drill from the local municipality or county. 8.1.1.5 Local Planning Documents The DEC acknowledges local land use ordinances - zoning - in granting drilling permits:
11

http://www.scribd.com/doc/65111612/SGEIS-Noise-Impacts

". . . in order to consider potential significant adverse impacts on land use and zoning as required by SEQRA, the EAF Addendum would require the applicant to identify whether the proposed location of the well pad, or any other activity under the jurisdiction of the Department, conflicts with local land use laws or regulations, plans or policies. The applicant would also be required to identify whether the well pad is located in an area where the affected community has adopted a comprehensive plan or other local land use plan and whether the proposed action is inconsistent with such plan(s)." Meaning a town or city is better off with a land use plan that addresses shale gas industrialization - than if it has no such comprehensive plan and is at the mercy of how the DEC interprets the SGEIS for their town. This is a major advance over previous drafts, but it is not sufficient. If a town or city has no industrial land use, the SGEIS for HVHF effectively supplies them one. The impact on some towns would be devastating, It does not have to be like this. Towns should be have the last say over their land uses, in accordance with a carefully crafted land use plan,12 and land use ordinance.13 Economic Character The economic impacts of shale gas industrialization happen town by town, municipality by municipality, not by "representative regions", as inferred by the DEC, nor can these impacts be sufficiently addressed by the dSGEIS "one size fits all" land use plan. This argues for local control over well locations, local control over set-backs, and local control for noise, road use, steep slope development, and tree ordinances. This is how drilling is addressed in other states, both at the municipal level and county level. Many towns have land use plans that prohibit such industrialization, in accordance with good planning practices. Such land use plans are not uncommon in other states, including at the county level, see for instance Santa Fe County's land use ordinance as it pertains to drilling.14 6.8 Socioeconomic Impacts The economic estimates - jobs, ad valorem taxes, etc. - are grossly overstated, since the consultant's economic impact study was done based on gas reserves estimates that were 5 times greater than current estimates. Reserve estimates were revised downwards by the USGS based on results in Pennsylvania, and were announced on August 24 - after the DEC's socio-economic report was completed.15 The economic analysis fails to take into consideration the full extent of the negative effects on other businesses.16 Or on human
12

http://my.brainshark.com/Land-Use-Planning-to-Protect-Your-Town-482597169 http://my.brainshark.com/Prohibit-Fracking-Through-Zoning-926534928 http://www.santafecounty.org/county_attorney/oilandgas http://www.businessinsider.com/wow-us-slashes-marcellus-shale-gas-estimate-by-80-2011-8 http://www.scribd.com/doc/63379732/Gas-Drilling-Economics

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health, indeed no health impact studies on shale gas industrialization have been conducted by the DOH, to that agencys shame. 6.8.1.2 Representative Regions Geological data on the extent and thickness of the low-permeability shale in New York State, including the Marcellus Shale and Utica Shale fairways, were the basis for these assumptions." The economic impact analysis was done based on data that substantially overstated the recoverable reserves in the Marcellus. Data that was revised after the economic analysis was complete. The DEC does not state which reserves estimates were used in the economic analysis, but they are likely from the EIA/ DOE estimates, which came out earlier in the year, but which are now discredited. So the economic benefit of shale gas industrialization is grossly overstated in the SGEIS. The economic impacts of shale gas industrialization happen town by town, municipality by municipality, not by "representative regions", as inferred by the DEC. 17 This argues for local control over well locations, local control over set-backs, and local control for road use, steep slope development, and tree ordinances. All of which are useful in reflecting, preserving and defining a communitys character. In New York state, shale gas exploration would result in a form of economic roulette meaning many home owners get gassed wells and reduced property values, while a minority of land owners benefit - to the detriment of their neighbors: "gasland roulette," The majority of residents of impacted communities stand to lose in an industrialization that is entirely speculative. This does not have to be the case. Proper regulations can keep shale gas exploration from ruining property values, destroying village centers, and polluting groundwater. The environmental costs of exploring for shale gas are well known, the economic benefits are speculative. 18 Results from Pennsylvania indicate that much of the Southern Tier will be the subject of prospecting for natural gas, but not necessarily the production of gas. Indeed, production from the Marcellus may be limited to just three counties. 19 This would repeat the pattern of the development of other shales - the overstatement of the area that may be productive, followed by a collapse into pockets of productivity. 20The rewards in New York are speculative and have been grossly overstated.21 The environmental risks are known. If HVHF development is allowed as proposed by the DEC, much of New York State would effectively become a colony of out-of-state gas
17

http://www.scribd.com/doc/63144744/Fiscal-Effects-of-Gas-Drilling-in-Otsego-County-NY-8-15-11Final
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. HTTP://WWW.TIMESUNION.COM/DEFAULT/ARTICLE/HYDROFRACKING-A-BOOM-BUST-ENDEAVOR-1971392.PHP
HTTP://WWW.DEMOCRATANDCHRONICLE.COM/ARTICLE/20110809/BUSINESS/108090311 HTTP://WWW.THEOILDRUM.COM/NODE/8212 HTTP://WWW.PITTSBURGHLIVE.COM/X/PITTSBURGHTRIB/BUSINESS/S_753018.HTML#IXZZ1VX6EYWBZ

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producers, with questionable long term benefits for most areas. 22 Meaning most of the value of the gas would leave the state either lightly taxed or untaxed, most of the cost of the well would go to suppliers and manufacturers outside of the state, and some if not most of the gas will be exported out of the state, including shipment overseas. 23 The socioeconomic study attached to the dSGEIS grossly overstates the benefits of horizontal hydrofracking because it grossly overstates the amount of recoverable reserves. In truth, the report does not show any reserve estimates used to determine the number of wells, flow rates, etc a major flaw in the methodology. It states that it used estimates from the IOGA, which used reserve estimates that were out of date by the time the study was completed. These reserve estimates should have been clearly stated along with their precise source. One can infer from the number of wells and their expected production that the study is based on the now discredited 2011 EIA estimates for recoverable reserves in the Marcellus, approximately 400 Trillion cubic feet, an estimate that was off by a factor of 5 according to the more recent and more precise USGS estimate of 80 Tcf for the total Marcellus in four states.24 The USGS report was not released until after the socio-economic study was completed. See Figure 1 below. The extent and productivity of shale gas development has been invariably overstated by pure play shale gas companies, by IOGA and gas boosters. 25 The first step is to exaggerate the productive area of the shale and the amount of recoverable reserves. That is what happened with the Socio-Economic study, it is premised on over-blown reserve estimates, by a factor of 5 or more, rendering it useless for planning purposes, right down to local counties and towns.

22

HTTP://WWW.SCRIBD.COM/DOC/63379732/GAS-DRILLING-ECONOMICS HTTP://MY.BRAINSHARK.COM/FRACKONOMICS-IN-NEW-YORK-BY-CHIP-NORTHRUP-900192077

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HTTP://WWW.PITTSBURGHLIVE.COM/X/PITTSBURGHTRIB/BUSINESS/S_753018.HTML#IXZZ1VX6EYWBZ

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http://www.theoildrum.com/node/7075

Fig. 1 Recoverable Reserve Estimates of the Marcellus Formation

Q uickTim and a e decom pressor are needed to se this picture. e

In most New York counties, HVHF exploration in the Marcellus will be a rankprospecting exercise - since the geological conditions that exist in border counties in Pennsylvania simply do not cross the border very far into New York. Bradford County, Pa. is near the maximum shale thickness, as shown below. The border counties to the west of Bradford, which are similar to Otsego and Chenango, are already proving marginal. 26 While profitability is more than a function of shale thickness, the isopach gives us a first order indication of where to drill. The prospects for the Marcellus in New York have been consistently overstated - and this has led to grossly unrealistic expectations.27 We can quantify the environmental hazards better than we can forecast the economic upside, so wildcat wells should be treated with an appropriate amount of caution if allowed at all. Figure 2 shows what the Marcellus looks like to a geologist - the gross shale thickness in feet along the Pennsylvania / New York border.

Fig. 2 Gross Thickness of the Marcellus in N. Pa./S. NY.


26 27

http://articles.philly.com/2011-06-29/business/29717422_1_test-wells-marcellus-shale-production-rates http://www.nytimes.com/2011/06/26/us/26gas.html?_r=1&emc=eta1

Most of the Marcellus in New York is composed of the Oatka formation, which is considered gray shale as opposed to black shale; meaning it has a lower carbon content, and therefore, less likely to be economic. The Union Springs formation is the key Marcellus target in N. Pa. The isopach of the Union Springs formation indicates that only a few border counties in New York are likely to qualify as being economically viable for shale gas exploration Chemung, Tioga, Broome and Delaware. Most impacted counties, based on recent results in Pennsylvania and on Marcellus and Utica test wells in Otsego County, are probably marginal, so HVHF well permit applications should be treated as rank explorations both by the DEC, the impacted counties, and townships. The known risks are not worth the speculative rewards. Many of the impacts on a community are properly dealt with at the local level.

Fig. 4 Union Springs Formation Isopach In N. Pa. and S. NY.

Applying Local Ordinances To Shale Gas Industrialization Oil and gas reserves have been successfully developed in many other states where home rule applies to drilling, therefore affording some local control over community character. The DEC should not preempt local land use ordinances out of speculative expediency. Evolved state, county and city regulations in other states can serve as models for New York. Categories of State and Local Control Most states combine state and local control, where the state minerals management agency issues the permits subject to some local controls. The question of preemption has either been settled by custom, typically where the state defers to the municipalities, by state law, or by the courts. New York is in a position to settle this matter by clarifying its Home Rule law as it pertains to well permitting. It should do so prior to permitting any horizontal shale gas wells. Local Ordinances Control Industrialization Most states share control over oil and gas drilling locations with municipalities by default, such as California and Texas. Meaning local land use ordinances can control (or prohibit) drilling locations, and the state does not engage in generic land planning for well sites, like the SGEIS. State Preempts Local Control Some states, notably Ohio, specifically preempt local control on well siting, but offer no state-wide plan like the SGEIS. State and Local Ordinances Share Well Permitting

Colorados state agency does land use reviews for oil and gas development similar to an SEQR - but includes local authorities in that process and defers to recognized local authorities on well locations or prohibitions. Once Home Rule is clarified, New Yorks procedures might be closest to Colorados. Local Ordinances are Not Incompatible with Responsible Gas Production The oil and gas industry pays billions in taxes directly to the State of Texas in the form of a production tax, and billions more in property taxes to the local municipalities and school districts. The majority of counties in Texas produce oil or gas in some quantities. All this has been accomplished without sacrificing Home Rule. Texas municipalities have the right to regulate oil and gas drilling within their corporate limits. This is not uncommon in oil and gas producing states, it is the norm in Western states, including California, Texas, New Mexico and Colorado.28 Like New York, Texas is a Home Rule state, meaning a municipality has broad powers to protect the health, safety and welfare of its citizens. The police power to zone extends to oil and gas activities in Texas, with the exception of public pipelines, as noted below. This is evidenced in state law and is reflected in the zoning ordinances of Texas cities. For instance, the zoning ordinance of the City of Southlake, which is in the Barnett Shale area, specifically states29: The drilling and production of gas and/or oil within the city shall only be permitted by specific use permit in accordance with section 45 of the zoning ordinance. A separate specific use permit shall be required for each pad site, and shall apply to all wells permitted by such specific use permit on that pad site. All applications for a specific use permit shall be accompanied by an application fee in the amount set in the city's fee schedule. A site plan is required with the specific use permit application and must include all information required by sections 40 and 45 of the zoning ordinance.30 Other Texas cities, such as Fort Worth, have similar ordinances regulating oil and gas drilling. Up until 2009, Fort Worth restricted oil and gas drilling to its Heavy Industrial zoning districts; now drilling can be done by SUP in other districts. The important point is that local zoning controls. Meaning a driller could (in theory) get a drilling permit from the state minerals management agency, the Texas Railroad Commission (TRRC), and be unable to drill due to local zoning restrictions. As a practical matter, they will refer to the local zoning code first.

28

http://findarticles.com/p/articles/mi_qa5447/is_200404/ai_n21349136/?tag=content;col1 http://www.cityofsouthlake.com/gasdrillinginsouthlake/Tracking%20Drilling%20Cases.htm

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http://www.cityofsouthlake.com/SiteContent/70/documents/Departments/PlanningDevServices/Gas/Artic le%20IV_Chapter%209_5.pdf

The laws that give municipal governments their authority is Texas Local Government Code.31 This code describes the different types of local governments and the authorities that they have. Its wording is antiquated (tanneries, blacksmiths, tallow, slaughterhouses, etc.) and does not specifically address natural gas drilling. In Texas, natural gas development has come to be treated like any other noxious hazardous industrial activity, and is regulated as such. Most local drilling ordinances require a permit from the TRRC before applying for a permit by the municipality. As a practical matter, if the applicant knew they were not going to get the permit from the municipality, they would not apply for it at the TRRC. There is long standing case law that supports local authority over drilling operations. In Texas, the municipality is allowed to permit and regulate drilling - with no exemptions under state law. Gas wells involve substantial permanent above-ground structures, including gas separation units that will be required by the DEC at each well site. They also require pipelines to each well. They are permanent industrial structures. In Texas, the only exception to municipal authority is for intrastate midstream pipeline companies, which are treated as quasi-utilities under state law. Pipeline companies are supposed to be independent of the operating companies (drillers); however, many operating companies have purchased or started pipeline companies. In Texas, the pipeline companies have been given significant authority, which includes above ground appurtenances such as compressors, treating, or metering stations. See Texas Utilities Code.32 This authority has been subject to legal constraints by Texas municipalities. Chesapeake entered into litigation against the city of Grand Prairie and the courts found that municipal governments could regulate noise and aesthetics on above ground appurtenances of pipelines. Municipalities can also require mapping of the pipelines. New York Faces Unique Land Use Challenges In New York faces unique challenges the potential for environmental damage, particularly to groundwater is greater than in the West. The contamination of well water is a non-issue in Texas cities with municipal water supplies. The DEC has invoked municipal zoning standards, notably from the City of Fort Worth in crafting its proposed generic regulations, the dSGEIS. Implying on the one hand that what works within the corporate limits of Fort Worth is applicable to the entire state of New York, and, on the other that the DEC has preemption over such local land use ordinances: 8.1.1.5 Local Planning Documents. The Departments exclusive authority to issue well permits supersedes local government authority relative to well siting. In other words, whats good enough for the City of Fort Worth is good enough for the DEC, but not good
31

http://law.justia.com/codes/texas/2009/local-government-code/. http://law.justia.com/codes/texas/2005/ut/003.00.000121.00.html

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enough for, say, the City of Binghamton to determine. Curiously, the DECs proposed testing set-back from a water well matches Fort Worths zoning ordinance (which is not superseded by state law). There is no other justification on the draft SGEIS for the proposed 500 foot limit. New York is patterning a critical catch-all regulation on a city with municipal water services in a semi-arid region in Texas: Water Well Testing Preliminary Revised Draft SGEIS 2011, Page 8-58 Of the jurisdictions surveyed, Colorado and the City of Fort Worth have water well testing requirements specifically directed at unconventional gas development within targeted regions. Fort Worths regulations pertain to Barnett Shale development, where horizontal drilling and high-volume hydraulic fracturing are performed, and address all fresh water wells within 500 feet of the surface location of the gas well. There are legal problems with this that are painfully obvious. First, there are very few private water wells in Fort Worth - which is entirely served by municipal water lines in accordance with state law. Of the few private water wells in the city limits (typically golf courses), none are shallow residential groundwater wells of the type found in rural New York. These Upstate groundwater wells are uniquely vulnerable to surface pollutants from spills, etc. and from methane migration of gas drilling operations. Texas wells tap deep aquifers not groundwater. Accordingly, a 500 set-back that might be appropriate in a municipality in a semi arid part of Texas would be wholly inadequate for Upstate. Regulatory Models For New York Unlike Texas and New York counties, counties in New Mexico and Colorado can control land use and they do so over predominately rural areas. For instance, Santa Fe Countys regulations have comprehensively planned and limited drilling in certain areas of the county. 33 The Santa Fe County plan addresses local features the way a township might in New York slope, vegetation, soil conditions, land uses at a level of detail that are impossible for the SGEIS, but that would be of critical importance at the local level.34 In most oil and gas states, the task of addressing local land use conditions is left up to municipalities (Texas and Kansas) or to both counties and municipalities (New Mexico and Colorado). Most states do not attempt to do industrial land planning similar to the DECs proposed SGEIS. One exception is Colorado whose oil and gas regulations are comparable to the SGEIS or, in some counties an area-wide SEQR taking into consideration local conditions - slope, vegetation, land uses in a comprehensive review.35 These Colorado state regulations are augmented by local ordinances in some
33

http://www.santafecounty.org/county_attorney/oilandgas http://www.santafecounty.org/userfiles/file/oilandgas/OilGasElement093008.pdf http://cogcc.state.co.us/

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counties.36 Since these Colorado county plans are generally for rural areas, like Santa Fe County, they could serve as precedents for rural Upstate township land use ordinances. The Colorado model might be applicable to New York, since in areas where there is no gas industrialization ordinances, the SGEIS would control. In areas where there are town or city ordinances that address gas industrialization, the local ordinances would control. The Colorado procedures, similar to a SEQR process, augmented with local ordinances would be an appropriate model for New York to consider. As applied in New York, the process would be as follows: 1. The driller shows that the well conforms to both the SGEIs and to local ordinances (or absence thereof) in their application to the DEC. 2. If it conforms to both, the DEC issues the well permit and the well is drilled. 3. If it does not comply to the SGEIS, the application is denied. 4. If it conforms with the SGEIS but does not conform to local ordinances, the DEC refers the applicant back to the local authority. Applied to well permitting, the New York mining law would track existing practice and save the applicant the trouble of getting a drilling permit from the state prior to subsequent review by the municipality. The DEC is removed from the position of having to opine on local land use laws, but defers to them in its permitting process. As currently proposed, the DEC has set itself up to adjudicate the applicability of local land use laws, using its one-size-fits-few SGEIS approach as the benchmark which may not be appropriate to local conditions and may be unenforceable when confronted with a properly crafted zoning ordinance and a municipalitys presumptive right to exercise its police power to protect the health, safety and welfare of its citizens. Conclusion Wells get drilled and taxes paid in Texas towns and Colorado counties that approve them. By the same token, some wells that would be harmful in those towns and counties do not get drilled thanks to local ordinances. In New York, where environmental conditions are demonstrably more delicate, and where the DECs proposed one-size-fits-few standard is blind to most local ordinances, final approval can be more precisely dealt with at the local level, where community character is more accurately defined and more effectively fulfilled. James Northrup Cooperstown

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http://www.oilandgasbmps.org/laws/colorado_localgovt_law.php

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