The Local Government Regulations Study Group met last Friday in Pittsboro. The agenda, audio, and hand-written questions from the meeting are available on the MEC web portal for under the Agendas, Local Government Regulations Study Group tab. I encourage folks who were not there to go to the website and listen to the proceedings of the meeting. The beginning of the meeting involved Jim Womack describing SB 10 and SB 76 (more on SB 76 soon), and how those affect what the MEC and the study group does.
The group had a presentation from NCLM staff on documentation of some regulations in other states: there are areas of traditional authority for local governments, like in land use, and set backs. Local governments regulate land uses through zoning in order to address competing land use interests, by separating industrial, commercial, and residential land uses. The impacts of industry, such as noise, light, and odor, are of interest to local governments to keep buffered from residential and central business district areas. Municipalities also typically own streets within municipal boundaries and therefore have an interest in directing heavy traffic appropriately. There are many federal laws, such as the Clean Water Act, which the state enforces in conjunction with local governments, such as stormwater programs. Then, there are state laws pertaining to sediment and erosion control and watershed water supply areas by which local governments must comply. One of the big advantages local governments have in complying with these federal and state laws/regulations is the power to levy taxes to implement programs or recoup costs to counteract impacts (which SB 76 will take away from local governments, at least for any taxation of oil and gas development – again, more on that coming very soon).
The report then highlighted examples from other states as to how they deal with set back requirements, and public nuisances (noise, light, and odor), but what’s intriguing with this was to hear the number of states having authority conflicts between the state and localities. One example was West Virginia that has a long history of letting local governments make specifications not allowing municipal governments any authority over fracking operations. Even more compelling is the issue in Pennsylvania with PA Act 13 that gave more authority to localities, was challenged and held in court as unconstitutional, and is in the appeal process.
Discussion turned to study group members at this point, with Jim Womack pointing out that SB 820 currently provides a reasonable amount of local control on fracking, and added that very similar to zoning ordinances, having a state level regulation in place with local version very helpful. This was a key point he made when he chimed in the idea of set-backs, and how there should be a state regulation, but the legislation should allow localities a mechanism for a waiver of that regulation to fit local needs. As reported in the Fayetteville Observer, the Sanford Herald, WRAL, and WFAE, it seemed he is actually suggesting that a locality be allowed to relax that state required set back, though in the examples of zoning, most localities look for stricter control as a variation from the state/federal regulation.
Womack went on to suggest that the study group’s recommendations should categorize what regulations are Federal, what are State, and which regulations have local enforcement variances. The fine line there will be to find what will be appropriate level of regulation at the state, and how much variance localities may have, and what the mechanism will be for localities to enact those variances.
The study group then turned their attention to the list of issues it has identified to address and focused on the first two during this meeting: set-backs and noise/light nuisance. There is caution on establishing set backs in such a way that it prohibits development on the land after drilling has been completed, or the land use changes. Again, the state should establish some level of set back requirements defined for each interest (occupied buildings, water source) with criteria for local waivers. These requirements should include who should govern what set backs. The process for local governments to establish that variance should be established in a way so as not to include an appeals board, but simply to have a process akin to a zoning ordinance: a zoning ordinance may be challenged in court, which is preferable to another state commission needing to approve local variances.
Question here: Though there would be a recommendation for the waiver, it is unclear how the waiver, or local variance, would be triggered: is it something the locality needs to have in a local development ordinance/land use plan, or is it something that a local government can address in the drill permitting process?
The study group then discussed nuisance issues, particularly noise and light. Groups members voiced that these issues should definitely remain in local control. When Womack mentioned that there will need to be embedded in that regulation an exception for the actual “24 to 36 hour” hydraulic fracturing process, other members of the group voiced a need to look at that carefully due to the proximity of schools or churches. This will be a tricky aspect of gas development: the fracking itself is significantly expensive, so it is in everyone’s interest to get that done as efficiently as possible, but that could be a serious nuisance.
In all, this group still needs to determine what issues are state or local jurisdiction, and what local regulations need to be fleshed out. They have a lot of work left to do since they only tackled the first two issues on a long list, and did not come up with specific recommendations for them. I don’t say that as criticism of the group, just a statement of fact. With SB 76 representing a very real effort to allow the permitting of fracking in March 2015, we all need these regulatory recommendations sooner than later.