As was pointed out vociferously at the Albany Law School conference on land use and gas wells, there is absolutely no reason why your county, city, town and/or village should not have a road use ordinance to hold drillers liable for tearing up local roads. If your county/ city/town etc. has not already adopted a road use agreement, get a new mayor/ board/ supervisor. You know, the type that is not a fracking collaborator running interference for the landmen.
Your town can also adopt a comprehensive plan – including a land plan – which the DEC takes into consideration before issuing a gas well permit – assuming your town has a land use plan. If not, the DEC can issue a drilling permit anywhere in town – as close as 150 feet from a daycare center – because your town supervisor was too lazy or too crooked to implement a land use plan. The DEC is obligated to take local land use plans into consideration under the SGEIS, even if the town has no prohibitions against gas well drilling. Meaning your town is better off with a land use plan than without – because the town understands local conditions better than the DEC, which the DEC can appreciate. See dSGEIS, 1.7.5:
1.7.5 Local Planning Documents
The Department proposes that applicants be required to compare the proposed well pad location
to local land use laws, regulations, plans and policies to determine whether the proposed activity
is consistent with such local land use laws, regulations, plans and policies. If the applicant or the
potentially impacted local government informs the Department that it believes a conflict exists,
the Department would request additional information with regard to this issue so it can consider
whether significant adverse impacts relating to land use and zoning would result from permit
Moral : Get a land use plan that addresses gas wells. Anschutz can’t sue your town for that. Before the DEC issues a permit, it has to take that plan into consideration as Steven Barshov points out:
Once you have a comprehensive plan, you can adopt a land use ordinance that restricts where gas wells can be drilled: in residential area, in retail or commercial areas, near schools, or where they can contaminate water supplies. The DEC is incapable of doing all that for each town. The town is in a better position to protect roads, land uses and water supplies. The DEC will let a seismic crew shoot seismic blasts anywhere in your town, because the DEC has no limitations on where seismic blasts may be shot. That’s because the DEC’s regulations were written by the gas industry. So, without a town land use ordinance, you are, for all intents and purposes, left with rules written by Chesapeake. That might work for fracking collaborators on town boards, but is probably not a great idea for your school children, livestock, water wells, streams, old folks, roads, businesses, human beings – you know, things like that…
From the land use plan, you can state where gas wells may be drilled (or prohibited) and can establish setbacks of gas wells from water wells, housing, etc. Like they do in Texas and other states. Banning gas wells town wide is not the only option. That is simply how some towns choose to respond. Whatever you do should be predicated on a town comprehensive plan.
To get or update a comprehensive plan, it would be a good idea to contact a certified land planner. (Not an uncertified one, who might not shoot you straight.) Nan Stolzenburg has done dozens of comprehensive plans for Upstate towns. http://www.planningbetterplaces.com/ As she explains here.
Ted Fink has done work for many towns and counties, including the comprehensive plan for Middlefield has already been affirmed in court. Home Rule itself has been affirmed by three trial courts. So get those land use ordinances shaped up. So that when the frack crews arrive from Texas, you can make them feel at home with a local ordinance. Or just tell them to hit the fracking road. It’s your town’s choice – as evidenced in your local ordinances.