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After the Vote, Part 1/3: Ordinance Gets a C-




After more than two years of revisions, Denton City Council
passed the new drilling and production ordinance on Tuesday night by a 5-1 vote
(King opposed, Engelbrecht absent).

This is the first in a three part series of blogs where I
take stock of where we sit, how we got here, and where we go
now that the law is in the books. This post provides a table
of important issues, some brief comments, and my grade. The next post will be
my analysis trying to explain why things ended up the way they did. The third blog
post will look ahead to map out possible next steps.

 

The process was not a shining beacon of
democratic rule-making. The Task Force had an ambiguous mission, was dominated
by industry interests, and did not collect enough information. The actual
drafting of the ordinance was insulated from public
criticism and it outpaced public deliberation by our elected leaders. The
Planning & Zoning Commission did not weigh in substantively. Important
legal perspectives were not consulted. I and the DAG could have done more to
mobilize public turnout and speak with a clarion voice. Public attendance waned
seriously through the long slog. And public comments too often veered into
irrational diatribes, bloated into selfish posturing and one-upmanship, and
(worst) devolved into disrespectful, unfair, and absurd name-calling and
insults.

In terms of process, I give us all a C-.

I give the same grade for the overall outcome. You will see
that there were some victories but ample problems remain. I don’t think anyone
should look to Denton’s ordinance as an overall model for the municipal
regulation of shale gas development. There are some good parts that others
might want to cherry-pick and the use of the SUP process still seems
fundamentally sound to me. But it is not strong enough and has never read with
the crisp clarity and coherence of other ordinances.

If you spot errors in claims contained in this table, please let me know via a comment (tough to keep track of all the changes). [my thanks to an anonymous tipster in the know who corrected some of my mistakes - this was updated about 12 hours after first posting]






Issue


Commentary


Grade




Purpose


Improved. It boldly states
our values and clearly grounds the
ordinance in our home-rule authority. Unfortunately, much of the ordinance
does not appear to use that authority to the fullest.


A




Protected uses


This definition was broadened.


A




Zoning


Fracking is still allowed in
any zoning classification. The framing of the ordinance assumes that
fracking is a compatible use in all areas with some cosmetic changes via the
SUP process. This is wrong. We need a zoning process that prohibits fracking
in any zone but industrial. There are two reasons this does not constitute a
regulatory takings. First, the average horizontal well in Denton County is
now over 1 mile long, a length that is going up at the rate of 400 feet per
year. Second, the process could allow for the possibility of rezoning a
proposed plat site. We need an ordinance that begins with the common sense point
that fracking is NOT a compatible use in non-industrial areas. I give this
partially an ‘incomplete,’ because some Council members have promised to
fight for this zoning strategy over the coming year.


F/I




Vested rights


Most of the future drilling
and fracking activity in Denton will occur under old rules. I give this
an C- more out of protest for the fact that the law allows us to be haunted by
outdated practices than out of any legitimate gripe with the City (its hands
are largely tied here…though not entirely). We’ve been worried about what
teeth this ordinance has, but the real issue may be that there is not much
for it to bite anyway. We will have to see how this plays out...apparently all new permits will be considered under the new rules and operators will have to jump through hoops to get out of them. That may work better than how I originally understood this.


C-




Variances


They are still in there. Everyone
loves Southlake’s ordinance but hates variances. But the first thing
Southlake’s ordinance does is lay out a detailed variance procedure! There
are two takes on variances. First, they are good, because they provide non-litigious
(out of court) administrative recourse for grievances. Second, they are bad,
because they allow activities to happen closer to protected uses. Denton’s
ordinance allows the ZBA to grant variances down to 500 feet. The other variance procedure was removed. Tough one to grade.


C




Plans and permits


The watershed protection permit, water conservation plan, and site
reclamation plan are robust. But overall there is not enough: there is no requirement for seismic permit, traffic impact assessment, waste
management plan, or a leak detection and compliance plan.


B-




Air and water monitoring


After months of saying we were preempted from doing this, Council
made a last minute amendment. But it is not in the ordinance (which might
actually be good) and not specified.
So, it’s promising but it gets an “incomplete” because we need to make sure
this gets done right.


I




Pits


The ordinance says closed-loop systems will eliminate the need for
pits on all new sites. But Mr. Groth equivocated when Mr. Roden asked him to
clarify which pits will be eliminated. It seems like not all pits will be
gone even from new sites. And more importantly all sorts of pits are still allowed on old sites vested
under old rules. It’s not an “F” because there are some marginal safety
measures (liners, fill level, content). But these things cannot be policed –
toxins will volatize quickly. And note that benzene is allowed…not good at
all.


D




Compressor stations


This was the other major last minute move by Council. They will now
be permitted but with regulations
for set-back distance (1,200 feet), noise, and screening requirements. That’s
a start, but it is not enough.
There will be more of these and they are dirty and dangerous. We need to
prohibit them as other cities have done or at least increase setbacks significantly.



D




Venting and flaring


They are still allowed.
Worse, variances can allow them to happen very close to protected uses. City Council suggested this might
constitute a noise violation under our ordinance, so operators could incur
the daily $2,000 fine. But we need to be clearer than that. We should
prohibit these practices outright. They will occur in emergencies, but by
prohibiting them we discourage any non-emergency venting and flaring episodes
and we send a message that these are simply unacceptable practices. If
drilling and production can’t occur without them, then they shouldn’t occur
at all.


F




Well bore integrity


Cathodic protection still seems to not be required. This is a tough
one for the City to police, but there was far too little discussion of options here.


D




Setbacks


City Council was looking for a way to justify 1,500 feet. We never
convinced them, but they did appeal to an obscure federal flood protection
requirement in the DDC to get 1,200
feet. Watts made the motion, but I know others gamed this with him prior
to the vote. Decent.


B




Vapor recovery units


These are required, but only
when VOC emissions exceed the allowable level of 25 tons per year. VRUs
are not the magic bullet that everyone hopes they can be in terms of
eliminating vapors from tanks. They only work well and safely when vapor
levels are high. This is another instance where the ordinance gets a bad
grade but more out of my displeasure with technological limitations and the
inherently polluting nature of the activities than with my sense the City
could have done much better.


D




Reduced emissions completions


These ‘green completions’ will be mandatory. That is good (of course they are soon to be required
by federal law anyway).  But there are weasel words. They are not mandatory
if it is not ‘feasible.’ In such cases emissions must be ‘minimized’ (not
specified to what level).


C




Public notice


Operators must notify the City ten
days in advance of several activities, but it does not appear that
re-fracking requires notification. All dwellings within 1,200 feet will be
notified 48 hours prior to
activity. These are good notices, but the dissemination mechanisms are not robust enough. The Gas Well Inspection Division needs to post notices on their website. There should be a City Facebook page where planned activities can
be posted. This should be linked to the interactive map that is being made. Finally, notices should be posted in the Denton Record Chronicle.


B-




Low toxicity drilling fluids and low-bleed pneumatic valves


These seemed like simple things to ask for, but they never made it into the ordinance.


F




Other best practices and a pad site upgrade incentive program


We had lots of ideas for various ways to reduce emissions (taken from
the EPA Natural Gas STAR program site) but none of them were incorporated. The
notion of a voluntary incentive program also got very little play in official
policy discussions.


F




Electric motors


These are required but other motors that generate equal or less noise
or emissions can be approved. The point is to reduce on site emissions and
this seems to help in that direction…although the current draft posted here
(and in many other spots) is difficult to read (can’t tell what is
over-tracked and what is supposed to be deleted, etc.).


B




Soil sampling


Home run.


A




Noise mitigation


Well done.


A




Insurance


These levels were increased…perhaps
still not enough given the risks we are taking with our water (and the
water for all future residents of Denton). Arguably, insurance and security
requirements should be prohibitively high until we have full disclosure of
the chemicals being pumped into our environment. How can we adequately assess
the risk and establish reasonable insurance requirements under conditions of
secrecy? We don't know what is happening to the (unknown) chemicals below the ground - where are they migrating, how fast, who will pay for future damages...?


C




Pipelines


We said from the beginning, and the Mayor also stated at the final
meeting, that pipelines pose perhaps the most significant safety risks. The transmission pipeline system is a high-pressure, explosive network that was simply not addressed. I'll take as much blame as anyone for this (Elma Walker sure tried to get our attention!)...the question is: Are there any problems here (are new pipelines going into Denton, do we have the old ones mapped adequately, are they safe, monitored, etc.) and can we do anything about them?


I