Fracking not a county-permitted land use, but state DMME is responsible for regulating
Board chairman Floyd Thomas
By Sarah Vogelsong
CP Reporter
Fracking may have appeared on the Board of Supervisors’ agenda for the first time at their Sept. 23 meeting, but it’s clear that it won’t be the last time it lands there.
“Our position is that we still have time to look at all the issues, to see what other localities are doing, as well as what, if anything, the state is going to do,” Director of Planning and Community Development Mike Finchum told the Board of Supervisors, “and to address the issue … of actually what regulatory authority we have, given conflicting language and the case law that exists concerning local government authority and state pre-emption.”
Hydraulic fracturing, commonly called fracking, is a controversial method of extracting natural gas and oil from reserves thousands of feet below the surface of the earth.
In a fracking operation, a mix of water, chemicals, and sometimes sand is injected into shale and other rock formations through steel and concrete-lined pipes at very high pressure. Often these pipes plunge vertically down more than a mile to below the level of the groundwater zone and then make a 90 degree turn, in a technique known as horizontal drilling. Holes in the pipe are then opened to release the fluid, which because of its high pressure stimulates fracturing in the surrounding rock, in turn releasing the gas or oil trapped within.
According to the Virginia Department of Mines, Minerals and Energy, fracking has occurred at more than 8,000 wells statewide since the early 1950s. All of the current well sites, of which more than 6,000 are for methane extraction, are located in the southwestern portion of the state.
The recent resurgence of interest in fracking concerns the Taylorsville Basin, a sedimentary basin that lies beneath parts of Central Virginia and more than half of Caroline County. On Aug. 12, DMME and the Virginia Department of Environmental Quality signed a memorandum of understanding that outlines specifications for “coordinated review of the environmental impact assessments and potential effects of proposed oil or gas drilling activities in Tidewater Virginia.”
Under current Virginia law, DMME is the agency responsible for regulating oil and gas drilling within the state. According to the MOU, however, DMME may not issue any permits for such drilling until DEQ has completed its review of the drilling application’s environmental impact assessment and has made a recommendation to DMME.
At the Board of Supervisors’ Sept. 23 meeting, both Finchum and Chairman Floyd Thomas pointed out that fracking is not currently a permitted land use under Caroline County zoning ordinance.
“I would argue that because our ordinance does not currently permit production (of this kind) … we would have to amend our ordinance to address that issue,” said Finchum. “And that with all of the other state actions going on, we have time to do that.”
Over the past months, fracking has been the subject of numerous panels and meetings in and around Caroline County, and the focus of heated discussions nationwide. Opponents of fracking cite fears about the practice’s environmental impacts, such as the possibility of polluting the aquifer and the overuse of water resources, as well as the harm posed to local economies by companies that extract what they need, strain the local economy and infrastructure, and then depart. Proponents emphasize the potential financial gains of fracking, which in some states, such as North Dakota, have been significant, as well as the possibility fracking opens for the United States to reduce its dependence on foreign oil.
Besides the practical concerns surrounding fracking, Thomas raised another, more philosophical point to consider at the Sept. 23 meeting: the constitutionality of a state overriding a county ordinance that bans fracking.
“I think (county attorney Ann Neil) Cosby would share my opinion that (the legal issue) is just as clear as mud,” said Finchum.
Thomas cited the precedent that may have been set for resolving such legal disputes by the Virginia Supreme Court’s 2001 decision in Blanton v. Amelia County. In this case, the court drew on Virginia statute decreeing that local ordinances, bylaws, or other regulations could not be inconsistent with federal or state laws to rule that “a local government may not ‘forbid what the legislature has expressly licensed, authorized, or required.’”
Nevertheless, said Thomas, “just because we didn’t challenge the constitutionality (of the biosolids case) then doesn’t mean we won’t now.”
Finchum in particular emphasized that there is no need for the Board of Supervisors to hurry into any decisions at the moment.
“We will be trying to filter through the mud as soon as we can to get a somewhat clearer picture of the whole thing,” Thomas promised.