Mineral Exploration & Extraction in Public Water Well Fields: an Ohio Legal & Public Policy PerspectiveJulie Weatherington...
Oil & Gas Drilling in Ohio, 1860 - PresentPrime Class IIBrineInjectionWellsMt. Simon SSSW Ohio                            ...
Mineral Exploration &Extraction in PublicWater Well Fields & TheirRecharge Area are Non-Conforming, PotentiallyPolluting L...
Mineral Exploration & Extraction   Since NOT precluded or locally   managed, the siting and mineral   rights for extractio...
After the Fact Damages• Dewatering – Ohio Cline vs. American  Aggregates• Contamination – Federal Clean Water  Act• Both c...
Preventing Damages BeforeThey Occur• Ohio Courts typically find for the  mineral owner• Two major “Lands Unsuitable for  C...
Current Setbacks – Oil & Gas• 50’ from streams and lakes (set by  Sub SB 165) including in 100-yr  floodplains and surface...
How Did Locals Loose Controlon Oil & Gas?• 2004, HB 278 (Tom Niehaus) pre-empts    local communities from using local zoni...
More Changes ComingSub SB 165 – Effective June 30, 2010  * Mostly about money  * “Grants the Division of Mineral  Resource...
Progress on Revising RulesFinalized• Ohio EPA – Air permit set• Ohio Dept. Health: Radioactivity (NORM &  TENORM) – all au...
Progress on Revising RulesSent/Heading to JCARR; OEC/OFFWG  comments submitted• Well Construction Rules – Just Approved• R...
Progress on Revising RulesComing Up• Class II Injection Wells    Revisions    (above Pre-Cambrian    basement rock now)   ...
Possible Options to Exclude SourceWater Protection Areas from Drilling • Currently ODNR O&G would have to buy     the reso...
SB 315-Ohio Energy Bill-Now Signed                 • Allows ODNR to require                     additional permit         ...
What Can Locals Do?• Find out if you even    own your mineral    rights (If there are old    wells, the rights may    have...
Drilling Permit Issued in yourSource Water Protection Area?Contact all applicable federal, state, regional & local agencie...
Test Your Water Before They Drill• Test before drilling• Test after drilling• Test regularly after  well is installed &  p...
Learn from Munroe Falls• Using the courts to    protect water•   Appeals to prevent    drilling in 5-yr TOT    area; denie...
What are Your Rights?               Local water suppliers can place               an observer at drilling sites           ...
Be at the Rulemaking Table• Advocate for your water system• Comment on all rule changes, especially as    they relate to Y...
Wellfield Recharge Area    Leased?• No Funding available to make    communities whole if wellfield is    damaged•   Establ...
Wellfield Recharge AreaLeased?• Notify ODNR O&G in writing of water supply    replacement information•   CC your local Rep...
Join Forces with your Neighbors             • Consider petitioning a Sole                 Source Aquifer             •   5...
Contacts for Ohio Journal ofScience Papers & this PresentationOFFWG, Dr. Julie Weatherington-Rice, B&W,  OSU FABE, weather...
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Fracking-Legal & Public Policy Implications

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Presentation at an Ohio Environmental Council 'fracking forum' in Ravenna, Ohio, by Dr. Julie Rice-Weatherington.

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Fracking-Legal & Public Policy Implications

  1. 1. Mineral Exploration & Extraction in Public Water Well Fields: an Ohio Legal & Public Policy PerspectiveJulie Weatherington-Rice, PhD, CPG, CPSSBennett & Williams EnvironmentalConsultants Inc. Adj. Asst. Prof, Ohio State U. Food, Ag & Bio Eng. An Ohio Fracture Flow Working Group Presentation June 21, 2012
  2. 2. Oil & Gas Drilling in Ohio, 1860 - PresentPrime Class IIBrineInjectionWellsMt. Simon SSSW Ohio ~13,000’Locations ~2,000’ Cincinnati Arch
  3. 3. Mineral Exploration &Extraction in PublicWater Well Fields & TheirRecharge Area are Non-Conforming, PotentiallyPolluting Land UsesThey are the ONLY remainingmajor land uses of this categorythat are NOT either precluded /regulated by Federal / Ohio law inSource Water Protection Areas orsubject to management under alocal Source Water ProtectionManagement Plan
  4. 4. Mineral Exploration & Extraction Since NOT precluded or locally managed, the siting and mineral rights for extraction are based on Federal / Ohio mineral laws (O&G, coal, rock, S&G, etc.) which DO NOT traditionally recognize the importance of source water protection
  5. 5. After the Fact Damages• Dewatering – Ohio Cline vs. American Aggregates• Contamination – Federal Clean Water Act• Both conditions require litigation in Civil Court• Both require that damage has already occurred• Both are unsecured claims in Bankruptcy Courts
  6. 6. Preventing Damages BeforeThey Occur• Ohio Courts typically find for the mineral owner• Two major “Lands Unsuitable for Coal Mining” cases have shaped these decisions• Ohio Environmental Council fact sheet about cases on line (http://www.theoec.org/PDFs/FactS heets/BarnesvilleWaterCase02.pdf)
  7. 7. Current Setbacks – Oil & Gas• 50’ from streams and lakes (set by Sub SB 165) including in 100-yr floodplains and surface water source water protection areas• 300’ from water wells public/private• Nothing in the Ohio Revised Code or the Ohio Administrative Code to protect by exclusion public water supply well fields or recharge areas
  8. 8. How Did Locals Loose Controlon Oil & Gas?• 2004, HB 278 (Tom Niehaus) pre-empts local communities from using local zoning authority to say where oil & gas wells and Class II injection wells can go, before 2004, local zoning applied• 2010 Sub SB 165 (Tom Niehaus again) upholds HB 278 & strengthens ODNR Oil & Gas’s power even over other state agencies; removes rights of locals to appeal; does not address source water protection management requirements
  9. 9. More Changes ComingSub SB 165 – Effective June 30, 2010 * Mostly about money * “Grants the Division of Mineral Resources Management (now Oil & Gas) sole and exclusive authority to regulate production operations, as defined by the act, within the state” * Allows ODNR (ODH & OEPA) to revise rules through the Joint Committee on Agency Rule Review (JCARR)
  10. 10. Progress on Revising RulesFinalized• Ohio EPA – Air permit set• Ohio Dept. Health: Radioactivity (NORM & TENORM) – all authority reverts to Oil & Gas - may be more radioactive than man-made wastes or SDWA levels allow but because “natural” doesn’t count, allows down blending in landfills, no Ohio data yet http://www.epa.state.oh.us/LinkClick.asp x?fileticket=cmfCggUBals%3d&tabid=502 4
  11. 11. Progress on Revising RulesSent/Heading to JCARR; OEC/OFFWG comments submitted• Well Construction Rules – Just Approved• Revision ORC 1501:9-1-01 thru 1501:9- 11-04 (Hodge-podge of rules) checked w/ ODNR O&G 6-20-12 for updates but could not get one• Ohio EPA wetlands reporting
  12. 12. Progress on Revising RulesComing Up• Class II Injection Wells Revisions (above Pre-Cambrian basement rock now) Seismic rules just proposed 6-7-12• Everything else• Check web sites often http://www.ohiodnr.com/ mineral/tabid/10352/Defa ult.aspx
  13. 13. Possible Options to Exclude SourceWater Protection Areas from Drilling • Currently ODNR O&G would have to buy the resource if they denied a permit • Overturn the Ohio Supreme Court decision on Pleasant City (State ex rel. R. T. G. v. State of Ohio) possibly using the new Ohio Constitutional Amendment • Pass a bill through the Ohio House and Senate providing exemptions to drilling in Source Water Protection Areas & 100-year flood plains
  14. 14. SB 315-Ohio Energy Bill-Now Signed • Allows ODNR to require additional permit requirements in the following areas if they so choose • 100-year floodplains • 5-year time-of-travel, public water supplies • DOES NOT overturn Pleasant City or Barnesville so may not hold up in court if challenged
  15. 15. What Can Locals Do?• Find out if you even own your mineral rights (If there are old wells, the rights may have transferred)• Find out who owns your lease – selling/swapping like sub-prime mortgages• Remember, you can be bundled
  16. 16. Drilling Permit Issued in yourSource Water Protection Area?Contact all applicable federal, state, regional & local agencies to MAKE SURE relevant permits have been obtained - Wetlands/Stream crossings (OEPA/ACE) - Flood plains (local admin/conservancy district) - Setbacks from private wells (local health dept.) - Roads & Bridge weight limits (Co. Engineer, Twp., Municipality) - Water withdrawal permits (ODNR DSWR)If permitted sites violate laws/rules, notify ODNR O&G (Driller responsible for obtaining permits) & local Senator/Rep.
  17. 17. Test Your Water Before They Drill• Test before drilling• Test after drilling• Test regularly after well is installed & producing• Pros & Cons of fingerprinting methane
  18. 18. Learn from Munroe Falls• Using the courts to protect water• Appeals to prevent drilling in 5-yr TOT area; denied but permits expired• Enforce building codes including permits for site construction; upheld & stiff fines collected
  19. 19. What are Your Rights? Local water suppliers can place an observer at drilling sites w/in 5-yr TOT if in Management Plan for all land-use activities Nothing in Sub SB 165 to preclude O&G drilling sites• Observer needs OSHA certification• Have all required oilfield safety equipment• Stay out of way of drilling activities• Coordinate w/ ODNR O&G
  20. 20. Be at the Rulemaking Table• Advocate for your water system• Comment on all rule changes, especially as they relate to YOUR supply• Provide technical comments, especially those related to impacts to your well field• Don’t comment, you may lose standing• Make sure your local Ohio Rep/Senator have copies of your comments Request they offer legislation to level the playing field and return local zoning & source water protection planning to the permitting process
  21. 21. Wellfield Recharge Area Leased?• No Funding available to make communities whole if wellfield is damaged• Establish replacement cost & water needs ahead of time• Document service area, number of taps, average daily water usage• Document alternative sources available to you & level of water rationing needed to maintain services• Discuss plans needed to carry out emergency back-up water for your community including length of time to bring alternative system on line
  22. 22. Wellfield Recharge AreaLeased?• Notify ODNR O&G in writing of water supply replacement information• CC your local Rep/Senator, ODNR Director & the Governor• Send Certified copy to the Drilling Company and Permit Holder• Ask them to submit a plan to fund cost of replacement and manage emergency supplies before drilling begins• Make all responses part of the public record in case of future litigation• Educate your customer base about your pro- active protection efforts
  23. 23. Join Forces with your Neighbors • Consider petitioning a Sole Source Aquifer • 5 already in Ohio, parts of 20 counties • NW Ohio MICHINDO SSA Petition still open • Tuscarawas Watershed Combined SSA Petition in progress • Documents replacement costs of ground water public water supplies on the Federal level
  24. 24. Contacts for Ohio Journal ofScience Papers & this PresentationOFFWG, Dr. Julie Weatherington-Rice, B&W, OSU FABE, weatherington-ri.1@osu.eduOFFWG, Dr. Ann Christy, OSU FABE, christy.14@osu.eduBennett & Williams, Linda Aller RS, Laller@bennettandwilliams.comOhio Journal of Science Web Link at OSU, https://kb.osu.edu/dspace/handle/1811/686Ohio EPA Division of Drinking and Ground Waters Source Water Assessment and Protection Program, Keeping Ohio’s Water Clean Ohio Fracture Flow Working www.epa.ohio.gov/ddagw/swap_ssa.aspx Group
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