Town Q&A

Questions posed to a town board by a resident. Highlighted answers and comments mine. Other answers from a gas industry group. QUESTION 1: How are the Oxford Town and Village Boards going to respond to Albanys delegation of responsibility to pass and enforce land use and zoning regulations for hydraulic fracturing? The state has no authority over local land use ordinances. The state controls how a well is drilled, not where it is drilled as a permitted land use. That is the towns responsibility under its land use ordinances. Both the Middlefield and Dryden decision were clear on this. http://www.scribd.com/doc/63141534/New-York-Gas-Well-Zoning Likewise, the state has no authority over road use ordinances. http://www.scribd.com/doc/100755474/Obligations-to-ProtectTowns ANSWER: There is absolutely no delegation of responsibility to municipalities to enact land use and zoning regulations with respect to hydraulic fracturing. The state does not delegate authority for land use ordinances. It is a towns right to enact such ordinances under the state constitution. The DEC has floated rumors, and the SGEIS suggests, the department will consider community opinions regarding natural gas development before it issues permits, but hydraulic fracturing is an operational process that falls squarely within the preemption statute (ECL 23-0303[2]), which states : The provisions of [the Oil, Gas and Solution Mining Law] shall supersede all local laws or ordinances relating to the regulation of the oil, gas, and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law.

None of the town ordinances relate to how gas wells are drilled or operated. They prohibit such activities as a land use, in accordance with a land use ordinance. Even the judge in the Dryden case, whose decision was very flawed, said [the statute] does not expressly preempt local regulation of land use, but only regulations dealing with operations. If hydraulic fracturing isnt operations then what is? The town has zero authority over that process and calling it land use wont make it so. The town did not seek to regulate how gas wells are operated. The town prohibited gas wells entirely. A gas wells is an industrial land use. Land use ordinances apply to all land use activities, including gas wells. Moreover, the one piece of case law in New York that actually addresses the oil and gas preemption issue, the Erie County Envirogas case, found for industry and against the town saying the state preempts any municipal law which purports to regulate gas and oil well drilling operations. Neither town proposed to regulate drilling operations. They both prohibited such land uses in accordance with a land use plan. Both Dryden and Middlefield considered the relevant case law. The state regulates how wells are drilled and operated. The town regulates where. Meaning the town has an obligation to deal with whether or not gas wells will be permitted and where they will be permitted. QUESTION 2: How are the boards going to respond effectively before the DEC issues its report? Towns that do not have road use ordinances in place before permits are issued risks having their roads ruined. Towns that do not have land use ordinances in place will not be able to control where gas wells are drilled (or not drilled) in town. The

DEC has a history of deferring to local land use ordinances provided such ordinances are in place. http://www.scribd.com/doc/63141534/New-York-Gas-Well-Zoning ANSWER: There is no need to respond because nothing in the New York State DECsSupplemental Generic Environmental Impact Statement (SGEIS) relating to hydraulic fracturing will change the legal position of towns or villages with respect to its rights, whatever they may be. Local government clearly has the right to address road issues and can do so before DEC acts or later. If a road or land use ordinance is not in place prior to the issuance of a drilling permit, the ordinance may not be enforceable on that permitted well. No DEC permits will be issued prior to soliciting municipal input anyway (see 8.1.1.3), so there is no threat a community will be confronted with a permitted nonconforming use that would somehow be protected from municipal regulation by the existence of a legally valid state permit. The DEC respects local land use ordinances where they exist. There is no precedent to respect the towns wishes if the town has no land use ordinance in place. Regardless, all of this assumes a local government can prohibit an activity it is preempted from regulating by pretending a prohibition isnt a regulation, a conclusion that is still very much in doubt and in the courts. It is not prudent for a town or village to attempt to jump the gun and regulate before the DEC has firmly established what it regulates and the courts have resolved these preemption issues. This is only an invitation to legal challenges from landowners. Threatening litigation to prevent towns from protecting themselves with land use ordinances has not proven to be much of a deterrent. There are no grounds for such litigation against a moratorium. http://www.fractracker.org/fractracker-maps/ny-moratoria/

Neither the Middlefield nor the Dryden plaintiff have even bothered to appeal the court ruling. If they thought they were going to win, they would already appealed the rulings. http://blog.shaleshockmedia.org/2012/08/05/the-appeal-of-noappeal/ QUESTION 3: Do any board members, their families, or business associates hold gas drilling leases or otherwise stand to benefit from any board action or inaction on this issue? Board members have a fiduciary responsibility to protect the towns roads, built environment and water supplies regardless of their personal interests in the issue at hand. QUESTION 4: When can the boards compile a complete map of the properties leased to corporations for gas drilling, the owners, corporations, and the permits submitted? The board should disclose their own holdings and activities in this regard. Unfortunately, drillers routinely do not record their leasehold interests. QUESTION 5: What adjacent properties will be affected by Albanys compulsory integration of the lease holders neighbors land into his contract and gas drilling husiness? New York has the worst compulsory integration practices in the US http://www.scribd.com/doc/74790533/Compulsory-Integration-inNew-York ANSWER: No landowner can be forced by compulsory integration regulations to enter into a gas lease or to permit natural gas well pads on their property. Compelling an owner into a gas well spacing unit is exactly what New York law can do and has done.

http://www.propublica.org/article/forced-pooling-when-landownerscant-say-no-to-drilling QUESTION 6: What natural aquifers, private and village wells, rivers, smaller waterways, and ponds exist on the acreage leased for horizontal drilling or projected for pipelines? This should be addressed in a comprehensive land use plan, since that is the most effective way for a town to deal with the issues. ANSWER: This, of course, cannot be known with specifying which leases and plotting them. However, almost no property of any consequence would not have one or more of these, so the question is largely irrelevant. What is relevant is the setbacks and other protections that exist with respect to each of these. These are thoroughly addressed in the SGEIS and specifically at7.1.10 and 7.1.11. These include separations from aquifers (at least 1,000 feet below), setbacks from streams and setbacks from supplies. The set back of a gas well in New York are the worst in the United States. The set back of a gas well from a house in New York is 100 feet. GEIS Chapter 17 A.1.B.1.b http://www.scribd.com/doc/72545747/Worst-Fracking-Regs QUESTION 7: What roads, highways and bridges and service stations will be used by the hundreds of heavy trucks that will service each well in this area? Absent a road use ordinance, frack truck convoys can use any road or bridge, where they are otherwise lawfully allowed. QUESTION 8: What businesses, farms and private homes will be impacted by drilling: increased traffic; noise; air, soil and water pollution; and damage or injuries from accidents? The impacts of drilling can be addressed in a road ordinance, land use ordinance, and if drilling is allowed by zone, noise ordinances. Absent such ordinances any house, business etc. can be impacted .

ANSWER: This is still another rhetorical question designed to offer an opinion rather than gather information. However, the record is clear. Hydraulic fracturing has never polluted a water supply, for example, and that comes from no less an authority than Lisa Jackson, the EPA Administrator. Likewise, we also know the industrys safety record is excellent, despite some attempts to portray it otherwise. The same holds true with respect to air pollution and other issues raised. The SGEIS addresses all of these in detail. See sections on environmental impacts hereand here. There is no need to reinvent investigations DEC has already conducted. The DEC has no regulations for noise levels, no road use authority and no land use authority. All those are the towns responsibility. QUESTION 9: What additional judicial and legal services will be needed for property and personal conflicts and lawsuits among neighbors, leaseholders and corporations? Gas drilling falls under the same legal and judicial authority as with any land use in accordance with local zoning codes. QUESTION 10: What skills and resources will tbe town assessor need to determine the tax rate on each well and monitor reporting, given the widespread fraud in the industry? As a practical matter, local tax assessors may find the ad valorem valuation of shale gas wells very challenging. New Yorks valuation method for gas wells is antiquated and no multiplier has been proposed for shale gas wells. http://www.scribd.com/doc/63145368/NY-Property-Tax-On-GasWells All gas production is self-reported by the operator. Since New York is one of the few states without a state production tax on oil or gas production, there will be little well monitoring from the state. http://www.scribd.com/doc/63145742/New-York-State-GasProduction-Tax

Finally wells are valued for property tax purposes on their productive value, which has be overstated by gas promoters. http://www.scribd.com/doc/75615196/Worcester-Shale-Gas-TaxHoax-Voodoo-Frackonomics QUESTION 11: What new personnel, equipment, training and supplies will be required for local fire, emergency medical, traffic and environmental control and police services? Few local volunteer fire departments are equipped to deal with a gas well or gas compressor station fire. QUESTION 12: What additional personnel, equipment, training and supplies will be required for town and village highway, water, waste management and other departments? If the town has a good road use ordinance, it may have the resources to at least partially offset additional road costs. There are no funds for state highway repair, nor has any funding source been proposed. QUESTION 13: What will be the impact on local air, water, and soil quality and how will they be monitored, pollution prevented and violations publicized and remedied? Water supplies can be impacted severely = since horizontal wells are prone to vent gas into groundwater. The only sure way to prevent groundwater contamination is via a prohibition of such wells. http://www.scribd.com/doc/65577477/How-Gas-Wells-Leak Energy in Depth made a documentary about a woman with gas wells in Pennsylvania who went on a quest to learn the truth about fracking when her own wells leaked. . . http://www.scribd.com/doc/97190149/Truthland Air quality can be severely impacted by shale gas industrialization. Again, the only sure cure is prevention of the activity.

QUESTION 14: What plans are needed for emergency evacuations of neighborhoods, schools, highways and public facilities in the event of a fire, explosion or chemical leak? A gas well incident near housing, etc. could swamp local authorities ability to respond. QUESTION 15: If private security forces are employed by drilling companies how will they coordinate with the powers and jurisdictions of local police? All activities particularly trucking, are under local jurisdiction. QUESTION 16: How will safety, fire and medical emergency crews gain access to fenced and locked or abandoned facilities or those with disputed or foreign ownership? Access in the event of fire should be available regardless. QUESTION 17: What additional lawyers, tax enforcement and collection agents will be required for absentee owners or American corporations selling leases to foreign entities? Many gas prospectors in New York are controlled by foreign corporations, or in the case of Chesapeake are negotiating to sell ownership to foreign entities. This may impact where the gas is shipped overseas. It should not impact local law enforcement QUESTION 18: What additional local employees, supplies and equipment will be needed for this expanded range of government services? Property or sales tax increases? Real property taxes may actually go down and demands for services could go up. http://www.scribd.com/doc/63144744/Fiscal-Effects-of-Gas-Drillingin-Otsego-County-NY-8-15-11-Final

QUESTION 19: What will be the economic impacts from the influx of temporary workers, more crime, increased school enrollment and demand for additional community services? Initially, all of the crews will be transient staying in transient housing. Crews do typically travel with their families. QUESTION 20: What will be the effects on property values from homeowner flight because of the changcs causcd by major industrialization of a traditionally rural area? Housing values will go down as a function of proximity to drilling and trucking activities. No one chooses to live in a gas field. http://www.scribd.com/doc/93169057/Shale-Gas-Texas-Impacts