San Miguel County Ready to Regulate Oil and Gas Development

Fracking wastewater pool. photo Fracking wastewater pool. photo


The San Miguel County Commission is holding a special meeting today, September 17, to review the draft ordinance regulation on oil and gas development in the county. The moratorium on oil and gas development, in place for four years, expires in December and the county hopes to enact a final ordinance by then.

Officially called the Land Use Code, the ordinance was promulgated by the Los Angeles-based consultant Robert Freilich, a planning and zoning attorney who has drafted many oil and gas ordinances around the country, including the Santa Fe County Ordinance. Freilich will participate in today’s hearing via phone or Skype.

The strength of the ordinance appears to be the many imposed restrictions and the assessments the industry will have to conduct to obtain a drilling permit:

Water Availability

Fracking wastewater pool. photo
Fracking wastewater pool. photo

Water supply availability is a key factor in determining specific environmental impacts from fracking.”

As Pat Leahan, a member of PROTECT San Miguel County, wrote in La Jicarita News in 2010, “To drill just one oil or gas well, somewhere between 1 to 8 million gallons of water is required. If you look at the average of 2.6 to 5.5 million gallons of water per well, this amounts to 8 to 17 acre-feet of water. And that’s just one well being fracked one time. Depending on the amount of acreage, there can be hundreds or thousands of wells. And each well can be fracked multiple times. This is a heavy water-use industry, and that water has to come from somewhere. Water is a precious resource of limited supply that can’t afford to be wasted or contaminated.”

The draft ordinance stipulates that a Water Availability Assessment shall be conducted for all oil and gas development approvals that will include an evaluation of water supply for the estimated life of the project, the identification of suppliers, an assessment identifying existing water rights, entitlements, or contracts, and the quantities of water received in prior years. If water supplies are insufficient, alternatives must be submitted.

The county will also insert into all development agreements a condition that if severe drought and water unavailability continues it reserves the right to suspend existing permits until adequate water resources are available.


The ordinance will require a 1.5 miles setback for wells from important underground aquifers and surface aquatic, acequia, and riparian habitats such as floodplains, springs, wetlands, and drainages, including but not limited to the Canadian Basin.

Environmental Health and Safety

Drilling site. photo
Drilling site. photo

“Occurrence of adverse public nuisance, environmental and land use effects and impacts will result from the drilling, fracking, production, transportation and abandonment of oil and gas activities within the County.”

Under the New Mexico Public Health Act the county has the authority to “investigate, control, and abate the causes of disease . . . sources of mortality and other conditions of public health.”

An applicant must supply the following reports and assessments: a Site Plan; a Consistency Plan (with the Comprehensive Plan); an Environmental Impact Report; an Adequate Public Facilities and Services Assessment; a Traffic Impact Assessment; a Geohydrologic Report; a Fiscal Impact Assessment; and a Land Evaluation Suitability Assessment (35 pages are devoted to detailing the requirements of these reports).

Getting here was not without contention. Proponents of the Mora County Community Water Rights and Local Self-Government Ordinance (drafted by the Community Environmental Legal Defense Fund [CELDF]), which bans oil and gas development in that county, tried to convince San Miguel County and the city of Las Vegas to take that strategy. The Las Vegas City Council did adopt an ordinance banning oil and gas development once the city’s moratorium expired. The mayor, who had been instrumental in enacting the moratorium, requested that some of the language in the Bill of Rights Ordinance be deleted, specifically the reference to the “sovereignty” of the people of the city and their right to “separate” from other local governments if the ordinance is preempted. These were the same objections raised by county commissioner Paula Garcia in Mora who voted against the ordinance, believing this language makes the county more susceptible to legal challenge. The CELDF proponents came to a Las Vegas City Council meeting where the mayor proposed renewing the moratorium and demanded that he “Sign” or “Resign”; when he refused to sign the ordinance without the word changes they initiated his recall. The recall was unsuccessful. photo photo

A San Miguel Oil and Gas Ordinance Task Force met for many months laying the groundwork for the promulgation of an ordinance until the county, under time constraints, hired Freilich to develop a draft. Members of PROTECT San Miguel had urged the county to consult with Freilich and are generally pleased with his draft.  The organization has reviewed the ordinance, and La Jicarita spoke with Pat Leahan and Bob Wessely, who laid out some concerns and changes they’d like to see in a new draft:

• Language needs to be added that acknowledges the Pecos River Basin in the western half of the county.
• Protection for brackish water aquifers included.
• Mandatory, frequent inspection and monitoring of drill sites by county staff.
• Expert review of all permit applications, which are highly technical.
• Increase the amount of insurance required for companies engaged in development.
• An assessment of the impacts of development on all existing water uses.
• More specific standards on noise impacts and water quality.

At today’s meeting any changes asked for by the commission will be incorporated into a new draft and then forwarded to the Planning and Zoning Commission for review. There will be several public meetings held in November and December before the commission votes on a final ordinance.