By KAY MATTHEWS
Today the San Miguel County Commission unanimously voted to adopt the San Miguel County Oil and Gas Regulations ordinance, which uses zoning and stringent requirements to regulate how and where the oil and gas industry can explore, drill, and hydraulically “frack” within the county. At the last public hearing before the adoption of the ordinance, Robert Freilich, the land use law attorney who helped the county draft the ordinance, stated, “This ordinance is a lot better than Santa Fe’s ordinance.” He also acknowledged the hard work of the members of PROTECT San Miguel County, whose diligence in reviewing the ordinance and helping in its revision makes it one of the toughest in the country. After the commissioners passed the ordinance, they also thanked all of those who had worked so hard to make this a reality.
La Jicarita spoke with PROTECT San Miguel County member Bob Wessely about what makes the San Miguel County ordinance so strong. He described it as basically a “large collection” of details that have gone through four or five incremental drafts to address problems raised by his organization and by the public at the 15 or so hearings held over the last several years. He cited four areas in which the final draft is particularly rigorous:
- Permit application processes and studies are extensive, including detailed environmental impacts, water availability, traffic, infrastructure, geohydrology, fiscal impacts and emergency response plans.
- Regulations for enforcement now include the hiring of a well-qualified county inspector, paid for by the industry, who will be responsible for overall application review as well as frequent monitoring and inspections stipulated in the ordinance. The strong post-permit monitoring now includes a 10-year annual inspection of abandoned wells for possible leakage.
- The industry is held responsible for all County costs, including application technical review, ongoing inspection and monitoring, and additional off-site infrastructure (roads, judicial system, etc.).
- Protection and mitigation requirements have been expanded to cover all areas of potential impacts by the drilling process (surface water, groundwater, air, noise, lighting, traffic, viewshed, etc.).
These regulatory requirements will apply to the eastern portion of the county—the boundary line is about 30 miles east of I-25 and runs from north to south— where exploration and drilling will be allowed. The western portion of the county is off limits.
Other regulations that PROTECT requested or worked on with the county have also been included in the ordinance:
- Pre-operation baseline testing requirements for air quality and water quality are extensive.
- Air quality monitoring has been strengthened to protect county citizens from potential leaks of gasses during operations (drilling, fracking, and extraction). Closed loop systems are required. Open pit storage of fluids is prohibited.
- Disposal of all wastes must be at state approved waste facilities, of which there are none within the county.
- Water quality requirements were strengthened by designating which substances the industry has to test for.
- Set back limits from drilling operations were established for a wide arrange of categories. Residential and school set backs are 4,000 feet, approximately a kilometer; non-residential structures are 1,000 feet; and groundwater recharge areas such as wetlands, acequias, and rivers are 1.5 miles. Conchas Lake, a popular recreation area, has a 2-mile set back.
I asked Wessely if he felt this ordinance would act to discourage oil and gas development because of its onerous requirements. He answered that it would certainly discourage a “fly by night” operator and would make large companies like Shell carefully consider whether it’s worthwhile, before engaging in the process. While there is currently no drilling taking place in the county, there are leases in the Watrous area (west of the dividing line) and some ranchers in the eastern area are desirous of having drilling on their ranches.
The San Miguel Oil and Gas Regulations were long in the making. La Jicarita asked Pat Leahan, with the Las Vegas Peace and Justice Center and PROTECT San Miguel County, to provide a timeline of how the public and county worked together to promulgate this ordinance.
- In 2008 the Las Vegas Peace and Justice Center was asked by some folks in Mora County to look into leases that were being requested in Mora County, which prompted the Center to see if there were any leases also being pursued in San Miguel County.
- In October of 2009 the Center went before the San Miguel County Commission to present the information that there had been drilling activity in 2006. The county was unaware of that fact and when it looked into county regulations involving extraction found that the regulations dealt primarily with gravel and other types of mining, not oil and gas.
- San Miguel County Attorney Jesus Lopez directed the commission to look into drafting a moratorium on oil and gas drilling to give the county time to look into the issue.
- At the November 10, 2009 county commission meeting the Peace and Justice Center presented documentation on the well that was drilled in 2006—location map, permit application, capping, etc.—and the Las Vegas Basin White Paper, a report that was commissioned by the group Drilling Santa Fe to analyze the impacts of potential drilling and fracturing in the Basin. The Center also presented this information to the mayor of Las Vegas who imposed a moratorium within the city limits.
- On December 8, 2009, the County Commission adopted Resolution 12- 08-09-NATURAL RESOURCES, proposing the adoption of a one-year moratorium on conditional use permits for oil, gas or geothermal exploration, extraction, or drilling. A moratorium was passed on January 10, 2010.
- In early 2010, after a screening of the film “Split Estate” a small group of people (Bob Wessely, Leslie Hammel-Turk, Brad Turk, Barbara Ehrlich, Kim Kirkpatrick, Carole Silon, Pat Leahan, Kate Daniel, Don Shaw, and Arielle Hawney) organized PROTECT San Miguel County to educate themselves and strategize on the issue of oil and gas development.
- The Las Vegas Peace and Justice Center retained the New Mexico Environmental Law Center as a consultant to help draft an oil and gas ordinance. After consulting with Drilling Santa Fe it learned of Robert Freilich, the land use attorney who helped draft the Santa Fe County Ordinance. Freilich was subsequently hired by the county to help draft the San Miguel ordinance.
- PROTECT San Miguel County sponsored and participated in many community forums and talks on Community Peace Radio to educate the public. A San Miguel County Oil and Gas Ordinance Task Force had been established and members of PROTECT joined the task force. The task force proved largely ineffective because of obstructionist tactics by the New Mexico Independent Petroleum Association representative.
- The moratorium on oil and gas development was renewed several times for a total of four years.
While folks in San Miguel County are celebrating the passage of these regulations, neighboring Mora County is navigating tough legal terrain. In 2013 Mora County passed an outright ban on oil and gas development and is now embroiled in two industry lawsuits. Last week, U.S. District Judge Browning heard arguments on a motion for summary judgment in the SWEPI LP (a subsidiary of Royal Dutch Shell) vs. Mora County lawsuit. Based on his statements in the courtroom—“Some of these provisions are pretty wild; they’re pretty inconsistent with centuries of federal law” —it seems likely that at a subsequent hearing he will rule that either some of the language in the Mora County Community Water Rights and Local Self-Government Ordinance is unconstitutional or that the entire ordinance should be thrown out. Another lawsuit filed against Mora County by private landholders and the Independent Petroleum Association remains extant but settlement negotiations are ongoing.