Recommendations for Ordinance Improvement

As promised, here are some recommendations for improving the ordinance under consideration Tuesday night. The goal is not to attempt a comprehensive list, but to indicate some ideas that hopefully generate more from the engaged and educated citizens of Denton.

The goal at this point is to craft the most robust ordinance possible within the parameters of HB 40. What that means is not entirely clear. For example, it is true that Flower Mound, Southlake, and Dallas have, in many respects, strong rules. However, it is also true that the industry made it clear in Austin during the hearings about HB 40 that they intend to target these cities. They have not challenged their rules yet, but they may well do so…and it is not clear that their rules are compliant with HB 40.

So, Denton officials have been looking to other cities as they drafted this latest revision of the ordinance. But this certainly doesn’t mean it is a simple matter of cutting and pasting. There are many uncertainties and context-dependent variables involved.

That being said, here are some ideas for improvements.

Perhaps the two biggest have to do with the related issues of distance and disclosure.

Setbacks are pegged to different zoning categories, that is, separation distances depend on whether the site is in an area zoned residential, commercial, or industrial. Note that Planned Development and Master Planned Communities (PD and MPC) have their own rules…and these are where lots of potential future gas development could happen.

Moreover, setbacks differ depending on whether the site is an existing one or a new one (approved after the passage of this ordinance).

There are also different categories of setbacks along two dimensions: priority and variance. The first category asks: does the protected use predate the gas site (setback) or does the gas site predate the protected use (reverse setback). The second category asks: shall we give a variance to reduce the setback distance down toward some minimum setback. So there are setbacks, reverse setbacks, and minimum setbacks.

Let’s focus on setbacks first.

HB 40 has a safe harbor clause that states: “An ordinance or other measure is considered prima facie to be commercially reasonable if the ordinance or other measure has been in effect for at least five years and has allowed the oil and gas operations at issue to continue during that period.”

The Town of Dish has had a 1,000 foot setback in place for about five years and at least three new wells were drilled and fracked under that rule. That would seem to satisfy the provisions of the safe harbor clause.

  • Denton too should have a 1,000 foot setback distance, at least in residential zones. Right now, that number is 750 feet.

Now to minimum setbacks. There are two ways that a waiver or variance can be issued. First, if the operator gets approval from 100% of affected protected use owners. Second, if the operator gets approval from the Zoning Board of Adjustments. Actually, then there is a third – an administrative variance granted by the gas well administrator. When a waiver or variance happens, operators must comply with new enhanced nuisance mitigation standards.

  • There is room for improvement here too. For example: all residents (not just owners) of affected protected uses should be given the chance to give or refuse permission for variances.

Now to reverse setbacks. This raises the issue of disclosure, because the rationale for smaller reverse setbacks is (presumably) that someone moving near to an existing gas well site knows this and knows the risks involved and the potential for different kinds of activities in the future. Reverse setback distances in this ordinance range from 500 to 225 feet, with most of them at 225 feet (the same as most minimum setback distances).

Only a very robust disclosure policy would justify smaller reverse setback distances. And on this point the ordinance is sorely lacking. The penultimate page of the ordinance pegs all disclosure procedures to “lot purchasers.” This means there are no requirements to notify renters. Also, consider the fact that at least one assisted living facility is being planned in a reverse setback scenario. According to this ordinance, the people moving into that facility would not get any disclosure about the industrial risks nearby.

  • Given the inadequate disclosure, reverse setbacks should provide the same protection as setbacks (e.g., 1,000 feet in residential areas). At the very least, the disclosure policy must be strengthened to target all residents and not just lot purchasers.

Devon Energy’s representative even went on record last week arguing that setback distances and reverse setback distances should be the same. Since 1,000 feet seems to satisfy the criteria of HB 40 as a “reasonable setback,” then all people should be afforded that protection.

Finally, a major part of the ordinance deals with operating standards for the sites and equipment on them. Here there are several questions to raise – just a couple:

  • Why are vapor recovery units not mentioned?
  • Can we require electric motors in place of diesel?

Hopefully this gives some indication of how we might improve the ordinance. Please contribute ideas and questions as we lead up to the meeting.

Important City Council Meeting this Tuesday

This Tuesday July 28th at 6:30 p.m. at City Hall, the Denton City Council will hold a public hearing about the revised gas well drilling and production ordinance. Members of the public will be able to make comments and all are encouraged to come out to speak their mind. The ordinance they will be considering was recommended to them this week by the Planning and Zoning Commission. Click here for a redline version of the ordinance they will be considering.  For those interested, it appears that this ordinance is actually an amalgamation of pieces destined for three different sub-chapters in the development code (5 – zoning districts, 22 – gas wells, and 16 – subdivisions).

Even if the City had not repealed the fracking ban, we would still need to write a new ordinance, because HB 40 rendered the ban unenforceable (obviously, given the fracking on Nail Road at the Vantage site). Repeal or no repeal we’d be in the same deplorable situation of trying to write rules that comply with HB 40. That is, until HB 40 is overturned.

Until then, we need local rules that do as much as possible within this unjust state legal regime to protect health, safety, welfare, and community character. So, please come and offer your ideas. We will be posting some of our recommendations for improvements shortly.