Photo Caption: A city wellhead near the West State Street Park.
Athens City Council has amended proposed changes to its wellhead protection plan to alleviate concerns from city Law Director Pat Lang about language banning oil and gas drilling and exploration in the wellhead area.
Because of a state law that gives sole oil and gas drilling regulatory authority to the Ohio Department of Natural Resources, City Council could not go forward with that language, members of a council committee learned Monday night.
However, other language that remains included in the proposed changes should effectively limit the impacts of any such drilling or exploration, said Fourth Ward council member Christine Fahl.
"The law director has now reviewed the wellhead protection plan, and we are now ready to present the revisions," she said. "From my reading, there aren't many revisions. Basically, we can't say anything about banning natural gas, petroleum extraction or fracking because that is covered by the state law."
Fahl said that the city can still protects its wellhead and aquifer, however.
"There are other parts of the protection plan that will cover many of the impacts that these operations and exploration and extraction could have on our wellhead area," she said.
Another change, she said, was that instead of listing the classifications of injection wells that the plan bans from the wellhead, the wording now just bans all injection wells from that area outright.
"No matter what type of injection wells, those will be banned from the wellhead protection area," she said.
The revisions also bans the disposal of any hazardous substances from manufacturing or recycling and the like.
"Unfortunately, in my view, we can't add (the banning of fracking language)," Fahl said. "But the preemption at the state level ties our hands quite a bit, which is unfortunate. People always say they want local control and local authority, and the state ties our hands to this degree."
The wellhead protection plan committee is seeking comment from ODNR supporting the notion that drinking water should be protected, said city Service-Safety Director Paula Horan Moseley, who sits on that committee.
"You would think that the regulations at the state level would say upfront that any permit that comes in for a regulated wellhead protection area would automatically be denied," Fahl said. "One would hope that our state would regulate it at that level."
Third Ward member Michele Papai questioned whether council members should just move forward and say what they want to say in their ordinance.
Moseley said that her understanding from Lang is that if council leaves the language banning fracking in the plan, it would be indefensible from a legal standpoint.
She also said that perhaps the disposal of hazardous material would cover drilling wastewater, and might be more defensible.
State officials, however, have suggested that the state law restricting oil and gas regulation to the ODNR does cover fracking wastewater disposal as well.
Second Ward member Jeff Risner said outright that council should leave the ban fracking language in its revisions.
"Let's see where the chips fall," he said. "Part of our duty as City Council is to protect our water supply, and if the state says we can't do it, well, that's why we have courts. Let the courts decide. We've had crazy, frivolous lawsuits before. Let's leave it in."
At-large member Elahu Gosney agreed with Risner, citing "home rule" court decisions in New York that upheld local banning ordinances.
At-large member Chris Knisely expressed her concern that the city would be set up for potential lawsuits and the expenses that could come from those lawsuits.
Fahl said the goal should be to strengthen the laws they have on the books, adding that New York court decisions have no bearing in Ohio. She said the state laws in Ohio tie council's hands tightly with regard to permitting, location, and other drilling and well regulation.
"I don't like it," she said, noting again that the idea is that regulating hazardous substances from the wellhead should be sufficient. "That is a much stronger legal precedent than if we go and fly in the face of the state."
She said that injection wells are a much bigger threat within the city limits anyway.
"We are banning those, so it's being more strategic than in your face," she said.
In terms of the bigger threat for Athens County, injection wells appear to be more likely than actual fracking wells, since they're not limited by geology. The wastewater can be brought in from elsewhere, even if no drilling takes place in Athens.
Papai praised the existence of the wellhead protection plan in the first place, saying that Athens has protections in place already that many communities don't.
Moseley said that the wellhead protection team has the same passion and also has struggled with what is legally defensible versus what is ideally desirable.
"Ultimately, we're hopeful that the chief permitting officer at ODNR will state, 'Of course we would never permit something like that in (a wellhead protection area).'"
Risner said his concern is that if the ban isn't there and fracking occurs, council can't do anything about it retroactively.
Mayor Paul Wiehl said that banning fracking wouldn't get shot down at any local level but would be hard to defend "if push comes to shove."
As chair of council's planning committee, Fahl will put forward a final proposal for the body to vote on.
"I think putting non-defensible items in is not really to our best benefit at this point," she said, promising to bring the ordinance forward with the majority of the changes intact.
City Council President Jim Sands pointed out the ordinance may be further amended during consideration.