Draft Ordinance Still Disappoints...What Now?

There is a new version of the draft ordinance included in the back-up material for tonight’s P&Z meeting. For those of us who have been following Phase II revisions from the beginning, the new draft invites a kind of emotional roller coaster. On the upside, there are 203 new changes – this shows that staff is taking the ordinance seriously. On the downside, there are 203 new changes – this makes it hard to keep track of an extremely imposing 53-page legal document.

There is a temptation to give into what we might call a “rational submission” to technocracy: How could we possibly remain intelligently engaged with such a technically and legally complex process? Wouldn’t we just bungle it anyway? Best to leave it to the experts.

But we must fight this temptation, because the decisions the experts are making when they write the ordinance are simultaneously technical AND values decisions. We are talking about design standards for an industrial process that impacts water, air, health, and quality of life. We must not cede this territory to a systems bureaucracy.

This is why I thought the very process of writing the ordinance should have been done out in the open, in the public. Instead, the legal language is crafted by behind-the-scenes experts. It leads to what we now see – a war of attrition where citizens await the release of a new draft and then struggle to comprehend and question all the new moving parts. It stacks the deck against us, whereas a collaborative, open process of writing the ordinance would have helped us to stay afloat.

But we must soldier on. So, here is what I see in the new draft (mind you I have not had time to digest it all). I see some good changes. I like the new “protected use” definition and the new “purpose” section and they seem to be sticking to their guns on vapor recovery units (though I still have my doubts about this technology). There is good stuff about soil sampling.

Yet there is a lot that is frankly dispiriting and depressing about the new draft. For starters, there is a disturbing amount of angst evident about preemption. One of the strongest additions has been the inclusion of a leak detection and compliance plan (LDCP). There is now a comment that reads: “entire LDCP is probably preempted under the Texas Clean Air Act.” Cathodic protection would now be required, but again there is a comment that it might be preempted (never mind other cities require it). There is even a cautious remark about preemption when it comes to closed-loop mud systems --- even though operators are giving no push back on this one! And there is a comment referencing Harper Park 2 that implies specific conclusions regarding gas wells. But this is case law that was not specifically about gas wells. I don’t think it is right to cite it as if it were the same as statutory law. What this case means for gas development is open to interpretation…but of course that is not reflected in this closed process.

I can appreciate caution from attorneys advising our City, but this is going too far. It calls into question the choice of experts and the whole tenor of the message they are sending: “Be wary, don’t do too much, don’t push the boundaries.” Where are the voices on the inside telling our leaders to push the envelope? Why is Don Butler advising the language-writing…but not Vicki Oppenheim? Why do we have these voices behind the scenes and not others? Who is Lloyd Gosselink?

Then, let me give you a laundry list of items that are still missing even in this, the most current, draft:

1. It still does not have 1,500 foot set backs
2. It is still confusing about pits. Just ban everything but freshwater pits – that is not hard.  
3. There are still too many ways to get variances to reduce set backs.
4. Compressor stations are still not prohibited.  
5. I think flaring is now prohibited, but that needs to be stated clearly (there is still language in there about flaring at daytime).  
6. There's nothing about frack sand exposure
7. There’s nothing about low-bleed valves
8. Drilling is permitted by right in too many areas. I don’t understand why we can’t afford people the same protection just because they live in a particular zoning classification.
9. There’s no requirement to post inspection results online
10. There’s a bunch more missing…waste management plan and DAG suggestions on EPA and industry recognized best practices.

So, what do we do? Is this draft good enough? I don’t think so. Do we continue fighting for further amendments? Maybe.

Or maybe we just call for a ban. Look at the new “purpose” section:

Purpose. The drilling and production of gas and the development of gas well facilities within the corporate limits of the City necessitate promulgation of reasonable regulations to prevent destruction of property to protect watersheds and groundwater resources within the City of Denton, to prevent injury to persons, and to ensure that gas well drilling and production activities are compatible with adjacent land uses throughout the duration of such activities and conform to The Denton Plan. The regulations contained in this Subchapter are designed to protect the health, safety, and general welfare of the public and to assure that the orderly and practical development of mineral resources is compatible with utilization of the surface estate.

And ask yourself: Are there any rules that could ensure we achieve all these goals (protection of water, prevention of injury, compatibility with other land uses)? If so, do we have those rules now…or what would they look like? If not, maybe the “reasonable regulation” here is a ban.