After the Vote, Part 1/3: Ordinance Gets a C-

After more than two years of revisions, Denton City Council passed the new drilling and production ordinance on Tuesday night by a 5-1 vote (King opposed, Engelbrecht absent).

This is the first in a three part series of blogs where I take stock of where we sit, how we got here, and where we go now that the law is in the books. This post provides a table of important issues, some brief comments, and my grade. The next post will be my analysis trying to explain why things ended up the way they did. The third blog post will look ahead to map out possible next steps.
 

The process was not a shining beacon of democratic rule-making. The Task Force had an ambiguous mission, was dominated by industry interests, and did not collect enough information. The actual drafting of the ordinance was insulated from public criticism and it outpaced public deliberation by our elected leaders. The Planning & Zoning Commission did not weigh in substantively. Important legal perspectives were not consulted. I and the DAG could have done more to mobilize public turnout and speak with a clarion voice. Public attendance waned seriously through the long slog. And public comments too often veered into irrational diatribes, bloated into selfish posturing and one-upmanship, and (worst) devolved into disrespectful, unfair, and absurd name-calling and insults.

In terms of process, I give us all a C-.

I give the same grade for the overall outcome. You will see that there were some victories but ample problems remain. I don’t think anyone should look to Denton’s ordinance as an overall model for the municipal regulation of shale gas development. There are some good parts that others might want to cherry-pick and the use of the SUP process still seems fundamentally sound to me. But it is not strong enough and has never read with the crisp clarity and coherence of other ordinances.

If you spot errors in claims contained in this table, please let me know via a comment (tough to keep track of all the changes). [my thanks to an anonymous tipster in the know who corrected some of my mistakes - this was updated about 12 hours after first posting]

Issue	Commentary	Grade
Purpose	Improved. It boldly states our values and clearly grounds the ordinance in our home-rule authority. Unfortunately, much of the ordinance does not appear to use that authority to the fullest.	A
Protected uses	This definition was broadened.	A
Zoning	Fracking is still allowed in any zoning classification. The framing of the ordinance assumes that fracking is a compatible use in all areas with some cosmetic changes via the SUP process. This is wrong. We need a zoning process that prohibits fracking in any zone but industrial. There are two reasons this does not constitute a regulatory takings. First, the average horizontal well in Denton County is now over 1 mile long, a length that is going up at the rate of 400 feet per year. Second, the process could allow for the possibility of rezoning a proposed plat site. We need an ordinance that begins with the common sense point that fracking is NOT a compatible use in non-industrial areas. I give this partially an ‘incomplete,’ because some Council members have promised to fight for this zoning strategy over the coming year.	F/I
Vested rights	Most of the future drilling and fracking activity in Denton will occur under old rules. I give this an C- more out of protest for the fact that the law allows us to be haunted by outdated practices than out of any legitimate gripe with the City (its hands are largely tied here…though not entirely). We’ve been worried about what teeth this ordinance has, but the real issue may be that there is not much for it to bite anyway. We will have to see how this plays out...apparently all new permits will be considered under the new rules and operators will have to jump through hoops to get out of them. That may work better than how I originally understood this.	C-
Variances	They are still in there. Everyone loves Southlake’s ordinance but hates variances. But the first thing Southlake’s ordinance does is lay out a detailed variance procedure! There are two takes on variances. First, they are good, because they provide non-litigious (out of court) administrative recourse for grievances. Second, they are bad, because they allow activities to happen closer to protected uses. Denton’s ordinance allows the ZBA to grant variances down to 500 feet. The other variance procedure was removed. Tough one to grade.	C
Plans and permits	The watershed protection permit, water conservation plan, and site reclamation plan are robust. But overall there is not enough: there is no requirement for seismic permit, traffic impact assessment, waste management plan, or a leak detection and compliance plan.	B-
Air and water monitoring	After months of saying we were preempted from doing this, Council made a last minute amendment. But it is not in the ordinance (which might actually be good) and not specified. So, it’s promising but it gets an “incomplete” because we need to make sure this gets done right.	I
Pits	The ordinance says closed-loop systems will eliminate the need for pits on all new sites. But Mr. Groth equivocated when Mr. Roden asked him to clarify which pits will be eliminated. It seems like not all pits will be gone even from new sites. And more importantly all sorts of pits are still allowed on old sites vested under old rules. It’s not an “F” because there are some marginal safety measures (liners, fill level, content). But these things cannot be policed – toxins will volatize quickly. And note that benzene is allowed…not good at all.	D
Compressor stations	This was the other major last minute move by Council. They will now be permitted but with regulations for set-back distance (1,200 feet), noise, and screening requirements. That’s a start, but it is not enough. There will be more of these and they are dirty and dangerous. We need to prohibit them as other cities have done or at least increase setbacks significantly.	D
Venting and flaring	They are still allowed. Worse, variances can allow them to happen very close to protected uses. City Council suggested this might constitute a noise violation under our ordinance, so operators could incur the daily $2,000 fine. But we need to be clearer than that. We should prohibit these practices outright. They will occur in emergencies, but by prohibiting them we discourage any non-emergency venting and flaring episodes and we send a message that these are simply unacceptable practices. If drilling and production can’t occur without them, then they shouldn’t occur at all.	F
Well bore integrity	Cathodic protection still seems to not be required. This is a tough one for the City to police, but there was far too little discussion of options here.	D
Setbacks	City Council was looking for a way to justify 1,500 feet. We never convinced them, but they did appeal to an obscure federal flood protection requirement in the DDC to get 1,200 feet. Watts made the motion, but I know others gamed this with him prior to the vote. Decent.	B
Vapor recovery units	These are required, but only when VOC emissions exceed the allowable level of 25 tons per year. VRUs are not the magic bullet that everyone hopes they can be in terms of eliminating vapors from tanks. They only work well and safely when vapor levels are high. This is another instance where the ordinance gets a bad grade but more out of my displeasure with technological limitations and the inherently polluting nature of the activities than with my sense the City could have done much better.	D
Reduced emissions completions	These ‘green completions’ will be mandatory. That is good (of course they are soon to be required by federal law anyway).  But there are weasel words. They are not mandatory if it is not ‘feasible.’ In such cases emissions must be ‘minimized’ (not specified to what level).	C
Public notice	Operators must notify the City ten days in advance of several activities, but it does not appear that re-fracking requires notification. All dwellings within 1,200 feet will be notified 48 hours prior to activity. These are good notices, but the dissemination mechanisms are not robust enough. The Gas Well Inspection Division needs to post notices on their website. There should be a City Facebook page where planned activities can be posted. This should be linked to the interactive map that is being made. Finally, notices should be posted in the Denton Record Chronicle.	B-
Low toxicity drilling fluids and low-bleed pneumatic valves	These seemed like simple things to ask for, but they never made it into the ordinance.	F
Other best practices and a pad site upgrade incentive program	We had lots of ideas for various ways to reduce emissions (taken from the EPA Natural Gas STAR program site) but none of them were incorporated. The notion of a voluntary incentive program also got very little play in official policy discussions.	F
Electric motors	These are required but other motors that generate equal or less noise or emissions can be approved. The point is to reduce on site emissions and this seems to help in that direction…although the current draft posted here (and in many other spots) is difficult to read (can’t tell what is over-tracked and what is supposed to be deleted, etc.).	B
Soil sampling	Home run.	A
Noise mitigation	Well done.	A
Insurance	These levels were increased…perhaps still not enough given the risks we are taking with our water (and the water for all future residents of Denton). Arguably, insurance and security requirements should be prohibitively high until we have full disclosure of the chemicals being pumped into our environment. How can we adequately assess the risk and establish reasonable insurance requirements under conditions of secrecy? We don't know what is happening to the (unknown) chemicals below the ground - where are they migrating, how fast, who will pay for future damages...?	C
Pipelines	We said from the beginning, and the Mayor also stated at the final meeting, that pipelines pose perhaps the most significant safety risks. The transmission pipeline system is a high-pressure, explosive network that was simply not addressed. I'll take as much blame as anyone for this (Elma Walker sure tried to get our attention!)...the question is: Are there any problems here (are new pipelines going into Denton, do we have the old ones mapped adequately, are they safe, monitored, etc.) and can we do anything about them?	I