The Wells Near Southlakes Park: A Look At Just How Fracked We Are
It looks as though I was wrong in my
earlier post about the EagleRidge pad sites near Southlakes Park. You will
recall there are three pad sites – but only two of them (labeled here as
northern and southern) are at issue for their proximity to the park.
I interpreted the ordinance as
not being applicable to either pad site. They are in an industrial zone and my
reading was that this means the 1,200 foot setback from Protected Uses
(including public parks) does not apply.
Turns out I was wrong. Actually,
I was wrong about two things. First, I have heard from someone in the know that
gas wells in industrially zoned areas are still subject to the setback
requirements. I have been assured that everyone in the City holds this to be
true. That means these pad sites, even though in an industrial district, cannot
be within 1,200 feet of the neighboring Protected Use.
Ah, so that rig is operating illegally, right?!
EagleRidge is not subjected to
the current ordinance.
Why? It’s our old friend: vested rights. Even though
this is new activity, it is on an existing pad site, which is considered an
ongoing project (I guess) according to the logic of Texas Local Government Code
But, the southern pad site, with
two new wells, is a brand new project and would be subject to our ordinance,
There is no southern pad site. The RRC plats show that all three
gas wells (Acme 1H, 3H, and 4H) are located on the same site. So, even though
the RRC map makes it look like there are two sites (and the southern one would
have two brand new wells) there is only one site. Note on this plat how the SL
(surface location) is all the same for these three wells. (Only 2H is
different, it is on a the western pad site, which was never at issue.) What I
have done here is combine the relevant information from the four plats (for
wells 1, 2, 3, and 4).
And because that is all platted,
it is all vested. It is certainly vested because there is an existing
(vertical) well there (1H).
So, I initially thought the 1,200
foot setback didn’t apply because of the zoning district. But now I think it
doesn’t apply because of vested rights. The result is the same either way. The
current ordinance doesn’t apply. I have been saying for a while now that the
ordinance might have teeth, but it’s got nothing to bite.
But let me emphasize this: It is the City's position that any new drilling (new wells) is considered NEW and must get a permit and comply with the CURRENT ordinance. That would mean in this case that two of these wells would indeed be illegal (the two new ones, 3H and 4H). But note, there is a procedure built into our ordinance whereby operators can formally claim that their project (even if a new well) is vested and thus not required to comply with the current ordinance.
The zaniness here might be
magnified. Bear with me as we delve into some language from the Texas
Local Government Code Chapter 245. It reads:
agency shall consider the approval, disapproval, or conditional approval of an
application for a permit solely on the basis of any orders, regulations,
ordinances, rules, expiration dates, or other properly adopted requirements in
effect at the time:
(1)the original application for the permit is
filed for review for any purpose, including review for administrative
(2)a plan for development of real property or
plat application is filed with a regulatory agency.”
My take on this: a gas well operator like EagleRidge is
vested under the rules in place at the time they filed a plat application. It
is not clear whether this means a city plat or a Railroad Commission plat.
But many of the plats on file not only date from ten or more
years ago – they also cover huge swaths of land many hundreds of acres in size.
Look at this blown up image from the corner of the Acme plat.
I have been told that there are plats like this and even
larger all over town. This could mean that operators can claim any well drilled
anywhere within the hundreds of acres covered by a plat (even if it does not
currently exist) is part of an ongoing project and is therefore vested under older
rules. It wouldn’t matter if they are right next to homes, schools, or parks. In
other words, we might be more royally screwed by this vested rights business
than I previously thought.