Tonight Flower Mound Town Council passed drilling and pipeline ordinances (ordinance) that are surely the strongest in the Barnett Shale and likely the strongest in the nation.
The majority of the citizens who spoke were for passage of the ordinance. One citizen was against the ordinance until they brought in “experts” like the Texas Railroad Commission (cough). Other citizens expressed regret that Vapor Recovery Units (VRU) were not mandatory. I totally get it about the VRUs. VRUs are like the Talenti Gelato under the dark chocolate syrup under the cherry. People who live in the Gas Patch lust for them.
The tough thing about an ordinance is it’s not worth much if it won’t hold up in court when the Big Gas Mafia sues. So far, Flower Mound has successfully defended all lawsuits, foreign or domestic...
After more than a year of public input and review process, the Flower Mound Town Council adopted two new ordinances designed to provide additional public health, safety, and welfare protections to the community on Monday, July 18.
The new Oil and Gas Well Ordinance and the new Pipeline Ordinance become effective upon signature and publication. Proposed changes to the ordinances resulted from the extensive work of a volunteer Oil and Gas Advisory Board, public hearings, expert testimony, legal review, and Town Council input. The updated Oil and Gas Well Ordinance differs from its prior counterpart in several significant categories including setbacks and variances, monitoring requirements, emergency plans, and administrative approvals.
Setbacks have been increased from 500’ to 1,500’ for residences with mineral interests and from 1,000' to 1,500' for residences without mineral interests. The set back for schools, religious institutions, public parks, hospitals, and water wells increased from 1,000’ to 1,500’, and from 500’ to 750’ for property lines, floodplains, and public roads or rights-of-ways. Wells qualifying for administrative approval must now undergo a public review process with notification sent to nearby property owners.
Monitoring requirements include water well testing, pre-and post-drilling soil sampling, continued air quality monitoring by the Town, and the establishment of daytime and nighttime noise levels with mitigation procedures for drilling, fracking, and production operations. In addition, emergency plans must now include provisions for residential evacuation and the installation of an audible alarm to signal drops in pressure, the release of gas, or a fire.
Flower Mound’s new Pipeline Ordinance also includes several significant changes from the prior version. The Specific Use Permit process for Centralized Facilities was repealed in its entirety, and a zoning amendment is now required if a centralized facility is proposed. Zoning Amendments require review by and public hearings before the Planning and Zoning Commission and the Town Council.
If a zoning amendment is approved, thereafter a specific use permit is required, with review and public hearings before the Planning and Zoning Commission and Town Council. Flower Mound’s moratorium related to the submission of new gas well permits will be terminated July 29. All subsequent applications will be subject to the new ordinances.
The 1500 foot setbacks are a big improvement, but I noticed something fishy when I read the actual wording of the new ordinance.
The O&G Board Summary recommendations from February stated "No setback may be reduced by more than 25%". This means that the 1500 setback cannot be reduced by more than 375, to a minimum of 1125. However, the new ordinance actually says, "The distances ... shall never be reduced to less than ... " 25% of the distances. 34-422(d)(2)(a). The replacement of the word "by more than" with "to less than" totally changes the meaning of the sentence. It now says the distances can be reduced all the way down to 25% of the 1500, or down to 375. Was this the intent all along (and the summary recommendations were incorrect), did someone goof up the wording, or am I misunderstanding the ordinance?
If I am reading the new ordinance correctly, the minimum distance to the residence of a non-mineral owner actually went down from 500 to 375 feet.
I'm thinking whoever modified the ordinance goofed up the wording. The existing ordinance already had the phrase "can never be reduced to less than" and then whoever modified the ordinance just substituted the actual distances (500, 300 etc) that were there with the "less than 25%", without realizing they also needed to change the "to less than" to "by more than". My guess anyway.
In Sec. 34-420 (o), relating to variances from the O&G Advisory Board, I see this wording:
Pursuant to section 34-432 of this article, the oil and gas board of appeals may issue variances to reduce the distance requirements set out in subsections (k) and (n) of this section. In no event shall such reduction exceed twenty-five percent (25%) of the prescribed minimum setback distance.
But then in a later section dealing with the O&G Appeals Board, you have the wording you pointed out. It definitely changed, and it's not good wording. I'll have to ask and see if that's what they intended.
Posted: 2011/7/19 9:41 Updated: 2011/7/19 14:51
Re: Flower Mound Passes New Gas Ordinance
I totally missed 34-420(o). That's what they meant. They really should fix 34-422 though, just to eliminate any confusion. If I remember correctly, there was a similar thing last year where there was ambiguity in the ordinance, which had conflicting parts, and I can't remember but a resident either actually sued about it or just complained loudly, and the city attorney had to draft a legal opinion that basially said, we're sticking by what we meant to say, not what the ordinance actually says. To avoid such problems, they really should fix 34-422.
Thanks, Steve. I completely missed 34-420(o), which is worded correctly. However, to avoid potential issues, they need to correct 34-422(d)(2) as soon as possible. If anyone remembers, there was a similar situation last year with the Flower Mound ordinance. I don't remember the exact details, a change was made to the ordinance regarding the setbacks for tank batteries, but the change was made in such a way that it was left with conflicting or ambiguous language. The city attorney ended up having to issue a legal opinion stating that they are sticking with what they meant to put in the ordinance, not what they actually put in the ordinance. The whole thing caused quite a bit of trouble which could have been avoided if the ordinance had been properly updated.
(Edited to add: Whoops, sorry about the double post. I thought I was logged in on the earlier one, then got an error when posting, didn't see it show up right away so reposted something similar at lunch.)
Thanks, BC. I looked at the drilling setbacks of 28 cities to create a spreadsheet to present to the Lewisville city council, so I've just had lots of practice opening a drilling ordinance and zeroing right in on the setback section. I didn't even read the rest of the sections, just the setbacks.
Jodie over on the Flower Mound Cares Facebook page alerted some people at the town, and the first person to respond denied that there is a problem. Here is part of the response from the town:
"Thank you for contacting us with the clarification question. The text within the sections you are referring to does have the same end result relative to the allowable setback distance. While the sections... may be phrased differently, the second section, 34-422(d)(2)(a), states that the distance allowed by appeal shall never be reduced to a distance less than 25% of the established setbacks. For the applicable setbacks, the distance approved by the OGBOA cannot be reduced to a distance less than 1,125’."
Sorry, but I don't agree with that at all. The two sections do NOT have the same end result at all. The second section states that the distance shall never be reduced to less than 25% of the distances set out in the setback section. (so 1500 could be reduced down to 375). It should state that the distance shall never be reduced by more than 25% ... (like it does in the first section.) It's the opposite meaning, not the same. Sigh.
Jodie says she sent it to multiple people over at the city so hopefully at least one of these people will take it seriously and take a few minutes to ponder the logic in the difference between the two wordings.