Commission discusses options with attorneys
County commissioners met with two attorneys Tuesday to discuss options for local governments when dealing with drilling in Marcellus shale.
One of those attorneys, Roger Forman, said that most jurisdictions that had passed outright bans on drilling are withdrawing those prohibitions because the state will not allow local governments to regulate methods used by the drilling industry.
However, Forman said, local governments do have some options to regulate nuisance by-products of drilling such as noise, water and air pollution and high traffic volumes.
The West Virginia Legislature is still discussing what regulations to impose and may well convene in special session before the end of the year, according to WVU law professor Bob Bastress.
Bastress said all local ordinances and enactments would be pre-empted by the state law, with one exception.
"Local governments can regulate zoning," Bastress said. The attorney said Morgantown residents are waiting until they see what the legislature produces before they decide which tack to take; however, Bastress said he had advised the Morgantown City Council to use their zoning powers, as did the city's attorney.
Pocahontas County does not have any zoning ordinances and even discussions of a comprehensive plan drew vehement fire two years ago.
Saffer said that zoning ordinances took several steps before they could be enacted. Those include two public meetings, public notices and a prior study to determine that zoning measures follow state code.
Be that as it may, the commission spent a good bit of time going over a draft ordinance authored by Bastress, which described Pocahontas County's situation in terms of "economic and cultural foundations" such as farming, timbering and tourism, the threat of endangering water resources, loss of farmland and karst geology.
The draft ordinance would also restrict "industrial operation" defined as manufacturing, power generation, mining, quarry, oil or gas production facility, slaughterhouses, tanneries or a large scale pig farming operation, except for those that would exist at the time the ordinance might be enacted. The draft discussed noise levels, the amount of water that could be taken from any natural water supply and air pollution, as well as timing. "No industrial operation may operate in the County during the hours between 8:00 P.M. and 6:00 A.M. or any hours on Sundays and state-declared holidays," the draft ordinance said.
While all of it got a pretty good once over by about a dozen people gathered at the commission meeting, it was karst geology that got the most discussion.
"We all recognize [karst geology] to be unique and intimately connected with groundwater," said commissioner Martin Saffer.
Former county coordinator Jay Miller said that karst, not drilling is the issue.
"Pocahontas County should be allowed [to be] an exception to the rules because of karst," Miller said.
He also noted that 60 percent of the land is federally owned, thus a loss in state courts would mean that federal law could be argued in federal courts.
Commission president David Fleming said he isn't looking to pick a fight; however, he doesn't want to back down from one, either.
"I am looking at us to be courageous and set an example," Fleming said. Fleming also said he wants to know how a Pocahontas County ordinance enacted prior to a legislative regulation would affect legislators' actions.
The commission president said he wants it to be clear that the county is not telling landowners what they can do with their property. The issue is larger than that, he said.
"It will tell an industry what they can do with the county. It's a community rights issue," he said.
Forman said time is of the essence in trying to protect the county's valuable resources.
The attorney said he'd be calling on another Pocahontas County resource, environmental minds of those who live here.
Saffer said the county has to protect the rights of landowners, and he wants to empower them by a government finding that drilling in Marcellus shale promotes activities that are a nuisance. But Saffer said he wanted the commission to keep another thing in mind.
"I don't want us to create enemies," he said. "I want the action to be in proportion to the reality of the threat."
To find out that ratio, Saffer has invited a West Virginia University geology professor to speak to the commission. Saffer said Dr. Tim Carr is in favor of drilling; however, he finds that Pocahontas County is not in the drilling "fairway."
The commissioner said Carr knows more about Marcellus shale than any geologist in the state.
A date and time for Carr's presentation will be announced later, Saffer said.
Commissioners also took up an animal welfare issue in executive session with animal control officer Sandy Mallow and Sheriff David Jonese in executive session. The executive session was called under the personnel exception to the West Virginia Open Meetings Act and lasted about 30 minutes.
It was their second secret session of the day. The first was called for a legal matter with Prosecuting Attorney Donna Meadows Price and lasted for an hour. Price said she would later disclose what portion of the meeting she could with this newspaper and WVMR.
In other business, commissioners:
ﾕawarded funds to four agencies: Marlinton Depot Association, $25,000; Pocahontas Memorial Hospital, $25,000; Pocahontas County Free Libraries, $10,000; and the Rosie the Riveter Project, $600.
ﾕtook no action on a request for the sale of scrap metal at East Fork Industrial Park.
ﾕapproved a grant for courthouse lighting for $6,128.
The commission meets again in regular session Tuesday, November 15, at 5 p.m.