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Wednesday, 08 October 2014 13:59

Don’t call it a fracking resolution

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Following multiple anti-fracking resolutions passed by local governments around the region, Jackson County commissioners have now taken an action of their own. While their resolution never specifically mentions “fracking” or “hydraulic fracturing,” the board — or at least three of its members — seemed satisfied that it afforded them protection against the natural gas exploration method green-lighted for North Carolina by state legislators this year.

“The resolution was prepared under the auspice that we are protecting our natural resources,” explained County Manager Chuck Wooten when placing the resolution on the table for consideration Monday afternoon. “It does not reference or distinguish any particular item.”

The resolution, which ultimately passed on a 3-2 vote, is entitled Protecting Our Natural Resources. Rather than specifically addressing fracking, the resolution is simply a reaffirmation of an ordinance in place in Jackson County since 2002. 

Prior to the resolution’s passage, Planning Director Gerald Green gave commissioners an overview of the 2002 Industrial Development Ordinance. The ordinance was originally established to address “noxious industries that, by their nature produce objectionable levels of noise, odors, vibrations, fumes, light, or smoke, [and that] may or may not have hazardous effects.” It defines “noxious industries,” establishes standards for their operation and requires the obtaining of a permit.

One of the “noxious industries” addressed in the ordinance is the mining industry. Green explained that the term “mining” was used in a broad sense and covered quarrying, well operations and other actions typically associated with mining solids, liquids or gasses. 

“Given this definition, the provisions of the Industrial Development Ordinance would apply to all oil and gas mining operations, including fracking,” the planning director told the commissioners.

While not forbidding any mining activities, the ordinance instead outlines standards that must be met. For example, a mining operation may not be located closer than 1,320 linear feet from commercial properties, schools, churches or hospitals; it must also maintain that distance from a residential structure. 

County Attorney Jay Coward said that while the ordinance did not ban activities such as fracking, it pretty much did.

“It just makes it so dagum difficult to find a piece of property to get started on that it effectively prohibits it,” Coward told commissioners, explaining that finding a piece of property in Jackson that satisfied the location requirements outlined in the ordinance would be a real trick. “They’re very few and far between. I mean, that’s a half-mile piece of property you have to have. I think for all practical purposes the 2002 ordinance does prohibit fracking.”

Commissioners Doug Cody and Charles Elders, as well as Chairman Jack Debnam, argued that reaffirming the old ordinance was a better bet against fracking than adopting a resolution against the mining method. Cody pointed out that such resolutions were only symbolic and would be superseded by state law, which specifically prevents local governments from banning hydraulic fracturing activities in their jurisdiction. 

“This protects us,” Cody said. “A resolution will not protect us. This ordinance will. This ordinance has been in place for 12 years.”

Cody argued that the location logistics laid out in the ordinance would make exploring for natural gas cost-prohibitive — “I mean, you’d have to survey the entire county” — and Elders said adopting a fracking-specific resolution would “show weakness on our part” and would equate to “turning our backs on these natural resources.”

But other commissioners, specifically the board’s two Democratic commissioners, took issue with relying on an existing ordinance that doesn’t mention fracking. 

“I will admit this is an emotional issue for me,” said Commissioner Vicki Greene, who initiated the discussion about a potential anti-fracking resolution weeks ago. “This is not a method of extracting energy that I think is sustainable in Western North Carolina. It creates more harm than it does good.”

Green, as well as Commissioner Mark Jones, raised concerns about horizontal drilling and an aspect of the new state law that addresses “forced pooling.”

“I do have these concerns,” Jones said. “These are concerns that not just I have, but that I have heard from residents of Jackson County.”

Coward explained to commissioners that pooling effectively requires property owners to allow exploration on their property. 

“Pooling is something where you can actually, legally trespass on property underground,” the attorney said, adding that the pooling aspect was but one component of the state’s Energy Modernization Act that presented sticky legal issues. “I’ve come to the conclusion that there are several constitutional problems with the whole bill.”

Cody brushed aside concerns about horizontal drilling, a practice that allows fracking operations to drill one hole and explore in multiple directions, potentially across property boundaries. He said the issue was beyond the scope of the county commissioners.

“I think it’s getting into a national issue there, because horizontal drilling is allowed everywhere,” Cody said. “You’re getting into a national issue. What are we going to do, appeal it to the Supreme Court?”

Commissioners ended up passing their ordinance-affirming resolution 3-2, with Debnam, Cody and Elders in favor and Greene and Jones against. Wooten described the 2002 ordinance as “ahead of the curve” and told commissioners that “we do have some protection going forward.”

When asked by the press if the resolution passed by the board should be considered an anti-fracking resolution, commissioners turned coy. Cody suggested the press describe the resolution however it wanted.

“It’s anti-anything that could cause damage to the environment,” added Debnam.

The chairman would not elaborate on the reasoning for not specifically addressing the practice of fracking — the obvious impetus for the entire conversation — in the resolution. He said that the county preferred a “broad stroke” approach.

“What’s the reason for leaving out all the bad things?” Debnam asked rhetorically. 

The chairman did say that he felt the 2002 ordinance offered sufficient protection against fracking. He said it’s a bet he’d be willing to take into a courtroom if need be.

“Yes,” Debnam said. “We’d be willing to defend it.”

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