Gas Drilling Decision Making in the Towns of Colden, Holland and Wales
by Ronald Fraser
Small Town Civics Administrator
Land Use Planning in Erie County New York’s Constitution, Municipal Home Rule Law, Town Law and the Statutes of Local Governments delegate to towns the power to plan for, and control, land uses to ensure public safety, health and the general welfare of their citizens. While state statues establish basic standards and procedures to be followed, they do not prescribe how towns must conduct an effective land use control program. The responsibility to set up and implement an effective planning and zoning process rests with town board members.
As noted below, rural towns have several well-known impediments to fulfilling their land use planning and zoning responsibilities. This study has been prepared for use by Southtown public officials and citizens to better assess and understand the strengths and weaknesses of the land use planning and zoning procedures in their towns – procedures that impact their safety, health and general welfare.
The 1996 UB report, Governance in Erie County: A Foundation for Understanding and Action, identified the shortcomings of land use planning in the county, including the Southtowns, this way.
“[State] legislation enables localities to execute and administer laws regulating land use, however it does not require them to do so in any particular way….It should be noted that nowhere is it required that planning be administered by professionals. As a condition of appointment, planning board members need not have any planning experience, opening the way for appointments that are primarily political. In most jurisdictions in the county there are ‘non-professional’ planners serving ‘non-professional’ boards.…In the vast majority of smaller towns and villages these activities of planning and zoning remain essentially volunteer efforts of citizen review, recommendation, and regulatory oversight….the paucity of professional planners in most municipalities should be evaluated to determine the effect of largely non-professional planning practice on the quality of such planning functions as land use and subdivision controls. Although citizen participation in land use planning, subdivision controls, zoning decisions and platting is an example of direct participation in the fundamental property relations of a liberal democracy, the lack of rationality and coherent direction in town and village development has been raised as an issue in many of the 44 municipalities of Erie County. …In sum, planning in Erie County is in a conflicted state, requiring change.”
After almost 20 years, little seems to have changed. Most towns with limited professional staffs, still depend on part-time, non-professional, poorly trained planning boards. As a result, the quality of the land use decision making process in the Southtowns can, and does, vary widely.
The Public Policy Issue. Table One compares how officials in three towns have addressed the same public issue, namely: Is high volume, horizontal hydraulic fracturing (HVHF) for oil and natural gas — a heavy industrial land use — an activity that should be welcomed or prohibited in our town? Are the risks to human health and the environment associated with HVHF drilling harmonious with the town’s rural lifestyle, its future development and the land use policies found in the town’s official comprehensive land use plan – the official document that guides the town’s zoning ordinances?
Since the HVHF drillers saturate oil and gas fields with dozens of well pads, with six or more wells per pad, the risks associated with HVHF drilling is enormous. The health and environmental risks associated with one HVHF well (each well using up to eight million gallons of toxic fracking fluids) is hundreds of times higher than one old-fashioned shallow Southtowns well using 20,000 gallons of toxic drilling fluids.
How Table One was Constructed. Table One draws on town documents and interviews with town officials and my personal experiences in the Town of Colden. Town supervisors in both Holland and Wales were consulted. The planning board chairman and the planning board meeting minutes in Holland were also consulted, as were file documents in Wales. Members of citizens organizations in Wales and Colden were consulted as well. For Colden, most of the information is drawn from my personal experiences with the special hydrofracking committee (I was the chairman) and the town’s environmental board (I am a member) and related documents.
|Town of Colden||Town of Holland||Town of Wales|
|Drilling Moratorium||Yes. Four moratoriums enacted from April 2012 to March 2015.||No.||Yes. One six month moratorium enacted in May 2011.|
|Citizen Organization||Yes. Colden Well Being organized in 2011 held monthly meetings and with a mail survey in 2013 found 400 residents opposed to HVHF in Colden. CWB sponsored three well-attended, public HVHF workshops.CWB recommends banning HVHF in Colden.||No formal organization.Concerned citizens did conduct research and brought their concerns to the town board.||Yes. Protect Our Water Rights, (POWR) formed in 2011.Met monthly and sponsored community education events in Wales and other towns.Recommended banning HVHF in Wales.|
|Town Board||Established a special Hydrofracking Committee in 2012 composed of technically qualified citizens (health, planning and environmental professionals). A well researched, written report, was delivered to town board, April 2013, recommending prohibiting HVHF in Colden.May 2013, the town board sent the committee report to the Planning Board for review.On July 17, 2014, the Town Board heard from officials from Seneca Resources, the HVHF drilling-arm of National Fuel, at an open-to-the-public meeting.||Members met with National Fuel officials, talked with DEC and neighboring towns about HVHF.Concluded HVHF and old-fashioned gas wells pose a similar risk to town’s water supplies.In 2011 sent a draft local law allowing HVHF in Holland — with water testing special use permit restrictions — to the Planning Board for review.||Formed a committee of town board members to study HVHF drilling.Conducted in-depth research of HVHF risks.|
|Planning Board||To date, the Planning Board has not, as mandated by the Colden local law, reviewed the Hydrofracking Committee report as requested by the town board.
Nor, as required by the Colden ethics law, have the planning board members filed public disclosures of their personal relationships, financially and otherwise, with the oil and gas industry.
On July 1, 2014, the Planning Board sponsored a private, unannounced meeting in Hamburg, NY with officials from the New York Independent Oil and Gas Association, an industry lobbying organization, to discuss HVHF.
|Focused on the need to protect the town’s drinking water aquifer.Concluded all drilling is a risk to water supplies & endorsed the town board’s draft law.||No significant role.|
|Outside Consultants||No significant role.||Both National Fuel and the town’s attorney advised the town that it did not have the legal authority to impose water testing regulations on drillers.||Town relied on advice from the Community Environmental Legal Defense Fund to draft the law banning HVHF drilling.|
|Conservation/Environmental Board||Endorsed the Hydrofracking Committee’s report and officially recommended to the Town Board that HVHF drilling be prohibited in Colden.||No significant role.||No significant role.|
|Comprehensive Land Use Plan||In large part, the Hydrofraking Committee and Environmental Board both based their recommendations to prohibit HVHF on the polices, values and vision contained in Colden’s 1992 Comprehensive land use plan and its zoning ordinance.||The town’s 1994 comprehensive land use plan calls for protecting the town’s water supply. The impact of other HVHF risks to other sections of the plan not seriously considered.||No apparent reference to the town’s 2002 comprehensive land use plan.|
|Public Hearing to approve the new town law||No public hearing held.||Yes. Citizens expressed their concerns for the impact of HVHF drilling on their water wells.||Yes. Citizens supported the ban on HVHF drilling.|
|Special Town Research Committee Established?||Yes. The citizen-staffed Hydrofracking Committee.||No.||No.|
|Town Board Actions||The town board has yet to officially & seriously address HVHF or to give due consideration to the recommendations to ban HVHF from both the town’s Hydrofracking Committee, the Environmental Board, the citizen organization, Colden Well Being and many citizens, over the years, expressing opposition to HVHF at the open-floor sessions held during monthly town board meetings.||In August 2012 the town board passed a local law “To provide for the construction of oil and gas wells,” and requiring all drillers to follow a special use permit water testing process meant to show when and where water wells have been polluted due to drilling.There is some concern in the town whether or not this local law can be effectively implemented and enforced.||In June 2011, the town board passed a local law prohibiting HVHF drilling in Wales.|
Questions for Southtown Officials
Question 1. In your judgment, what are the strengths and weaknesses of the decision making process used in Colden, Holland and Wales? If your town decides to address the HVHF issue, which of these decision models would you use?
Question 2. Why have these three towns addressed the HVHF issue, while eight other Southtown governments have not done so?