Mon Balks at Shale Laws

County promises legal action if ordinances pass

Morgantown Dominion Post
9 June 2011
By Tracy Eddy

Municipalities — such as Morgantown and Westover — do not have the authority to extend their jurisdictions up to one mile outside of their city limits, the Monongalia County Commission said Wednesday.

“It’s unconstitutional,” Commissioner Eldon Callen said.

But Morgantown Mayor Bill Byrne and Westover Mayor Dave Johnson beg to differ, saying a state code gives cities that power.

Morgantown City Council approved Tuesday the first reading of a law to ban horizontal drilling and fracturing — or fracking — in the city limits and up to one mile beyond Morgantown’s borders. Westover City Council is considering a law that would require potential drillers in its one-mile buffer to prove — with data — the drilling would be safe to Westover residents.

Commissioners said the county would take legal action to prevent the cities from enforcing those laws, if they are passed. Commission President Asel Kennedy said the same goes for any other municipalities that would impose restrictions on property owners living in the county.

Callen said the issue is not about Marcellus shale — it’s about the cities trying to use their authority outside their limits.

“We as a county commission have a responsibility to all the people in the county,” he said. “The people inside municipalities and the people outside them.”

During its Wednesday meeting, the county commission voted unanimously to send letters to Morgantown and Westover city officials, requesting a work session to discuss the proposed city laws.

Morgantown drafted its law using W.Va. Code 8-12-19, Byrne said, which allows cities to extend their powers up to one mile outside their corporate limits if it is necessary to efficiently exercise those powers.

Byrne said the city didn’t discuss the law with the county prior to drafting it because the city was trying to move as quickly as possible to protect its water supply and its residents.

“We had a responsibility and a legal right to do this,” he said.

Callen said that particular section of code has never been tested in court.

The city hasn’t said what specific power it is trying to exercise by passing the law, he said. He also said the one-mile figure was “arbitrary.”

“You can’t just draw a one-mile circle around the town,” he said.

Kennedy said he understands Morgantown is concerned about the water supply and its proximity to the two Marcellus wells being drilled, but, “a mile outside the city is a long way.”

He said areas such as Point Marion Road and Grafton Road fall into the one-mile buffer but aren’t near the water supply.

If people living outside the city limits wanted to sell the mineral rights to their property, the city law could stop them, if it were passed.

“We, as a commission, need to intercede [if the law is passed] so that hundreds of others don’t have to use their time and money to do so,” Kennedy said.

The two Marcellus wells being drilled at the Morgantown Industrial Park are about 3,000 feet from the Morgantown Utility Board’s water intake. If any fluid discharged from the site enters the Monongahela River, it will do so 1,500 feet from the water intake.

Commissioner Bill Bartolo said this situation exists because the governor and the state Legislature failed to develop new regulations for the Marcellus shale permitting and drilling process.

The County Commission sent a letter to the governor last week, urging him to call a special session so the Legislature could come up with regulations to better control the drilling statewide.

Bartolo said the issue should be addressed at the state level, not at the city level.

He does support cooperation between the county and the cities, he said. “We need to do the right thing,” he said. “Whatever it is.”

Byrne said the city would be willing to meet with county officials. Johnson said Westover would be willing to listen to the county as well, but he doesn’t think the one-mile buffer is unconstitutional because it’s allowed by the state code.

Westover is taking a more conservative approach to its law than Morgantown is, Johnson said.

“Westover is going to be very careful about how we do this,” he said. “We’re not trying to shut [the drilling industry] down completely, but we want to make sure it’s going to be safe.”

W.VA. CODE 8-12-19
Wherever the powers and authority granted in this chapter cannot be reasonably and efficiently exercised by confining the exercise thereof within the corporate limits of the municipality, the powers and authority of the municipality shall extend beyond the corporate limits to the extent necessary to the reasonably efficient exercise of such powers and authority within the corporate limits. Such powers and authority, unless other wise provided in this code or elsewhere in the law, shall not, however extend more than one mile beyond the corporate limits, and such powers and authority shall not extend into the corporate limits of another municipality without the consent of the governing body thereof.