While Otsego County residents waited to see what state regulations would govern the controversial gas extraction method of horizontal hydraulic fracturing, a number of municipalities acted on their own during the year in response to public concern on the issue. It even played a role in November's general election.
A statewide moratorium on the process, which involves drilling wells into shale and injecting water, sand and chemicals to shatter rock formations and release natural gas, remained in effect throughout the year. It was intended to give the state Department of Environmental Conservation a chance to study the effects fracking has on water quality and the environment.
Large areas of Delaware County were declared off limits in July because of the New York City watershed, so much of the local news focused on Otsego County.
The state Department of Environmental Conservation issued its revised draft supplemental generic impact study on the subject in September. After opening up a comment period through Dec. 12, anti-fracking groups, who were concerned about the impact on the environment and other issues, complained that the time frame allowed for the 1,500-page document was too brief. Representatives of pro-drilling landowner groups, who lauded the potential economic benefits of the process, said the rules had been debated enough.
The comment period was extended 30 days to Jan. 11, moving the final verdict on the issue to next year at the earliest.
local response to revised study
After the DEC opted in October to schedule no local hearings on the study, the city of Oneonta and environmental groups Otsego 2000 and the Otsego County Conservation Association sponsored a public hearing Nov. 10 at Hunt Union Ballroom on the State University College at Oneonta campus.
As the leadoff speaker, state Sen. James Seward, R-Milford, lauded his home-rule legislation that, if passed by the state Legislature, would allow municipalities to enact their own bans on fracking.
The draft regulations offered uneven and inadequate protection to most upstate New Yorkers, he said. There were about 400 people at the forum. While most were against hydrofracking, some spoke in support.
They included Dick Downey of the Unatego Landowners Association, who said his group's members looked forward to "the economic revival it will engender." He called on the state to create a "universal system of reporting (drilling-related) incidents" throughout New York.
There were a number of meetings and forums on fracking during the year, including an April informational event at the Oneonta Holiday Inn that had presenters on both sides of the debate.
Opposition to fracking played a major role in the November elections, with Democrats backed by the environmental group Sustainable Otsego picking up two seats on the county Board of Representatives. Although the board is now split, seven-to-seven, the weighted voting method gives Republicans control of the board. Other anti-fracking candidate victories included the Milford town supervisor seat and two seats on the town of Otsego board. The issue was also a factor in the increased voter turnout.
Home-rule actions
While the state was studying the issue, some Otsego county municipalities took home-rule action.
The first town to do so was Otsego, which in May revised its land-use law to establish a ban on gas drilling and fracking in the town. In the 4-1 vote, councilman Carl Wenner opposed the plan, saying he was standing up for property rights.
"I've never said I was for fracking or against it, but I don't think the town has the authority to do this," he said, a theme that would be echoed later in the year.
The issue came up again in June when the Middlefield Town Board changed its zoning law to ban heavy industry, including gas drilling. Although the changes were approved by the county Planning Board, the town was sued in September, in what an attorney for the plaintiff said could be a precedent-setting lawsuit.
In discussing the action, Scott Kurkowski, of Levene, Gouldin & Thompson LLP, said the ban violates the state Environmental Conservation Law, which says that all local municipalities are pre-empted from passing local laws relating to the regulation of the oil and gas industries. His firm is representing a Middlefield dairy farm seeking to overturn the ban, Cooperstown Holstein Corporation.
A similar plan was overturned by a court in West Virginia, corporation President Jennifer Kurkowski said. "I feel the same will happen here," he said.
According to an Associated Press story in the Aug. 15 issue of The Charlestown (West Virginia) Gazette, a court ruling invalidated Morgantown's ban on shale drilling.
"It will be difficult to take such action because there are vocal opponents, but I believe my property rights are being interfered with," Huntington said. She said the original intent when she was approached by the driller more than a year ago was for a vertical well, of which there are more than 14,000 in the state.
Middlefield Town Attorney David Clinton from the firm of Gozighan, Washburn & Clinton, disagreed with the legal contention. The town is not regulating gas drilling -- it is banning it, he said.
He cited the case of Frew Run Gravel Products vs. Town of Carroll, in which such a ban was upheld by the New York State Court of Appeals.
"It comes down to the law and how it should be interpreted," he said, adding that it could be two years before a decision is reached.
Bassett Medical Center Board of Trustees and Health Care Network came out in favor of the ban that was in effect or being proposed in the neighboring towns in March. The statement by the 274-member medical staff reads in part, "We hereby resolve that the hydrofracking method of gas drilling constitutes an unacceptable threat to the health of our patients, and should be prohibited until such time as it is proven to be safe."
In November, Brewery Ommegang stated in a legal brief filed in support of Middlefield's ban that the company might have to move if the ban is overturned. Ommegang, which employs 83 people, said about half of the land that borders the brewery is leased to gas companies.
Other towns that acted on the issue were Springfield, which passed a local law that prohibits heavy industry in June.
"A lot of people are glad we acted," supervisor Bill Elsey said. He noted that a survey sent to residents indicated 95 percent were in favor of a local law banning fracking.
These kinds of laws are based on the home-rule power of municipalities, but they differ because Middlefield has zoning rules and Springfield does not, he said.
"Our law is based on municipal police powers," Elsey said.
Also in June, the city of Oneonta's Common Council voted to ban gas drilling and hydraulic fracturing. In July, Cherry Valley became the fourth town in the county to act. Under that law, drilling would be banned on land that is leased but where the operations have not begun. Active sites would be permitted to continue producing but if the lease lapsed for at least a year, it would not be renewed.
In October, the Milford Town Board passed a nine-month moratorium to study a possible ban.
New Lisbon passed a ban on fracking in December. The measure, which passed unanimously at a town meeting, was intended to zone out heavy industries that the vast majority of the 1,700 residents of the town opposed, Councilman Robert Eklund said.
Leases dropped
A move that could affect local leases occurred in November, when Gastem Inc. one of the companies planning to drill in the area, announced plans to drop some of its leases in the county once they expire. Company director of investment relations David Vincent said the primary reason was that some sites have been determined to be less suited for drilling than other locations outside the county. While he was aware of strong opposition to hydraulic fracturing in several pockets in the county, the main reason is that there are possibly more productive sites elsewhere.
"We know which zones are more suited for gas exploration," he said. "We know there are some leases that are less interesting. The first factor will always be geology."
In the current climate -- with natural gas prices dropping and stringent regulations imposed by the state, John Holko, a board member of the Independent Oil and Gas Association of New York said more companies will be evaluating if they want to lease land in New York.
Otsego 2000 Executive Director Ellen Pope said company finances could be another reason for the change.
"I don't think they have a lot of funds on hand," she said. "I don't know that Gastem has the resources to fully exploit this area."
Studying the Pros and Cons
While the Otsego County Board of Representatives has not taken an official position on the issue, members have been studying the pros and cons. This included an April fact-finding trip by the county Natural Gas Advisory Committee to areas of Pennsylvania where fracking is under way.
In December, representatives seemed ready to address the issues of home rule that would empower local communities. Rep. James Powers, R-Butternuts, said he would like to have the board vote on the proposed state resolution backing home-rule legislation authored by Sen. Seward, to spare incoming members from the controversial vote in January as planned. While he was opposed to the legislation, he expected it to pass.
Rep. Rich Murphy, D-Town of Oneonta, called for the county board to take up the issue in January. He expected at least two board members would be absent at the December meeting, and the board will be fully constituted in January. When the action was put off until next year, both said it was the best course of action.
