Preemption: What the Frack is going on?

The right of local self-government is under siege in Sandoval County, primarily through oil and gas corporations using their influence with allies in state government to impose state preemption over local laws. This coordinated assault on the rights of local governments and their citizens to pass local laws banning harmful processes or products, is apparently part of a national strategy, led by the American Legislative Exchange Council (“ALEC”), to prevent progressive policy gains at the municipal level, including bans on hydraulic fracturing for oil and gas, minimum wage increases, GMO crops, assault weapons bans, and anti-discrimination laws.

There are current preemption policies to prevent citizens groups from enforcing voter approved local initiatives and or placing a moratorium on hydraulic fracturing (“fracking”) in or for their respective counties and or municipalities.  It appears the current policies being set forth by the Sandoval County administration is straight out of the oil and gas preemption legislation that NMOGA/ALEC has been trying to pass for 5 years and cannot through the legislature. Here they are working the destruction of the water, air, health and safety ignoring the protective oil and gas ordinance that the citizens have been asking for 18 months, similar to the Santa Fe County Oil and Gas Ordinance, that took two years and 7 attorneys to hammer out and in that process many NGOs put up the money to work on this type of land use in more civil manner in Santa Fe. This resulted in one of the best Oil and Gas Ordinance in the United States.

Why can we not have the same thing? Why not listen to the public? Let us put it to a vote by the citizens. Too much money in campaign contributions, with dark Koch money, it’s hard to tell the amount that has been spent. Nobody in government seems to have the courage needed to stand up for our water needs, clean air, and to protect our health and safety.  Pardon my cynicism right now but here is what has been happening.

Despite the months of meetings and comments with no responses from county government and during the public hearing process, we learned a few things about the County. There are no records.  The information officer Sidney Hill states, ‘No records of any communications with anyone,” about anything? Not even a meeting in their offices, really? Of Course, to appeal to a court on a County Commission decision there has to be a record.  Is this the rule law in New Mexico?

We have asked in specific IPRA requests to the County Clerk to produce documents we entered into the record. The Clerk said, “… had not been given the direction by the Commission on handled the records at County Commission meetings.”  This is after they time and again assured the citizens that these comments and findings were being reviewed.  The county ignored our attorney’s letter’s and kept saying they cannot find the documents or do not have them. We have one IPRA request that has been outstanding for 11 months.

We asked for the Safety Response Plan for an emergency in Oil and Gas explosions, spills, and fugitive emissions exposures.  They denied that claim by saying it is a matter of national security and cannot reveal any procedures for our safety. Yet they failed on 4 occasions to answers letters as under what legal citation on national security they’re withholding those documents.

They equate a moratorium to a Fracking Ban. They are not the same but insist there is without giving examples. We have asked for a moratorium for 2 years, not a fracking ban because that is illegal in NM under the law governing ordinance protections on Oil and Gas land use regulations in our community.  We need baseline studies, we must wait for the safety response plan, the NM Tech modeling of the sub basin and the interconnections with the Rio Grande Rift and the Mancos Shale deposit in relationship to tribal sacred places and establish water protection zones.

The first draft ordinance had many aspects of what the citizens were asking for but after the election, that draft was thrown out and the new County Commissioners marched in with a new draft ordinance, which was woefully and willfully inadequate and contained the preemption language.

On May 12 the State agencies asserted, former CEO of WPX and now the current Secretary of the NM EMNRD, and NM NMOCD and NMOGA, that the County pass a streamline procedure and policy that did away with the ordinance process to provide a shorter turn around time for the permitting process simultaneously processed with the state permit. The time frame suggested was a 10-day turn around.  There are reasons that BLM process may take up to 120-500 days, there are rules to make sure people, the water and air are not harmed that we all depend on for life.

The County Planning knowing they gave the citizens a bogus ordinance that they would and could not accept, then had the audacity to state in a staff report to ask for a revision that they added to the agenda 48 hours prior to the meeting July 25th,

“During these meetings, it became clear that the draft regulations and review procedures for oil and gas development prepared by Planning and Zoning Division staff were not supported by concerned citizens or by oil and gas industry representatives. During these public meetings, staff reported that the County had three options available if the draft language was rejected. One option was to develop restrictive regulations, which would conflict with State mandate preemption regarding oil and gas development. The second option was to develop less restrictive regulations than those currently outlined in the CZO. The third option was to not amend the Zoning Ordinance at all.”- Sandoval County Staff Report July 25, 2017

This option that Mr. Springfield, County Planning, is requesting is that the planning Commission adopt a streamlined permit process. There is no Special Use definition available to us, or even what a Special Use Zoning area would look like in the Comprehensive Zoning Ordinance (CZO). The CZO is currently being rewritten and streamlined. We had to make another IPRA request to clarify what the definition was  since they said it was in the CZO but we could not find it. Springfield stated it was in the CZO on page 32, in the meeting, in the staff report and to the Commissioner on July 25th.  Secretary McQueen was adamant that the County adopt this procedure and Mr. Springfield is doing his bidding.

We, citizens of the Sandoval County, believe that this is a violation of the Separation of Powers, under New Mexico Constitution Art. III, § 1. Separation of Powers, and the NM Oil Conservation Division and NM EMNRD have overstated their preemption status to the County and has violated the Separation of Powers in the NM Constitution in the May 12th Meeting. And is pressuring this revision to further preemption of land use regulations on oil and gas and stop any ordinances from providing needed protections.

Mike Springfield and the County denied our findings records submittal for P&Z Commissioner review prior to a presentation at the upcoming public hearing.  All the legal notifications were followed in a timely manner for Commissioners packets to review prior to the July 11 public hearing; The County violated our due process by denying those timely records that would address the agenda issues that coincided with the meetings subject matter.

Mike Springfield and the County also proceeded to violate the first amendment rights by not allowing peer-reviewed studies and testimony by IHS Doctors and an endocrinologist from Santa Fe from Physicians for Social Responsibility to testify at the public hearing on July 25th. According to Mike Springfield’s definition of land use is that “health and safety has no place in land use.”

The County never informed the surrounding municipalities or the 12 tribes of Sandoval County about this ordinance process.  The County is in violation of the Historic Preservation Act Chapter 106 that mandates the county inform tribal entities of the impacts on allowances, ordinances or land use applications that may impact the cultural landscape of their homelands.

Adopting these Standard Operation Procedures (SOPs) as Special Use equates to allowing Mike Springfield or designated county staff to hand stamp permits under conditional use and landowners would not have a public hearing with the County Commission and this included all of Rio Rancho Estates, which is under Conditional Use.  Under Conditional use, the County could not say no to a permit.  Under an ordinance they could say “no”, the county could use SOPs and special use permit as tools in which the ordinance would guide their decision-making process.

The other side of the same coin is identical.

The County plans on a conditional administrative permitting of Special use of the Northwest Energy Sector. This means all the people, including minority population of Native American of the Tri-Chapter Area of the Eastern Navajo Agency, Pueblos, Tribes and Hispanic communities that are currently being impacted through State preemption of oil and gas regulations and are now under special use permitting would be continually poisoned and subjected to further contamination without ordinance protections.

There are substantial health and safety impacts and health issues arising in these communities, cancers, respiratory illness and animals born without rectums.  The Lybrook Elementary School has 6 fracking wells within 1000 ft. and has reported a measurement of 7.6 hydrogen sulfide, where 10-ppm kills and if the weather is just right the whole school could be a deathtrap.

The governor’s appointees have made allowances on setbacks in an extreme State-permitting process culture under the current preemption doctrine. This means that those setbacks that are written into the ordinance and or Special Use SOPs could have further allowances made in the permitting by the State. Despite local citizens best efforts to ask for protection, but without them they will surely continue harming the citizens and the treasured culture landscape of the Indigenous peoples of New Mexico.

What is so egregious is that all this information has been brought to the attention of the County Commission, Planning Department, County Manager and County Attorney and they are still pushing the preemption doctrine and moving for a special use permitting revision, with no consideration for the people suffering now or those who will in the future without the due diligence now needed to make the careful decisions.

Changing it to a Special Use status would allow the County to give a public hearing but it would not give the county staff, the drillers or the citizens any guidance on the procedures and rules that they must follow to control a certain aspect of the oil and drilling operation on land use impacts.  The County is abdicating its role by overstating its dependence on the state authority to zone on land use protections including aquifer source water protection and water availability and on air monitoring baseline studies, remediation and reclamation.  The public health and safety impacts study are now needed since they intended the siting of major Industry.

Opening up 267,000 acres of private lands in Sandoval County could easily site 15,000+ wells, which will be piecemealed one permit at a time, so no impact study can legally be required. One special use (SU) permit could have 50-100 oil and gas wells tied to it. One SU permit that does not have to show 100-year water supply and is approved possibly means no other permit could be denied based on water quantity and quality issues. The deed is done.

The P&Z Commission will have to contend with these 4 points as the criteria to determine how a Special Use permit would apply and to accept it as the permit process.

  1. To assure that compatibility of property uses shall be maintained in the general area;

  2. To preserve the integrity and character of the area in which the Special Use District will be located, and the utility of property in the Special Use District and adjacent zone districts; and

  3. To assure that the Special Use District will not become detrimental to the public health, safety, or general welfare of the County.

  4. To assure that the Special Use District will not conflict with the Sandoval County Comprehensive Plan or any other applicable land use plans adopted by the County.

Use the above 1-4 criteria, to ask for the Ordinance process and moratorium to make sure we have the protections needed. Remember this Preemption is overstated and stool being used to confuse the new P&Z Commissioner and the public purposefully.

I could write a book on the many ways that Special Use would ruin the landscape and our health.If you want to protect the Rio Grande from a taking of the regions water supply by oil and gas is important to you as is clean air, show up.If you care about the County’s future dependence on fossil fuel that will drastically effect investment in alternative energy, then show up.

On August 8th  6 PM at the Sandoval County Admin Bldg. 3rd Floor Chambers the County Planning and Zoning Commission is scheduled to vote on a Special Use Permitting Revision That would be no short of taking of the Rio Grande, our drinking water system through a special use permitting scheme. We Citizens of Sandoval County deserve the protections of an ordinance like the Santa Fe and San Miguel counties.  Anything less would be criminal.

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Unless there is relief of some sort …. we are sold down the river. Anyone with the power to stop a water taking of the Rio Grande needs to act now.

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