Rush Township takes novel approach to curb drilling

Posted on October 17, 2011 

The headline-grabbing story out of the Rush Township supervisors meeting Thursday was their advancement of an ordinance that would institute a blanket ban on all drilling in the Marcellus Shale in the township.

The supervisors faced pressure from Rush for Clean Water, a citizen's advocacy group, in voting 2-1 to support the fracking ban, which will now to go a public hearing before facing a final vote in 30 days. But supervisor Mike Savage, the board's swing vote, said he was unlikely to back the full ban in the final vote. He said he was afraid the state's ability to preempt local bans may cost the township money in defending an ordinance that in all likelihood will be overturned.

What slipped under the radar was the second ordinance also advanced at the meeting, and from conversations with the supervisors, this law is far likelier to be approved. Savage and the other supervisors believe it could succeed at curbing Marcellus drilling, a step where many other Pennsylvania townships have failed.

Most other municipalities seeking to limit drilling have modified their zoning conditions. But those efforts are being challenged, and in addition, Rush Township has no zoning ordinance to modify. Instead, the township is taking a novel approach not yet tried before in the state.

The ordinance, which amends the existing Subdivision and Land Development Ordinance, seeks to prohibit drilling in "zones of contribution," or sources, of public drinking water. It implicitly labels hydro-fracking as a threat to the township's public water supplies.

According to the document prepared by township solicitor David Mason, the ordinance "Intends to prohibit within any "zone of contribution to a discharging well" any activity which involves earth disturbance, hydraulic fracturing, injection, extraction, or removal of ground or surface water (except as provided), or any other practice, industry or activity which has the potential to impair, injure or degrade any of the natural sources of water, whether in the ground or on the surface, within Rush Township because it threatens the health, safety, and welfare of the residents, citizens, and neighbors of Rush Township."

Mason said the township would hire hydrologists to identify the zones of contribution in the township, map them and know where their fault-lines are, so they can then be labeled as "zones of high risk" and forbid drilling near them.

Mason argues in his brief that the township is vested with the protection of its water supplies (and Rush Township is the source of supply for more than a dozen municipalities). According to Mason's document, "Local regulation and local control of the local supplies of natural water is permitted by and based upon the Pennsylvania Constitution, Article 1, Section 27."

That section of the Constitution reads: "The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations to come.  As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people."

Violators of the ordinance would face a summary offense, a fine, and would be responsible for damages.

Township officials are hopeful this ordinance may help stem the tide of drilling in their community, though three Marcellus wells have already been drilled in Rush Township and three more are permitted.

For analysis of the ordinance from a legal expert, check back here tomorrow.

 

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