Flower Mound Town Council unanimously approved Monday a resolution opposing legislative curtailment of municipal regulatory authority over mineral production, exploration and development within the town’s corporate limits as outlined in House Bill 40 and Senate Bill 1165.
Bryn Meredith. the town’s attorney who also represents more than 20 other entities, has testified before state leaders on the issue of oil and gas activity regulations.
Having attended the last four legislative sessions, Meredith said it was the first time bills challenging local authority have come out in force.
“A more activist legislation” is in Austin this year, with more bills filed challenging local authority, Meredith said.
He cited several chapters of the Texas Local Government Code that allows home rule municipalities to adopt policies, prohibit pollution or degradation of water or wastewater, enforcement of any laws to protect public health and more.
As early as 1935, city’s were granted the authority to oversee the health and welfare of its residents, he said.
Both remain with the house calendar due to two separate bills, Meredith said adding that the bills must be combined into one before going before both the House and Senate for vote.
Both bills challenge the authority of a munciipality or other political subdivision to regulate an oil and gas operation, indicating it is “expressly preempted” and that it would allow regulation on surface activity that is incident to an oil and gas operation, if it is “commercially reasonable.”
“It all has to do with being commercially reasonable,” he said, adding it does not cite health and safety.
Both SB1165 and HB 40 cite “an oil and gas operation is subject to the exclusive jurisdiction of the state,” which Meredith said is an issue of concern.
Towns are being held to govern only reasonable setback, police, fire, noise and lights actions.
The safe harbor for prima facie built into the bill allows communities with ordinances in effect for at least five years and allowed the oil and gas operations at issue to continue during that period. Flower Mound passed its ordinance in 2011.
Mayor Tom Hayden said there are two issues – one is the issue of what it actually does to drilling in the town; and secondly, philosophically speaking, the bills are taking the town’s ability to regulate its own.
“First, they say ‘Don’t tell us what to do in Texas,'” Hayden said. “Then they turn around … and say ‘we’ll tell you what your local values should be.’ It’s rather hypocritical.”
Hayden also indicated a concern that the state’s legislation could open the doors to lawsuits from oil and gas companies looking to operate in Texas.
“If this goes away, what’s to say the state sets the zoning…sets the tax rate,” he said. “It’s just another step. Why do we need a municipal government anymore?”
“If they come together, pass both houses and are signed by the governor, what do we have?” asked town councilmember Bryan Webb, who also read a letter submitted by Sen. Jane Nelson.
Jean Levenick, mayor pro tem, said the state has been out front on the issue of local control in connection with Washington, D.C., but then turns around does the same thing with municipalities.
“What this bill is – is a step into the next thing where the state is going to take over local control,” she said.
Meredith said he believed the fiscal impact on the town would be substantial.
Oil and gas regulation is a very touchy subject in Flower Mound, said council member Steve Dixon, indicating he was frustrated by the situation in light of the amount of time and effort spent by residents and the town to develop the initial regulations on Jan. 21, 2010, and later ordinances in 2011.
“What can we do that would permanently prevent encroaching gas wells?” Patsy Mizeur said during public comment at the beginning of the Flower Mound Town Council meeting. “Build stuff. That’s right, it is that simple, let’s just build some stuff.”
“I’m not sure if it is sad or funny all of the time and energy Flower Mound residents have spent fighting against gas drilling,” she said. “Too bad they didn’t know all they had to do was be in favor of building stuff.”