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WEIRTON -- The Intermediate Court of Appeals of West Virginia has ruled that only the state has authority over the permitting and regulation of oil and gas operations in the state, reversing a local circuit court decision concerning a proposed natural gas well in Weirton.
In a ruling issued Wednesday, the court reversed an August 2022 decision by Brooke County Circuit Court Judge Jason Cuomo concerning a pair of legal complaints filed by SWN Production Co. against the city and the Zoning Board of Appeals.
Cuomo had affirmed, in part, a 2021 vote by the zoning board denying an application for a conditional use permit by SWN Production Co., also known as Southwestern Energy, to develop a well pad and drilling operation in an area near Three Springs Drive, saying municipal zoning regulations "were not preempted by either the West Virginia Oil and Gas Act or the Natural Gas Horizontal Well Control Act."
In his 2022 ruling, Cuomo stated "that oil and gas companies are permitted to operate in our state; that the operation of such companies, and the permitting of such companies to operate, is to be largely, if not completely regulated by the state DEP; and that local municipalities, although not permitted to completely ban the lawful operation of oil and gas companies within their city limits, are permitted to pass reasonable and rational zoning ordinances/regulations to allow said companies to operate therein while protecting the health, welfare and safety of its citizens."
The Intermediate Court, however, found "the city's ordinance is in direct conflict with the state's Horizontal Well Act, where the Legislature has vested in the WVDEP sole and exclusive authority to regulate the permitting, location, and any and all other drilling and productions processes of oil and gas wells and production operations within the state."
Further, the Intermediate Court ruled "Once the WVDEP issued a permit, the city cannot hinder SWN's ability to begin drilling. The city's approval scheme is in direct conflict with the Horizontal Well Act which vests WVDEP with 'sole and exclusive authority' to regulate the 'permitting' and 'location' of horizontal gas wells. This language cannot be reconciled with the city's position that a municipality retains the authority to require zoning approval for an oil or gas well that has already been approved under the state's permitting program."
SWN filed its application for a conditional use permit on June 11, 2021, on the Brownlee site off of Park Drive. Four days prior, Weirton City Council gave final approval to an updated Unified Development Ordinance, which went into effect July 7, 2021.
Cuomo, in his order, noted the old UDO permitted oil and gas development and extraction in planned development districts with a 250-foot setback from residences, churches or schools. Under the former UDO, the Brownlee site was zoned PDD.
The updated UDO, rezoned the Brownlee site, also placing a 2,500-foot setback requirement. That updated UDO recently was repealed by City Council, reverting the city to the previous version of regulations.
The zoning board conducted hearings on the matter in August and September, denying SWN's application and issuing its decision on Oct. 1, 2021, stating "SWN has failed to prove that the proposed conditional use is compatible with the goals of the comprehensive plan, including objective 2.3, which provides in part that future development in the Three Springs Drive area should be managed 'to avoid worsening traffic congestion and additional stress on other existing infrastructure.'"
Despite the rejection, SWN applied for permits with the West Virginia Department of Environmental Protection on Oct. 18, 2021, in order to drill on the Brownlee property. The WVDEP issued its permits on Feb. 8, 2022.
In a related matter, Cuomo, on Aug. 16 of this year, dismissed with prejudice the case filed by SWN against the zoning board, ruling SWN had "failed to establish that it was denied constitutional due process," in the matter. The complaint against the city was to remain on Cuomo's docket.