Texas challenging federal drilling ban near Joe Pool Lake dam

The U.S. Army Corps of Engineers’ efforts to protect its dam at Joe Pool Lake is resulting in a showdown with state regulators over who controls drilling near the reservoir.

Last week, the corps said it is banning drilling, including hydraulic fracturing, within 4,000 feet of the dam. The federal agency also said it would limit injection wells within five miles of the dam out of fears of “induced seismicity,” or tremors triggered by human activities.

Corps officials said the tougher restrictions — which grew out of a study about the possible impacts of drilling on the structural integrity of the dam — went into effect immediately. One corps official said the agency is willing to go to court to enforce them, if necessary.

But in a letter sent to the corps on Thursday, Texas Railroad Commission Executive Director Kimberly Corley called the federal agency’s actions into question, stating that the Railroad Commission has the authority to oversee the oil and gas industry in Texas, including hydraulic fracturing and injection wells.

Corley took issue with the corps for taking steps without consulting the RRC or other appropriate state agencies and without going through a formal rulemaking process. The letter also asked pointed questions about the information used by the corps in establishing its restrictions.

“We would like to understand how USACE made these decisions and how it intends to implement its actions,” Corley wrote. “In discharging its responsibilities, the Railroad Commission’s highest priority is protection of public safety and our natural resources.”

State Rep. Drew Darby, R-San Angelo, who championed House Bill 40 in the last legislative session that reaffirmed the RRC’s dominance over oil and gas drilling, said he thought the corps may have gone too far but hoped the agencies can come together to discuss any concerns about drilling at Joe Pool Lake.

“It sounds like another example, if you will, of federal overreach and usurpation of local authority and state government entities,” Darby said. “I would encourage all of the parties to come up with what makes sense from operational and a safety standpoint.”

Clay Church, a spokesman for the corps, said late Thursday that they received the letter and were still reviewing it. Earlier in the day he said the agency, if faced with a request by a company to drill within 4,000 feet of the dam, would work with the producer but also do their due diligence to protect the safety of the structure.

“If we had to resort to a court of law, that is what we would do,” Church said.

Corps officials have said that they welcome environmentally sound oil and gas exploration and mineral extraction, but that their primary focus is to make sure nothing threatens their facilities or public safety.

“Our job is to ensure that any and all activities around the structure does not create adverse impacts,” said Tim MacAllister, chief of operations for the corps’ Fort Worth District.

Jim Bradbury, a Fort Worth environmental attorney who helped write the city’s drilling ordinance, said the two agencies are on a collision course.

“It is going to be a showdown. I will say the Railroad Commission is raising some valid questions,” Bradbury said, adding that the corps is an agency that knows what it is doing. “No one understands this better than them. I’d be disinclined to ignore what they are trying to tell us.”

There is currently no drilling underway near the dam, but XTO Energy has three existing wells that went into production in 2010 and state permits to drill four more. Grand Prairie also has a moratorium in place on drilling in the area, which expires in October.

Last week, the corps announced it was expanding the no-drilling zone from 3,000 feet to 4,000 feet. The agency said its original exclusion area did not meet the minimum tolerable risk guidelines and posed a risk to the structure, the lake and public. It also restricted the location of injection wells used in the fracking process.

The tougher regulations followed a 2015 study initiated after an inquiry by someone living near the dam about possible detrimental effects from nearby drilling activity. The study’s goal was to evaluate the effect of fracking in the Barnett Shale formation, which lies underneath Joe Pool Lake and its dam.

The study used published data and site-specific information obtained by drilling companies to evaluate possible effects of drilling, injection wells and extraction on rock formations. It acknowledged limitations since the data being provided was limited.

After it was completed, and because of its findings, it underwent a stringent independent and external peer review, the corps said. The review endorsed the study and the proposed new regulations, Church said.

“That showed that we had to adopt the (expanded) zone and that the five-mile zone for injection wells the right way to go to limit damage to the structure,” Church said.

The new guidelines have caused some confusion. In Grand Prairie, where a major portion of the dam sits, city officials have repeatedly said they thought the new regulations were just a proposal. They also said that the corps has not handed them a map showing the exact location of the 4,000-foot-line.

In her letter, Corley asked for specifics of the peer review and what protocols were used. She also asked how the corps plans to implement the new exclusion zones and over what timeframe. She also wanted to know why there wasn’t public notice and an opportunity to comment on the regulations.

Grand Prairie City Attorney Don Postell recommended to his city council this week that the council let its moratorium expire. He said the passage of HB 40 granted that kind of regulatory power to the state.

“We don’t control where you can drill. The state made it abundantly clear that from the ground down is under their control. We have no authority,” Postell said.

“It wouldn’t surprise me to see it end up in court,” Postell said. “I know the corps feels strongly about the threat to the structure. ... They are doing what they think is right. Talk to the railroad commission and they are doing what they think is right.”

This story was originally published March 24, 2016 at 9:07 PM with the headline "Texas challenging federal drilling ban near Joe Pool Lake dam."