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Ohio Utica Shale

Attorney, grass-roots group fight new Ohio water sales

By Bob Downing Published: April 19, 2013

Attached are the objections presented today, April 19, by Toledo attorney Terry J.  Lodge to the Muskingum Watershed Conservancy District over two new water sales from district lakes in eastern Ohio:

           April 18, 2013


Hon. Edward E. O’Farrell
Tuscarawas County Court of Common Pleas
Chief Judge, MWCD Conservancy Court
Via email to bragg@co.tuscarawas.oh.us and
stephenson@co.tuscarawas.oh.us

William P. Boyle, President, David L. Parham, Vice-President,
Harry C. Horstman, Steve Kokovich, Richard J. Price
All c/o Darrin Lautenschleger
Muskingum Watershed Conservancy District
1319 3rd St., NW
P.O. Box 349
New Philadelphia, OH 44663
Via fax to (330) 364-4161 (letter only) and email
(with attachments) to Darrin@mwcd.org

Re: Public comment objections to MWCD water sales to Gulfport and Antero Resources (On MWCD Board agenda for April 19, 2013)

To Judge O’Farrell and the Executive Board of the Muskingum Watershed Conservation District:

I write as counsel for Mr. and Mrs. Steven Jansto (Ms. Leatra Harper) who are property owners at 16555 Heron Rd., Senecaville, OH 43780 and the grassroots citizen organization, Southeast Ohio Alliance to Save Our Water, which is comprised of the Janstos’ fellow property owners within the Muskingum Watershed Conservancy District. On behalf of the Janstos and SOASOW, we respectfully demand that the Board decline to approve the gross sales of millions of gallons of water to oil and gas drilling firms which are proposed for vote on the monthly meeting agenda for April 19, 2013. Further, we respectfully ask that the Conservancy Court, which has been placed in an essential oversight role, please initiate an immediate investigation of Staff and Board practices which violate Ohio Administrative Procedure Act requirements by unilaterally foisting a secretive water sales policy upon precious public resources. This comprises a special subsidy to a single industry and destroys public water resources permanently. Secret decisions based on secret evidence are anathema to Ohio’s courts and should not be tolerated by the Conservancy Court. Not only will the water be taken and destroyed for singular profit by the MWCD and afford a singular benefit to the temporary unconventional shale drilling industry, it will remove water permanently from use for other, permanent industries in the district, including agriculture and recreation, and as well from public drinking water use. The use of water for fracking will further create a toxic and radioactive waste disposal problem for all of Ohio.

We view any formal policy votes and decisions taken by the Board on April 19 to comprise administrative licensing proceedings and related rulings under O.R.C. Chapter 119 which are being made on behalf of hydraulic fracturing gas (“fracking”) drilling firms. These private companies will be beneficiaries of advantageous water takings licenses from the Board’s votes and decisions. Respectfully, the administrative record does not support any decisions which the Board may make to grant these large-volume water licenses, because there has been a complete lack of public notice and opportunity for public objection, nor are there any local, state or federal environmental impact studies, apart from the hydro-geological report provided by my clients. There continue to be no administrative rules or standards promulgated to govern the discretion exercised in water sales. While my clients have registered scientific reports and provided government agencies, including MWCD, with testimony warning of water shortages in Ohio due to impending droughts, there still are no scientifically peer-reviewed analyses which address the question of whether the water resources within the District will be protected.

We do not believe that the MWCD has the legal authority to undertake these sales. They constitute an abuse of the District’s statutorily-enumerated powers.

I. Prospective Board actions would violate its own policies and Ohio law

The Board’s vote on proposed water sales to Gulfport and Antero Resources will simultaneously violate the Board’s June 7, 2012 moratorium on such sales, and will further breach the Ohio Open Records Act, the Open Meetings Act, and the Administrative Procedure Act by adjudicating water sales based upon concealed, undisclosed "secret records" information.

II. A Board vote would break its 2012 public pledge
imposing a moratorium on bulk water sales pending scientific reports
from the USGS which are presently being withheld from the public


The Board instituted a moratorium on water sales following the June 1, 2012 Conservancy Court meeting. The public was notified via official MWCD release dated June 7, 2012 (copy attached to electronic version of this letter) that:

There will be no further sales of water from the Muskingum Watershed Conservancy District (MWCD) reservoirs to the oil and gas industry until the MWCD can update its water supply policy that will take into account the information reported from an independent water availability study presently under way.
The MWCD announced today (June 7) that based on concerns expressed by environmental organizations and groups, the general public and the MWCD staff, the conservancy district must “slow down the process of managing water sales requests,” said John M. Hoopingarner, MWCD executive director/secretary.

(Emphasis supplied). The moratorium on sales was imposed pending completion of a contracted-for study by the U.S. Geological Survey (“USGS”) of the effects of prospective water withdrawals from Tappan, Leesville and Seneca reservoirs. According to MWCD staff, as of April 18, 2013 the study is not completed; it is now being reviewed within the USGS according to that agency’s peer review process; and it will be some months before the report is final. See April 16, 2013 Lautenschleger email (copy attached to electronic version). There is no official USGS set of findings respecting the viability of gross water sales at this time, nor has the Board terminated the moratorium.

On September 24, 2012, contradicting Board policy, the MWCD Staff announced via press release (copy attached to electronic version) that “The Muskingum Watershed Conservancy District (MWCD) will consider short-term sales of water from Clendening and Piedmont lakes to the oil and gas industry to reduce the pounding of tanker trucks on rural roads during the upcoming lake ‘drawdown’ period when billions of gallons of water are released downstream as part of routine flood reduction operations.” The drawdown period coincides with the winter season and ends by mid-April. Moreover, neither lake was included in the USGS study.

III. Proposed water sales from Clendening and Seneca Lakes

At the April 19, 2013 Board meeting, the Staff is asking the Board to approve a May 2013 sale of 22,000,000 gallons of water to Gulfport Energy from Clendening reservoir, which would occur outside the lengthy winter drawdown period from a lake not subjected to USGS analysis.

Staff further proposes Board approval of the sale of up to 2,000,000 gallons per day of water from Seneca reservoir from May 1 - July 31, 2013 to Antero Resources. This timing, too, is outside the drawdown window.

IV. By voting for the water sales, the Board will be ending
its moratorium and improperly relying on the nonpublic USGS report


The MWCD has been given a courtesy draft of the USGS report by the USGS for review. This report is being kept away from the public while the USGS supposedly is subjecting it to peer review. The USGS maintains that in its current state, the report may not be relied on as offering official agency findings. Section 502.4(5)(4) of the “U.S. Geological Survey Manual” (copy attached to electronic version) describes the courtesy review process:

In being afforded this courtesy review, such parties are bound by the Bureau’s nondisclosure policy to uphold the strictest scientific ethics in ensuring confidentiality of the science that is being reviewed and not disclosing or divulging any results or conclusions or making any public statements regarding the science before it is published and released. Information products distributed for courtesy review must carry the following statement: “This draft manuscript is distributed solely for the purpose of courtesy review. The comments received will be addressed and treated as appropriate to ensure there is no conflict of interest. Its content is deliberative and predecisional, so it must not be disclosed or released by reviewers. Because the manuscript has not yet been approved for publication by the U.S. Geological Survey (USGS), it does not represent any official USGS finding or policy.”

(Emphasis added). Furthermore, the fact that the MWCD would consider using information from the USGS draft report, which by the declaration of its authors may be incomplete and contain inaccurate, imprecise and incomplete conclusions, reflects a sneering disregard for rigorous science. Such indifference risks biasing and misinforming the MWCD decision-making process. In light of the Conservancy Watershed District’s statutory mandate of conservation, we believe invocation of the Precautionary Principle is warranted here. But at a minimum, public examination of the USGS report and opportunity for democratic debate must occur before any decision is taken on water sales.

The MWCD Board vote on water sales will be seen as making water sales policy predica-ted on nonpublic USGS “insider” information. By prohibiting the public, which does not know the conclusion reached by USGS, from having access to the study, the MWCD Board will be giving “unfair advantage or the perception of unfair advantage” to the oil and gas drilling industry, precisely what USGS policy tries to avoid.<1> Whether it goes into executive session to discuss matters related to the water sales, or not, the Board will be relying on its confidential access to USGS information in taking a vote to sell. This violates Ohio’s Sunshine Act. There is no genuine emergency requiring a vote on this sale before the public can have access to the USGS report. To hold the vote now, before the public can participate, breaches the state open meetings law. To hold the vote without disclosing the USGS report’s findings, which have repeatedly been requested by Leatra Harper, also violates Ohio’s public records act. The MWCD cannot invoke a cloak of secrecy to keep the true basis for its decision from the public when there is no emergency and when that basis (the USGS report) is destined ultimately to be made public by the USGS.

IV. The proposed sale of Seneca reservoir water ignores explicit consultant advice

The MWCD Board contracted in 2012 with CH2M Hill Engineering to prepare a “Safe Yield and Diversion Capacity for Water Supply” for Seneca Lake. Included in the consultant’s recommendations was this advice:

The results in Table 4 suggest that withdrawals of up to 5 MGD can be diverted during the months of November through February, based on meeting 98% of that amount in all days simulated from 1937 to the present. However, that amount cannot be reliably met during other months, particularly during the refill months of March and April, and during the peak summer months.
During the months of May, June, July and September, withdrawals of up to 1 MGD can be taken about 70 percent of the time.
Additional flows could be reliably taken if more fluctuation in summer target water levels were allowed, but that would likely require significant stakeholder dialogue to understand impacts on recreational activities
.

(Emphasis supplied).

Despite MWCD’s consultant having limited withdrawals to 1,000,000 gallons per day (a volume deemed available only 70% of the time), the Staff nonetheless recommends twice that amount - 2,000,000 gpd - can be sold from May through July. Without the USGS study, there is no technical basis to counter the CH2M memorandum; there is only the Staff’s faith-based override of science. The Staff has pointedly ignored CH2M’s strong suggestion that “significant stakeholder dialogue to understand impacts on recreational activities” must be considered if the inclination is to sell more than 1,000,000 gpd in the summer season. Those stakeholders include other businesses not so favored by the MWCD, which have pre-existing water needs that may be threatened by drought-inspired shortages.

The water sales policy, like the decision to allow mineral extraction in the Seneca Lake basin, is not based upon competitive bidding and appears not to price water for its scarcity, but only for its availability. Commerce other than fracking, as well as the general public, are being entirely excluded from these decisions.

V. Conclusion

“The Muskingum Conservancy District is a state corporation. The novelty of the Muskingum project lies in the fact that it is the first instance of cooperation between the United States Government and a local subdivision of a state government in such work . . . . If it works well, it will serve as a model for further cooperative effort between the national and local governments for flood control, water conservation, and social and economic improvement. In the Muskingum Valley, the Conservancy District takes the lead and receives cooperation from the Federal Government. But both projects develop a partnership or cooperative effort between federal and state governments for the conservation of natural resources and the general social and economic welfare of the nation.”<2>

We request the Conservancy Court protect Ohio Administrative Procedure Act rights of those ratepayers who are harmed by secret decisions made upon secret “evidence.” By acting on these water sales, the MWCD Board will have abandoned its moratorium on water sales. The Board will be relying on nonpublic, incomplete peer-reviewed scientific information in non- emergency circumstances, where the public should be allowed access to ensure that there is an informed vote. A vote to allow sales now ignores taxpayer-financed consultant advice and signals the oil and gas drilling industry that there are no democratic impediments to unregulated sales. The MWCD will be affirming that ad hoc water sales are the only sales policy, even as the District arranges ad hoc sales which violate MWCD’s statutory responsibility to conserve water.

The Conservancy Court is empowered to assure that the District Staff and Board follow the law, not flout it for financial gain. We urge the Court to inquire before the Board is permitted to take final action to alienate these assets. In the meantime, we urge the Board to decline to act on the Gulfport and Antero Resources water sales agreements.

Please add this letter to the public comment file in accordance with the MWCD’s public participation policy.

Thank you.

Sincerely,

/s/ Terry J. Lodge

- - - - - - - - - - - - - - - - - - - - - -
<1> Section 502.5(3)( C) of the Survey Manual says: “Particularly sensitive results, however, such as energy and mineral resource assessments and mineral commodity reports that typically have significant economic implications are not disclosed or shared in advance of public release because pre-release in these cases could result in unfair advantage or the perception of unfair advantage.”
<2> From an address by Robert N. Wilkin, The Muskingum Watershed Project, delivered at the Annual Citizenship luncheon, Lakewood, Ohio, March 6, 1934. Judge Wilkin, a former member of the Ohio Supreme Court, was an early leader in the formation of the MWCD and served as its first general counsel and later as a U.S. District Judge in Washington, D. C.
 

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