Thu December 19, 2013
Hazy Guidance Over Fracking Water Lines Confounds Commissioners and Cowboys
Originally published on Thu December 19, 2013 9:19 am
Hydraulic fracturing and modern oil and gas drilling use a lot of water, a commodity that’s in short supply in northwestern Oklahoma’s booming oilfield.
To get their water, energy companies lay temporary pipelines atop private property, but a county commissioner and a class-action lawsuit are raising questions about the common practice.
Driving down a stretch of road in rural Oklahoma, like those in Woods County, it’s easy to ignore the thin strip of land sandwiched between the gravel and the fence line. But the grassy, dusty ditch is important real estate in oil and gas country.
To unlock the oil and gas trapped in tight shale formations like this, oil and gas producers pump in millions of gallons of pressurized water. To bring freshwater in, and move waste fluid out, the industry strings miles of temporary plastic pipe along the side of the road.
Private citizens own the land, but Oklahoma counties have an easement along roads it maintains, which can be used by public utilities. Oil companies fill out a permit, pay the county a fee — $250 per mile is standard — and lay the temporary water lines in the counties’ easements.
But Randy McMurphy, the District 2 Commissioner in Woods County, where the controversy started, doesn’t think county officials alone can authorize the water lines.
“It’s not considered a public utility. It’s for private gain,” McMurphy tells StateImpact. “Anything that’s not a public utility or has to do with public transportation needs to have the permission of the abutting landowner and the commissioner.”
Temporary water lines snake throughout Woods County and much of northwest Oklahoma, which is bustling with active rigs pulling oil and gas from the tight Mississippi Lime shale, one of the state’s most productive plays.
The water lines’ thick, stiff plastic tubing is a nuisance for landowners like Joe Shirley, who runs Shirley Farms near Alva, which makes money selling seed wheat and running cattle. The farm’s foreman, Brandon McCamey, says the pipelines show up without warning, often blocking entrances to pastures.
”Whenever the pipe was there, you couldn’t drive over it,” he says. “You’d drag it, it’d catch on pickups.”
We drive around the county, and McCamey points to water pipes laid across driveways, and ones pulled so tight they’ve broken fenceposts and mailboxes. It’s impossible to mow around the water lines, so the grass between the road and the fence grows tall.
“The cattle would stick through, trying to get the grass on the other side of the fence,” McCamey says. “They kept pushing through the fence. We had them getting out.”
In the Spring of 2013, after nonstop complaints from the landowners, Commissioner McMurphy decided to add a stipulation to his district’s permit: Oil and gas companies had to get permission from the landowner before they could install new water lines along county roads.
“[Landowners] couldn’t get in a gate, they couldn’t get in a pasture. They couldn’t get to their mailbox — the mail person couldn’t get there because there’s a line running right beside the mailbox, or through their gate,” McMurphy says. “They didn’t know who to call, they didn’t know who it was that laid it there.”
McMurphy says oil companies complained about his permit change. But a 1982 opinion by the Oklahoma Attorney General’s office seems to agree with McMurphy. The AG at the time, Jan Eric Cartwright, wrote that these water lines aren’t “common carriers,” a term describing public utilities like railroads, telephone or electric lines, or big state-regulated oil and gas pipelines.
The Association of County Commissioners was also concerned with McMurphy’s decision, which — though it applied only to District 2 in Woods County — runs contrary to state statutes requiring county commissioners to vote as a board on such changes, says the association’s executive director Gayle Ward.
Complicating matters further, an assistant district attorney in Woods County approved McMurphy’s permit change.
“District attorneys are the highest legal authority in counties, so when they approve of an action their word is final,” Ward says. “Your hands are pretty much tied at that point.”
Seeking water line permits from county clerks is standard practice throughout the state. Jeff Wilson, the vice president of governmental affairs at the Oklahoma Independent Petroleum Association, says a county permit is all the permission oil companies need. “Because they’re temporary,” Wilson says.
But several prominent landowners in northwest Oklahoma share Commissioner McMurphy’s reading of the law. In March 2013, they filed a class-action lawsuit against a pair of Oklahoma energy giants — Sandridge and Chesapeake — over water lines they say were laid without permission or financial compensation.
None of the landowners or their principal attorney would talk to StateImpact about the case. Chesapeake Energy declined comment, and Sandridge didn’t respond to interview requests.
Despite the uncertainty, Commissioner McMurphy says energy companies are likely still laying water lines — just without permits.
There is talk that a new state law might be needed to establish authority over energy industry water lines, but no specific bills are being considered. Until then, it’s in the hands of courts, county commissioners and cowboys, like McCamey, who says landowners sometimes solve water line problems themselves.
“If you don’t get it buried, we’re going to take a chainsaw to it,” he says.