Monday, June 10, 2013

LGCR Assists Client in Navigating Doddridge County’s New Floodplain Ordinance

In December of 2012, Doddridge County’s floodplain ordinance was declared unconstitutional by the Circuit Court.  As a result, the Doddridge County Commission issued a moratorium on all floodplain permits.  Jay-Bee Oil & Gas had already begun drilling two horizontal wells when the Doddridge County Floodplain Administrator issued a stop work order.  Due to the moratorium, Jay-Bee could not comply with the order’s requirement to obtain a floodplain permit.  To address this legal catch-22 and to get its operations back on track, Jay-Bee challenged the stop work order in Circuit Court.
In an attempt to resolve its challenge, Jay-Bee agreed with the County to proceed with the permit application process under the new floodplain ordinance enacted on May 21, 2013.  As part of this agreement, LGCR is helping Jay-Bee navigate through the numerous requirements found in the new ordinance to ensure compliance therewith and to ultimately obtain the necessary permit so Jay-Bee can proceed with its operations.  A brief article on the matter can be found at: http://www.statejournal.com/story/22511347/doddridge-ends-ban-on-flood-plain-drilling-permits.  

The new ordinance greatly expanded the number of people entitled to notice and the types of notice to be given, including certified mail, personal service and publication of a legal ad.  These notice provisions were included to directly address the Circuit Court’s decision that found the previous ordinance unconstitutional.  However, the new ordinance also expanded the public’s participation in the permit process, including the ability to comment on permit applications and to appeal the granting of a permit and left unanswered questions regarding fees and costs associated with the permit process.  There are many more requirements, some old and some new, that are too numerous to mention in one article. 

Additionally, obtaining a floodplain permit is not limited to Doddridge County.  Although Doddridge County has been front and center with recent developments regarding floodplain permits, most counties, and some municipalities, have a floodplain ordinance, many of which are similar to the ordinance struck down by the Circuit Court as unconstitutional.  As such, it is possible some counties may amend their ordinance to address the constitutional infirmities and potentially use the new Doddridge County ordinance as a template.  Furthermore, one does not even need to be in the floodplain to fall under the jurisdiction of a floodplain ordinance.  Many ordinances, including Doddridge County’s new ordinance, require those undertaking any type of development, or substantial improvements or repairs, regardless of whether or not the development is in the floodplain, to still seek a determination from the County that the development is not within the floodplain prior to beginning any work. 

The requirement to obtain a floodplain permit not only entails more work on the part of the operator but the regulatory process can now take longer to complete.  Therefore, it is important oil and gas operators take into account these requirements when planning future operations to ensure the proper floodplain permits are obtained in a timely fashion.  Having been at the forefront of this issue, LGCR can assist operators and developers in navigating the numerous and varied floodplain ordinances found within the state. 

For more information, please contact Richard Gottlieb at rgottlieb@lgcr.com or Joseph Jenkins at jjenkins@lgcr.com.