On July 19, 2016, Alameda County, California (“County”) became the first county in the Bay Area to approve a ban on hydraulic fracturing (or “fracking”). The County Board of Supervisors unanimously approved the ban through an amendment to the Alameda County Zoning Ordinance (“Ordinance”). Gen. Ordinance Code §§ 17.06.100-17.06.400.
The Ordinance bans “high-intensity oil operations” which include fracking, steam injection, cyclic steaming, and all other forms of well stimulation. The Ordinance allows waterflooding and permits an operator to continue oil production by methods authorized under a Division of Oil, Gas and Geothermal Resources (“DOGGR”) permit, if those methods are not banned. Waterflooding, a technique that includes recycling produced water to the oil reservoir, may be done only by water that is produced from the well itself. “Produced water” is water that comes to the surface through oil production and oftentimes has no beneficial reuse due to its natural characteristics. The Ordinance prohibits disposal of hydraulic fracturing fluids, drawing a distinction between produced water and fracking fluids. “High-intensity oil operations” does not include injection of produced water.
The recent Board of Supervisor’s vote has a two-year history. In September 2014, the County’s Community Development Agency released a memorandum on hydraulic fracturing and enhanced well stimulation techniques in the County. At that time, the County warned “[t]here is potential concern . . . that efforts to restrict the method of petroleum extraction could be legally vulnerable to challenge.” Other California counties and cities that have banned hydraulic fracturing have been hit with lawsuits, alleging that such bans constitute regulatory takings in violation of the Fifth Amendment of the Constitution, for example. It is unclear whether litigation will follow this ban because the Ordinance, as adopted, provides a procedure for an operator to demonstrate that he or she has a vested right to conduct hydraulic fracturing activities and thereby obtain an exemption. See Gen. Ordinance Code § 17.06.130. The requirement to prove vested rights seems burdensome and targeted to the industry, though. Zoning amendments generally cause pre-existing activities to become non-conforming uses.
Practically speaking, however, the Ordinance is all bark with no bite because the ban will not have an impact on oil production in Alameda County. Currently, there is no fracking occurring in the County and no plans to do so. The ban appears to be symbolic, and just another step in a larger agenda to ban fracking and other well stimulation treatments in the state, county-by-county.