Sioux County landowners win appeal, District court judge rules against Nebraska Oil and Gas Commission in fracking wastewater case by Maunette Loeks, June 29, 2016, Star Herald
A Nebraska Oil and Gas Conservation Commission’s decision to grant a Colorado company permission to use an abandoned oil well in Sioux County as a wastewater disposal site has been reversed.
In 2015, the NOGCC granted Broomfield Colorado-based Terex Energy Corp. permission to use the well, located 13 miles north of Mitchell, to dispose of waste-water from hydraulic fracturing, more commonly known as “fracking.” Terex sought to convert the well, located in the Spotted Creek Field in Sioux County, and submitted an application in November 2014 and the commission granted the application in March 2015. Owners of the Hughson Flying “A” Ranch and Jane A. Grove appealed the commission’s decision, seeking a judicial review.
The two landowners were among five people who protested the application. In their appeal, the alleging that the NOGCC didn’t have jurisdiction to approve the disposal permits for wastewater produced in Colorado and Wyoming. The appeal also states that the commission didn’t take into consideration a list of concerns.
In the ruling by Judge Derek Weimer, issued on Tuesday, Weimer said that the commission had overreached its authority. [Common occurrence for energy regulators?]
The law permits the commission to regulate the disposal of oil wasts, including salt water. However, Terex’s application is to dispose of water from outside the state. The legislative intent of the Nebraska statute is that the commission “can only regulate the oil and gas production in the State of Nebraska,” he said.
“Objections have been raised to this application. One of those objections is that this application will invariably permit the transport of waste water from other states to be transported to this State for disposal. The Court finds that objection to have merit and support in the record.”
Perhaps the Legislature intends to grant the commission the authority to permit and regulate the transportation of waste water from other states, however, Weimer said, that authority is not set out in statute.
“… If the state intended for the Commission to have the authority to permit the creation of a commercial disposal well intended to receive and dispose of wastewater from this and any other State, than it should so specify,” he said.
“Silence is not tacit approval.”
Weimer ruled that the commission acted in error and reversed its decision to grant the application, which means that the application is denied. [Emphasis added]