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draft letter to Gem County Commissioners
for review/consideration June 2014

BOCC LETTERHEAD

(draft letter for BOCC review/consideration)

June 3, 2014

State of Idaho
Office of the Attorney General
700 W. Jefferson Street, Suite 210
P.O. Box 83720
Boise, Idaho 83720-0010

Re: Request for Legal Clarification – Idaho Statute 47-317

Dear Honorable Lawrence G. Wasden,

Since passage of HB464 by the Idaho Legislature and being identified as an Idaho county with potential for natural gas exploration activities, Gem County and many of our citizens have cumulatively invested hundreds of hours in the research and drafting of a Zoning Ordinance Amendment to regulate oil and gas extraction. In January 2014, we formed a 7-member committee comprised of Zoning Commission members, interested citizens and industry representatives to draft a local ordinance in compliance with Idaho Statute 47-317. Since that time, the committee has held five (5) meetings and will continue to meet at least monthly until a draft ordinance is completed and ready to present at public hearings.

One of the underlying legal questions that we elected officials and the oil and gas committee routinely face pertains to the relationship of the Local Land Use Planning Act (Title 67, Chapter 65) to HB464. The bill was unequivocal about the ability of industry to explore and extract resources through the State of Idaho’s permit process with limited local jurisdiction control. We understand that. However, there remains a question in our minds about the degree and scope of local zoning and other county regulation that can be applied through the administrative process granted under Section 47-317(10)(b).

Specifically, Section 47-317(9), Idaho Code, states the legislature’s intent is to “occupy the field of the regulation of oil and gas exploration and production with the limited exception of the exercise of planning and zoning authority granted cities and counties pursuant to chapter 65, title 67, Idaho Code.” Also, Section 47-317(10), Idaho Code, recognizes “the responsibility of local governments to protect the public health, safety and welfare.” Finally, Section 47-317(10)(b) notes that “. . . extraction may be subject to reasonable local ordinance provisions, not repugnant to law, which protect public health, public safety, public order or which prevent harm to public infrastructure or degradation of the value, use and enjoyment of private property.”

While our committee is using the model oil and gas ordinance distributed through the Idaho Association of Counties (which attempted to address and anticipate some of these issues in HB464), questions about the legal parameters continue to arise as they deal with public road impacts, noise controls, well setbacks and similar land use topics. In this light, we are requesting your office provide a legal opinion on the following:

1. Does HB464 alter or invalidate your January opinion that, "The OGCA does not ‘occupy the field’ of oil and gas regulation to the extent that preemption of all local land use planning ordinances is implied?” And if so, how is it altered?

2. Does OCGA & HB464 "protect public health and welfare" to the extent that LLUPA and counties are able provide to its citizens?

3. When county ordinance(s), as authorized by §67-6518, impose higher standards than are required by other statutes regarding the promotion of health, safety and general welfare to protect property rights and ensure the economy of the state is protected, etc, do the OGCA statutes take precedence?

4. Does HB464 and OGCA interfere and prevent counties from imposing higher standards to protect “the health, safety and general welfare of the people in the state of Idaho“?

Thank you in advance for your response. Please do not hesitate to contact any of us or Mr. Dick Linville, Prosecuting Attorney.

Sincerely,

Carlos Bilbao, Chair      Mark Rekow, Commissioner      Lan Smith, Commissioner

(submitted by Joe Morton)