Bad Gas

In the state of Texas, we feel the impacts of the oil and gas industry deeply and routinely. We have more miles of oil and gas pipeline than any other state, some of the biggest energy companies (including Energy Transfer partners, the company that build DAPL) are headquartered here, and 2018 saw this state producing more oil than any other. The business of Texas is energy; subsequently, the energy industry is not just a major economic player, but also a major user of raw land, gobbling up swaths of previously untouched farmland for exploratory drilling, storage, or transmission.

It is now widely known that mining, drilling, and in particular fracking can cause earthquakes, compromise our water quality, cause dangerous spills, and harm the health of those forced to live nearby. In addition to the environmental affects, the oil and gas industry’s role as a land developer has long term consequences for land tenure, land use, and land infrastructure. Allowing oil, gas, and mineral extraction to be the FIRST uses in a landscape that previously had no development at all sets up that space to be…well, broken, in a number of ways.

I say FIRST use because, in my current, humble capacity as an observer of aerials and purveyor of plats, I’ve seen a awful lot of stuff change over from one land use to another. The ease and fluidity with which this happens depends a great deal on how the previous users have made their bed, so to speak. It’s probably true that all development that is not infill is probably a bad idea and is going to kill us and greenfield development (development on previously undisturbed land) is often a net negative for existing area ecologies. HOW bad greenfield development is long-term has a lot to do with who the first tenants are. Enter the oil and gas companies, who definitely do not follow the eagle scouts rule of leaving the campsite better than they found it. 

Bad Gas in 3 Acts

Act 1: The Shutdown

We’ve written elsewhere about how the energy industry in the heady days of early fracking, awash in incentives, deregulated for days, and getting high on it’s own supply, made aggressive land grabs in pursuit of new wells and market share. In Fort Worth, their presence is widely felt. In the mid 2000s, the frackers came hard for greenfield sites both in the city limits and on its periphery in the county. 

The result is that there’s currently 110,000 active well heads, some of which are located outside of city limits in the county and in Fort Worth’s extra-territorial jurisdiction (ETJ). In the county, there be dragons, no zoning and no building permits, and few land use controls generally. This means that it is even easier for energy speculators can buy up, use, and discard land in a variety of creative configurations (we’ll get to lot geometry later) and set up adjacent to any old use they can think of, including someone’s homestead.  (although, to be fair, the county fire code applies in this area, and that typically enforces some kind of setback from other users). In the city, ‘habitable buildings” (read: anything someone might be spending a lot of time in–i.e. , all uses pretty much except warehouses) are required to be a minimum of 200 feet away from gas wells. If the use is a protected use (a residence, religious institution, hospital building or public park ) it must be a minimum of 600 feet away from the gas well.  

Anyway, the effect of these 110,000 active gas wells (if you imagine the 200 and 600 ft buffers generated around them) is that they shut down the capacity to use the land in the buffer area in any other meaningful way while the well is operating, whether that land is owned by the gas company or not. Although old wells can be capped when they are no longer in use (reducing the buffer to 5 feet) this requires adjacent owners to cooperate with the gas companies, who quiet frankly don’t give a shit and are not about to safely close up shop just so Donnie McFly can build a residential subdivision next door. And if Donnie McFly, master developer, has unintentionally acquired a piece of property with a gas well easement on it, what he’ll typically do (I’ve noticed) is consign the well to a non-developable lot–where he’ll also put his stormwater detention. Smart. Multipurpose! Definitely not setting up the entire area for catastrophe, at all.

Act 2: Geometry Lawyer

Generally speaking, there are few municipalities that actually permit gas wells within city limits (lucky us) and for good reason–the long term effects of fracking on land are not fully understood, and even established uses, like natural gas, come with some risks. That’s not the case in Fort Worth, where you can see a veritable cosmos of fracking sites dotting the high prairie. With their nubbissh, sandy-white pad-sites trailed by a dusty driveway of a tail, they look like geographical spermatozoa. 

 

The gas well companies are not keen to buy any more land than they have to to serve the needs of their project, and they are just as happy to get rid of land that’s no longer producing, or no longer needed for their operations. That’s all well and good when they own huge tracts of 50+ acres, but when they start selling off small pieces here and there to enterprising individuals, the troubles begin.

You see, there is something called the Subdivision Ordinance that most cities and counties have in place. It governs the geometry, size, and orientation of sellable lots. The purpose of the subdivision ordinance is basically to ensure 1. That people don’t sell off parcels in shapes that are so crazy they can’t be used for anything, and 2. That any time land subdivision happens, the infrastructure needed to serve the proposed development is being provided. While people often sell and trade property like Pokemon cards (particularly in Texas) if the property they sell off doesn’t have access to a street, is too small to permit a well or septic, or just generally doesn’t comply with one of the Subdivision Ordinances design requirements, there is a strong likelihood the municipality cannot guarantee that any development on that location (residential, commercial, etc) will be adequately served for basic utilities or for public safety functions, like fire protection.

You can probably guess what comes next. While Texas state law says property under 5 acres must be platted (ie, reviewed by city staff for compliance with the Subdivision Ordinance) and that all parcels must have direct paved access to a dedicated road, oil and gas companies will pretty frequently say ‘screw it’ and chunk off parcels in whatever batty configuration meets their short term needs.

What are some ways bad lot geometry can go horribly wrong? Landlocked parcels are one of my favorite offenders. A landlocked piece of property, with no access to a public road, will have to be accessed through another owner’s property–and that’s a big no no for cities. If the only way the fire department can get to your farmhouse is on a private dirt path that you share with your neighbor, but he’s currently mad at you and has barricaded it…then ya house is just going to burn down.

The worst part about these ‘improper conveyances’ is that the gas company’s land holdings, often advertised at basement bargain prices because of what-all is wrong with them, attract buyers with few resources, who then acquire these properties for something modest (a home, a small business) and then can’t get a permit for what they want to do because the parcel isn’t served with any kind of services (LIKE A ROAD) whatsoever.

Which brings me to my next bash….

Act 3: Rumplestiltskin’s Bargain

As you can imagine, the imbalance between the gas company as ‘land seller’ and the measly fortunes a of small individual buyers can set a subdivision up for a panoply of problems, both infrastructure and law related. As time goes on and more people get involved, the problems tend to telescope and become even worse. The best example of this is a case off of, let’s call it, “Hertzfeld Road” (for purposes of anonymity). The owner of this tract (the area identified in blue in the map below) did not purchase it from the oil and gas companies, but appears to have signed some really compromising agreements with them. You see, oil and gas companies will sometimes purchase an easement, as well as mineral rights to a property, while leaving the original owner intact. That’s all well and good if they are paying, and if you know what you are signing, which some folks do not.

So Hertfeld gave the oil and gas companies easements to drill, and in turn, the oil and gas companies built a heavy duty road through his site and paid him. Hertfeld is naturally pumped, and starts selling land in smaller pieces off of this road. The three yellow outlines within the blue are his first 3 buyers–the parcel in red in the fourth, and they keep coming in, wanting the city to certify that their property is developable.

Unfortunately, as all these folks soon discovered, the nice, recently constructed road on Hertzfeld’s property belongs to the gas company. As it turns out, the gas company doesn’t want anyone driving on it, and according to what Hertzfeld has signed, they are completely within their rights to take this position. You see, the gas company purchased the easement as a private easement, and in order for Hertfeld to add all his new property owners, he would have to buy it back from the gas company, who won’t sell it to him. So the small family that purchased land from him to buy a house, the 65 year old woman who runs her own vehicle repair business who bought a parcel for her warehouse, and several other regular (albeit, property-owning) people involved in this land deal are just…screwed.

And that, folks, is my final point. As if the legacy of environmental damage wasn’t enough, the legacy of property development and subdivision by oil and gas companies leaves a landscape permanently impacted by their presence, and perpetually configured towards their ends. Property ownership is, after all, a ‘bundle of rights’ and any time a large corporation is involved, you can bet that they will preserve for their own ends those rights that continue to serve them. One of the worst things I’ve seen lately? Crafty land sellers can retain rights to groundwater or water collection on parcels they sell off. While this might not matter much in the case cited above (which involved a city and a large-land holding entity) it’s important to think about how adversely this might effect vulnerable people with limited resources in a water-hungry state. So stay safe out there in the property deed game–away from bad deals and bad gas.