Zaremba's Well

Zaremba's Well: The Jordan Valley At Risk

As this is written, it seems that the Department of Environmental Quality (DEQ) will abandon a more than twenty-year state policy and allow the Antrim Play to penetrate the Jordan Valley, the most virgin portion of the Mackinaw State Forest. Since 1975, the DNR has blocked any industrial development in the region, including oil and gas drilling.

The latest threat is from Walter Zaremba, an Elmira businessman, seeking permission to drill a well on the forty acres he leased from a private mineral owner in 1994. All adjacent lands and minerals are owned by the state.

The Michigan Land Use Institute and Friends of the Jordan River sought intervention (see story in this issue), and there seems to be a showdown developing between the DNR and the DEQ, a hopeful and, possibly, timely happening.

Early in December the Michigan Supervisor of Wells issued a decision on Zaremba's request for forced pooling. (The Supervisor is now Russell Harding, the DEQ Director; Governor Engler, in splitting the DNR, gave the Geological Survey Division and this authority to the DEQ.) This order by Harding grants an exception to allow a drilling unit of only forty acres, instead of the requisite eighty acres, established by a lawsuit settlement in which The Anglers participated. Moreover, the order stated, somewhat deviously, that there were no serious environmental consequences of this decision: environmental issues would be considered later in the permitting process.

The order also stated there is no expectation that the DNR would be forced to provide access to this drilling site across its protected lands in the Jordan River Valley. Thus the Supervisor avoided a direct confrontation with the DNR over the management authority of mineral rights held by and/or under DNR-managed state lands. Harding had already stated in an earlier order that the state cannot be an "owner" in the meaning of the law governing oil and gas in the state, a conclusion beyond belief. (I have learned over many years that a few artful and clever bureaucrats and executives, in government and industry, are very industrious in finding legal loopholes to justify their ambitions, but does the highest legal counsel for the state, the Attorney General, agree with Mr. Harding?)

Following this order, the DEQ posted a press release on Enviro-Mich, an environmental news forum sponsored by the Sierra Club, that confirmed the approval of a forty-acre unit and noted that compulsory pooling (with adjacent state holdings) was not required. Emphasizing that the ruling deals only with unit size designation, the release quoted Harding:

This is a sound decision that respects Michigan law, property rights and environmental integrity, but it in no way implies that a drilling permit will be issued. Any such application will be evaluated on its own merits. The DEQ will ensure that the public has ample opportunity to have its questions and comments heard.

The statement ignored the legal requirements for an eighty-acre spacing; it only suggested in this case that an exception can be made because unnecessary drilling and hence waste would be avoided since there would be but one well. It also stated the DNR has withdrawn its objection to a forty-acre spacing, and said "the DNR and Zaremba agreed that forming a forty-acre unit would be preferable." Moreover, no mention was made of environmental requirements.

The statement then said the DEQ will hear "public comments on potential applications for drilling permits within the Jordan Valley Management Area:"

Residents and organizations can express their views to the Oil and Gas Advisory Committee on Jan. 14. Public comment will be taken from 10:30 a.m. to 11:30 a.m. in the DEQ hearing room, third floor of the Knapp's Office Center, corner of Washington Avenue and Washtenaw Street, Lansing. The advisory committee is a panel of citizens and industry representatives which advises the DEQ on oil and gas matters. For information on committee meetings contact Gordon Lewis of the DEQ's Geological Survey Division at (517) 334-6959 or by E-mail at Lewisg @deq.state.mi.us. The DEQ Web site is located at http:// www.deq.state.mi.us.

Following this statement by the DEQ, Ms. Ann Woiwode of the Sierra Club posted a reply wherein she said this was a "good example of DEQ-speak," and suggested that those "concerned about this issue should make sure they are not misled as to the purpose or likely usefulness for public comment of the forum described in this press release."

Woiwode said that while a "strong implication comes through that this forum will provide some sort of meaningful public comment," it is "totally misleading." She cited several reasons, among which were: 1) there is no outstanding permit application in hand for Zaremba's Well; 2) the forum is not designed to deal with any specific permit, but only with "potential applications"; 3) this committee is not a body with authority to make any determinations on a permit and the only real decision maker in this issue is Harding; 4) that this, strangely but logically, "isn't even a public hearing"; and 5) that, simply, "it appears this is a false trail being set up to distract the concerned public about where best to concentrate their efforts."

She then justifiably concluded that, "while it is always worthwhile to use public forums to raise general concerns about an issue, anyone concerned about this issue would more fruitfully invest her/his time in trying to meet with Director Harding, seeking a hearing before Director Harding, getting others to write to, fax, or call him about this issue."

Zaremba's Well could be the first on a forty-acre unit since the successful lawsuit filed by Michigan Environmental Trust Limited (the lead attorney was Anglers' board member, Dick Daane) led to the eighty-acre minimum spacing requirement. The effects of this decision would be disastrous for other special management areas, such as the Pigeon River Country State Forest. In the Pigeon River, for example, there are fourteen isolated forty-acre private in-holdings that could use the exception to the eighty-acre spacing as a precedent. (It also would be disastrous for the Au Sable, the river that DNR biologists believe has been most severely damaged by the Antrim development, and for many other northern watersheds.)

We must protect the integrity of this special place by blocking Zaremba's Well and establish a rational precedent that affirms the people's right to protect their natural resources. The "takings" precedent must be mutated and lessened by forcefully opposing the payout of enormous sums of taxpayer money if the well is denied as it should be, as it must be. In a rational legal framework, "takings" should work both ways. Or am I being too naive? Or ignorant of constitutional law?

We can do this if environmental, fishing, and hunting groups form a united coalition against those who would despoil the land for private greed. The Anglers, a member of MERC, allied with the Michigan Land Use Institute and Friends of the Jordan, supports their initiative to protect the Jordan Valley. RWOL

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