by Kimberly Rivers
On Tuesday, Sept. 10, the Ventura County Board of Supervisors directed County Counsel to move forward with the formal ordinance amendment process to require modern environmental review on all new oil drilling in the county.
“We think the county has the legal authority to adopt new regulations dealing with antiquated oil permits,” said Leroy Smith, Ventura County Counsel, at Tuesday’s public hearing. “The current system is one where oil permits especially [approved] prior to 1966 do not have the specifics and deadlines . . . and certainly do not have the modern standards that would apply to the operation of the oil wells.”
Drilling has occurred in Ventura County since the 1860s but the first oil and gas permit wasn’t granted until 1947. Permits granted until the mid-1960s are referred to as antiquated Conditional Use Permits (CUPs). Unlike more modern permits, these antiquated versions were approved without any environmental review, and because the permits fail to limit the number of allowed oil wells, new drilling is approved through a perfunctory process.
“We are pleased that the county is proposing to change the law so that all new drilling activity will be subject to full environmental review,” said Marie Lakin, executive director with Climate First: Replacing Oil and Gas (CFROG), which has been working on this issue since 2014.
The board voted three to two to follow the recommendations of County Counsel. Supervisors Steve Bennett, John Zaragoza, Linda Parks and Bob Huber voted in support. Supervisor Kelly Long voted no.
“If the county follows through [with these changes], impacted companies and royalty owners will begin a lengthy process over the taking of vested rights,” said Michelle Newell, chair of the Ventura County Economic Development Association. Newell is also employed by AERA Energy, an oil company operating in Ventura, which is a joint venture of Shell and Exxon. This action, he said, “sets a bad precedent and opens up the county to litigation.”
During public comment, several speakers threatened legal action, mentioning the issue of vested rights.
Smith explained that County Counsel does not believe vested rights can reasonably be applied to the antiquated permits because, “We think someone who’s had 70 years to develop the oil wells has a fair chance to recover their reliance on that permit . . . most of these permits are not vested.”
He explained that antiquated permits are “basically one-liners,” giving “permission to develop [the] property for oil,” and lack any deadlines for that development. Smith said, “In the absence of a specific deadline,” the law uses the idea of a “reasonable time frame” to execute the rights that permit grants or vests with the permit holder.
Smith explained that the current process for approving new drilling on pre-1966 permits, relying solely on a zoning clearance, does not allow the county to conduct proper environmental review. “[A] Zoning clearance does not allow for any discretion,” said Smith.
A zoning clearance process is considered ministerial, in that if the applicant checks all the boxes and pays the fee, the county must approve it, no discretion allowed. Other ministerial actions include marriage licenses and backyard gazebos. The process does not allow for public notice, public hearing or environmental review.
A discretionary process allows the county to ask questions about whether the proposed project unduly impacts public health, safety and the environment. This permitting process requires public notice and a public hearing.
Modern oil and gas permits, post-1966, were granted with discretionary review initially and include a limit on how many wells can be drilled, as well as an expiration date for the permit itself. Permit holders must apply for renewal approximately every 30 to 35 years. That renewal gives the county and public an opportunity to review the entire permit.
“None of the projects underwent CEQA [California Environmental Quality Act] review,” stated Smith, in a Sept. 10 letter to the supervisors, referring to wells recently approved on pre-1966 permits through the ministerial zoning clearance process.
“Since 2014, more than 100 wells have been approved [in the county] under zoning clearances,” said Jeff Kuyper, executive director of Los Padres ForestWatch.
Right now, the county is processing two zoning clearance applications for two new wells in the Ojai Oil Field and one in Santa Paula on the South Mountain Field, all on “antiquated” pre-1966 permits. The Ventura Oil field, operated by AERA Energy and located along Ventura Avenue, is entirely governed by an antiquated permit.
Smith said the proposed ordinance changes will apply to any zoning clearances that are in process at the time of approval.
County Counsel was also directed to explore a potential moratorium or policy changes in the planning department to halt new zoning clearance approvals for oil wells to avoid an influx of applications trying to get in before the rule changes take effect.
The ordinance changes are subject to a specific process that will include at least two public hearings before the Planning Commission and Board of Supervisors.
Disclosure: Kimberly Rivers was executive director of CFROG from May 2016 to January 2019.