MORGANTOWN, W.Va. -- A judge has thrown out a Pennsylvania gas company's lawsuit against the Doddridge County Commission, saying he has no jurisdiction to hear the fight over a flood plain ordinance that he's determined is partially unconstitutional.
Pittsburgh-based EQT sued the north-central West Virginia county in May for revoking a flood plain permit after the company had spent $300,000 on the permitting process. The county acted after its flood plain manager realized homes and livestock would be vulnerable if 20,000 cubic yards of earth were moved in to build a well pad.
EQT asked Doddridge Circuit Judge Timothy Sweeney to issue an injunction on the permit revocation so it could proceed with plans for 12 wells. Sweeney denied that and EQT's motion for summary judgment in a ruling filed with the circuit clerk earlier this week.
Sweeney also declared the county's ordinance "constitutionally defective" under the West Virginia Constitution because it fails to give nearby property and mineral rights owners the right to due process -- in this case, notification of proposed development and the right to be heard.
Without that, Sweeney ruled, EQT is not entitled to an injunction. And regardless of whether EQT complied with the ordinance, Sweeney wrote, "it has no clear right to the permit."
The ordinance does, however, support "a legitimate public interest and is an appropriate exercise of governmental authority and power," the judge said.
EQT spokeswoman Linda Robertson said that, given the wording of the ruling, "it's possible we wouldn't need to obtain a flood plain permit."
"However, we're still looking at the judge's order, what options we may have and what other obstacles may exist before we decide on anything," she said. "The Doddridge County Commission is already at work on a new ordinance, so we're likely to want to see that, as well, before moving forward."
None of the county commissioners returned messages Thursday.
EQT had argued that the county and the West Virginia Department of Environmental Protection granted permits, so the flood plain manager had no authority to revoke them. However, Joye Huff, a landowner who was allowed to intervene in the lawsuit, said that when the Federal Emergency Management Agency pointed out the potential problems, the manager had no choice but to withdraw the permit.
David McMahon of the West Virginia Surface Owners Rights Organization represented Huff at the start of the litigation. He said EQT's engineering consultant predicted that the earth-moving plans would cause flood waters to rise, but by less than 1 foot.
McMahon's group hired other engineers, who concluded that it would raise the waters more than 1 foot.
Either way, McMahon said, the property owners should have had the chance to make that argument to the County Commission before the permit was issued.
Huff said the dispute over how her 10-acre meadow would be affected began four years ago, when EQT first proposed two wells. Over time, she said, that grew to four, then eight, then 12, ultimately covering seven of her acres.
"We have no concern with them drilling on our property," she said. "We understand they have the lease. That's not the issue."
Rather, she and about a dozen other farm owners are concerned about future flooding that could put lives and property at risk.
"We did try to constantly discuss for the last four years our concerns," she said. "We just never could get them to come to the table."
Huff's farm has been in her family since 1863, she said, and she won't let it be destroyed.
"I have always felt like the big corporations forget about the human part and they don't try to work with the community and the residents," she said. "They just want to drill and get their product out and leave. And we're going to be the ones left behind with all the side effects."