Environmental advocates in the region worry that the State Building Commission's approval of the University of Tennessee's request to seek natural gas drilling bids on UT property sets a bad precedent for publicly owned land.
If the UT school of forestry can shop hydraulic drilling, known as fracking, bids for its Cumberland Forest, perhaps the Tennessee Department of Environment and Conservation could seek drillers for areas of Fall Creek Falls or Cumberland Trail State Park.
Or maybe the Tennessee Wildlife Resources Agency could seek profits from wells on Aetna Mountain's wildlife management area.
"To our knowledge, this will be the first time state land mineral rights have been leased, so, yeah, I think it probably does set a precedent, and that's the reason we're so concerned about it," said Anne Davis, an attorney with the Southern Environmental Law Center.
A review of UT records leading up to the state's fracking decision last month shows the question of fracking public land in Tennessee is not new.
As far as back as 2002, when UT first shopped the idea of seeking oil and gas drilling bids on its property to the executive subcommittee of the State Building Commission, there was interest among other state agencies with custody of big bodies of land in East Tennessee where the underground Chattanooga shale deposits may hide today's new gold -- natural gas.
One day after the university's first pitch before the subcommittee on Oct. 22, 2002, UT's Alvin Payne, assistant vice president of UT office of capital projects, wrote a memo to report the results of the meeting to Jack Britt, vice president of UT Institute of Agriculture:
"There was extensive interest in this area by multiple state agencies such as the Department of Environment and Conservation, Tennessee Wildlife Resources Agency and the Department of Correction, etc. All of the agencies were supportive of our initiative and would like to potentially do something similar to that which we propose."
The memos and dozens of other documents and emails were obtained by the Southern Environmental Law Center using Freedom of Information Act requests. SCLC shared them with the newspaper.
Eighteen months after the UT debriefing, UT's president emeritus Joe Johnson wrote a similar memo to Britt and others after meeting with then-Tennessee Commissioner of Finance Dave Goetz to talk about UT's proposed oil and gas leases on UT land and the need to move forward on a policy position by the State Building Commission and/or the state administration:
"Dave told me TWRA, Corrections and other agencies are urging action. He promised to revisit," Johnson wrote.
At the request of Goetz, Payne in the fall of 2005 wrote to then-TDEC Commissioner James Fyke, stressing that if the proposal was successful, it would provide additional resources for educational and research programs at the UT Forestry Research and Education Center.
Fyke responded that TDEC "has received several inquiries as to the availability of leasing state-owned minerals." But he added that "the responsibility for protecting and preserving the state's natural and cultural resources presents a direct conflict with the development of the state's natural resources" and TDEC had always "been reluctant to diminish the value of state-owned properties. Therefore no method or process to review, approve, or deny has been established and past policy has generally been to deny any applications to lease."
But Fyke added that with proper oversight and enforcement, oil and gas development in the UT Cumberland Forest "is a viable option."
This week state agencies were careful with their responses to questions about their fracking intentions on public land.
Corrections spokeswoman Dorinda Carter was the most forthright, generally.
"We are not opposed to the [gas drilling] notion, but are not pursuing any leases currently nor have we been approached by any company to do so. There are numerous security and operational questions that would need to addressed prior to entering into an agreement like this," she said.
But she did not respond to questions about intentions for the land at recently closed Taft Youth Detention Center in Bledsoe County.
Meg Lockhart, spokeswoman for the Tennessee Department of Environment and Conservation said neither she nor Jonathon Burr in TDEC's mining section have heard of anyone suggesting the state drill on its own property for state gain.
But TDEC has worked with UT and drillers on UT's draft "research plan" and took it to the governor's office.
In a March 18, 2012, email exchange between Bryan Kaegi, who represents Consol Energy, and Larry Arrington, chancellor of UT's Institute of Agriculture, Arrington states: "Our strategy (and they agreed) was to have TDEC help push for approvals. ..."
In another email exchange between the two on Aug. 20, 2012, Kaegi tells Arrington: "I have spoken with Administration and TDEC and both have said ball is in UT hands."
Less that two months later, UT officials met with Jonathan Burr and Paul Schmierbach of TDEC. In UT debriefing notes, Schmierbach offered the following comments:
"Be prepared for the worst from the environmental community -- but their actions will not sway the Governor's office resolve/support."
He advised the group against calling their request for proposal a research project "since it really entails an oil and gas lease," according to the UT notes.
Schmierbach retired at the end of 2012, and Burr assumed management of the oil and gas mining program.
On Friday, Lochhart said it is normal for TDEC to work with groups on proposals that impact the environment.
"This was a technical assistance meeting that UT requested, to ask TDEC about rules, permits, procedures and the potential to do this type of research," she said.
But she said paraphrases of Schmierbach saying " 'but their actions will not sway the Governor's office resolve/support' is not what Jonathon Burr recalled at all -- perhaps it represents the UT notetaker's personal shorthand or impression."
Tennessee Wildlife Resources Agency officials did not return several calls and emails seeking comment about their reported interest in seeking drilling proposals.
TDEC's Lockhart said some gas wells already exist at Frozen Head State Park and the Royal Blue Wildlife Management Area. TDEC regulates those wells.
"These wells were 'inherited' through property acquisitions or conveyances," Lockhart said. "The state has not leased any mineral rights on TWRA or state parks lands to our knowledge. The TWRA land of concern is surface area taken over by the state with previous wells already located on the property and with mineral rights owned by another entity leased out to other oil and gas companies."
Sharon Curtis-Flair, spokeswoman for the Tennessee Attorney General's Office, said: "This office will continue to take seriously our duty to enforce environmental laws that apply -- and to protect the environment -- whether public or private lands."
Renee Hoyos, executive director of the Tennessee Clean Water Network, opposes the leasing and mining of public lands -- especially parks and wildlife areas.
"The truth is this public land is for everybody, but when you get heavy equipment up there, it ceases to be for everybody and it becomes the domain of oil and gas corporations."
The question of public land -- and potential "public" profit that might benefit college agriculture programs, or park projects, or tax and rate offsets -- doesn't stop with state governments.
TVA's new CEO, Bill Johnson, said recently he had not thought of seeking gas drilling leases on TVA land, but it could be something the federal, ratepayer-funded Tennessee Valley Authority should investigate.
The U.S. Interior Department has for at least a year been working on proposed rules to regulate oil and gas drilling on federal public lands.
In January, the department announced it was delaying planned rules floated last May to take new comments on "improvements" intended to "maximize flexibility" and "facilitate coordination with state practices" and ensure that drillers on public lands implement "best practices," according to Interior spokesman Blake Androff.
The American Petroleum Institute, a powerful lobbying group that had attacked the proposed federal rules, praised the decision to pull back the earlier plan.
But generally, states don't have strong rules.
Tennessee's new fracking rules -- which environmental advocates say are weaker than the American Petroleum Institute's recommended best practices -- had spurred controversy even before the UT lease bid was approved.
The state's new fracking rules were the last act on Sept. 20 of the state's oil and gas board just as Gov. Bill Haslam ordered the streamlining of regulatory divisions in the Department of Environment and Conservation. That streamlining on Oct. 1 merged the oil and gas board with the water quality board, but the new rules were passed without the input of experts in the water field. The new merged board will regulate fracking in the state.
Opponents of fracking say the practice has potential to harm water quality. Environmental groups have challenged the new rules, which don't require drillers to test neighboring water wells for pollution or notify neighbors unless drillers pump in more than 200,000 gallons of water and fracking fluid into the shale to loosen natural gas, Hoyos said.
Regulators have acknowledged that fracking most wells in Tennessee takes only about 175,000 gallons of water, she said.
The fracking fluid is considered proprietary and its contents are not disclosed, though it can contain acids, chloride, polyacrylamide, ethylene glycol, sodium/potassium carbonate, glutaraldehyde, guar gum, citric acid and isopropanol, according to some gas websites and the U.S. Environmental Protection Agency.
There's also a question about the shale in East Tennessee -- known as Chattanooga shale -- where fracking would be likely to yield natural gas.
Chattanooga shale forms dangerous radon when exposed on a roadside or in a basement.
In New York, environmental advocates say waste fracking fluid contained levels of radioactive radium (related to radon) and other elements 100 to 1,000 times higher than federal drinking water standards.
TDEC's Lockhart said any attempt by any agency to lease mineral access on state lands would have to go through the State Building Commission, just as the UT request for the Cumberland Forest area.
Lockhart also said that if UT pursues its plan to seek drilling lease bids, any contractor still would need permits from the State Building Commission and TDEC.
Contact staff writer Pam Sohn at psohn@timesfree press.com or 423-757-6346.