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DEP Won't Change Water Notification Policies After Latest Act 13 Ruling

The Pennsylvania Department of Environmental Protection (DEP) said late Thursday that the state Supreme Court's ruling invalidating parts of Act 13 will not change its policies and practices to protect drinking water and ensure that oil and gas-related spills are remediated.

In yet another ruling on the state's oil and gas law, the high court struck down a provision that required regulators to notify only public water authorities and not private water well owners in the event of a hazardous spill. DEP said it was still reviewing the 88-page opinion, which also found unconstitutional parts of the law that prevented doctors from sharing information with their patients about chemical drilling additives; gave eminent domain privileges to natural gas storage operators and allowed the state Public Utility Commission to withhold impact fees from communities if local ordinances didn’t comply with state drilling laws (see Shale DailySept. 29).

In striking down the public water notification requirement, DEP technically has no obligation under Act 13 to notify public water suppliers or any affected water users. But the agency said it would continue to provide notice if it believes there may be a potential impact to water supplies or users. Its obligation comes under a "variety of statutes and regulations," the agency said in a statement.

The court stayed the application of its ruling, however, for six months to allow the legislature to address the issue and possibly rewrite that portion of the law to include notification for both public and private water users.

"Notably, the opinion does not require DEP to notify private water users nor does it direct the legislature to create a statutory obligation to notify private water users," DEP said. "Rather, the opinion leaves the state's direction up to the legislature as to any notification requirement."

Whether the legislature plans to act on the court's stipulation is unclear. Legislative aides could not be reached to comment Friday. But a spokesman for the Republican House caucus told news media Thursday that the state doesn't regulate private water wells, which would make it difficult for the DEP to provide notification. The agency, however, said it already notifies private water well users in the event of a spill or leak. Typically, DEP conducts a field survey to try and find all private wells in the area affected by a spill or leak. It would then notify the owners.

Still, only six days remain on the state's legislative calendar when both the House and Senate will be in session. Given what's already on the agenda, the spokesman said it's unlikely that lawmakers will take action on the Act 13 related issues raised by the high court.

Seven townships, a doctor and an environmental organization challenged the law's constitutionality four years ago. A year later, in Robinson Township et al v. Commonwealth of Pennsylvania, the Supreme Court struck down crucial provisions in a landmark ruling that returned to municipalities their right to change or enforce local zoning laws (see Shale DailyDec. 20, 2013). The court remanded parts of that case to the state Commonwealth Court, which ruled in favor of the industry in 2014 on storage eminent domain, spill reporting and the medical gag order. The plaintiffs appealed to the high court and won Wednesday.

DEP said it was also still evaluating the medical disclosure portions of the opinion. Act 13 requires operators to provide information to DEP about every chemical that is used for fracturing in well completion reports.

While the industry and legal experts seemed to greet the decision with indifference, indicating that it won't have a significant impact on near-term shale development, others said the high court's latest opinion could pose longer-term challenges.

Rhetoric included in the opinion "repeatedly emphasized a municipality's right to enact zoning ordinances that preclude oil and gas development in various zoning districts, to establish setbacks in excess of those required by Act 13 and, possibly, to limit noise and hours of operation," wrote law firm Vorys, Sater, Seymour and Pease LLP on its energy law blog.

The language is important, the firm said, because the court will hear another case on appeal to determine whether shale development is an industrial activity that should be limited to industrial zoning districts. Most shale development, legal experts have said, takes place in residential and agricultural zoning districts (see Shale DailyDec. 1, 2014).

Three new justices on the court that joined the majority opinion, Vorys added, could also mean a court more willing to enable municipalities to limit natural gas development with local ordinances.

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