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New York AG Demands Federal Review of DRBC Rules

New York Attorney General Eric Schneiderman plans to sue the federal government if it does not commit within 30 days to conduct a full environmental review of regulations proposed by the Delaware River Basin Commission (DRBC) that would allow natural gas development projects -- with conditions -- in affected areas of the Marcellus Shale.

Schneiderman wants federal regulators to evaluate the potential environmental impacts that could come from hydraulic fracturing (fracking) within the basin, which includes New York City and portions of eight counties in the state. Approximately 58% of the land area of New York City's West-of-Hudson watershed is within the basin, he said.

"Both the law and common sense dictate that the federal government must fully assess the impact of its actions before opening the door to gas fracking in New York. New Yorkers are correctly concerned about fracking's potential dangers to their environment, health and communities, and I will use the full authority of my office, including aggressive legal action, to ensure the federal government is forced to address those concerns," Schneiderman said.

In a letter sent to federal agencies Monday and in comments to the DRBC last week, Schneiderman demanded that the DRBC comply with its National Environmental Policy Act (NEPA) obligations by suspending its consideration of the proposed regulations and undertaking a full review of public health and safety risks posed by natural gas development in the basin. The review should include "an evaluation of the cumulative impacts of widespread fracking within the basin as well as the alternative of not authorizing natural gas development within the portion of the basin that includes New York City's West-of-Hudson watershed," Schneiderman said.

But Schneiderman's announcement demonstrated "a fundamental misunderstanding" of DRBC's responsibilities, according to the Independent Oil and Gas Association of New York (IOGA). NEPA applies only to federal agencies and federal actions and DRBC is not a federal agency, IOGA said.

"It appears to us that the commission is indeed working to do what it always has: to prevent water pollution in the Delaware River Basin. There is no reason to believe that the DRBC might somehow do other than what it always has done -- protect water quality and water supply and conserve the resources of the basin for the public's recreation and enjoyment."

The DRBC has federal regulatory authority to protect the watershed of the basin, which affects portions of Delaware, Pennsylvania, New Jersey and New York. Commission members include the governors of the four basin states and the commander of the U.S. Army Corps of Engineers North Atlantic Division, who serves as the federal representative.

Schneiderman's comments "appear to run counter to New York's duty as a member of the DRBC," IOGA said.

The DRBC's proposed rulemaking would allow water within the basin to be used for gas development if the water is "within the physical boundaries" of a DRBC-approved natural gas development plan (see Shale Daily, Dec. 10, 2010). Developers also would be allowed to reuse flowback and production waters, treated wastewater and mine drainage waters for natural gas development "under specified conditions." The rulemaking would streamline the process to obtain permits for gas development projects "that demonstrate that they satisfy certain criteria." Existing procedures now take six to nine months; the streamlined permit proposal could allow projects to get under way within 30 days.

A series of public hearings and an extended period for public comment on the DRBC's draft water quality amendments drew to a close Friday (see Shale Daily, April 18). Environmental advocates have urged the commissioners to complete a cumulative environmental impact study on the basin before proceeding with amendments to the water rules.

In July 2008 then-Gov. David Paterson directed New York's Department of Environmental Conservation (DEC) to prepare a supplemental generic environmental impact statement (SGEIS) on hydraulic fracturing, which effectively placed a moratorium on drilling horizontal wells in the New York portion of the Marcellus Shale (see Daily GPI, July 28, 2008). Work on the SGEIS is expected to be completed later this year and will be followed by a public comment period (see Shale Daily, April 1). IOGA has urged the DEC to complete work on the SGEIS by July 1 (see Shale Daily, April 13).

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