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 recent letter sent to federal agencies and in comments to the DRBC, 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 NGI, Dec. 13, 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.

During the final day for public comment to proposed DRBC water amendments, which would affect some Marcellus Shale drilling, New Jersey Department of Environmental Protection (NJDEP) Commissioner Bob Martin said that for the first two years after the DRBC enacts hydrofracking regulations the commission should permit no more than 30 production well pads, and no more than a total of 300 production wells. NJDEP spokesman Larry Ragonese told NGI that the department had received estimates that, barring any restrictions, between 1,400 and 1,500 wells could be drilled in the basin within the first couple of years.

“We wanted to allow 15% to 20% of what might be there,” Ragonese said last Monday. “We thought that would give us a really good working number of wells to be able to get the data and really give us an indication of what could occur from the hydrofracking process. We wanted a good sample.”

Environmental groups supported the comments from Martin and the NJDEP, but they were critical that New Jersey did not insist on their changes being incorporated into the DRBC’s final rules governing gas drilling into Marcellus Shale play.

“The concern we have is that [NJDEP] did not say that this program should be put in place before the rules are adopted,” Jeff Tittel, director of the New Jersey Sierra Club, told NGI. “They said go ahead and adopt the rules and then amend them later. I think that’s backwards. I’m not sure if this was more about public relations than actual public policy.”

Last year the DRBC voted to impose a moratorium on new well pad permits in the 13,539-square-mile basin, and in December proposed amending regulations over wastewater, well pad siting and water sources for natural gas development (see NGI, March 7). The new rules being considered are expected to allow drilling to resume, but under more oversight.

No drilling related to the Marcellus Shale has been done or is expected in New Jersey; geologists believe the Marcellus formation bypasses the Garden State. But lawmakers have been moving forward with several pieces of legislation that would preemptively ban hydrofracking there altogether (see NGI, March 14). The NJDEP took that sentiment one step further when — while stating that as many as 10,000 wells could one day be drilled in the Pennsylvania and New York portions of the river basin — they asserted that “no drilling would occur in New Jersey.”

The Marcellus Shale Coalition (MSC) lodged its concerns with the DRBC earlier this month, claiming the commission was exceeding its authority and its proposed rules duplicate existing state laws (see NGI, April 18a).

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 NGI, 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 NGI, April 4). IOGA has urged the DEC to complete work on the SGEIS by July 1 (see NGI, April 18b).

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