New York’s DEC Releases Summary of New Drilling Regulations, But Not the Actual Document

A month ago, New York Gov. Andrew Cuomo told Joe Martens, Cuomo’s new Commissioner of the Department of Environmental Conservation (DEC), to release the years-in-the-making new regulations for drilling in the Marcellus Shale in New York State by July 1. Today is July 1 and the 900+ page drilling regulations document—known as the draft Supplemental Generic Environmental Impact Statement, or SGEIS—is supposedly being released to Cuomo only, with a public release of the document set for July 8, one week from today. Which means the SGEIS is being released next week and not today.

However, Joe Martens and the DEC issued a press release yesterday (see full release embedded below) outlining the major changes and provisions that will be in the SGEIS when it’s finally released to the public. The fact that the moratorium on hydraulic fracturing will be lifted under the plan has environmental extremists in a fit. The fact that the new SGEIS will ban fracking in 15 percent of the state’s Marcellus Shale region will not sit well with landowners in those areas. So there’s something for everyone to not like. However, on the whole, it seems as if the new rules will get the job done and landowners will be thrilled that drilling will finally begin in New York State.

Here are the major changes in the 2011 v. the 2009 draft SGEIS, according to the DEC press release:

• High-volume fracturing would be prohibited in the New York City and Syracuse watersheds, including a buffer zone;
• Drilling would be prohibited within primary aquifers and within 500 feet of their boundaries;
• Surface drilling would be prohibited on state-owned land including parks, forest areas and wildlife management areas;
• High-volume fracturing will be permitted on privately held lands under rigorous and effective controls; and
• DEC will issue regulations to codify these recommendations into state law.

Banning fracking in the New York City and Syracuse watersheds puts about 15 percent of the available Marcellus Shale out of bounds for drilling. Most would say that’s a common sense precaution, and perhaps the only way to allow drilling given New York City’s fevered opposition. The truth is, only one company (Chesapeake) had any leases in the NYC watershed area and they have already stated they would voluntarily not drill there. However, the landowners in the prohibition areas will not be happy and some are likely to litigate.

Although the NYC and Syracuse watershed areas are off limits, notably, the Delaware River Basin in not included in the prohibition. Of course that area comes under the extra jurisdiction of the Delaware River Basin Commission which so far has not allowed any drilling in the areas it oversees in Pennsylvania.

Other notable provisions in the forthcoming SGEIS include:

• No wells within 500 feet of a private water well or domestic use spring;
• No wells within 2000 feet of a public drinking water well or reservoir—at least for three years to give DEC time to study it more;
• A third cemented well casing will be required for most wells to prevent methane migration;
• No open fracking fluid wastewater pits—only watertight tanks with secondary containment;
• Strict rules on water withdrawals from area waterways;
• Must have a DEC-approved plan for disposing of fracking wastewater;
• Local governments must be notified of new wells;
• Local governments can object to a well based on zoning and land use and it will trigger a DEC review (slowing down or maybe stopping an approval);
• Drillers must fully disclose—to the DEC—all of the chemicals it uses in fracking;
• Strict air pollution controls;
• Extra protections for private forests of 150 acres or more, and private grasslands of 30 acres or more.

When will drilling begin?

As MDN has previously predicted, 2012 will probably be the year we see the first wells drilled in New York—provided energy companies actually want to drill in the state with these hefty regulations (not a foregone conclusion). Why 2012? The DEC has stated that once the SGEIS is issued, there will be a 60-day public comment period starting in August. So August and September will be set aside for comments. Then, the DEC will need to review all of those comments and make a final recommendation to Gov. Cuomo that he will approve. So give it another 60 days for review and final sign-off. That’s October and November. About that time requests for permits to drill should start to roll in and the DEC will begin considering the applications, starting in December, after they get set up. Figure January 2012 before approvals start to roll out for new drilling—and then the drillers have to get equipment in place, etc.

The bottom line for landowners

New York landowners can be thankful that drilling will finally begin. A sigh of relief! And citizens throughout the state can rest assured that New York will have the strictest environmental protections for drilling in the world. However, before euphoria sets in, the provisions the DEC is proposing that allow local governments to challenge wells within their borders is troubling. As landowner groups in New York have been warning for some time, the fight is about to “go local.” And, as MDN has pointed out before, independent drillers at the large trade shows in Houston don’t even talk about New York—it’s not (yet anyway) on their radar. Will they come and drill? Yes. But it’s not a land rush mentality. It’s going to take time, and some early good results, before interest will pick up in drilling in New York.

There is still a long road ahead, but at least New York’s landowners finally have a fighting chance. Hats off to Gov. Cuomo.