Federal Judge Upholds Water Ban in Allegheny National Forest

In a lawsuit to allow active drilling in the Allegheny National Forest (ANF) in Pennsylvania, a federal judge ruled last Friday that the U.S. Forest Service does not have to end a ban they imposed on drillers who want to use surface water from the ANF for hydraulic fracturing. Drillers have argued that the Forest Service’s actions in banning water withdrawals from the ANF, and in delaying signoff on new drilling permits, have in essence stopped drilling in the ANF—a de facto ban. For a background on the long-running dispute, see this MDN story from last November.

In Friday’s ruling, U.S. District Judge Sean McLaughlin rejected drillers’ claims to strike down the water ban and reduce application processing times:

Specifically, the judge said his 2009 preliminary injunction ordering the Forest Service to resume processing drilling proposals in the forest and an earlier 1980 federal court decision confirmed only that, under Pennsylvania law, the federal government and other surface property owners can`t block mineral owners’ access to the minerals. The decisions don’t address water rights.

The Forest Service stopped processing notices, or proposals, from drilling companies as part of a 2009 settlement with environmental groups requiring it to conduct an environmental impact study before allowing new drilling in the forest.

Later that year, McLaughlin issued a preliminary injunction overturning that part of the settlement. The industry in July asked the judge to find the Forest Service in contempt of his injunction for two reasons.

The industry argued that the agency’s water ban violated state common law giving mineral owners reasonable access to surrounding water. The industry also argued the agency was violating the injunction by taking longer than 60 days to process the drilling proposals.

In addition to rejecting the water ban argument, the judge also rejected the processing time argument.*

*Pittsburgh Tribune-Review (Mar 26, 2012) – Erie federal judge rejects oil and gas industry motion