New York Dept. of Environmental Conservation's Rush to Fracking Continues with Release of Draft Regulations

This week, the New York State Department of Environmental Conservation ("DEC") released draft regulations for industrial gas drilling in the Marcellus Shale by means of high-volume hydraulic fracturing, or "fracking." These come on the heels of DEC's Supplemental Generic Environmental Impact Statement ("SGEIS") on fracking released earlier this month.

A core principle of the state's environmental review statute is for environmental reviews to inform draft regulations. DEC fully acknowledged this in its July 1, 2011 preliminary version of the SGEIS, in which it indicated that it would release regulations after the SGEIS process is complete because it would then "be in a position to rationally determine what additional measures or procedures should become fixed principles that would supplement and improve the Department's existing regulatory framework." This statement is conspicuously absent in the September 1, 2011 version of the SGEIS, in which DEC announced that it was taking the irrational approach of issuing regulations simultaneously with the SGEIS. By issuing regulations at the same time as the SGEIS, DEC is depriving the public of the right to have their input on the mitigation measures suggested in the SGEIS fully considered before the agency proposes the regulations that would implement them.

To add insult to injury, DEC has still not committed to wait to begin permitting until its regulations are adopted. Paul Gallay, President and Hudson Riverkeeper, stated, "What the DEC stated in its July 1, 2011 SGEIS is a full admission that proves even they understand that doing the regulations and the environmental review at the same time is wrong. Removing the earlier language does not change a thing - what they said in July is what they must live by."

Under DEC's current proposal, comments on these draft regulations are due on December 12th - the same day as the deadline for public comments on the SGEIS - and DEC is holding combined hearings on the draft regulations and SGEIS. DEC also announced yesterday that it is seeking, at the very same time, comments on a third piece of the fracking regulatory regime, its draft general stormwater permit for fracking - yet another piece of the puzzle that should not be rushed.

The need for an adequate public comment period is particularly important since this may be the public's only chance to tell DEC how and if fracking should proceed in their communities. DEC permits for gas extraction do not allow for the same public participation as other DEC permits. The comment periods and hearings that DEC is holding for the draft SGEIS, regulations and fracking general stormwater permit may be the public's last chance to communicate their views on fracking. Thus, it is crucial that DEC give the public adequate time to be heard.

Kate Hudson, Riverkeeper Watershed Program Director, added, "These regulations represent a complete overhaul of forty year old oil and gas regulations that never contemplated fracking. Yet, DEC is forcing the public to formulate comments on these highly technical draft regulations and the 1500 page SGEIS in what is now less than 75 days. This is unfair and unreasonable. If DEC gets the regulatory framework for fracking in NY wrong, there will be no second chance. New York must not let arbitrary deadlines rush this critical process."

On substance, the draft regulations appear just as flawed as the SGEIS. As Riverkeeper pointed out previously, DEC's proposal contains inadequate protections for New York City's drinking water supply infrastructure and no viable plan for disposal of fracking-related hazardous wastes. Yet another indication that DEC is letting this process be driven by industry interests, rather than sound science.

The issue of whether to allow fracking in New York State is likely the most significant environmental issue New York has ever faced. DEC should take a hard look before they rush into the fracking process, which could devastate New York's water, air, and local communities. Riverkeeper urges DEC to honor the spirit and intent of New York's environmental review statute and public participation requirements and give science the opportunity to lead this process, rather than be driven by industry timing needs.