Environmental protection from drillers debated

How should the DEP go about protecting parks, rivers and scenic vistas from energy drillers that want to harvest Pennsylvania's natural gas?


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Energy companies, conservation groups and the state Department of Environmental Protection are wrangling over how best to protect Pennsylvania's wildlife and natural bounty while still allowing drillers to retrieve the lucrative gas locked beneath parks, scenic rivers and other sensitive areas.

In draft regulations that will come before a state board for review Tuesday, the DEP proposes a fluid solution: Drillers must tell the stewards of the resources where they plan to drill -- whether near public parks, game lands or habitats for rare species like panic grasses and shrews -- then those agencies can suggest ways to avoid harm. DEP will consider the risks and the agencies' recommendations, and decide whether to add protective conditions to a drilling permit.

But drillers are wary about handing over too much vetting authority to the DEP and other stewards, saying it could add expense and regulatory burdens to the extraction process.

That's why the proposal has ignited debate, just as DEP readies a slate of modernized drilling regulations for public comment. It also has inspired regulators, industry and environmental groups to spar over broader themes: which natural features and species merit special protection; what effort is required to accommodate them; and how best to weigh the value of delicate spaces against the value of oil and gas.

In a regulatory analysis that accompanies the draft rules -- which were born out of the state's 1-year-old, oil and gas law, known as Act 13 -- the DEP wrote that its proposed consultation process will protect the "bounty" of public resources that improve "the quality of life for [Pennsylvania's] residents and all those who visit." The process will also protect those resources that serve as "a major economic contributor to Pennsylvania through tourism, outdoor fish and game sports and recreation," the DEP wrote.

But in a stern letter, an industry-dominated state advisory board countered that the rules and the debate around them have shown "the department does not even fully understand how the oil and gas industry operates in several respects."

DEP's proposal for weighing impacts to public resources is one of many issues that the five-member Oil and Gas Technical Advisory Board said led to its recommendation that the draft regulations not yet be published for public scrutiny.

The advisory board contends that the rules give state agencies like the Pennsylvania Game Commission and the Department of Conservation and Natural Resources too much authority to shape permit decisions, give protected status to too many species not legally considered threatened or endangered, and create "a burdensome and open-ended" consultation process instead of setting firm criteria to limit -- not expand -- DEP's power to place conditions on drilling permits.

"The department's proposed revisions include numerous new obligations that would increase operational costs and complexity without clear justification or environmental necessity," the board wrote.

State oil and gas law has long required DEP to consider the impact of proposed wells on public natural resources, but regulators' methods for meeting that requirement have changed throughout the years.

In a short-lived effort, the DCNR and the DEP adopted a policy in October 2010 to measure and minimize drilling impacts in state parks and forests where the public does not own the oil and gas rights and cannot prohibit drilling. The policy was rescinded in February 2011 by Gov. Tom Corbett's administration as "unnecessary and redundant."

DEP's proposed new drilling regulations contain a hint of that discarded policy: Before granting a permit for a well in a public park, on game lands or near a public water supply, the department would invite the agency that oversees the protected space or species into the conversation.

The state's public resource agencies have indicated that they'd like a say -- or at least consistent warning -- when wells might impact public lands.

In January, the Game Commission appealed a drilling permit that DEP issued for a well planned to bore into the Utica Shale under a game land in Venango County from a well pad on private property nearby. It was an unusual protest: The commission last appealed a DEP permit more than a decade ago, according to Environmental Hearing Board dockets.

The commission said it was never notified of the proposed well and that the permit file contained no evidence that the DEP made any effort to consider the impact the well might have on the game land or valuable wildlife habitat within it.

"The [commission] was never given a chance to be heard regarding whether the [commission] was affected," the agency said in its appeal.

The commission's head attorney, Bradley C. Bechtel, said in an interview that the appeal was filed during an uncertain period when the DEP was changing several policies about its permit review process and adapting to the new Act 13 oil and gas law.

The Game Commission does not necessarily want to review every permit, nor does it want to delay development, he said, but it wants to be kept in the conversation and ensure proper review is not sacrificed for speed.

That appeal is ongoing, but the Game Commission indicated in a legal filing last month that it may be resolved in a way that satisfies both agencies.

"As a sister agency" to the DEP, Mr. Bechtel said, "we find things out all the time and they find out stuff from us all the time. Information goes back and forth. That was the concern -- that the information would stop. We didn't want to see that happen."

Regulators, industry and environmental groups have been meeting monthly since July to discuss contentious aspects of the draft drilling rules.

At an Aug. 14 meeting in State College, a representative from the Marcellus Shale Coalition, an industry group, recited the ways companies already work with agencies to protect public resources. In many cases, they have crafted leases or land use agreements with the agencies well before seeking drilling permits, Craig Mayer said.

"We're not trespassers," he said.

The DEP's deputy secretary for oil and gas management, Scott Perry, said that even in cases where companies have leases to drill under state forests and game lands, a discussion about the uses and protection of the resources during the permit application process is appropriate.

"From DEP's perspective, the point of the public resource protection provisions in Act 13 is really to get at the things that DEP doesn't already -- the impacts that don't fall within purely environmental protection," he said.

"You put a pad over a trail ... We don't have anything to say about that. But this contemplates that there could be a condition that says reroute the trail."

In written comments, the Marcellus Shale Coalition suggested several criteria to make sure public resource protections do not restrict oil and gas development, including forbidding any permit conditions that would add more than $30,000 to the cost of a shale well or $6,000 to a conventional well, unless the company itself agrees to waive the cap.

The coalition suggested that just $2,000 could be considered an "excessive financial burden" -- an idea that made environmental advocates bristle.

"You have choices where you can drill," said Roberta Winters of the League of Women Voters of Pennsylvania. "These species don't have a choice. We pay the price for preservation once. We never stop paying the price for development."

The Environmental Quality Board will discuss the proposed regulations at its meeting Tuesday. The DEP has recommended opening the draft to public comment for 60 days once it is published in the Pennsylvania Bulletin.

legalnews

Laura Legere: laura.s.legere@gmail.com.


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