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Hold your horses: fracking in NYS is still under review

Kate Sinding

Posted June 30, 2011

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Rumors have been swirling today that New York is lifting its moratorium on new fracking in the Marcellus Shale.  Here’s the reality: the de facto moratorium that has been in place since the summer of 2008 remains intact.

And in fact, the Department of Environmental Conservation is for the first time proposing to place significant portions of the state formally off-limits to industrial gas drilling.  They are also proposing a variety of strict new safeguards.  These proposed measures appear to represent a step in the right direction, but a full review of the state’s proposal is required before it can be determined whether New York’s drinking water, public health and communities are fully protected.

As for tomorrow’s announcement, here’s what is actually happening:  DEC is issuing an incomplete version of its revised “draft supplemental generic environmental impact statement.”  That is the draft environmental review assessment it has been working on for the past three years.  As indicated by DEC’s press release issued this afternoon, the document is the latest step in an on-going legal process to assess the environmental and health impacts of proposed new fracking.  In other words – they’re announcing a work in progress.  And – importantly – during this process no new fracking permits will be issued.

It’s critical to point out that before the de facto moratorium could be lifted, the DEC is legally required to ensure the following occurs:

  • DEC must complete the revised draft, as the version to be released tomorrow will still be missing a number of key analyses, including impacts on local communities.
  •  DEC must then issue the complete revised draft document for a formal public comment period, reportedly sometime in August.
  • DEC must evaluate and respond to all substantive comments received during the formal comment period (this is what they have been doing for the past year-and-a-half with the more than 13,000 comments they received on the initial draft back in December 2009).
  • DEC must issue a final supplemental generic environmental impact statement that incorporates all public comments.

All of this will take a minimum of many months to complete.

DEC’s release indicates that – as has long been urged by NRDC and others – at the end of this legal environmental review process, it will conduct a formal rulemaking process so that the recommendations and conditions set forth in the review document are then set forth in legally binding uniform rules.  If, as we have also urged, the agency holds off on issuing new permits until the completion of that regulatory process, the de facto moratorium would last that much longer.

Here are some key items worth noting in today’s release:

  • Fracking would be prohibited within the New York City and Syracuse watersheds.
  • Fracking would be prohibited in “primary aquifers,” which serve as public drinking water supplies; and site-specific environmental review would be required in “principal aquifers,” which serve as back-up drinking water supplies.
  • Fracking would be prohibited in floodplains.
  • Fracking would be prohibited on state lands.
  • New casing and cementing requirements would be imposed (accidents in casing and cementing are what have led to most serious drinking water contamination cases in Pennsylvania and other parts of the country).
  • New setbacks would be established from private and public drinking water wells.

Obviously, before the protectiveness of these and other provisions can be fully evaluated, we will need time to carefully review the revised draft document itself.  But these appear to represent real improvements over the initial draft released in September 2009.

But there is still a long way to go before this process is complete.  We look forward to DEC and the Administration conducting a robust public discussion about the recommendations contains in the revised draft.  And we will continue to participate vigorously in the formal public comment process to ensure that new fracking doesn’t move forward in New York unless and until it can be demonstrated that New Yorkers’ health and environment are being protected to the maximum extent.  (DEC has indicated it will provide a 60-day comment period commencing sometime in August, which should be lengthened, along with a commitment to formal hearings across affected parts of the state.)

Concerns continue to arise around the nation about the impacts – to drinking water, air quality, lands and communities – of inadequately regulated fracking.  If done right, the on-going process in New York continues to hold out the best opportunity to establish a national, and even international, model of how taking a cautious approach to proposed new fossil fuel development can protect people, communities and the environment at large.

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Concerned New YorkerJun 30 2011 09:31 PM

At the very least, fracking should adhere to the safe drinking water act, the clean air act and the clean drinking water act. Before they are allowed to do anything anywhere in the state.

Bonnie BatesJun 30 2011 10:25 PM

Injecting thousands of gallons of poisonous chemicals into the ground is a bad business, no matter how many rules and regs they dream up.

Burr HubbellJul 1 2011 12:08 AM

Why do you seem so complacent about this? The legislature has adjourned without doing anything to protect NY from the hazards of hydraulic fracturing. Cuomo is signalling that he is ready for hydraulic fracturing to begin. Permitting is well under way in many locations across NY State to build new gas pipe lines and construct new plants to burn the gas for electrical power.
You either don't understand the momentum behind the energy companies, or you actually think going with another hydrocarbon fuel technology is a good thing. Either way you are not the friend and protector of the environment you should be.

Judith A CartisanoJul 1 2011 12:07 PM

I agree with Burr. I am alarmed by the complacency in your article. The fact is, upstate New York, especially the Southern Tier, is being shafted by the Governor. Only 15% of the Marcellus Shale will be off limits to drilling, leaving an alarming 85% vulnerable to poisonous exploitation. The fact is that this area of NYS that is not off limits to drilling per the Cuomo plan is home to many water-dependent industries such as the wine and brewery industries, dairy farming and agriculture. Furthermore the area is noted for its scenic beauty and people have been working hard to draw tourism up state. As for the matter of money and jobs creation, I would suggest that should fracking destroy the industries that currently exist, then we will end up losing more money and jobs than we gain. It's all bogus, all a Ponzi scheme and an extreme insult to upstate New Yorkers of which I am one.

Kate SindingJul 1 2011 01:43 PM

Thank you for these thoughtful comments. Please let me assure you that we are not at all complacent, and that we share your concerns about protecting all New Yorkers and their drinking water.

The primary purpose of this post was to respond to inaccurate reporting in some outlets about what the state did – and didn’t – do with its release today. We felt it important to clarify that this is just another step in an on-going process to fully evaluate the potential impacts of new fracking in the state, and to ensure that new fracking not proceed until all New Yorkers are protected.

Importantly, this is the first step Governor Cuomo has taken on this issue. We do believe it is an encouraging one to the extent that DEC is proposing to ban fracking in unfiltered water supplies, primary aquifers, floodplains and on state lands. There is strong scientific and hydrological support for identifying these areas as most vulnerable and giving them an extra layer of protection. And we are also encouraged that DEC is proposing what appear to be significantly more stringent rules elsewhere (though we, like everyone else, have yet to see the actual document).

But we also continue share commenters' worries about the risks of potential contamination wherever fracking may be permitted; on that, we are hardly complacent. We have devoted the last three years to fighting for a full and appropriate assessment of all of the risks before a single new drill breaks ground. And we remain committed to devoting significant staff time over next several years, or as long as it takes, to ensure that before any new drilling whatsoever advances in New York’s Marcellus Shale (or similar formations) there are the most stringent and enforceable safeguards to protect the water quality, air quality, lands and communities of all New Yorkers.

We also remain committed to fighting to ensure that hazardous wastes generated during drilling operations no longer get treated to a special loophole, but rather get treated like the hazardous wastes they are; for the most stringent disclosure requirements in the country; for uniform, legally binding and enforceable regulations; and for powerful, expanded enforcement so that the rules aren’t just on paper.

So please don't confuse our statement that yesterday's announcement was but one step in a lengthy and ongoing administrative process with a lack of determination and commitment by NRDC to protect water quality and NYS's environment from the hazards of industrial gas drilling. We've been litigating, lobbying and fighting in the political trenches for more than 40 years to protect New York State's natural resources and its environmental quality and we have no intention of stopping now.

Sally CrowJul 1 2011 04:34 PM

If fracking is allowed in New York State my well will be in jeopardy. I live in a rural community where everyone has a well. None of the current DEC considerations will protect us. The land up the hill from us (213 acres) has been leased. Where am I going to live if my water is contaminated???

Liz PotterJul 1 2011 07:16 PM

I can't help but feel that the "protected areas" (NYC watershed, state land, etc.) approach is a divide and conquer strategy. You potential eliminate a powerful opposition to the fracking when you drop out NYC's environs ... where fracking was hardly ever likely.

Yes, many areas will be protected, but enormous swathes of the state remain open for the gas industry to pollute.

Thank for the article. I understand the NRDC is "on" this issue.

CaraJul 2 2011 11:06 PM

What I find really sad about all of this is that on behalf of those who wish to hit it big on the money trail they are permitted to savagely pollute the water and the air.
As I hear it methane "clouds" can travel hundreds of miles near suffocating all that breathe them along the way.
One wonders how it is that these mercenaries are sitting up at attention like Pavlov's dog at the mere mention of potential riches.
It's really pathetic how pieces of paper with numbers and symbols have the ability to get them to sell out everything and everyone.
And all of that money can be rendered valueless by a market change in the City of London.
Slaves to a corrupted system...Really sad!

Jim SofrankoJul 3 2011 01:32 PM

Kate does point out some of the good points of the DEC draft but forgot one major point. The DEC will require baseline well testing of neighboring wells. If fracking in NYS does happen, which IMHO it will despite all our protests, this is a significant improvement over fracking in other areas of the country.

On the other hand, what I find most disturbing in the statement is the idea of unequal protection. That is, the waters of major cities and aquifers are somehow deemed more worthy of protection than the rural wells with potential fracking on adjacent properties.

In dictating the aquifers of NYC and localities to be somehow more important and thus better protected, the DEC has handed a political victory to the fracking proponents. It is a classic dividing of constituents. The interests of rural NY'ers are left unprotected while NY'ers are protected. Kind of changes the political landscape for opponents of fracking

Judith A CartisanoJul 5 2011 03:16 PM

I am sure you and your organization have been lobbying and working toward what you feel is the best solution re fracking; however we are looking at this from different perspectives. From your perspective fracking is a done deal in NYS and the only question is how to regulate the process enough to protect our environment and our citizens. From my perspective, fracking, no matter how regulated it is, should not be allowed in NYS at all. I believe there is absolutely no way to protect our citizens and our environment once fracking gains entry to the state regardless of the number of regulations we impose.

A major issue in all of this, of course is water. Do we really want this industry to come in and waste our precious fresh water supplies when we know fresh water supplies are diminishing everywhere on this planet? How can you protect people and the environment from the loss of fresh water? You cannot. Once it's gone, it's gone. Fracking is a tremendous destroyer of fresh water. The moral question, of course, is: Is water a basic human right or a commodity? I come down on the side of basic human right.

Finally, when I said complacent I meant that all of the organizations and politicians are quick to be willing to sacrifice upstate New York in order to protect downstate New York. The carve-out for Syracuse probably has more to do with the wealthy people who live around Skaneateles Lake, than concern for any part of upstate, It is precisely in the Southern Tier and elsewhere in upstate that we have industries that are water-dependent--wineries, breweries, dairy farms, agriculture. Allowing fracking and the diversion of water to a few greedy companies might well destroy these New York based industries.

Mary SweeneyJul 5 2011 03:51 PM

I think it's a bit strange to call the principal aquifers "back-up drinking water supplies." For those of us who do not live in the more populated areas, these principal aquifers are not back-up water supplies--they are the drinking water supplies that we are using right now!

I live in a small NY village that relies on two municipal water wells; those wells serve more than 300 homes. To the best of my knowledge, they are NOT drawing from a primary aquifer. If our water wells become contaminated, the only really safe option we would have would be to build a very long water pipeline to the nearest good water. This would undoubtedly be an extremely expensive undertaking. Without good water, the 300+ homes in our village would be virtually worthless, as would the businesses and schools.

By placing a buffer zone around the primary aquifers, the NYSDEC is admitting that there is a potential for aquifer contamination, yet the NYSDEC is failing to take appropriate steps to protect the principal aquifers. The NYSDEC is also protecting the Syracuse and NYC watersheds. The message seems to be that if you want to have safe water, you have to live in a heavily populated area; otherwise, NY is not going to protect you.

To see maps of primary and principal aquifers in NY, go to:

Mary SweeneyJul 5 2011 04:57 PM

Addition to my earlier comment--

Below (#1) is a link to a map showing major drinking water supply watersheds and aquifers in the Southern Tier of NY. Each public water supply well in the region is indicated on this map by a dot within a circle. The second link (#2), below, is to the map I mentioned in my earlier post--this second map shows the very limited aquifer areas (i.e. primary aquifers) that the NYSDEC proposes to make off-limits to drilling and fracking.

As you can see from the map at the first link below, there are indeed many public water supply wells in the "primary" aquifer areas. However, there are also many public water supply wells outside the primary aquifer areas. (And not shown on the map, of course, are the numerous private water supply wells that are outside the primary aquifer areas.) Note also that the designated "sole source" aquifers on this map would be largely unprotected, as only tiny parts of these areas are considered by NY to be "primary aquifers."

#1. Link to map of drinking water supplies in Southern Tier of NY:

#2. Link to map of primary aquifers (i.e. the aquifers that would be placed off-limits to drilling)--see upper right-hand side of page for map:

PaulJul 6 2011 10:54 AM

Kate Sinding remains one of the best-informed people on this issue and her knowledge is very valuable. However, her detailed knowledge is not matched by good political sense. Her work is being used as a cover for the oil monopolies who increasingly dominate drilling in the Marcellus Shale.

Her recent appointment as a member of the governor's advisory commission on gas drilling in the state will be used to certify the credibility of fracking in NY State. At the very least it indicates that she believes, despite the lack of any credible evidence, that hydraulic hydrofracturing (using slick water) can be done safely. Her presence on the board can only be seen as an endorsement of the drilling, and an unjustified faith that it can be done without harm.

At what point does "working inside the system" become selling out?

Derick MelanderJul 6 2011 11:31 AM

I totally agree with Paul Bermanzohn's post above regarding "working inside the system". I came to this site today to see what NRDC was doing because I have not heard a peep. I was expecting some sort of action alert from them. There is no way for the gas industry to prove that fracking will be safe in the short term or the long term. It's just not possible. The NRDC should be up in arms about this, but now they have to play nice since they are part of the advisory commission. And by the way, since when does the energy industry take advice from nature lovers? They don't even abide by the federal and state laws that govern their actions. This organization is doing good work:

Kate SindingJul 6 2011 12:00 PM

Thank you for your comments, Paul and Derick. I want to make it absolutely clear that NRDC's participation on the DEC advisory panel does not in any way indicate that we have endorsed the state's current proposal -- which we are currently reviewing just like everyone else -- or that we have concluded that fracking can be done safely in NYS.

Rather, NRDC accepted the state's invitation to join this panel because we want to make sure our voice is at the table as the critical discussions about whether and if so how to proceed with new fracking in the state continue -- which they will do with or without us.

We look forward to participating so that we can continue to advocate for the health and safe drinking water of all New Yorkers.

Donna WeberJul 8 2011 08:27 AM

Thank you Kate for the information you have on your blog.I also think the responses are very good, too. I have personally contacted many Governmental officials about this matter & I suggest that all of us contact them with our concerns.I will look to your blog to tell us when the public may respond to the DEC's report. I think if thousands of people respond, there is a very good chance that reform protecting our water will be achieved.And if the Senators hear from us as well, I hope that will be effective.

Donna WeberJul 10 2011 09:36 AM

This is a general comment & not related to this article, but I only knew of this way to contact you.
The Natural Resources Defence Council has identified a "hugh" defect in the DEC report. It is in regards to the buffer zone around 2 major watersheds. The tunnels that bring the water to NYC need greater protection.This was reported in the editoral section of 7/9/11 NYTimes.

Comments are closed for this post.


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