Settlement Reached in Marcellus Permit Appeal Case

Press Release
July 7, 2011

Settlement Reached in Marcellus Permit Appeal Case

CBF settles permit appeals with DEP; outcome will strengthen drilling regulations and protect waterways

Natural gas drilling site near a stream in northeastern PennsylvaniaThis drilling site near a stream in northeastern Pennsylvania flooded on January 26 after heavy rains. Photo courtesy Susquehanna River Sentinel

Two significant issues���natural gas drilling rigs in floodplains (above) and drilling near pristine waterways���have been addressed in the recent settlement agreement.

(HARRISBURG, PA)���The Chesapeake Bay Foundation (CBF) and the Pennsylvania Department of Environmental Protection (DEP) have reached an agreement, finalizing CBF's 2009 appeal of three permits issued by DEP to natural gas drilling companies operating in the Marcellus Shale formation.

DEP's 2008 announcement of an expedited permit review process, exclusive to natural gas drilling activities in the Marcellus Shale region, set off red flags that environmental protection measures may be neglected in favor of a streamlined process that would make it easier and faster for drilling operations to move forward in Pennsylvania. One year later DEP went one step further in streamlining their process by revoking the authority of county conservation district officials for review and approval of these permits, instead turning the authority directly to DEP staff.

"Due to staffing constraints and reduced familiarity with the local landscape, we quickly realized that DEP's new process had the potential to result in significant threats to our water, air, and land," said Matt Ehrhart, PA Executive Director for CBF. "We were particularly concerned with the potential water quality violations that may occur because of inadequate attention paid to stormwater planning. Further, removing the conservation districts from the process meant taking the experienced, on-the-ground staff out of the loop. We needed to take a closer look."

CBF reviewed a number of permits submitted to DEP by the drilling industry, and on August 24, 2009, filed an appeal with the Environmental Hearing Board (EHB) challenging the Department's June 3, 2009, issuance of permits to Ultra Resources and Fortuna Energy (now Talisman).

The Erosion and Sediment Control General Permits (E&S) issued by DEP to Ultra Resources and Fortuna Energy were lacking in the mandated requirements. For example, no stormwater calculations and no wetlands surveys or delineations. Yet DEP approved these permits within days of receipt, in some cases, three days later. After CBF filed the appeals DEP reviewed the projects and determined that there were technical deficiencies and revoked the permits.

Once those deficiencies were remedied the permits were reissued. But CBF has continued with the appeals process in order to achieve programmatic changes to DEP's overall permitting process for drilling in the Marcellus shale formation.

"We moved forward with the process because we believed that there were fundamental flaws in DEP's permitting process that put Pennsylvania's waterways at risk," said Ehrhart. "Our biggest concerns have been drill rigs constructed in floodplains, and drilling near our most pristine waterways. Floodplains, by their nature, can flood. We felt that the expedited review process should not be available in these locations because of the potential for downstream contamination."

As for Pennsylvania's established (by DEP) special protection waterways���those with the highest water quality, and considered to be of exceptional value���the settlement agreement removes the expedited process. Ehrhart said, "These pristine waters are largely found in the heart of where much of Marcellus shale regions of Pennsylvania. Drilling projects in these locations should be looked at with extra diligence to assure that those waters are protected and preserved."

Both of those concerns have been addressed in the settlement agreement, which requires Pennsylvania's DEP to amend their permit review process to prohibit an expedited permit review process to any applicant seeking an E&S general permit:

  • for projects located in or with the potential to discharge to waters that have been designated as high quality or exceptional value
  • for projects in which the well pad will be constructed in or on a floodplain

"In the nearly two years since we began this appeals process, DEP has made significant strides to improve the environmental safeguards with regards to drilling in the Marcellus region, and we commend them for those efforts," said Ehrhart. "However, while the settlement means strengthened protection for our waters, this one victory does not mean that all the issues regarding permitting and environmental protection for development of the Marcellus Shale are resolved. CBF, through our partnerships and position on the Governor's Marcellus Shale Advisory Committee, is continuing to advocate for improvements to safeguard our environmental resources."

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