Energy and Environment Monitor

N.Y. Releases Study Which Governor Relied Upon To Ban Fracing

May 18, 2015

By: Matthew S. Tyree

On May 13, 2015, the New York State Department of Environmental Conservation (the Department) finally released its Final Supplemental Generic Environmental Impact Statement (SGEIS) examining high-volume hydraulic fracturing’s (HVHF) potential significant adverse environmental and public health impacts and possible mitigation measures to eliminate, avoid or reduce those impacts. A copy of the SGEIS can be found HERE. Gov. Andrew Cuomo (D) relied on a draft version of this study in December 2014 to ban hydraulic fracturing in New York State. In New York, the primary target for shale-gas development is currently the Marcellus Shale, with the deeper Utica Shale also identified as a potential resource.

The SGEIS is based upon a variety of information resources, including: (1) public comments; (2) internal review of reports and studies of proposed operations prepared by industry groups; (3) consultations with State Department of Health (NYSDOH) scientists; (4) the use of outside consulting firms to prepare analyses relating to socioeconomic impacts and impacts on community character (visual, noise and traffic impacts); and (5) an internal review of information and data from the Pennsylvania Department of Environmental Protection and the Susquehanna River Basin Commission about events, regulations, enforcement and other matters associated with ongoing Marcellus Shale development in Pennsylvania. 

The SGEIS lists a number of potential impacts from HVHF, including: degradation of quantity and quality of surface water and associated habitats/ecosystems through a variety of methods (e.g., spills, stormwater runoff, natural gas and fluids in the wellbore, container leakage, structural failure, improper transportation, and improper storage) ; soil, groundwater and aquifer contamination; contamination of freshwater wetlands from accidental releases; degradation of local ecosystem from fragmentation of habitat, introduction of invasive species, and loss of habitat; degradation of air quality; greenhouse gas emissions; visual impacts; noise; and transportation increase.

The SGEIS also proposes many mitigation measures that would be needed to combat these potential impacts if HVHF were to be allowed, including: determination of and adherence to passby flow using the Natural Flow Regime method; pump testing; erosion prevention and sediment controls; development of a SWPPP; continuous monitoring of refueling operations; promote reuse of flowback waters; require operators to test private water wells; require permit conditions for more stringent casing construction and cementing, reporting of well information, and testing of cement job for HVHF wells; require continuous venting of annulus; limit duration of temporary abandonment of wells; require site-specific SEQRA review for HVHF permits applications to produce from a formation with <1000’ of vertical separation from potential or known subsurface water supplies; require use of closed-tank systems for flow-back of wells; require impermeable liner in drilling reserve pits; preclude spreading of flowback water on roads; preclude annulur disposal of drill cuttings; specify setbacks between fuel tanks and wetlands at a mandatory 500’; require a wetlands permit when project is within 100’ of a freshwater wetland >12.4 acre in size; require BMPs for surface disturbances to reduce habitat impacts; restrict operations during mating and migration seasons in certain habitats; require pre- and post-drilling animal and plant surveys for certain sites; restrict use of the BTEX class of compounds as additives in HVHF fluid surface impoundments; require reporting of fracturing additives and public access restrictions; require development of GHG emissions impacts mitigation plan; require transportation plan; and adherence to noise impacts mitigation plans.

The SGEIS contemplates a detailed set of regulations that would be needed to allow HVHF in the State. It also proposes site-specific environmental assessments and SEQRA determinations of significance for the following types of HVHF applications:

1. Any proposed HVHF where the top of the target fracture zone is shallower than 2,000 feet along a part of the proposed length of the wellbore;
2. Any proposed HVHF where the top of the target fracture zone at any point along the entire proposed length of the wellbore is less than 1,000 feet below the base of a known fresh water supply;
3. Any proposed well pad within the boundaries of a principal aquifer, or outside but within 500’ of the boundaries of a principal aquifer;
4. Any proposed well pad within 150’ of a perennials or intermittent stream, storm drain, lake or pond;
5. A proposed surface water withdrawal that is found not to be consistent with the Department’s preferred passby flow methodology; and
6. Any proposed well location determined by the New York City DEP to be within 1,000’ of subsurface water supply infrastructure.

Additionally, the SGEIS recommends prohibiting HVHF on the following locations:

1. Any proposed well pad within the NYC and Syracuse watersheds;
2. Any proposed well pad within the 4,000’ buffer around the NYC and Syracuse watersheds;
3. Any proposed well pad within a primary aquifer;
4. Any proposed well pad within a 500’ buffer around primary  aquifers;
5. Any proposed well pad within 2,000’ of public water supply wells, river or stream intakes and reservoirs;
6. Any proposed well pad within 500’ of private drinking water wells or domestic use springs, unless waived by the owner; and
7. Any proposed well pad within a 100-year floodplain.

Ultimately, the SGEIS recommends prohibition of HVHF on the majority of New York’s Marcellus shale play area.

The Department has until May 23, 2015 to issue a written Findings Statement on the SGEIS which could make the ban on fracing official. Issuance of this Findings Statement will open the gates for legal challenges.

This article was authored by Matthew S. Tyree, Jackson Kelly PLLC.