With these proposed regulations, DEP has outlined a streamlined process for considering the potential impacts to public resources during the well permitting process. An applicant for a well permit will be required to notify the appropriate public resource agency (such as the Department of Conservation and Natural Resources or Pennsylvania Game Commission) if a well site is within:
- 200 feet of a publicly owned park, forest, game land or wild life area;
- In or within the corridor of a state or national scenic river;
- Within 200 feet of a national natural landmark;
- In a location that will impact other critical communities (species of special concern);
- Within 200 feet of a historical or archaeological site listed on the Federal or State list of historic places
Within 200 feet? Within the corridor of special rivers? Those provisions are completely inadequate to protect public resources.
The same proposed regulation establishes the threshold for notification at 1,000 feet for a proposed well site located near “a water well, surface water intake, reservoir or other water supply extraction point used by a water purveyor.” Why the vastly smaller requirement for public lands, much of which are environmentally sensitive, or valuable for recreational, aesthetic, cultural, and economic reasons?
But it gets worse.
The proposed regulation, according to the summary, says that:
the resource agency may provide comments and recommendations to DEP and the operator on the well permit application. DEP will make the final determination on the permit and has the ability to add conditions to a well permit to ensure operators mitigate any potential impacts.
That's good. But when you – pardon the pun – drill deeper by looking at the actual proposed language, things go south. It says, in section 78.15(f)(2):
the public resource agency shall have 15 days to provide written comments to the Department [DEP] and the applicant on the functions and uses of the public resource and the measures, if any, that the public resource agency recommends the Department consider to avoid or minimize probable harmful impacts to the public resource where the well, well site and access road is located. The applicant may provide a response to the Department to any such comments.
15 days to analyze impacts to the public lands? Totally inadequate.
Section 78.15(g) goes on:
If the proposed well, well site or access road poses a probable harmful impact to a public resource, the Department may [emphasis added] include conditions in the well permit to avoid or mitigate those impacts to the public resource’s current functions and uses.
“May.” Not “shall.”
And it doesn’t end there. The “shall” is then put in exactly the wrong place, if the purpose of the regulation is to protect public lands:
The Department shall [emphasis added] consider the impact of any potential permit condition on the applicant’s ability to exercise its property rights with regard to the development of oil and gas resources and the degree to which any potential condition may impact or impede the optimal development of the oil and gas resources. The issuance of a permit containing conditions imposed by the Department pursuant to this subsection shall be an action that is appealable to the Environmental Hearing Board. The Department shall have the burden of proving that the conditions were necessary to protect against a probable harmful impact of the public resource.
So, DEP may condition well permit approval to protect public lands, but it shall consider the impact of any conditions on the driller. And if it imposes any conditions, they are appealable, with the burden of proof falling on DEP, not the driller.
With this proposed regulation, the playing field is strongly tilted in favor of development, and against public lands protection.
Should Pennsylvania’s publicly-owned lands receive special protection as wells, roads, water impoundments - and compressor stations and pipelines, not covered by the proposed regulation - are sited? Should drillers be required to actually minimize ecological and other impacts on public lands when they decide where to drill near them?
Before this proposed regulation is finalized, the EQB will be accepting written public comments for 60 days, and will be scheduling at least six public hearings across the state. So, the answers to those questions are up to you.