On September 7, 2011, the New York State Department of Environmental Conservation (NYSDEC) released its Revised Draft Supplemental Generic Environmental Impact Statement (SGEIS) on the state's proposed Oil, Gas and Solution Mining Regulatory Program. This report outlines the parameters for the regulatory program governing hydraulic fracturing in New York.

The public process to develop the draft SGEIS began with public scoping sessions in 2008. In September 2009, the NYSDEC issued a draft SGEIS for public review and comment. NYSDEC received more than 13,000 comments on the draft SGEIS. A large percentage of the comments expressed concern over potential contamination of groundwater and surface drinking water supplies. Commentators also expressed concern that the 2009 draft SGEIS did not sufficiently consider visual, noise, traffic, community character, or socioeconomic impacts related to hydraulic fracturing. Accordingly, in 2010, the then-New York Governor David Paterson ordered the NYSDEC to issue a Revised Draft SGEIS. The Executive Order also provided that no state permits authorizing high-volume hydraulic fracturing (HVHF) combined with horizontal drilling would be issued until the SGEIS was finalized. HVHF is defined by the Revised Draft SGEIS as the stimulation of a well using 300,000 gallons or more of water as the base fluid in fracturing fluid. Virtually all hydraulic fracturing falls within this definition.

NYSDEC released its Preliminary Revised Draft SGEIS on July 1, 2011. The Revised Draft SGEIS released on September 7, 2011, contains revised and additional analyses relating to HVHF operations. The Revised Draft SGEIS also includes an analysis of socioeconomic and community impacts, which was not included in the Preliminary Revised Draft SGEIS. This analysis confirms that HVHF activities could provide a substantial economic boost for the state in the form of increased employment, wages, and tax revenue for state and local governments.

NYSDEC believes that its recommendations concerning the HVHF program represent a comprehensive approach to protecting drinking water, land, and air. Some of the notable recommendations include:

Protection of Drinking Water

  • No HVHF within the New York City and Syracuse Watersheds;
  • No HVHF operations on sites within 500 feet of a private water well or domestic use spring, unless waived by the landowner;
  • No HVHF operations on sites within 2,000 feet of a public drinking water supply well or reservoir;
  • No HVHF operations on sites within a 100-year flood plain.

Enhancement of Well Construction Standards to Prevent Gas Migration

In most cases, the Revised Draft SGEIS calls for the requirement of an additional third, cemented well casing — referred to as the intermediate casing — around each well to prevent the migration of gas. The other two casings already required for well operations are the surface casing and the production casing. The depths of both surface and intermediate casings would be determined by site-specific conditions.

Disposal of Flowback Water and Production Brine

The Revised Draft SGEIS also recommends that flowback water stored on-site be placed in watertight tanks within a secondary containment. Secondary containment also would be required for all fracturing additive containers, additive staging areas, and flowback tanks to ensure any spills of wastewater or chemicals at the well pad do not migrate into water supplies. Before any permit is issued, drilling operators would be required to prepare and obtain NYSDEC approval for plans describing the manner of disposal of flowback water and production brine. Additionally, NYSDEC would create a process to monitor disposal of flowback water and other waste streams.

Disclosure of Fracturing Fluid Chemicals

The Revised Draft SGEIS identifies 322 chemicals proposed for use in hydraulic fracturing operations in New York and includes health hazard information for each category of chemicals as identified by the New York State Department of Health. Operators would be required to fully disclose to NYSDEC all products and combination of products used in the hydraulic fracturing process. In addition, applicants for drilling permits would be required to agree to publicly identify the names of the additives used, subject to certain protections for business confidential information. Operators also would be required to evaluate the use of alternative additives that pose less potential risk to water resources.

Protection of the Air

Operators would be required to use enhanced air pollution controls on all engines used at well pads. In addition, NYSDEC has stated that it will improve local and regional air quality monitoring at and around well pads.

Off-setting Community Impacts

The Revised Draft SGEIS proposes new mitigation measures to address impacts to communities and local governments. A significant proposed mitigation measure is to limit simultaneous construction of well pads and wells in proximity to each other. NYSDEC would consider this measure in consultation with local governments to lessen cumulative impacts. This approach is designed to mitigate impacts on local community character, as well as cumulative noise, visual, and traffic impacts. In addition the SGEIS proposes other potential mitigation measures, including:

  • Traffic: requiring drillers to produce detailed transportation plans outlining the proposed number of trucks, truck routes, and times of day of truck operations, and assessing the conditions of those roads;
  • Noise: requiring site-specific measures such as setbacks, site layout design that takes advantage of topography, noise barriers, and special permit conditions; and
  • Visual: requiring site-specific measures such as screening, relocation, camouflage or disguise, using non-reflective materials, and controlling off-site migration of lighting.

What this Means to You

Given the high volume of expected comments to the Revised Draft SGEIS, comments will be accepted by the NYSDEC through the close of business on December 12, 2011, by two methods only: (1) electronic submission using a web-based comment form available on NYDEC's website; or (2) paper submission mailed or delivered to Attn: dSGEIS Comments, New York State Department of Environmental Conservation, 625 Broadway, Albany, NY 12233-6510.

Until the SGEIS is complete, NYSDEC cannot issue permits for natural gas drilling, meaning that there still is effectively a state-wide moratorium on hydraulic fracturing.

A copy of the Revised Draft SGEIS may be found here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.