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December 5, 2012
The Department of Environmental Conservation appears to be nearing the end of its four-year hydrofracking review. If the DEC gives an ok to the controversial drilling technique, final regulations are expected in early 2013. The DEC recently released some regulations that would cover the natural gas industry in New York.
The new rules cover large withdrawals from the state's public water sources and take effect in April 2013. These are the state's first permitting requirements for many large water users and were mandated by a water withdrawal bill passed last year by the state legislature.
For some observers, this is the first test of claims that New York's hydrofracking regulations will be the toughest in the country. And according to Hammondsport lawyer Rachel Treichler the DEC is failing that test.
"I guess I'm one of the people that think water is far more valuable than gas and why would we give this valuable resource to the gas industry?"
Treichler says that since New York won't have permitting fees or carry out a cumulative analysis of fracking's impact on water supplies, its regulations are weaker than ones that already exist.
Much of the state's water can be found in three places: the Susquehanna River Basin, the Delaware River Basin and The Great Lakes Basin. All three watersheds are overseen through interstate compacts or agreements.
Drillers in Pennsylvania already withdraw water under the Susquehanna River Basin Commission's stricter rules. The Delaware River Basin Commission is still considering its own regulations.
So Treichler, who writes the New York Water Law blog, wonders why the DEC is writing regulations weaker than the ones now covering the Susquehanna River Basin.
"I think that they are a gift because the permitting requirements are quite weak and they offer a number of loopholes that I think the gas industry can take advantage of."
In an e-mailed response, DEC spokesperson Lisa King said it was the 2011 water withdrawal legislation that created the differences between the DEC's rules and those used by other regulators.
When the new rules were released, New York DEC commissioner Joe Martens said they would bring the state in line with what's known as the Great Lakes / St Lawrence River Basin Compact. The compact is a legally binding agreement between eight states in the Great Lakes region. Created in 2005, its goal is to protect the region's water supply.
New York's part of the basin stretches south of the Finger Lakes and includes much of the water north and west of the gas-rich Marcellus Shale. Jared Teutsch of the Chicago-based Alliance for the Great Lakes says New York hasn't violated the compact but they're not exactly setting an example for other states either.
"It's just disappointing to see that New York isn't kind of rising to the level of let's say Minnesota that's really taken the high end of regulatory review on water withdrawals."
Teutsch's group proposed changes when the rules were first put out for comment. Those proposals were ignored. Teutsch says that, even though the Great Lakes seem like an endless supply of water, only one percent of it is renewed every year.
"What we're sitting on is really this vast left over treasure from the glaciers and we're slowly tapping into it and we're slowly whittling away at it."
Teutsch says he hopes that, in the future, the DEC will be open to adjusting its regulations.