Via Electronic Mail and Certified Mail, Return Receipt Requested
John Hanger, Secretary
Department of Environmental Protection
Rachel Carson State Office Building
400 Market Street
Harrisburg, PA 17101
Dear Secretary Hanger:
On July 26, 2010 we sent you a letter regarding the Department of Environmental Protection’s (DEP) lack of authority to authorize water withdrawals in Pennsylvania for any purpose other than for municipal drinking water supplies. On August 16, 2010, we received a letter from John Hines, Deputy Secretary for the Office of Water Management, acknowledging receipt of our letter and explaining that we would receive “a more detailed response within the next few weeks.” On September 22, 2010, we received that allegedly “more detailed response.” Unfortunately, the response 1) mischaracterized the issues we raised in our original letter; 2) failed to substantively address the core issues raised in our letter, including the complete failure to identify any statutory authority for permitting water withdrawals, and 3) fundamentally misstates the DEP’s role in aiding water withdrawals by oil and gas companies that, unless they are the riparian owner, have no legal right to the water they are withdrawing. We respond to each of your responses in turn.
Your letter first states:
“First, you letter questions DEP’s legal authority to approve [Water Management Plans]. As you point out, DEP uses WMPs to ensure that water used in conjunction with natural gas development activities do not create negative impacts on affected water resources…DEP requires a natural gas well permit applicant to demonstrate that its use of water from sources in this Commonwealth will not violate the Clean Streams Law. This demonstration is made through the WMP approval process.
This characterization is simply wrong. We did not “question DEP’s legal authority to approve WMPs.” We questioned the DEP’s reliance on these WMPs to essentially permit water withdrawals for oil and gas drilling purposes. Specifically, we stated:
“The Water Resources Planning Act of 2002 (WRPA), the statute authorizing the development of Water Management Plans, is strictly a planning statute. The WRPA requires that ‘each regional committee shall guide the development of and recommend to the Statewide committee a regional plan component for review, approval and incorporation into the State water plan.’ Nothing in the WRPA authorizes or expands DEP’s authority to regulate, permit, or control water allocations or water withdrawals.” (emphasis original)
Furthermore, we went on to state:
“Just to be clear, what ADP questions and challenges here is the DEP’s authority to authorize or permit a withdrawal of surface water in the first instance and contrary to existing Pennsylvania riparian law principles. If a riparian owner in fact has the right to withdraw water from a surface source, ADP believes that the DEP likely has some authority under the Clean Streams Law to regulate the amount of such otherwise valid surface water withdrawals by a riparian owner in order to protect in-stream flows and overall water quality in a particular water body. However, what DEP clearly has no legal authority to do is to ‘authorize’ a water withdrawal, in any amount, by an individual or entity that is not a riparian owner and otherwise has no legal right to withdraw water from a particular water body.” (emphasis added)
In other words, we do not challenge the DEP’s authority to approve WMPs. We challenge the DEP’s unlawful reliance on WMPs to permit oil and gas companies to withdraw water from streams, rivers, and lakes in which they have no legal right to.
Your letter next states:
“Secondly, your letter questions DEP’s WMP review process… operators must provide municipal and county notification based upon where the proposed water source is located, prior to submittal of the WMP. When DEP reviews an WMP, it evaluates the individual and cumulative impacts of the operator’s proposed water use on stream flows to ensure that its activities will not violate the Clean Streams Law. As part of this review, DEP evaluates whether the operator’s proposed plan for water use will ensure that enough water will remain in the waterway, even under low flow conditions, to maintain existing and designated uses. This analysis is the same as the one used by the Susquehanna River Basin Commission, which your letter cites favorably.”
First, nowhere does our letter “favorably” cite to the substantive quality of the SRBC’s analysis. Our references to the SRBC and DRBC served one purpose – to make the distinction that these federal agencies have authority to authorize water withdrawals while the DEP does not. Just because the DEP uses some of the same procedures that the SRBC uses does not change the fact that the DEP lacks the kind of authority the SRBC has to permit water withdrawals.
Second, there is no way for the public to easily assess the DEP’s evaluation of “individual and cumulative impacts of the operator’s proposed water use on stream flows.” The evidence from our file reviews indicates, however, that the DEP is not adequately considering the cumulative impacts of multiple, large water withdrawals on stream flows. As our letter stated, there was no indication that the DEP considered the cumulative impacts from the combined withdrawals on the Allegheny River by Pennsylvania General Energy and East Resources.
Your letter next states:
“Thirdly, your letter characterizes DEP’s approval of WMPs as violating the common law of riparian rights, or encouraging such violations. This characterization is incorrect. As described above, when DEP approves an WMP, it is acting under statutory law that not only authorizes DEP to make such a determination, but also requires it to do so.
As stated above, our letter clearly did not “characterize DEP’s approval of WMPs as violating the common law of riparian rights.” Our letter characterized the DEP’s use of these WMPs to unlawfully authorize water withdrawals as violating the common law of riparian rights. There is quite a distinction between those two characterizations and the DEP elevates form over substance by suggesting that its approval of a WMP has not been considered, by both DEP and the oil and gas industry, as a de facto “approval” and “permit” to withdraw specific amounts of water from Pennsylvania’s surface waters.
For instance, as we stated in our original letter, the DEP attaches so-called “Special Permit Conditions” that state, in part:
“The permittee shall not withdraw or use water from water sources within the Commonwealth of Pennsylvania, for well fracing activities, unless the permittee does so in accordance with a Water Management Plan approved by the Department.”
The companies drilling Marcellus Shale gas wells clearly view the approval of a WMP as the DEP’s authorization to make surface water withdrawals. For instance, in a letter sent to Wetmore Township, McKean County, East Resources states:
“Notice is hereby given that East Resources, Inc. has filed a request to the [DEP] to include the Pennsylvania American Water in its Water Management for Surface Water Withdrawal and Public Water Supply Withdrawal Sources in Pennsylvania and New York.”
While this notification regarded East Resources’ withdrawals from a public water supply, the explicit reference to its “Water Management Plan for Surface Water Withdrawal” reinforces the fact that the industry views the WMP process as a “permit” process that culminates with the DEP “approving” a WMP and, therefore, the water withdrawals contained within the WMP.
Your letter finally attempts to relieve the DEP of any culpability for this unlawful water withdrawal permit program by stating the following:
DEP’s approval of [a Water Management Plan] does not give the operator any real or personal property rights, or the right to access water. For example, this approval does not grant or confer to the operator any right, title, easement, or interest in, to or over any land, including that of a riparian owner. Moreover, this approval does not obviate the necessity of the operator to obtain the proper consent from the riparian landowner and to comply with federal, state, and local legal requirements and common law regarding property rights. Rather, DEP’s WMP approval is intended to ensure that an operator’s use of water for natural gas well development does not violate Pennsylvania statutory law. For these reasons, DEP does not require an operator to notify riparian landowners or demonstrate that it has authority to make a water withdrawal.” (emphasis added)
While this acknowledgment verifies what we have been saying all along – that the DEP lacks authority to approve water withdrawals – it’s a rewriting of history so that DEP can wash its hands of the last several years’ worth of unlawful water withdrawals for Marcellus Shale gas drilling. The DEP, however, cannot avoid the fact that the WMP process has been used as a de facto permitting process for water withdrawals.
Nor can DEP so easily dismiss its culpability for allowing these withdrawals to occur without proper notification to the actual riparian owner. Your letter indicates that it is just common knowledge that a WMP “does not give the operator any real or personal property rights, or the right to access water.” That would be believable if the DEP actually used those exact words on a final WMP or explicitly stated that on any of its various documents or on its website. To the best of our knowledge, the DEP has not made any such statement to any operator or to the public. Instead, the DEP requires that operators notify the county and/or municipality where the water withdrawal will occur. Unless these entities are the actual riparian owner, however, that notification is no substitute for actual notice to the real riparian owner. It is simply beyond the pale for DEP to continue approving WMPs without requiring notice to and consent from the actual riparian owner prior to any water withdrawal.
The reason for such notice is obvious. Riparian landowners have a long recognized right in Pennsylvania to the reasonable use of water that is on or flows across their property. Non-riparians have no right to use this water at all. If non-riparians withdraw water that they have no legal right to, that necessarily impairs those riparian owners that do have legal rights to that water. At the very least, the DEP, before issuing a final WMP, must require notification to the riparian landowners whose water is about to be taken so that those landowners can take appropriate legal action to protect their riparian rights. Anything less abdicates the DEP’s responsibility to the citizens of this Commonwealth to protect their interests and the environment. The DEP cannot simply issue WMPs and then stick its head in the sand, especially now that it has acknowledged the primacy of riparian rights and the fact that these oil and gas companies have no legal right to the water they are withdrawing from western Pennsylvania’s surface waters.
The DEP claims that it is diligently analyzing the cumulative impacts of water withdrawals and adequately protecting Pennsylvania’s surface waters from Marcellus shale drilling as part of its so-called comprehensive WMPs. It should be clear, however, that any program regulating water withdrawals cannot be considered comprehensive, much less adequate, when it blatantly ignores informing riparian owners that their rights are being impaired without affording them any opportunity to challenge these water withdrawals. The DEP’s current policy of leaving it up to the natural gas industry to inform riparian owners is unacceptable and impairing riparian rights across western Pennsylvania. The DEP must take immediate action to stop oil and gas companies from withdrawing water that they have no legal right to withdraw.
/s/ Bill Belitskus
Allegheny Defense Project
cc: Leanne Marten (Allegheny National Forest)
Robert Fallon (Allegheny National Forest)
Anthony Scardina (Allegheny National Forest)
Kent Connaughton (U.S. Forest Service, Eastern Region)
Shawn Garvin (U.S. EPA)
Clint Riley (U.S. Fish & Wildlife Service)
John Quigley (PA DCNR)
John Arway (PA Fish & Boat Commission
James Delaney (PA Game Commission)
State Senator Leach