Analysis of the proposed regulatory framework set forward in the DEC’s document, all of which will not even be released until the end of July, is a task that will require both meticulous care and, in many cases, expert background.

One of the most substantive changes in this draft, over the previous draft, is the treatment of the rights of localities to apply land use controls over the gas industry. Below please find a communication on this topic from Helen Slotje, Managing Attorney with the Community Environmental Defense Council.

We wanted to clarify our 6/30 email on this topic which said: “The DEC announced today that the sgeis will contain a requirement that a gas well applicant certify that their proposed activity is consistent with local land use and zoning laws, and that failure to certify or a challenge by a locality would trigger additional DEC review before a permit could be issued. (Under NYS law the DEC may not refuse to issue a permit because it conflicts with local law – the courts have said the DEC must issue the permit and then leave the dispute to the town and permit holder.  Therefore, this is the strongest position DEC can take and is clear signal to communities that the DEC, and thus the governor, supports home rule and local zoning.) This is a 180 degree turn around from the DEC’s original position that local communities only could ask for road use agreements, and we believe it is in response to and in recognition of the groundswell of communities working on bans.”

To break this down:
The 6/30 press release and our email said: “The DEC announced today that the sgeis will contain a requirement that a gas well applicant certify that their proposed activity is consistent with local land use and zoning laws, and that failure to certify or a challenge by a locality would trigger additional DEC review before a permit could be issued.”

This is consistent with the new provision in the dSGEIS (p. 650 8.1.1.3), which reads:
“The Department’s exclusive authority to issue well permits supersedes local government
authority relative to well siting. However, in order to consider potential significant adverse
impacts on land use and zoning as required by SEQRA, the EAF Addendum will require the
applicant to identify whether the proposed location of the well pad, or any other activity under
the jurisdiction of the Department, conflicts with local land use laws or regulations, plans or
policies. The applicant will also be required to identify whether the well pad is located in an area where the affected community has adopted a comprehensive plan or other local land use plan and
whether the proposed action is inconsistent with such plan(s). For actions where the applicant
indicates to the Department that the location of the well pad, or any other activity under the
jurisdiction of the Department, is either consistent with local land use laws, regulations, plans or policies, or is not covered by such local land use laws, regulations, plans or policies, the
Department will proceed to permit issuance unless it receives notice of an asserted conflict by
the potentially impacted local government.
Applicants for permits to drill are already required to identify whether any additional state, local or federal permits or approvals are required for their projects. Therefore, in cases where an
applicant indicates that all or part of their proposed project is inconsistent with local land use
laws, regulations, plans or policies, or where the potentially impacted local government advises
the Department that it believes the application is inconsistent with such laws, regulations, plans
or policies, the Department will, at the time of permit application, request additional information
so that it can consider whether significant adverse environmental impacts will result from the
proposed project that have not been addressed in the SGEIS and whether additional mitigation or
other action should be taken in light of such significant adverse impacts.”

Our email went on to say that: “Under NYS law the DEC may not refuse to issue a permit because it conflicts with local law – the courts have said the DEC must issue the permit and then leave the dispute to the town and permit holder.  Therefore, this is the strongest position DEC can take and is clear signal to communities that the DEC, and thus the governor, supports home rule and local zoning. This is a 180 degree turn around from the DEC’s original position that local communities only could ask for road use agreements, and we believe it is in response to and in recognition of the groundswell of communities working on bans.”

So yes, the DEC review of local land use laws is weak, and the DEC WILL NOT refuse to issue a permit based on local land use laws. It will only consider whether local land use laws identify significant adverse impacts that are not addressed in the dsgeis. Legally, this is all the DEC can do.

But what we also read this to mean is that the DEC will not take a position on local zoning.  Conflicts between local zoning and state laws will have to be settled in court but the DEC will NOT side with landowners and gas co. in this fight.  From our seats this is a complete reversal of the DEC’s earlier statements that local zoning did NOT apply – and which led many to fear that the DEC would itself challenge any town that attempted to prohibit drilling.
To reiterate, the DEC CANNOT decide that local land use laws apply. That is beyond their powers – only local governments are empowered to enact local zoning – not the state, not the county. Only the locality.

But if the DEC continued to take the (incorrect) position that local land use laws did not apply, that would be one more battle for local towns to have to fight. And one many towns were worried about as an additional battle to the one with the landowners/gas co. But the DEC has bowed out of the fight.  They are not going to assert that there is no room for local land use – in fact for the first time they have acknowledged that they are going to tell communities about drilling permits and are going to at least look at what the local land use plans are. (yes weak – but a real change in attitude from we aren’t gong to tell you and we aren’t even going to bother to look at the particulars of your town, we are just issuing permits.)

Were we reading too much into the tea leaves?  We don’t think so.  The DEC sat down with the JLCNY on Friday and that is precisely what the landowners report that the DEC told them:  “The DEC will not take a position on local zoning.  Conflicts between local zoning and state laws will have to be settled in  court.” This is a direct quote from DAN FITZSIMMONS. And this is exactly what we said on Friday:  “Under NYS law the DEC may not refuse to issue a permit because it conflicts with local law – the courts have said the DEC must issue the permit and then leave the dispute to the town and permit holder.

So the victory here is a subtle one – it is not one where the DEC will refuse to issue a permit based on a local ban.  The DEC can’t do that. But is the DEC going to affirmatively get into a fight with towns about their authority to ban drilling (as many feared, and former Dept of Minerals Chief Greg Sovas has been threatening)? We don’t think so.  And the landowners report that the DEC has told them it isn’t going to do that either.

And what about those towns that have said “we are powerless to enact local laws”? This new addition to the dsgeis is a firm repudiation of the concept that there is no benefit and only a possible lawsuit with the DEC if a town enacts local laws either to protect its environment (which the DEC will consider) or land use laws like zoning (which are outside the scope of DEC review).

We remain very skeptical of the DEC’s willingness to protect the rural areas of upstate New York (as compared to the NYC watershed) and continue to believe the strongest protection a local town can have is a local ban based on land use law – which is  an area of law distinct from and outside of the DEC review.

David Slottje and Helen Slottje
Community Environmental Defense Council, Inc.
Ithaca, NY

PS:Here is the rest of what Dan had to say to his minions:
The JLCNY  was fortunate to be invited to attend a briefing led by DEC Commissioner  Martens Friday afternoon. JLCNY attorney Scott Kurkoski and our  consultant attended the meeting. Below you will find a bullet point  summary of what they learned directly from the commissioner himself  followed by a special holiday surprise.

  • Landowners with acreage over a primary aquifer will  still be able to lease their mineral/gas/oil rights. Subsurface  operations will be permitted under the aquifer. Surface drilling  operations will not be permitted in acreage over a primary aquifer. The  DEC has an accurate (but admittedly not very detailed) map of New York’s  Primary Aquifers at http://www.dec.ny.gov/lands/36164.html
  • In the New York City and Syracuse watersheds the  dSGEIS will prohibit high volume horizontal hydraulic fracturing.  Conventional and other forms of drilling will be permitted.
  • The DEC will not take a position on local zoning.  Conflicts between local zoning and state laws will have to be settled in  court.  (emphasis added)
  • The DEC did study the issue of Normally Occurring Radioactive Materials and has concluded that they are not a risk in NY.
  • The dSGEIS will be published via the DEC website  on Friday July 8, 2011. It will not include the socio-economic content  though. The full dSGEIS including the socio-economic content will not be  available until August which will be when the 60 day comment period  commences.
  • The DEC has not made a decision as to how many public hearings they may hold, if any.
  • A landowner can waive the prohibition against issuing a permit within 500′ of their private water well.
  • Chemicals must be disclosed. Chemicals will be tracked throughout their use and accounted for at all times.
  • Additional casing requirements and cementing  processes will be put into effect. These are expected to completely  mitigate the risks of methane migration.


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