IMPORTANT UPDATE:

I spoke this morning with Matt Brouwer, one of two Department of Agriculture and Markets staffers who work for the Agriculture Protection Division particularly on Ag District issues.  He does not interpret the draft SGEIS to give lead agency status on the SEQRA review to his department.  He views their involvement as more advisory to the DEC on a site-specific basis in their permit review process.

Mr. Brouwer and I differ in our interpretations of the meaning of the draft SGEIS section referred to below.  Neither of us is a lawyer.  I will seek out a legal opinion on this issue and post a follow-up at a later date.  Meanwhile, please take the information presented as an unsettled area on which more clarity should be developed through the public review process.  Mr. Brouwer and I agreed that, as of yet, mechanisms for any enforcement of mitigations required in an Ag District had not been developed.  Department of Agriculture and Markets 2 staff positions in this area are stretched as it is to cover their ordinary workload.

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The draft Supplemental Generic Environmental Impact Statement (SGEIS) recently released by the DEC sets an overall regulatory framework for considering the environmental impact of HVSW hydrofracking across the state.

However, the DEC has ceded the lead agency role (responsibility for determining environmental impact) to another State Agency across a significant portion of the area under consideration for drilling, the Department of Agriculture and Markets. Agriculture and Markets has declined to assess impacts in a generic fashion, and will require individual Environmental Impact Statements (EIS) for projects proposed in their area of lead agency, tax parcels within one of the State’s recognized Agricultural Districts.

Ag Districts have a precise legal definition, by tax parcel, and there are prescribed rules and processes for parcels being added to or removed from the district.  This is not the same as, nor does it effect, agricultural use tax exemptions.  Ag Districts are special districts in which farming, as an activity and land use, is protected from governmental actions that would have a negative impact on the ordinary practice of agriculture.

In most cases, Ag District designation protects farmers from overly-restrictive local laws that might, for instance, prohibit farmers from running haying equipment after 6 pm due to a noise ordinance.  In this case, however, the Ag District designation would protect farmers from being considered in the one-size-fits-all SGEIS, and would require drilling companies to identify and mitigate all adverse impacts on a site-specific basis, one farm at a time.

Here is the relevant language from the draft SGEIS (section 3:16-17):

The Department is not proposing to alter its 1992 Findings that proposed disposal wells require individual site-specific review or that proposed disturbances larger than 2.5 acres in designated Agricultural Districts require a site-specific SEQRA determination. According to the information received to date, the drilling of all high-volume hydraulically fractured wells will create surface disturbances in excess of 2.5 acres. The Department will consult with the Preliminary Revised Draft SGEIS 2011, 3-17
Department of Agriculture and Markets to develop permit conditions, BMP requirements and reclamation guidelines to be followed when the proposed disturbance is larger than 2.5 acres on a farm in an Agricultural District. Staff will perform the SEQRA review and publish the results in the Environmental Notice Bulletin (ENB). A large number of agricultural districts are currently located in areas where HVHF drilling is expected to occur but many of these districts have reverted to forestlands and are no longer in agricultural production. Mineral Resources will provide guidance to gas well operators to achieve the goal of reducing or minimizing the surface disturbance to agricultural farmlands. Examples of the proposed Agricultural District requirements include but are not limited to:
decompaction and deep ripping of disturbed areas prior to topsoil replacement; removal of construction debris from the site; no mixing of cuttings with topsoil; removal of spent drilling muds from active agricultural fields; location of well pads/access roads along field edges and in nonagricultural areas (where possible); removal of excess subsoil and rock from the site; and fencing of the site when drilling is located in active pasture areas to prevent livestock
access.

It remains to be seen what portion of lands leased for drilling lay within the designated Ag Districts.  Not all farming areas have chosen to become an Ag District, although most have.  Forested areas that are contained in parcels that also contain actively farmed fields will be included in an Ag District, but large areas of contiguous forests probably are not.  But, it is easy to guess that quite a lot of the land leased for drilling is located in an Ag District, putting the Department of Agriculture and Markets, and not the DEC, in charge of determining what is and is not a necessary mitigation in order to qualify for a drilling permit.  Or, whether, to comply with SEQRA, the project can’t go forward at all.

This is likely to cause concerns about differential treatment, similar to the outcry over why some people’s drinking water sources had more protections than other people’s drinking water sources in the SGEIS document.  Farms located within Ag Districts will have the benefit of an individualized look at the impact of gas development in their neighborhoods, while farms located in areas that do not have Ag Districts will not.

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