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November 23, 2010

Contact: Cathy Pedler – (814) 454-7523
Bill Belitskus – (814) 778-5173
Ryan Talbott – (503) 887-7845

Department Of Environmental Protection Admits It Has No Authority To Permit Water Withdrawals For Marcellus Shale Gas Drilling In Western Pennsylvania

Nonetheless, DEP continues to encourage illegal water withdrawals

On July 26, the Allegheny Defense Project sent a letter to Pennsylvania Department of Environmental Protection Secretary John Hanger challenging the agency’s statutory authority to permit water withdrawals for Marcellus Shale gas drilling in western Pennsylvania. Marcellus Shale gas drilling requires millions of gallons of water for the High Volume Slick-water Horizontal Hydraulic Fracturing process. In central and eastern Pennsylvania, the Susquehanna and Delaware River Basin Commissions have authority to permit water withdrawals. There is no commission with such authority in western Pennsylvania, however, and the DEP lacks statutory authority under state law to issue water withdrawal permits.

In his response to the Allegheny Defense Project, Secretary Hanger acknowledges that the DEP’s approval of a “water management plan” (WMP) does not, in fact, constitute an actual authorization to withdraw water from streams, lakes, and rivers.  Secretary Hanger responded with the following disclaimer:

“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)

Secretary Hanger’s claim that the WMP process is not viewed by the DEP as an authorization to withdraw water is contradicted by the DEP’s own documents. For example, on May 11, 2010, the DEP sent a letter to East Resources regarding the company’s proposal to add the Allegheny River as a new water withdrawal source to its existing WMP. DEP “approved” East Resources to withdraw 600,000 gallons of water per day from the Allegheny River.

“It is disingenuous for DEP to claim that its approval of a WMP for Marcellus Shale gas companies is not actually a permit to withdraw water,” said Bill Belitskus, Board President for the Allegheny Defense Project. “When the DEP sends letters to gas companies telling them they are ‘approved’ to withdraw specific amounts of water, it defies logic for the DEP to turn around and argue that it has not authorized a water withdrawal.”

Unable to cite legal authority to permit water withdrawals by Marcellus drillers from western Pennsylvania’s waterways, Secretary Hanger’s head-in-the-sand approach rises to intentional malfeasance when he states, “DEP does not require an operator to notify riparian landowners or demonstrate that it has authority to make a water withdrawal.” Instead, Secretary Hanger erroneously claims that its up to “the operator to obtain the proper consent from the riparian landowner” to withdraw water from western Pennsylvania waterways.

It must be noted that under Pennsylvania riparian law that, “a riparian owner has no property right in the water per se, but rather only a right to use the water on the riparian land. Accordingly, diversions for uses elsewhere are not protected by common law.”  In other words, riparian landowners cannot sell water nor access to water under riparian rights common law; so the DEP’s assertion about operators obtaining “proper consent from the riparian landowner” is absurd on its face.

“What is truly upsetting about Secretary Hanger’s response is that while he acknowledges on the one hand the DEP has no authority to permit water withdrawals, on the other hand he refuses to require proof that these companies have any legal authority to withdraw water in the first place,” said Cathy Pedler, Forest Watch Coordinator for the Allegheny Defense Project. The DEP should not issue any more drilling permits for any oil and gas drilling until companies can demonstrate that they have a legal right to withdraw water from Pennsylvania’s waterbodies.”


[1] Craig M. Wilson, “Water Resources,” ch. in Pa. Environmental Law and Practice, Terry R. Bossert & Joel R. Burcat, eds. (5th Ed. 2008), PBI No. 5203, p. 189.

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Contact:  Cathy Pedler – (814) 454-7523
Bill Belitskus – (814) 778-5173
Ryan Talbott – (503) 887-7845

Department of Environmental Protection Unlawfully Permitting Water Withdrawals For Marcellus Shale Gas Drilling in Western Pennsylvania
Only riparian owners can make use of water in streams and rivers

Natural gas companies have descended on Pennsylvania’s forests and farmlands to drill into the Marcellus Shale.  Each Marcellus Shale gas well requires millions of gallons of water for the drilling process.  That water is taken from Pennsylvania’s streams and rivers under the alleged authority of the Pennsylvania Department of Environmental Protection (DEP).  The DEP, however, does not have the authority to permit water withdrawals in Pennsylvania.

In central and eastern Pennsylvania, water withdrawals are managed by the Susquehanna River Basin Commission and Delaware River Basin Commission.  Congress created the two commissions as federal-interstate compacts with the authority to permit water withdrawals within their respective basins.  The rest of Pennsylvania, most of which is in the Ohio River basin, is governed by riparian rights common law, which allows only the owner of property along a watercourse to withdraw water for use on their land.  There is no state law regulating water withdrawals other than for municipal drinking water supplies.

In a letter sent to DEP Secretary John Hanger, the Allegheny Defense Project (ADP) outlined the current state of Pennsylvania law regarding water withdrawals and charged the DEP with operating an unauthorized water withdrawal program that allows natural gas companies to take water that they have no legal right to for their Marcellus Shale gas drilling operations…Read More

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A Report on the NCT Allegheny 100 Challenge and Small Whorled Pogonia Survey in the Tionesta Scenic and Research Natural Areas

The adventure started June 18 at the North Country Trail Head on RT 346 near the New York border. John Stoneman, of Allegheny Outdoor Adventures, and I arrived just as the other hikers were starting out. Boots hit the trail at 6PM sharp. The event was the North Country National Trail ANF Chapter’s Allegheny 100 Challenge. Hikers were traveling between 25 and 100 miles on the North Country Trail in the Allegheny National Forest between June 18 and June 20.

John, more competitive and in shape than I, would have burned the trail up with the rest of the group, but he was kind enough to take a more leisurely pace with me. I had only committed to 25 miles rather than pushing for 100. We had parked a car at Sugar Bay planning to at least hike the entire Tracy Ridge section that evening, but some of the other hikers were going to try to make it all the way to Chappel Bay that evening (a full 25 miles). Our plan was to hike at night, but to be off the trail and back to Tracy Ridge for camping by 10 or 11PM.

The sunset hike was beautiful. The water reflected and magnified the evening light, fortunately long into the twilight. The trail was relatively easy except for a few inclines that caused my heart and lungs to jump out of my body and smack me around for using them without sufficient warning.

We eventually caught up with some of the hikers who were resting at one of the trail’s many springs and streamlets that trickle down to the Allegheny River Reservoir. We passed the hikers for a short time but regrouped with them after dark, posing for a picture by an abandoned artifact from previous episodes of human stupidity in the Allegheny (see picture below). Oil and gas debris became a theme on day two of my hike in the Tionesta Scenic and Research Natural Areas, where we were looking for Pogonias, but kept stumbling onto pipes, and tanks.

As it does, the sun finally left us and night came in full. There were moonbeams dappling the path. Unfortunately, John and I—who had again fallen away from the hiking group at the insistence of my internal organs—had turned out our lights to hike by, and admire, the moonlight. We missed our turnoff to Sugar Bay and proceeded unwittingly toward the Hopewell Camping area. John took a nice spill on the way down to Hopewell, but caught himself with his forehead on a large, flat log. He shook it off pretty well. After we discovered our mistake at Hopewell and turned around to hike back to our missed turn (adding another few miles to our evening adventure), I took a tumble going uphill, which is a lot harder to do, but hurts less than the way John did it. Eventually, we made it out to RT 321, to the car, and to Tracy Ridge for a dinner of cheese curds and Pringles. It was sometime after 1PM. We were bruised, and beat. John looked forward to his hot tub. I looked forward to 10 more miles the next day…Read More

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ADP Investigates Snyder Brothers 2008 Oil Spill Sites; Finds Valves Still Unlocked and Evidence of More Spills

A team of Allegheny Defense Project (ADP) volunteers discovered that all is not well on FR 267 and FR 269, the sites of a major oil spill two years ago. At these sites, disgruntled former employees of Snyder Brothers, Inc. let loose more than 40,000 gallons of oil that fouled Indian Run, Chappel Fork Creek, and the Allegheny River Reservoir. On May 22, 2010 ADP staff, board, and volunteers visited the sites involved in the spill, observed that the there have been subsequent dike breeches, and that the valves on the same tank batteries that were tampered with in 2008 are still unlocked two years later. The valves pictured here are located at the back of the tanks in the Snyder Brother development on FR 269. Workers use these valves to drain brine water, but if left unattended, they will also drain oil from the tanks. The photo on the left shows the unlocked valve. The photo on the right shows the brine water tank, which given its horizontal placement, will only hold about half its total volume before water and oil spill out of the hole where the liquid is supposed to enter (which apparently has happened at the Snyder Brothers site pictured here). The tank battery dikes are filled with gravel. For oil to pool as it is in the photos here the gravel-filled tank battery dikes must be saturated with oil.

On FR 267 at the tank battery, and gravel pit near Hemlock Run, ADP noted a recent spill or seepage from what appeared to be a newly expanded or repaired dike…Read More

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