NY Atty Genl On Hydrofracking

STATE OF NEW YORK
OFFICE OF THE ATTORNEY GENERAL
ERIC T. SCHNEIDERMAN DIVISION OF SOCIAL JUSTICE

ATTORNEY GENERAL ENVIRONMENTAL PROTECTION BUREAU
April 18, 2011
By Overnight Delivery
Peter A. DeLuca
Brigadier General, U.S. Army
Division Engineer/DRBC Federal Commissioner
U.S. Army Corps of Engineers, North Atlantic Division
Bldg 302, General Lee Avenue
Brooklyn, New York 11252
Re: Proposed Regulations Concerning Natural Gas Development

in the Delaware River Basin____________________________
Dear General DeLuca:
I write to request that federal agencies involved in the promulgation of Natural Gas
Development regulations for the Delaware River Basin (“the Basin") comply with the National
Environmental Policy Act, 42 U.S.C. § 4321 et seq. (“NEPA”), by preparing a draft
environmental impact statement (“draft EIS") as quickly as possible, and before finalization of
regulations authorizing gas well development within the Basin.
The regulations, proposed by the Delaware River Basin Commission (“DRBC” or “the
Commission”), would authorize drilling for natural gas within the Delaware sub-basin of New
York City’s West of Hudson Watershed (“WOH Watershed”), and in the drainage basin of the
Upper Delaware River, a federally designated “Scenic and Recreational River” shared by New
York and Pennsylvania. The WOH Watershed is a critical water resource in New York,
providing over 90 percent of the unfiltered water consumed by 9 million New York residents and
visitors each day.
As discussed in comments concerning the proposed regulations filed by my office with

the DRBC on April 15, 2011 (see copy enclosed), natural gas development poses risk of harm to
water, air, and public health within the Basin, and heightened risk within New York City’s WOH
Watershed. In fact, the New York City Department of Environmental Protection (“NYCDEP”),
the entity responsible for providing an adequate supply of safe clean drinking water drawn from
New York City’s watershed, has concluded that natural gas development would “pose an
120 Broadway, 26th Fl. New York, N.Y. 10271-0332 ● Phone (212) 416-8446 ● Fax (212) 416-6007 ● WWW.AG.NY.GOV
unacceptable threat to the unfiltered, fresh water supply of nine million New Yorkers, and cannot
safely be permitted within the New York City watershed.” 1
Involved federal agencies, including the DRBC, the United States Army Corps of
Engineers (“Army Corps”), the Fish and Wildlife Service (“FWS”), and the National Park
Service (“NPS”), have all acknowledged that proposed natural gas development would risk
significant environmental harm within the Basin and that a cumulative environmental impact
analysis should be performed. Prior to proposing the regulations, the DRBC determined that
natural gas development “may individually or cumulatively affect the water quality of Special
Protection Waters by altering their physical, biological, chemical or hydrological
characteristics.” 2 As federal commissioner on the DRBC who “reports to” and acts as
“representative of” involved federal agencies, you stated that the “administration’s position is to
continue fully supporting the need for a cumulative impact study.” 3 Similarly, FWS and NPS
have stated that “[l]arge-scale changes in land use and increased water withdrawals, like those
associated with natural gas development (including the construction of exploratory wells) will
likely affect the Services’ trust resources and should be reviewed for both individual and
cumulative environmental effects.” 4 Nevertheless, these federal agencies have approved moving
forward with the rulemaking by “agree[ing] to vote against a moratorium on regulation
development pending completion of an impact study.” 5
The involved federal agencies’ failure to prepare a draft EIS violates NEPA. NEPA’s
purpose is to ensure that federal agencies act transparently -- with full public participation -- in
considering the potential significant environmental impacts of their decisions. NEPA imposes on
federal agencies the “obligation to consider every significant aspect of the environmental impact
of a proposed action [and to] inform the public that it has indeed considered environmental
concerns in its decision-making process.” Baltimore Gas and Electric v. NRDC, 462 U.S. 87, 97
(1983). Preparation of an EIS, subject to public comment, is the “core requirement” of NEPA
for every action which “might” cause significant environmental impacts. Robertson v. Methow
Valley Citizens Council, 490 U.S. 332, 349 (1989); American Bird Conservancy, Inc. v. FCC,
516 F.3d 1027, 1034 (D.C. Cir. 2008); 42 U.S.C. § 4332(C).
Because proposed natural gas development in the Basin may have significant
environmental impacts, involved federal agencies have violated NEPA by failing to prepare an
EIS concerning the proposed regulations. The proposed regulations are a direct action of the
1
Letter from Steven W. Lawitts to New York State Department of Environmental Conservation, dated
December 22, 2009,
http://www.nyc.gov/html/dep/pdf/natural_gas_drilling/12_22_2009_impact_statement_letter.pdf.
2
Determination of the Executive Director Concerning Natural Gas Extraction Activities in Shale
Formations Within the Drainage Area of Special Protection Waters, DRBC, dated May 19, 2009.
3
Letter from Duke DeLuca to Congressman Maurice Hinchey, dated September 14, 2010; Letter from
Peter A. DeLuca to Congressman Maurice Hinchey, dated November 24, 2010 (copies enclosed).
4
Letter from Marvin E. Moriarty and Dennis Reidenbach to Carol Collier, dated June 25, 2010 (copy
enclosed).
5
DeLuca letter, dated November 24, 2010.
2
DRBC, a federal agency which must comply with NEPA. See Delaware River Basin Compact,
§ 15.1(o) (DRBC is a federal agency); 49 Fed. Reg. 49750, 49774 (December 21, 1984) (Council
on Environmental Quality (“CEQ”) holds that DRBC is subject to NEPA because it is a federal
agency with approval authority over water resource matters within the Basin); see also Andrus v.
Sierra Club, 442 U.S. 347, 357-58 (1979) (CEQ interpretations of NEPA are given substantial
deference). The Army Corps and other involved federal agencies are also required to comply
with NEPA because of their participation in, and approval of, the decision to perform the
rulemaking. 40 C.F.R. § 1508.15. Moreover, NEPA required the involved federal agencies to
prepare the draft EIS at the time the proposed regulations were published. See 40 C.F.R. §§
1502.5(d) (“the draft EIS should normally accompany the proposed rule”); 1500.2(c) (agencies
must integrate the requirements of NEPA with other planning and environmental review
procedures required by law or by agency practice so that all such procedures run concurrently
rather than consecutively.”).
The proposed regulations do not distinguish between gas well development within the
unfiltered WOH Watershed and the area of the Basin outside that watershed. In light of the
heightened risk of gas well development within the WOH Watershed, the draft EIS should
develop and analyze, as an alternative, a prohibition on gas well development within the WOH
Watershed.
The cumulative impacts of regulations authorizing natural gas development in the Basin
may have significant environmental impacts, and an EIS assessing those impacts is necessary.
Accordingly, please contact me within 30 days to let me know whether the involved federal
agencies will comply with NEPA by promptly preparing the required draft EIS. If they will not
do so, I intend to take legal action against the appropriate involved federal agencies to compel
such compliance.
My staff and I are available to discuss this matter. Please contact Lemuel M. Srolovic,
Bureau Chief, Environmental Protection Bureau at (212) 416-8448 or at
[email protected].
Very truly yours,
Eric T. Schneiderman
Attorney General
Enclosures
cc (by first class mail):
Executive Director, DRBC

Administrator, EPA
3
Regional Administrator, EPA Region II
Regional Administrator, EPA Region III
Director, U.S. Fish and Wildlife Service
Director, U.S. National Park Service
Governor, State of New York
Commissioner, New York State Department of Environmental Conservation
Commissioner, New York State Department of Health
Commissioner, New York City Department of Environmental Protection
Governor, State of Delaware
Governor, State of New Jersey
Governor, Commonwealth of Pennsylvania

NY Atty Genl On Hydrofracking

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STATE OF NEW YORK

OFFICE OF THE ATTORNEY GENERAL

ERIC T. SCHNEIDERMAN DIVISION OF SOCIAL JUSTICE

April 18, 2011

Re: Proposed Regulations Concerning Natural Gas Development

Dear General DeLuca:

As discussed in comments concerning the proposed regulations filed by my office with

Very truly yours,

cc (by first class mail):

Executive Director, DRBC

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