JLC Comments Final Published Version 010912

8/3/2019 JLC Comments Final Published Version 010912

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January 10, 2012

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Preface

The Joint Landowners Coalition of New York, Inc., (JLCNY) is a 501(c)(6) nonprofit

corporation whose mission is; To foster, promote, advance and protectthecommon

interestof the people as itpertainsto natural gasdevelopmentthrougheducation and

bestenvironmental practices.

The JLCNY represents the common interests of 38 independent landowner coalitions

throughout the Southern Tier of New York whose members own over 800,000 acres of

land over the Marcellus Shale natural gas deposits. The JLCNY and New York

landowner coalitions have been very engaged on all aspects of natural gas development.

We have followed the development of natural gas in neighboring Pennsylvania,

researched all relevant issues, evaluated the best practices and have drafted leases

incorporating vigorous landowner protections. This extensive research, hundreds of

actual site visits by the members of the JLCNY and the professional background of many

of the JLC members with oil and gas experience formed the basis for many of the

following comments.

The JLCNY believes the original draft Supplemental Environmental Impact Statement

(dSGEIS) developed by the NYS

comment in September 2009, was very close to achieving the necessary protections for

the environment. However, the latest release adding 500-plus pages to the document

provided very little in additional meaningful content and only served to delay natural gas

production in New York State, costing the Southern Tier region and its struggling

economy millions of dollars in lost revenue. For instance, adding several pages about the

various types of diesel engines provides very little useful information when a simple

reference to existing regulations and the need to meet them would suffice.

It is important to mention that the members of the JLCNY understand that the regulatoryprocess involves change. As development progresses in the field, a regulation might

need to be modified or removed at any time because it no longer addresses a situation or

a better technology has evolved. In addition to the specific recommendations in the

following pages, removing all redundant and superfluous material from the SGEIS would

improve the document and make it more useful for the DEC, the landowners, the public

and industry.

The JLCNY thanks the NYSDEC for the opportunity to provide meaningful input. This

document represents the collective input of the JLCNY membership. Please read it

carefully. Each of the individual comments may apply to the same or similar items found

in many places throughout the DSGEIS. Many address confusing or inconsistent issuesand some address items that are based on old or incorrect information.


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Local Planning DocumentsSection 1.7.5, Page1-1

location to local land use laws, regulations, plans and policies to determine whether the

proposed activity is consistent with such local land use laws, regulations, plans and policies. Ifthe applicant or the potentially impacted local government informs the Department that it

believes a conflict exists, the Department would request additional information with regard to

this issue so it can consider whether significant adverse impacts relating to land use and

JLC NY Response

It was a significant error by the NYSDEC to add this section to the DSGEIS. This

section has motivated municipalities across New York to pass regulations relating to oil

and gas development, thereby affecting the energy policy of the entire State. In the

1970s, New York experienced many problems with the regulatory program for the oil

and gas industry when municipalities began their own regulatory initiatives. This local

regulation of the oil and gas industry resulted in several problems, including:

1. Safety concerns resulting from untrained local staff going onto well sites;2. The significant costs to hire proper professional petroleum engineer staff, which

was often too burdensome for local municipalities;

3. A patchwork of local regulation, which resulted in differing requirements fordrilling unrelated to geology;

4. Financial security at both the local and State levels;5. Conflicts between municipal boundaries and setbacks; and6. Exorbitant local taxation.

In 1981, the New York Oil, Gas and Solution Mining Law was amended to include the

following supersedure provision in ECL 23-0303(2):

shall supersede all local laws or ordinances relating to the regulation of the oil, gas and

solution mining industries; but shall not supersede local government jurisdiction over

amendment was enacted with the clear understanding that the supersedure clause

extinguished the right of municipalities to regulate any aspect of oil and gas

development including the right to zone oil and gas wells. There was never any intent to

allow a local government to extinguish the mineral rights of any landowner by zoning

out oil and gas development. Rather, ECL 23-0303(2) was intended to strengthen therights of landowners to recover their subsurface minerals, or have others do so for them,

unfettered by any local regulation. Unfortunately, many municipalities have interpreted

this section as an invitation to regulate oil and gas which threatens to return New York

to pre-1981 status. We believe NYSDEC did not intend this result and suggest this entire

section be deleted.


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Setback fromthe New York City WatershedSection 7.1.5,frompages7-557-56

recommends that regulations be adopted to prohibit high-

volume hydraulic fracturing in both the NYC and Skaneateles Lake watersheds, as well

as in a 4,000 -foot buffer area surrounding these watersheds, to provide an adequatemargin of safety from the full range of operations related to high-volume hydraulic

JLC NY Response

There are many problems with thissetback , including the violation of the FifthAmendment to the United States Constitution which provides that private propertyshall not be taken for public use without j ust compensation. We arece rtain thatlandowners will see k to address th is issue in court.

In addition , thissetback issimply flawed since some areas of the buffer actually

leave the Delaware River basin and cross into the Susquehanna River basin . Anexample of where this happens is in the Town of M eredith in De laware County (see map on next page). Also, there are landowners impacted by the 4000 foot setbackwith parce ls that are located downhi ll or downstream of the NY C watershed with nochance of any runoff or spill entering the NY C watershed. The J L C N Y does notbelieve that the New Yor k State Department of Envi ronmental Conservationintended this resul t. We therefore recommend that the language in the SGE IS bechanged to cor rect this issue. Wesuggest after -footbuffer a reasurroundingthese watersheds,adding the following: zone which is in a differentwatershed wherethesetback willend atthe boundary, orwhere a property isdownhill or downstream fromthe watershed with no opportunity

for runof


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Invasive SpeciesSection 7.4.2.1frompage7-92

machinery and equipment have been washed prior to entry and exit of the project site and

that there is no dirt or plant material clinging to the wheels, tracks, or undercarriage of the

JLC NY Response

This provision for inv asiv espec ies mitigation is unnecessar y once the access roadand well pad arecompleted, as their surfaces will becovered with paving materialssuch as gravel or crushed stone. The need to continue inspec ting vehicles andmachinery coming and going from thesite no longer makessense. Annual follow-upsite inspec tions of the access road and we ll pad during the growing season willachieve the desi red objec ti ve.


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Pad Siting Equipment, Layoutand OperationSection 7.1.10, page7-129

-well pad are the reduced number of sites generating noise and,

with the horizontal drilling technology, the flexibility to site the pad in the best location

to mitigate the impacts. As described above and in more detail in Subsection 5.1.3.2,current regulations allow for a single well pad per 40-acre spacing unit, one multi-well

pad per 640-acre spacing unit, or various other combinations. This provides the potential

for one multi-well pad to recover the resource in the same area that could contain up to

16 single well pads.

With proper pad location and design, the adverse noise impacts could be significantly

reduced. A multi-well pad provides a platform to extract gas over a wider area than the

area exploited by a single vertical well. This provides an opportunity to locate the multi-

well pad away from a noise receptor and in a location where there is intervening

topography and vegetation, which can reduce the noise level at the receptor location to a

level below that which might result from several single-well pads in close proximity tothe receptor location.

Multi-well pads also have the potential to greatly reduce the amount of trucking and

associated noise in an area. Rigs and equipment may only need to be delivered and

removed one time for the drilling and stimulation of all of the wells on the pad. Reducing

the number of truck trips required for fracturing water is also possible by reusing water

for multiple fracturing jobs. In certain instances, it also may be economically viable to

JLC NY Response

The J L C N Y recommends that the NYSDEC consider permitti ng wherever possib leduplex dri lling units as descr ibed below asSingle-Pad Duplex Drilling Units.

Single-Pad Duplex Drilli ng UnitsBy abut ting two 640-acre dr illing units wherever possib le and placing a single well padstraddling thecommon boundary line,several environmental, landowner , indust ry, andDEC benef itsemerge, including:

1. One-half thesurface disturbance :o One pad instead of two;

o One gathering pipeline instead of two;

o One access road instead of two;o Seven to ten acres or more of natural wildlife habitat and producti ve

farmland in each consolidated drilli ng unit could remain undisturbed;

o Reduced storm water runoff .

2. Twice the usual number of wellscould be located on a single dr illing pad:o Incentive to lay temporary pipeli nes for water distribution;


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o Significant reduction in tr uck traffic;

o Moreeff icient dril ling rig and anci l lary equipment utilization;

o Safer and moreeff icient handling and recycling of dril ling and fr acing fluids;

o Improved potential spill containment and remediation .

3. Mor eeff icient regulatory activities for DE C f ield personnel:

o Eff ecti vely monitor ing two well sites in a single location;

o Reduceevaluation time for permits;

o Reduce the amount of Department of Transportation (D O T) input on Road

Usage Plans;

o Eff ecti vely reduce the number of roads impacted by heavy traff ic;

o Moreeffecti vely site pad locations to reduce noise and visual impacts

4. Significant reduction in indust ry costs:

o Singleenvironmental impact statement rather than two;

o Reduced site preparation and construction costs;

o Reduced equipment installation, removal and transportation costs;

o Reduced product pipeli necosts;

o Potential for multiple f racs with a singlesetup;

o Moreeff icient flowback recycling and reduced waste disposal ;

o Consolidated flowback containment tank farm;

o Consolidated noise abatement structures if required.

In addition , by allowing all the we llsschedu led for dr illing on theconsolidated pad

to be

dril le

dc

onsec

utive

ly by the

s

ame

r ig,

many of the

afore

me

ntione

d be

ne

fi ts

would significantly increase for each of the participants involved. This increase ineff iciency already exists in Pennsylvania where the JLC NY has visited many single-pad well sites as large as 1,280 acres.


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Number of Wellsper Pad SiteSection 6.5.1.4, page6-104

Drilling as many wells as possible from a single well pad provides for substantial

environmental benefits from less road construction, surface disturbance, etc. Also,

experience shows that average drilling time can be improved as more experience isgained in a shale play. Based on industry information submitted in response to

Department requests, it is expected that no more than four wells could be drilled,

completed, and hooked up to production in any 12-month period. Therefore, the annual

emission estimates presented in Section 6.5.1.7 are based on an assumed maximum of

four wells per site per year.

JLC NY Response

Through discussions with industr y representatives and visits to act iv e drilling sites,the JL CNY has found that imp rovements in technology and eff iciency associa tedwith drill ing wel ls in the M arce ll us Shale formation has improved. It is now easi ly

possib le to dril l six wells or more per p ad within one year . T his increase ineff iciency would dec rease the overall emissions from a single we ll pad because thedrilling equipment required would be operating for thesame amount of time for thetwo additional wells that previously may have only drilled four . This increase ineff iciency also r educes the overall time of annoyance impact in a spec if ic area.


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Well CasingSection 7.1.10.1,frompage7-50

And in Appendix 8, Number 4

pipe with a mill test of at least 1,100 pounds

JLC NY Response

Apparently there is a typograph icerror here. Sec tion 7 says 1000 psi and Appendix8 says 1100 psi. The G E IS (1992) says 1,100 psi.A lso, a typo in page 7-50 h is missing from with .


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Annular Pressure BuildupSection 7.1.4.3

surface casing and the next string be vented at all times to prevent pressure build-up in

the annulus. If the annular gas is to be produced, a pressure relieve valve would beinstalled in an appropriate manner and set at a pressure approved by the Department.

Proposed Supplementary Permit Conditions for high-volume hydraulic fracturing state

casing string be shut-

However on page 7-53 the SGEIS states nting would be by the

pump and plug method with a minimum of 25% excess cement unless caliper logs are

JLC NY ResponseThe JL CN Y finds this to beconfusing and contradictory. We recommend that areview of best practices from Ohio and Pennsylvania beconducted and appropriatelanguage be added to clarify thissec tion. The J L C N Y h as visi ted many well sites inPennsylvania where al l casings arecemented to thesurface . T his and the use of fourcasings (conductor ,surface , in termediate and production) to date hassolved theproblem of gas migration. T hissec tion could be improved by providi ng a cleardiagr am illustrating constr uction requirements relati ng to well -casing.


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Reduced Emission CompletionsSection 7.6.8,fromPage116;

estimate of the amount of methane that would be recovered instead of flared by the use of

From Page117;

whenever a sales line is available during completion at any individual well or the

JLC NY Response

The Public Service Commission (PSC) regulates pipeli nes in New Yor k, not theDepartment of Envi ronmental Conservation. However , the SGE IS in section 7.6.8suggests that reduced emission completions beevaluated and implementedwhenever a sales li ne is available.

The JLC NY has always, and continues to promote best environmental pr actices. I tis important to reduce methane and carbon dioxide to the atmosphere. Theexistingregulation is designed for gasexplora tion that may or may not successfully find aproducing well; thuseliminating the possibility of building unnecessary gatheringpipel ines. I t iscommon knowledge that when a we ll is dril led into the M arce ll usformation it is not a question of if you are going to find natu ra l gas, but only aquestion of how much. I n conversations with two natural gascompanies operatingoutside of New Yor k, we have been informed that they build the pipeli nessimultaneously with the wel l site in order to accomplish r educed emissioncompletions.

The J L C N Y encourages the N YSD E C to do whatever is necessar y to encourage the PSC to amend its regulations by allowing theconstr uction of a sales linesimultaneously with dril ling and completion of natur al gas wells.


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Drilling FluidsSection7.1.3.2, page7-35

-completion of wells should be

constructed, maintained and lined to prevent pollution of surface and subsurface waters

and to prevent pit fluids from contacting surface soils or ground water zones. Departmentfield inspectors are of the opinion that adequate maintenance after pit liner installation is

more critical to halting pollution than the initial pit liner specifications. Damaged liners

must be repaired or replaced promptly. Instead of very detailed requirements in the

regulations, the regulatory and enforcement emphasis will be on a general performance

standard for initial review of liner-

JLC NY Response

The JLC NY has in previouscor respondence (comments on scoping document andcomments on first draft of SG E IS) recommended c losed loop dri lling thuseliminating the need for pits used in drilling. T he JLC NY also h as recommended

using stee l tanks for thecontainment of all flowback fluids. Many companies in PAar e recycling flowback fluids for reuse. T he J L C N Y encourages this practice . Theonly pits that we believeshould be allowed are those for thecontainment of freshwater . Lease documents prepared by member coalitions of the J L C N Y spec if icallyprohibit the use of open pits for any use ot her than containment of fresh water .


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F ueling Tank and Tank Refilling ActivitiesSection 7.1.3.1, page7-34

Setbacks from Other Surface Water ResourcesSection 7.1.11.2, page7-76

site-specific SEQRA review be required for projects involving any proposed well pad

where the closest edge is located within 150 feet of a perennial or intermittent stream,

storm drain, lake or pond.

JLC NY Response

The 500-foot setback for fueling activities occurs in several places in the SGEISincluding the above quote from the SWPPP. The J L C N Y supports the developmentof the SW PPP and thespill containment plan, but also bel ieves that with these inplace the refueling could ta ke place anywhere on the we ll pad. A prope r lydeveloped SW PPP as descr ibed in the SG E IS will prohibit any spills from leavingthe pad site.

The JLC NY does not have an issue with the 150-foot setback from perennial orintermittent streams. While we believe it may be possib le to locate a fue ling tank onthe well p ad 500 fee t from a perennial or intermittent stream , we question the needfor this requirement If the SW PPP and Spill Prevention Control &Countermeasure (SPCC), including secondary containment ,cur bing around thetank, SPC C tr aining of an onsitecrew, and other requirements, iscomplete then thefueling tank could be pl aced almost anyplace on the pad without r isk of surface water contamination. A lso, it may be more beneficial to place the fueling tank , froman environmental risk standpoint, at a place that iscloser t han 500 fee t. TheJ L C N Y believes th issec tion should bechanged to read: sible,fuelingtankswould notbe positioned within 500 feetof a perennial or intermittent


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Cumulative Water Withdrawal ImpactsSection 7.1.1.6, page7-25

pact of consumptive use by this

new activity (natural gas development), while significant, appears to be manageable with

-producing shales inNew York extends beyond the jurisdictional boundaries of the SRBC and the DRBC.

New York State regulations do not currently address water quantity issues in a manner

consistent with those applicable within the Susquehanna and Delaware River Basins with

respect to controlling, evaluating, and monitoring surface water and ground water

withdrawals for shale gas development. The application of the NFRM to all water

withdrawals to support the subject hydraulic fracturing operations would

comprehensively address cumulative impacts on stream flows because it will ensure a

specified minimum passby flow, regardless of the number of water withdrawals taking

JLC NY ResponseThe J L C N Y requests that the NYSD E C wor k with the SRBC , the DRB C and theG reat Lakes Basin Commission (and a ny other watershed commission) toimplement a joint water withdrawal permit process. T he processshould require thesubmission of only one application that would satisfy the requirements of allconce rned.


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Primary and Principal AquifersSection 7.1.3.5, page7-40

the activities associated with high-volume hydraulic fracturing pose a risk of causingsignificant adverse impacts to Primary Aquifers and, therefore, such operations may not

be consistent with the long-term protection of Primary Aquifers. The Department finds

that standard stormwater control and other mitigation measures may not fully mitigate the

risk of potential significant adverse impacts on these water resources from spills or other

releases that could occur in connection with high-volume hydraulic fracturing operations.

Therefore, the Department proposes to bar placement of high-volume hydraulic

fracturing well pads over Primary Aquifers and an associated 500-foot buffer to provide

an adequate margin of safety from the full range of high-volume hydraulic fracturing

activities. As defined in TOGS 2.1.3, Primary Aquifers are currently extensively used by

major municipalities as a source of drinking water. Contamination of a Primary Aquifer

could render a large, concentrated population without drinking water. Replacing adrinking water source of this magnitude would be prohibitive because of exorbitant costs,

difficulty in locating alternative water supply sources, and the extensive time needed to

implement any alternatives. However, because the mitigation measures that would be

imposed through permit conditions and/or regulations may prove effective for preventing

uncontained, unmitigated releases that could contaminate Primary Aquifers, this bar will

be re-evaluated two years after the commencement of issuance of well permits associated

with high-

-specific SEQRA review for placement

of high volume hydraulic fracturing well pads that are proposed to be located over

Principal Aquifers or within a 500-foot buffer, as well as an individualized SPDESstormwater permit. As defined in TOGS 2.1.3 and explained in Chapters 2 and 6,

Principal Aquifers are currently not intensively used by major municipalities as a source

of drinking water, as compared to Primary Aquifers. However, contamination of a

Principal Aquifer could still render a large population without water. Because mitigation

measures that would be imposed through permit conditions and/or regulations may prove

effective for preventing uncontained, unmitigated releases that could contaminate

Principal Aquifers, this proposed requirement will be re-evaluated in two years after

the commencement of issuance of well permits for high-volume hydraulic fracturing

Page 7-41SummaryTo ensure that mitigation measures are sufficient to protect primary and principal

aquifers, which are described in Chapters 2 and 6 of this Supplement and in the 1992

GEIS, the Department would implement the following restrictions until at least two years

after issuance of the first permit for high-volume hydraulic fracturing:

1) No well pads would be approved within 500 feet of primary aquifers; and

2) A site-specific SEQRA review and determination of significance, and a site-specific


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JLCNY Page 18 of28

SPDES permit, would be required for any proposed well pad within 500 feet of a

Page 7-42

-volume hydraulic fracturing, the

Department would re-evaluate the need for these restrictions based on experience withhigh-

g andConstructionExisting construction and cementing practices and permit conditions to ensure the

protection and isolation of fresh water would remain in use, and would be enhanced by

Permit Conditions for high-volume hydraulic fracturing. See Appendices 8, 9 and 10.

Based on discussion in Chapters 2 and 6 of this Supplement, along with GWPCs

regulatory review,36

SummaryTo ensure that mitigation measures are sufficient to protect primary and principal

aquifers, which are described in Chapters 2 and 6 of this Supplement and in the 1992

GEIS, the Department would implement the following restrictions until at least two years

after issuance of the first permit for high-volume hydraulic fracturing:

1) No well pads would be approved within 500 feet of primary aquifers; and

2) A site-specific SEQRA review and determination of significance, and a site-

specific SPDES permit, would be required for any proposed well pad within 500

feet of a principal aquifer.

Revised Draft SGEIS 2011, Page 7-42Two years after issuance of the first permit for high-volume hydraulic fracturing, the

Department would re-evaluate the need for these restrictions based on experience with

high-volume hydraulic fracturing outside of these restricted areas.

JLC NY Response

The JLC NY hasseveral issues with prohibiting drilli ng in the primar y andprincipal aquifers. The NYSDE C hasconsistently allowed natural gas drillingthrough aquifers in NY for decades and hassuccessfully regulated the processwithout allowing contamination. For example the Jamestown aquifer has over 170wells dril led through it without incident . The process of drilling a horizontal we ll is

essentially thesame as a ver tical we ll for the vertical sec tion, thesec tion thatpenetrates and passes through the ground water zone . The NYSDEC has wellcasing procedures in place and in the SG E IS that adequately protec t groundwaterresources.

A lso, the J L C N Y d isagrees with the following quote taken from the SG EIS textabove. tfindsthatstandardstormwatercontrol and othermitigationmeasuresmay notfullymitigatethe riskofpotentia lsignificant adverse impactsonthese


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water resourcesfromspillsor other releasesthatcould occur inconnection with high-volumehydraulicfracturing operations.

The SG EIS descr ibes in detail the use of a Comprehensiv e SWPPP and SPD ESpermit: (

Com

prehensiv

eS

WPPP,

and both

stru

ctural and non

stru

ctural B

estManag

emen

tPractices (BMPs)tominimizeoreliminatepollutants instormwater. The Department is

proposingtheuseofaSPD ESgeneral permitfor high-volumehydraulicfracturing(HVH F GP), butthe Departmentproposesto usethesame requirements in otherSPD ES A lso, descr ibed in detail is therequirement for a Spill Prevention Control & Countermeasure plan (SPC C) with atrained team onsite to clean up any spill that should occur .

found in the following statement : Two yearsafter issuance ofthefirst permitforhigh-volumehydraulicfracturing,the Departmentwould re-evaluatetheneedfor these

rest

rict

ions

base

d onexp

erience

with high-volu

mehydrauli

cfra

cturing ou

tsid

eo

fthese

The JL CN Y would like this rewritten as a sunset clause. Wesuggest the following:-volume hydraulic fr acturing in primary and principal aquifersshallterminatetwo years after issuance of the fi rstpermitfor high-volume hydraulicfr acturing unlessprior affirmative action toextend istaken bythe Departmentwhich

shall be reasonably justified because ofcontamination of New York ground waterresources as a directresultof high-volume hydraulic fracturing

We believe this is an important amendment based on the length of time it has taken

for the

NYSD E C to finis

h the

SGEIS.

We

have

noc

onfide

nce

that the

NYSDEC,

now or in t he future, iscapable of setting and mee ting a schedule . The originalschedule for the SG EIS was about 6 months.


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Reducing Indirectand Cumulative Impacts of HabitatFragmentationGrassland Focus AreasSection 7.4.1.2, page7-81

Grassland Focus Areas depicted in Figure 7.2 were determined by a group of grassland

bird experts, including Department staff with input from outside experts representingfederal agencies and academia.65 The focus areas were derived from Breeding Bird Atlas

(BBA) data from 2002 - 2004;66 they were further modified by expert knowledge, and

then followed up with a 2-year field verification study before being finalized. They

represent areas of New York State that contain the most important grassland habitat

mosaics. The 2006 BBA provided the core dataset for delineating Grassland Focus

Areas. All atlas blocks with a high richness of breeding grassland birds, as well as

contiguous blocks also supporting grassland species, were included in the focus areas.

where each of the grassland species was found to be breeding across the state. The focus

areas were able to reach that target for all but the most widespread species. Although the

BBA does not provide estimates of abundance or densities, one of the criteria forinclusion in a focus area was contiguity with adjacent blocks containing grassland birds;

analyses indicate that such blocks contain significantly higher abundances of the target

species than isolated blocks.

Extensive field surveys were conducted in 2005 and 2006 throughout the focus areas.

These surveys collected distribution and abundance data to confirm that the analysis of

the breeding bird data reflected actual conditions in the field (Table 7.4). A total of 487

different habitat patches were surveyed statewide. In some cases, focus area boundaries

were adjusted based on field survey data. The overall process resulted in the

which occur in the area underlain by the Marcellus Shale.

Grassland Focus Area Spec iesWestern Area Upland sandpiper, vesper sparrow, horned leak, savannah sparrow,

short-eared owl* Southern Area Northern Harrier, grasshopper sparrow, Eastern

meadowlark, savannah sparrow Middle Northern Area Vesper sparrow, grasshopper

sparrow, horned lark, savannah sparrow, short-eared owl* Eastern Area Northern harrier,

short-eared owl* *Wintering only

Revised Draft SGEIS 2011, Page 7-82

Specific Mitigation Measuresto Reduce Impactsto GrasslandsIn order to mitigate impacts from fragmentation of grassland habitats, the Department

proposes to require, through the permit process and/or by regulation, that surface

disturbance associated with high-volume hydraulic fracturing activities in contiguous

grassland habitat patches of 30 acres or more within Grassland Focus Areas would be

based on the findings of a site-specific ecological assessment and implementation of

mitigation measures identified as part of such ecological assessment, in addition to the

BMPs required for all disturbances in grassland areas that are identified in Section

7.4.1.1. This ecological assessment would include pre-disturbance biological studies and


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JLCNY Page 21 of28

an evaluation of potential impacts on grassland birds from the project Pre-disturbance

studies would be required to be conducted by qualified biologists and would be

required to include a compilation of historical information on grassland bird use of the

area and a minimum of one year of field surveys at the site to determine the current

extent, if any, of grassland bird use of the site. Should the Department decide to issue a

permit after reviewing the ecological assessment, the applicant would be required toimplement supplemental mitigation measures by locating the site disturbance as close to

the edge of the grassland patch as feasible and proposing additional mitigation measures

(e.g., conservation easements, habitat enhancement). In addition, enhanced monitoring of

grassland birds during the construction phase of the project and for a minimum period of

two years following active high-volume hydraulic fracturing activities (i.e., following

well completion) would be required.

Explanation for 30 Acre T hresholdon grasslands are affected by the size of a grassland patch. Several species of

conservation concern rely on larger-sized grassland patches and show strong correlation

to a minimum patch size if they are to be present and to successfully breed. Minimumpatch sizes will vary by species, and by surrounding land uses, but a minimum patch size

of 30-100 acres is warranted to protect a wide assemblage of grassland-dependent

species.67 Although a larger patch size is necessary for raptor species, a minimum 30

acres of grassland is needed to provide enough suitable habitat for a diversity of grassland

species. Grasslands less than 30 acres in size are of less importance since they do not

provide habitat for many of the rarer grassland bird species.68 The Grassland Focus Areas

cover about 22% of the area underlain by the Marcellus Shale. However, the actual

impacts on Marcellus development would affect less area for two reasons. First, only

those portions of the Grassland Focus Areas meeting the minimum patch size

requirement would be subject to the aforementioned additional restrictions on surface

disturbance. Second, even in areas where surface disturbance should be avoided, gas

deposits could be accessed horizontally from adjacent areas where the restriction does not

JLC NY Response

There are many serious flaws with thissec tion. F irst, we must makeclear that theJ L C N Y supports the protec tion of threatened or endangered spec ies. In fact,J L C N Y members are participants in the many U .S. Department of Agr iculture(USDA) conservation programs. T he Natural Resources Conservation Service (NR CS) and the Farm Service Agency (FSA) administer the many (over 20)conservation progra ms that direc tly or indirec tly assist landowners and produce rs

who wish to pr actice conservation on agricultural lands. T he Conservation ReserveProgram (C RP), the largest of these programs, has a nationwideenrollment ce ilingof 32 mill ion acres and is designed to improve habitat for upland bir ds among otherthings. However ,even a program such as this has potential negative impacts onlocal economies, reducing production and associated jobs by idling producti ve landresources and cutting off the multiplier inherent in crop , li vestock and poultr yproduction.


22/28

JLCNY Page 22 of28

Bir d populations in N ew Yor k are protec ted by the Threatened and EndangeredSpec ies Act, the Migratory Bird Treaty Act of 1918 (with itssubsequentamensame regulationsshould apply to landowners in the grassland and forest focus areasthat apply to any other constr uction projec t. An investigation of a site fo r

th re

ate

ne

d ande

ndange

re

ds

pec

ies

s

hould be

c

onduc

te

d re

vie

wing avail able

information from the New Yor k State Natural Heritage Program for recor ds ofsta te or Federal threatened or endangered spec ies within the projec t a rea or nearvicinity. I f records of threatened or endangered spec iesexist in an area, then a fieldsurvey should beconducted in that area to determine the presence or absence of thenamed spec ies. If a named spec ies is found at the proposed projec t site thenappropriatesteps must be taken to avoid negative impact. T he point here is thatproceduresexist in New Yor k for handling threatened and endangered spec ies andno addit ional cr iter ia should be applied to landowners.

Private landowners are an important par t of the gr assland bir d conservatione

quations

o the

ys

hould be

inc

lude

d in the

plann ing and disc

uss

ion.

The

SGE IS has

mitigation methods that apply to grasslands of over 30 acres but it is not clear howsize will be measured and it is not clear how grassland habitat is defi ned . T his hasgot to bec learly defined upfront . How does the SGE IS defi ne fie ld size ,change incrop , roads, and grassland habitat?

Ro w crops are not useful grassland habitat , nor areextensive areas of high intensit yagriculture. Fallow fields generally are useful and hay fie ldscan be, depending onmowing times. C rop rotation, a routine agricultural practice , may change the

The

c

ur re

nt data available

from the

bree

ding bir d atlas

and the

Audubons

tudy(discussed in the SG EI S) needs to be reviewed to prioriti ze the areas where padscould occur within the grassland focus areas with a priority on pad placement thatprotec ts important grassland habitat while allowing access to gas under the area .The SG EIS has failed to ta ke the appropriate approach to this issue. I nstead it hasta ken a broad brush to large ar eas,someti mescovering an entirecounty,designating them as grassland focus areas.


23/28

JLCNY Page 23 of28

Monitoring Changes in HabitatForestFocus AreasSection 7.4.1.3, page7-87, 7-88

The following mitigation measures are necessary to better understand and evaluate the

-pad horizontal gaswells and would be required as permit conditions for any applications seeking site

disturbance in 150-acre portions of Forest Focus Areas and 30-acre portions of Grassland

Focus Areas:

Conduct pre-development surveys of plants and animals to establish baseline reference

data for future comparison;75

Monitor the effects of disturbance as active development proceeds and for a minimum of

two years following well completion. Practice adaptive management as previously

unknown effects are documented; and

Conduct test plot studies to develop more effective re-vegetation practices. Variables

might include slope, aspect, soil preparation, soil amendments, irrigation, and seed mix

composition.77

With the aforementioned measures in place, the significant adverse impacts on habitat

from high volume hydraulic fracturing would be partially mitigated.

JLC NY Response

There areseveral assumptions in the discussion of forest focus areas that have

one. The r ig count in Pennsylvania as of Januar y 9, 2012was 112

1428 wells per year star ting now no chance . The following news articlesums up amajor controlling factor in the rate of natur al gas development P R I C E .

US NATURAL GAS INDEX SLUMPS 40% IN ONE YEAR

December 29, 2011 - The US benchmark for natural gas has collapsed dramatically, ending theyear as the worst-performing commodity index because of a glut of domestic shale gas. Inyesterday's trading, the Nymex Natural Gas Index was down 40.83% on its value at the beginningof the year.

New extraction techniques have opened up vast deposits of natural gas trapped in previouslyinaccessible rock formations. This has turned the US from a net importer of gas to a country thatis gearing up for exports. Citigroup has cut its forecast for the average natural gas price next year from ashigh as $4.10 to $3.30, citing production growth and record inventories.

M uch of the Pennsylvania dri lling activity is related to dril ling one or two wells perunit for the purpose of holding leases before they expire. I n N ew York, because of


24/28

JLCNY Page 24 of28

regulations that require a unit becompleted in 3 year s (E C L 23-0501), the J L C N Ybelieves thescenario proposed by the DE C of 75 , 200, 325, 650, and 1300 wellsdrilled in years 1 through 5 is unreasonably high.

A recent report by T he Nature Conservancy (Dec 19, 2011) depicting the

de

ve

lopme

nt of natural gas

in Tioga County,

N Y uses

the

s

ame

flawe

d ass

umptions

as the SGEIS citing a high , medium and low development scenario. T hese areprojec ted scenarios that are unlike ly to occur . Natur al gas production is regulatedby thesame mechanism as any other commodity supply and demand. Theli kelihood that natu ral gas development will develop quickly in New Yor k is verysmall. T here is a glut on the market, dril ling rigs are leaving northeastPennsylvania for more profitable locations and those remaining are dr ill ing to holdleases.

Although the vast deposits of natur al gas found in U .S.shale deposits hasdramatically changed our dependence on foreign energy sources, projec ting future

de

ve

lopme

ntsce

narios

in Ne

w York base

d on what has

happe

ne

d in northe

as

tPennsylvania needs to be tempered with reason . T here issubstantial natur al gasdrilling and associa ted production going on in many shale plays in thecontinentalU .S. other than the M arce ll us. T his adds to the vast amount of oversupply andreduces the potential that New Yor k will see substantial development anytimesoon .The rate projec ted by the D E C , and the doom and gloom scenarios projec ted by theanti-development groupssimply will not occur . In fact,competition from otherar eas has left New Yor k far behind and hascost thestate thousands of jobs andhundreds of millions of dollars in lost revenue.

The fact that most drilling in Pennsylvania is one to two wells per pad (to hold

le

ases

) me

ans

thatse

ve

ral more

we

l ls

pe

r pad are

nee

de

d toe

xtrac

t the

available

gas. A lso, thesize of spacing units is defined by law in New York by E C L s 23-0501(1)(b)(1)(vi). T he law defines 640 acres as the largest spacing unit for one multi--we ll pad horizontal dr illing (which r esults inthe lowest density and the least land disturbance) will be the predominant--22). The Tioga study(THC Tioga County, N Y Study Dec 2011) on page 9 says approximately 90% ofwells will be horizontal wel ls with an averagespacing un it of 160 acreseach; (E AR ,pp . 4-3).

As technology has progressed in the dril ling and completion process, individual wellproduction has increased and dri lling unit size in Pennsylvania has become larger .I t iscommon to have we lls with initial produc tion exceeding 12 mmcf/day andspacing units as large as 1280 acres, further reducing thesurface impac t. However ,there is no mention of this in the focus area scenarios of the dSGE IS or the recentTHC Tioga County, N Y Study . The J L C N Y has,since inception, promotedenvironmental responsibility while keeping close tr ack of technological advances


25/28

JLCNY Page 25 of28

that increaseeff icient natural resource production and fur ther reduce negativeimpact.

As for theclaim conce rning the loss of forest land, a 1996 report by Be rnard F .

desc

ribing the

c

hange

in agric

ultural lands

in Ne

w Y or k fro m 1910 through 1992sums up what has actually happened . The amount of New York's " improved land /cropland " and the amount of its " woodland, parks and unimproved land" wereabout equal (48% each) in 1910; and by 1990 the amount of " mostly woodlandunder private and government ownership" was about 71% , while improved land /cropland was down to about 16% . T his trend hascontinued through the last decadeof the last century and the fi rst decade of thiscentury with improved land/croplanddec lining to about 12% . Dur ing thesame per iod (1910-1992) thesta te increased i tsland holdings to 13.65% of the total land area.

For example, in Steuben County, a grassland focus area,state land holdingsexceed

29,

000 ac

res.

In Che

nango County,

a fores

t foc

us

are

a,

s

tate

holdings

e

xcee

d 80,

000acres. H as thestate managed these large holdings with consider ation for thegrassland or forest birds habitat needs as a primar y conce rn? M any landownershave by joini ng one or more of the USDA conservation programs.

The J L C N Y members in the focus ar eas are also conce rned about the potential forselec ti veenforcement of regulations on various forms of development . Wh at if atract of land was being evaluated as an Industri al Development Parce l, or for

access road and thesurface disturbance would be long term. T he J L C N Y believesthat the major ity of the discussion on focus areas in Chapters 6 and 7 should be

re

move

d and ins

te

ad the

di rec

tions

hould be

on bes

t manage

me

nt prac

t ices

andadvances in technology that reduce surface impact.


26/28

JLCNY Page 26 of28

Mitigating Operational and Safety Impactson Road SystemsSection 7.11.3, page7-141

JLC NY Response

The J L C N Y recommends that the D E C require GPS tr acking devices on water andwaste hauling tr ucks. This will ensure that trucksstay on predetermined routes andwill also allow inspec tors to easily investigate any complaintsconce rning water o rwaste hauling.


27/28

JLCNY Page 27 of28

General Comments

In addition to the many issues addressed in the preceding pages, the JLCNY wishes to

make the following general comments:

1. The DSGEIS does not adequately address the difference between temporaryimpacts and long-term impacts. The development of the Marcellus Shale natural

gas play will take decades to fully develop. During that development period

many pads will be constructed, wells will be drilled, put into production and

partially reclaimed. Grass, shrubs and trees will re-grow, returning much of the

landscape to its original condition while at the same time development will be

continuing in other areas. The DSGEIS, especially in the sections about grassland

and forest focus areas, fails to address this condition. In a 640-acre unit the actual

construction (road and pad) will only occupy a little over 1% of the total unit area,

and even some of that will be reclaimed.

2. The JLCNY believes that the NYSDEC has failed to adhere to NYS ECL Article23-0301 which declares it to be in the public interest to regulate the development,production and utilization of natural resources of oil and gas in this state in such a

manner as will prevent waste; to authorize and to provide for the operation and

development of oil and gas properties in such a manner that provides for a greater

ultimate recovery of oil and gas; and that the correlative rights of all owners and

the rights of all persons including landowners and the general public be fully

xcessive and unnecessary setbacks and prohibition of

surface operations will result in stranded acreage, inefficient patchwork

development and unrecovered gas, failing to meet the public interest as required

by New York law.

3. The JLCNY is also concerned about an obvious exercise of selective enforcementwhich is likely to be challenged in the courts. There are numerous examples of

how the NYSDEC is imposing burdens on this industry which it does not apply to

any other industry operating within New York. New York will fail to realize the

benefits of this industry if the NYSDEC creates unjustified, excessive and

inequitable rules and regulations which go well beyond what is required of any

other industry in New York State.

4. The DSGEIS will have the unintended consequence of increasing the number ofdrilling pads. Without regular spacing of units and optimal placement of drilling

pads on those units, there will on average be fewer wells per pad in New York.This will drive the construction of more pads than necessary with the

corresponding unnecessary increase in traffic, environmental disturbance and

cost.


28/28

Conclusions

The JLCNY has spent tens of thousands of hours reviewing the 2009 DSGEIS, providing

comments, reviewing the 2011 DSGEIS and now providing comments again. Our goal is

to provide substantive comments that improve the DSGEIS making it possible for our

members to develop their mineral resources while, at the same time avoiding or reducingany associated environmental impact. We believe that as a group, the JLCNY goal is in

sync with the Minerals Division of the NYSDEC.

The original 2008 scoping document and the 2009 DSGEIS addressed most of the real

issues. Unfortunately, at some point the process became political, and the history of

successful drilling in New York State and scientific facts upon which the process should

be based was lost. The DEC, for whatever reason, failed much of the citizenry of the

state by not taking over the process and informing the public of the real facts about the

various processes involved in natural gas development. In 2008 and 2009, the DEC held

several public meetings which were informative and educational. The long history

surrounding the safety of natural gas extraction in NY should be recognized by the DECwho should become more proactive clarifying facts to the public. The JLCNY has

During the summer of 2009 the process got out of control. Delay after delay caused by

the political atmosphere, including the firing of the former DEC commissioner, has

slowed the development of a concise and useful SGEIS. The JLCNY members have

submitted thousands of comment letters that are all the same, supporting this one

response to the DEC. The JLCNY and its member coalitions have worked collectively to

develop this document with the express purpose of presenting our unified comments

while ensuring that we do not further delay the completion by submitting thousands of

comment letters that the DEC would have to review. Other organizations could havedone the same, making the DEC review less of a burdensome clerical process. Clearly

they have a different goal.

It appears the natural gas industry is the only major industry willing to come to New

York without requiring extensive tax breaks and grants, while promising thousands of

high-paying jobs and billions of dollars in income to the State and its citizens.

The JLCNY and our member coalitions stand ready to assist the NYSDEC in any way

possible to complete a meaningful, concise SGEIS with reasonable regulations that will

adequately protect the environment, serve the needs and rights of our citizens, and

encourage the natural gas industry to come to New York State.

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