PA Environment Digest

In a recent letter to the Allegheny Defense Project, the Department of Environmental Protection acknowledged it did not have legal authority to grant water withdrawal rights for Marcellus Shale drilling operations in Western Pennsylvania.

The Allegheny Defense Project wrote to DEP in July questioning its authority since the Ohio River and Lake Erie watersheds are not within the Susquehanna or Delaware River Basin Commissions which have the ability to grant water withdrawal rights.

DEP's response points out the agency does require Water Withdrawal Plans from drillers that specify water withdrawal points and their volumes saying, "When DEP reviews an WMP, it evaluates the individual and cumulative impacts of the operator's proposed water use on stream flows to ensure that its activities will not violate the Clean Streams Law. As part of this review, DEP evaluates whether the operator's proposed plan for water use will ensure that enough water will remain the waterway, even under low flow conditions, to maintain existing and designated uses. This analysis the same as the one used by the Susquehanna River Basin Commission,which your letter cites favorably."

DEP goes on to say, "DEP's approval of an WMP 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 owners or demonstrate that it has authority to make a water withdrawal."

“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.
“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.”

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