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Testimony of David Warne Assistant Commissioner, Bureau of Water Supply New York City Department of Environmental Protection on Hydrofracking


Tuesday, March 1, 2011, 1 pm
49-51 Chambers Street


Committee on Environmental Protection
Council of the City of New York


Oversight - The Continued Examination of Hydraulic Fracturing including the NYSDEC and DRBC Processes


Good afternoon, Chairman Gennaro and Members. I am David Warne, Assistant Commissioner of Water Supply at the New York City Department of Environmental Protection (DEP). Thank you for the opportunity to testify today on the status of hydraulic fracturing in New York.

As you know, Mayor Bloomberg has made it clear that New York City (the City) is opposed to drilling for natural gas in the City’s watershed using the technique known as horizontal drilling and high-volume hydraulic fracturing (hydrofracking). The Administration based this position on, among other things, the Final Impact Assessment Study, commissioned by DEP, which concluded that natural gas drilling and exploration are incompatible with the operation of New York City’s unfiltered water supply system and pose unacceptable risks for more than nine million New Yorkers in the City and State. Until the technical assessment was complete, the Administration had deferred taking a stand on the advisability of drilling, preferring instead to be guided by science and technological expertise. Then, based on that assessment, the Administration called for a prohibition on any drilling in the New York City west-of-Hudson watershed.

At this time there are several activities regarding natural gas development underway that may impact the City’s watershed in the future that I would like to update you on. These activities include: the New York State Draft Supplemental Generic Environmental Impact Statement (SGEIS); the Delaware River Basin Commission (DRBC) draft regulations on natural gas development; and the U.S. Environmental Protection Agency (EPA) Draft Plan to Study the Potential Impacts of Hydraulic Fracturing on Drinking Water Resources. In addition, I will comment briefly at the end of my testimony on this weekend’s New York Times article on contamination related to gas drilling.

The New York State Department of Environmental Conservation (DEC) issued a draft SGEIS for Horizontal Drilling and High-Volume Hydraulic Fracturing on September 30, 2009. DEP’s extensive comments on the Draft SGEIS reiterated the City’s position, citing the up-to-6,000 wells required to extract natural gas based on current technology; seven million truck trips; one million tons of concentrated chemicals; and millions of gallons of wastewater, all of which are the necessities and by-products of current extraction methods. Moreover, we expressed the concern that hydrofracking is inconsistent with the principles of watershed protection and pollution prevention that are incorporated into the City’s Filtration Avoidance Determination. In April 2010, DEC announced that individual environmental reviews would be required for natural gas wells in the watersheds of the State’s two unfiltered surface water supplies—New York City and Syracuse. DEC’s action recognizes the unique characteristics of the City’s water supply, and DEC has further committed to work with DEP to craft additional measures to protect the watershed and the City’s infrastructure. However, DEP continues to believe, based on the best available science and current industry and technological practices, that drilling cannot be safely permitted in the City's watershed.

Most recently, in compliance with an Executive Order, issued by Governor Paterson in December 2010 and confirmed by Governor Cuomo, DEC will complete its review of over 13,000 public comments, make revisions to the Draft SGEIS and publish a Revised Draft SGEIS this June. It will then accept public comment on the revisions, and possibly schedule public hearings in the Marcellus shale region and New York City. No permits to drill will be issued prior to the completion of a Final SGEIS, and in no case before July 1, 2011 as stated in the Executive Order.

Meanwhile, on December 9, 2010 DRBC released draft regulations to protect the water resources of the Delaware River Basin during the construction and operation of natural gas development projects. There is a 90-day public comment period closing on March 16, 2011. DEP has been actively engaged in this process to ensure that the City’s mandated water releases are not adversely impacted by withdrawals downstream in the basin and has commented on several previous versions of these regulations.

Overall the DRBC draft regulations are rigorous and comprehensive. They strike a good balance between deferring to state jurisdictions while still ensuring adequate protection to the Delaware River and downstream stakeholders and provide an additional layer of protection for the City’s watershed. The required Natural Gas Development Plans will be valuable planning tools and will allow for more comprehensive reviews of natural gas development in the Delaware basin.

We will be submitting additional comments to DRBC urging that decisions about drilling within the shared Delaware River Basin should be made on the same strong analytical foundation as the City’s position, and that DRBC should conduct a rigorous analysis of the potential cumulative impacts natural gas development could have on water quantity and water quality in the Delaware Basin. Given what is at stake and the estimates of natural gas wells in the Delaware River Basin numbering in the tens of thousands, we request that DRBC conduct a comprehensive cumulative analysis to inform the natural gas regulations.

We add that such a cumulative impact assessment for the Delaware Basin must also include a depletive water use budget, which is a term of art for an analysis of the total amount of water consumed or lost from a watershed. Depletive water use has a direct bearing on the basin’s future development, its water quality, water quantity, ecological health, salinity intrusion, and drought management. This information is also critical for managing the effects of climate change. The water budget must consider secondary impacts to other stakeholders as well. The City is concerned about downstream withdrawals impacting the release requirements for its reservoirs. We therefore recommend that DRBC should mandate, as a condition of approval, that gas drilling companies take water only during times when the City is not required to make releases as directed by the Delaware River Master to meet mandated flow objectives.

The draft regulations bar the use of Approval by Rule (ABR), which is an expedited review and approval process of a drilling application, within the City’s watershed. We support this provision. Additionally, we request that the Non-point Source Pollution Control Plans be required to be submitted to the City and to New York State if the project is within the City’s watershed. The City has watershed rules and regulations governing stormwater that are based on New York State’s regulatory program but in some situations are more stringent. We also recommend that DRBC consider adding post-construction requirements covering items such as continuing maintenance of access roads or structural integrity of the wells.

The setbacks provided in the draft regulations for surface water intake (500 ft.) and water supply reservoir (500 ft.) are inadequate even given the prohibition of siting a well pad in the 100-year floodplain. We urge DRBC to reconsider this and specify how this setback is measured. Horizontal drilling adds a new complication to traditional regulatory setbacks. If the setback is measured from the well pad then horizontal drilling may occur directly beneath the intake or reservoir. Instead, we recommend that the setback be measured from the end of the nearest horizontal drill leg to the resource in question.

Finally, given the rapid pace of natural gas development in this region and the constantly evolving technology, we urge that the duration of withdrawal approvals for natural gas extraction purposes be re-evaluated. Approvals lasting ten years may not give DRBC or other stakeholders an adequate opportunity to evaluate potential impacts in the context of current environmental conditions, recent technological advances or improved scientific understanding.  Moreover, ABR provides an opportunity for a docket holder authorized to withdraw water for other purposes to reallocate a portion of its approved withdrawal for natural gas extraction purposes without an adequate opportunity for DRBC or other stakeholders to analyze the impacts of such a reallocation, or for DRBC to impose conditions to mitigate such impacts. The City therefore recommends that no withdrawal approval, whether through an original docket or through ABR, allow withdrawals for natural gas extraction purposes for longer than five years.

A copy of our comment letter on the DRBC draft regulations will be available on the DEP website (www.nyc.gov/dep).

In tandem with the processes going forward at DEC and DRBC, EPA is conducting a study of hydrofracking as well. In late 2010, Congress appropriated $1.9 million for a focused study of this topic, which EPA scientists have undertaken to better understand any potential impacts of hydrofracking on drinking water and groundwater. EPA consulted with experts in the field through peer review and technical workshops, and engaged stakeholders in a dialogue about the study through facilitated public meetings.

EPA recently submitted its draft study plan on hydraulic fracturing for review to the agency's Science Advisory Board (SAB).The overall purpose of the study is to understand the relationship between hydraulic fracturing and drinking water resources. The scope of the proposed research includes the full lifespan of water in hydraulic fracturing, from acquisition of the water, through the mixing of chemicals and actual fracturing, to the post-fracturing stage, including the management of flowback and produced water and its ultimate treatment and disposal.

The SAB plans to review the draft plan on March 7-8, 2011. Consistent with the operating procedures of the SAB, an opportunity will be provided for stakeholders and the public to provide comments to the SAB during their review. The Agency will revise the study plan in response to the SAB's comments and begin the study. Initial research results are expected by the end of 2012 with a goal for a report in 2014.

During the scoping process for this study, DEP submitted the Final Impact Assessment Report. Yesterday we submitted comments on the draft study plan. In them we acknowledge the challenge in defining a discrete study plan with a topic as complex as potential impacts of hydraulic fracturing. We also point out certain serious omissions in the draft plan as currently written. First, the study plan fails to define impact or contamination for the purposes of the study. Because regulations governing water utilities are very conservative, the definition of impact should be equally conservative in order to account for the broad range of potentially negative impacts to a utility from hydraulic fracturing, including regulatory, financial, operational, and public perception impacts. The issue of cumulative impacts is addressed only for water acquisition and ignored for chemical mixing, well injection, flowback and produced water, and wastewater treatment and waste disposal. Cumulative impacts from all hydraulic fracturing activities have the potential to be more severe than may be indicated by analyzing individual wells, and so should be included in the study plan.

Second, the plan does not explicitly include an evaluation of state regulations. Given the wide variations at the state level, there is a strong possibility that the effectiveness of state regulations and the capacity for inspections and enforcement will be a determining factor as to the potential for impacts to water quality and water supply. The plan repeatedly references the existence of state regulations for certain activities without providing any insight into the adequacy of state efforts to ensure compliance with the regulations or if the regulations themselves are sufficiently protective of drinking water supplies. Several pages of additional detailed comments were also submitted, all supported by the City’s Final Impact Assessment Report. A copy of DEP’s comments will be available on the DEP website (www.nyc.gov/dep).

Finally, the article in Sunday’s Times covered the disposal of drilling wastewater, or flowback water, with a particular focus on radioactivity in the water. Radioactive material is found in the geological formations in the watershed. The radiation contained in flowback water could be a concern, as are the many other hazardous substances that we know would be present in the flowback. Like most of the other contaminants, the technology exists to remove radiological contamination. But it is not part of the conventional wastewater treatment regime. Improper handling, storage, transport or treatment of flowback water can lead to contamination of ground and surface waters. In short, potential for radiological contamination is just another of the many reasons we don't think this activity is appropriate for the watershed.

As we hope is evident from this update on hydrofracking at the state, interstate and federal levels, the Administration is actively engaged every step of the way. Though the implications for the water supply system remain uncertain, we will continue to work to ensure the system’s integrity and safety.

Thank you for the opportunity to comment.

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