For those on the pro-fracking side, the newest regulations are both a good sign and a troubling one. On the one hand, they're a light at the end of the tunnel, proof that permits for hydrofracking aren’t far off. But, on the other hand, fracking supporters say that the Department of Environmental Conservation has only answered the concerns of the anti-fracking lobby.
“There’s no doubt that the department is responding to the squeaky wheel and going through the opposition comments and trying to add in requirements to beef up the standards in New York,” says Albany lawyer Tom West.
Hydrofracking in New York was first put on hold in 2008. Since then, the state’s environmental regulators have been crafting regulations to oversee the controversial drilling practice.
In November, the latest draft of those regulations was released.
West, whose clients include oil and gas companies in New York, says an example of the beefed-up standards is the buffer zones between fracking wells and houses, aquifers and water wells, what are known as setbacks, which were increased to 500 feet under the new regulations.
He says the DEC should allow drilling in primary aquifers if the driller agrees to extra environmental protections.
“But again industry does not fear tough environmental standards, rigid environmental standards, they’re willing to accept the high environmental bar but it has to be a bar that can be met and can be processed cost effectively,” says West.
There are varying estimates of how much land in New York will be put out of development by the setbacks.
The Independent Oil and Gas Association of New York, an industry group, estimates that almost 80% would be off-limits. The DEC estimates that it's much less.
West says that, despite the tightened rules, drillers will come to New York once the price of natural gas goes up. But it'll take time before they move here in large numbers.
“Even if Governor Cuomo and his colleagues, [DEC Commissioner] Joe Martens, were standing at the border today, offering permits to industry, it would be a slow ramp-up,” says West.
Among the restrictions, fracking won’t be allowed in 100-year floodplains. That rule's particularly important in the Southern Tier where historic flooding in 2011 caused a redrawing of the floodplain maps.
There are also rules against open containment ponds to hold the waste that flows up from a well, known as flowback water. And operators are required to test any water wells that are within 1000 feet of a planned well site and then give the results to landowners.
Kate Hudson, the watershed program director for the environmental group Riverkeeper, says she’s not ready to call the new rules adequate.
“We were also told last year, when the regulations were released last year, that these were the strictest regulations in the country. We found out that in some cases that wasn’t true,” says Hudson.
She says the DEC should have waited until a health impact review is complete before making this release.
According to a statement from the DEC, these are preliminary revisions and could change, or hydrofracking could be ruled unsafe altogether, once the health impact study is completed probably by late February.
Hudson adds that regulations are only half of what’s required to monitor fracking. The DEC will also need additional staff to handle permitting and inspections.
“It’s a chicken and egg problem. Ultimately, the hope would be that through permit fees and other taxes on the industry, fracking activities would begin to pay for themselves in the sense of supporting the staff necessary," says Hudson.
"But before that permitting starts, taxpayers are going to have to fund extra staff at DEC.”
She says she’ll be watching Governor Cuomo’s 2013 budget, expected in January, for staffing increases.
The regulations are on the DEC’s website for a 30-day public comment period starting December 12th. This time around there will be no public hearings, only written comments.