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PA DEP Public Resource Proposed Rules – Will They Survive?

As reported in my June, 2015 article on this site, the DEP’s Chapter 78 rulemaking effort is not without its share of controversy and concern. Perhaps the biggest issue for the industry is the expansion of the “Public Resource” requirements in proposed Chapter 78 (Conventional Operations) and Chapter 78a (Unconventional Operations). Both packages use a new term – Public Resource Agency – and define it as:

An entity responsible for managing a public resource including , Pennsylvania Department of Conservation and Natural Resources, Pennsylvania Fish And Boat Commission, Pennsylvania Game Commission, United State Fish and Wildlife Service, Water Purveyors, Municipalities and School Districts. 

The inclusion of the last three entities is an unexpected expansion of the traditional agencies involved in resource protection and a cause for significant concern on the part of the conventional and unconventional industries. Adding to the rather onerous implications of “more cooks in the kitchen” is the menu they will now be working from, specifically items covered by another new definition – Other Critical Communities. This term is defined as:

(1)        Plant and animal species that are not listed as threatened or endangered by a Public Resource Agency, including:

(i)         Plant and animal species that are classified as rare, tentatively undetermined or candidate,

(ii)        Taxa of conservation concern

(iii)       Special concern plant populations

(2)        The specific areas within the geographic area occupied by a threatened or endangered species designated in accordance with the Endangered Species Act of 1973…that exhibit those physical and biological features essential to the conservation of species and which may require special consideration or protections; and

(3)        Significant non-species resources, including unique geological features; significant natural features or significant natural communities.

Operationally, the proposed rules will require the well site permit applicant to notify the expanded list of applicable Public Resource Agencies if the well site may impact a public resource. This list now includes the potentially exhaustive list of items that are covered by the above definition of “Other Critical Communities”.

Not only will the operator have to notify all the public resource agencies with an interest in managing the public resource, but the operator will have to identify the public resource; describe its function and use and propose measures to avoid or mitigate impacts. Given the likelihood that many of these public resources will not be on a published list, permit applicants will be forced to reach out to the public resource agencies for input on what they consider a public resource that must therefore be addressed by the applicant. The potential for delays and permit challenges based on these requirements alone is frightening and it is easy to understand why this has reached such a high level of concern with the industry.

One action recently undertaken by the Pennsylvania Independent Oil and Gas Association (PIOGA) challenges these public resource requirements based on the Pennsylvania Supreme Court’s decision on the Robinson Township appeal of Act 13. As part of its judgment in that case, the Court held that Sections 3215 (c) and (e) were unconstitutional and must be enjoined. Section 3215 (c) requires the DEP to consider the impact of a proposed well on various public resources. PIOGA is arguing that DEP has ignored the Court’s judgment by continuing to require operators to evaluate potential impacts to public resources and by completing a Public Resources Form. PIOGA is asking the Court, among other things, to enter a judgment that DEP has no authority to mandate that operators satisfy the requirements in the Public Resources Form.

An affirmative judgment for PIOGA by the Court could have significant impacts on current and proposed DEP requirements affecting public resources.

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