Wednesday, May 2, 2012

Update:Beam Me Up Scotty... It's Nut's Down Here

Beam Me Up Scotty... It's Nut's Down Here

CHANGE OF PLANS! May 2, 2012:
My wife and I stopped our search for Northern Nevada property about a year ago (May 2011) and decided to stay put here in Washington County. We based our decision on three things;
1. Pennsylvania Secretary Krancer, of DEP made a brilliant move that caused drillers to stop dumping frack waste water into the treatment plants and our public drinking water supply.
2. The Fukushima disaster proved to have an impact on the western United States. The EPA stopped sampling U.S. air for radioactivity but private organizations continued and readings went up in the U.S.. Today we have debris from Japan showing up on the west coast and we are getting the real information out of Japan's condition. And it's unprecendented. Japanese officials are grappling with fencing off whole towns for ten years, due to contamination.
3. It was just plain easier to stay put. Real estate here is stable (so far) and prices are reasonable.

After intensely researching the effects of shale gas drilling, it's time for my wife and I to prepare to move out of Washington County. We are basing our decision to move on three primary things;

1. Banks are not lending against frac-drilled properties and adjoining properties, here in Washington County.

2. Our public water supply is being used as a frac wastewater dump now - this is not some future thing. With 150,000 wells planned for Pennsylvania alone, it's accelerating.

3. Many Drillers (not all) are creating a massive financial bubble (which will burst), by inflating and flipping their leased and purchased drilling rights for up to 50 times their cost.

After reading Observer Reporter's, Brad Hundt's article, "As North Strabane Mulls Gas Drilling Regulations, Residents Voice Concern" on 6/24/2010, it's clear that the town Supervisors and Solicitor Pat Smider are not fully cognizant of what's really happening at frac-drilling sites.
Since Solicitor Smider is an attorney, I view the Solicitor as an authority in terms of administering the 'police powers' extended to North Strabane Township by the State. When I read the following quote, I was struck with a sense of betrayal and even fear;
Quote - "Pat Smider, North Strabane's solicitor, said the township was considering "competing interests" - the rights of energy companies and land owners to profit from drilling, and the health and safety of residents.
Smider also pointed out that oil and gas drilling is allowed throughout the commonwealth, subject to local regulation, and "if you're here to say you don't want oil and gas drilling at all, that's not the law. ... This is what we think we can control."" End quote.

The authority conferred upon the states by the Tenth Amendment to the U.S. Constitution and which the states delegate to their political subdivisions to enact measures to preserve and protect the safety, health, welfare, and morals of the community. State legislatures exercise their police power by enacting statutes, and they also delegate much of their police power to counties, cities, towns, villages, and large boroughs within the state. Police power is also used as the basis for enacting a variety of substantive laws in such areas as Zoning, land use, fire and Building Codes, gambling, discrimination, parking, crime, licensing of professionals, liquor, motor vehicles, bicycles, nuisances, schooling, and sanitation.

If a law enacted pursuant to the police power does not promote the health, safety, or welfare of the community, it is likely to be an unconstitutional deprivation of life, liberty, or property. The most common challenge to a statute enacted pursuant to the police power is that it constitutes a taking. A taking occurs when the government deprives a person of property or directly interferes with or substantially disturbs a person's use and enjoyment of his or her property.

I have personally reviewed over a hundred cases of frac-drilled property damage in Pennsylvania and dozens more in Texas, Wyoming and Colorado. I have found that in almost all cases the landowners who signed a gas lease and the neighbors of those property owners have been left with toxic industrial sites. Many of their homes are un-inhabitable. These properties, many of which have no mortgage balances, are disqualified by the banks and even HUD for mortgage qualification. In my research I came across the writings of an attorney regarding the specifics of property values of frac-drilled properties;
Quote – “
Insufficient attention has been given to the possibility that the granting of drilling permits may ultimately result in reduced real estate values and assessments, not only on the property being fracked, but also on the neighboring properties. In addition, it may be that the mere signing of a lease may result in reduced property values in the neighborhood. The rationale is that it may be difficult or impossible to obtain future mortgages on leased or drilled properties, and also in obtaining future property insurance, generally known as homeowners insurance. For instance, HUD, a leading federal lender has a regulation which states, "No existing dwelling may be located closer than 300 feet from an active or planned drilling site. Note that this applies to the site boundary, not the actual well site." HUD Handbook 4150.2, page 2.7. It also applies where there is only a lease, and drilling is only "planned" for the future.
If you want to learn more, Google George A. Mathewson, Esq. (Retired) Former DEC Regional Attorney.” End quote.

I am an ardent supporter of private property rights and the freedom to utilize our property. Yet if I conduct activity on my property that destroys the property of my neighbors, I am committing a crime that falls under the authority of the township’s police powers. I am taking away their land value and their ability to use that land. They should expect to enjoy protection from their township’s authority to arrest my destructive behavior and protect their property rights. The police powers do not give me the right to profit from the use of my property at the expense of my neighbors.

Sunday, June 27, 2010

Beam Me Up Scotty.....We're Done.

It's Nuts Down Here
It's time for my wife and I to prepare to move out of the state so I will be concluding all of the email alerts and the blogging.
We are taking our minds and our money and leaving this "State of Confusion" called Pennsylvania.
For those who only have time for a short read, we are basing our decision to move on three primary things;

1. Banks are not lending against frac-drilled properties and adjoining properties, here in Washington County. That should tell you something.
HUD Handbook 4150.2, page 2.7 states that: "No existing dwelling may be located closer than 300 feet from an active or planned drilling site. Note that this applies to the site boundary, not to the actual well site." A property with a gas or oil lease is, therefore, not eligible for FHA financing, indicating that the federal government is concerned about property devaluation and consequent loss of their money.
2. Our public water supply is being used as a frac wastewater dump now - this is not some future thing. With 150,000 wells planned for Pennsylvania alone, it is accelerating. How many national/international corporations will stick around (i.e. Southpointe) when they can't get clean water?

3. Many Drillers (not all) are creating a massive financial bubble (which will burst), by inflating and flipping their leased and purchased drilling rights for up to 50 times their cost. This will exacerbate the environmental problem because it will pull the plug on a multitude of job and tax revenue producing businesses abruptly. Residents will also get stuck with environmental clean-up and remediation.

Just three examples:



There is one positive factor (which will eventually work against you) in this environmental fiasco; Pennsylvania has more rivers, lakes and streams than any state in the nation, second only to Alaska. There is such a massive amount of state water resources that the process of contaminating the soil, water and air in many areas ( not near well sites ) will be masked temporarily. And while abundant water a good thing, it will also help the problem grow to biblical proportions. One of the things that attracts the predator frack drillers is the abundance of fresh water available for fracking. The massive water supply will buy the drillers a lot of time before the majority of people realize they are in imminent danger.

I appreciate the help some of you have given in helping me understand this whole phenomenon and I wish you all the best.

If you want to stay informed;EVENTS:

We wish you all the best,Angelo

Josh Fox: "I could take a car battery and throw it in the watershed, and go to federal prison. But these guys can take the same chemicals and inject it by the thousands of gallons and they're exempt. It makes no sense."

I leave you with the report of the North Strabane hearing from last week. I did not attend the hearing because I wasn't sure if I could contain my natural and unquestionably, justified outrage. I didn't want to risk being tazed by the N. Strabane police who were present. Nor am I willing to take the heat for a community that appears indifferent right now.
As N. Strabane mulls gas drilling regulations, residents voice concern6/24/2010by Brad Hundt, Staff Writer

As supervisors in North Strabane Township ponder an ordinance regulating oil and gas drilling, residents had their say about it during a public hearing Tuesday night.
As in other communities that have considered or approved similar ordinances thanks to the rush of natural gas drilling in the region, residents expressed concerns over noise, the potential environmental impact and where out-of-town employees at drill sites will be housed.

Pat Smider, North Strabane's solicitor, said the township was considering "competing interests" - the rights of energy companies and land owners to profit from drilling, and the health and safety of residents.
Smider also pointed out that oil and gas drilling is allowed throughout the commonwealth, subject to local regulation, and "if you're here to say you don't want oil and gas drilling at all, that's not the law. ... This is what we think we can control."
OMG! Next Solicitor Smider will drag out the Constitution to convince you that it's their Constitutional Right to commit crimes of fraud and destruction of public (your's) property and private property(also your's)!
Nonetheless, several residents said they worried about the prospect of it, particularly in light of natural gas well accidents earlier this month in Clearfield County and West Virginia and, even though it doesn't involve natural gas, the oil spill in the Gulf of Mexico.
"It's ridiculous that this kind of thing can go on in this township," said Katie Stayduhar, who is a member of the township's planning commission.
"It's deeply concerning to me that something like this can happen so close to homes, so close to businesses, so close to schools," said Cindy Koniet, a resident of the Fox Chase subdivision. "These things just don't affect a few people. They cause catastrophes."

Some residents accused Greg Sulc, the board's chairman, of having a conflict of interest because he is an employee of the oil and gas company Range Resources. Sulc acknowledged that he worked for Range and that he would be abstaining from the debate and vote on the ordinance.
As long as Sulc is upfront that he works for Range Resources and abstains from the vote, "I think the basics have been met," said Melissa Melewsky, media law counsel with the Pennsylvania Newspaper Association.

Jon Volkwein, who lives on Walker Road, spoke up in support of natural gas drilling, and shrugged off concerns about noise. "I think I can put up with 18 days of drilling," he said.

Representatives from both CNX Gas Corp. and Range Resources were at the meeting. Carl Carlson, the director of community and government relations for Range Resources, noted that "everyone has natural gas in their home" and characterized it as "a tremendous resource to society."

The board is considering two separate ordinances: one would allow drilling as a permitted use with specific conditions; and the other would make it a conditional use that would require a public hearing. Both proposed ordinances would allow compressor and natural gas processing plants only in areas that are zoned for industrial use and would require a conditional use permit.
A vote is expected in July.

More detail from Angelo;

I will be ending the emails and blogging for the Shale Gas situation. At this time, I don't see the gas play slowing down or being stopped, barring some miracle.

After 60 days of non-stop research on the effects of Marcellus Shale Gas Drilling, it's crystal clear to me that Washington County is doomed for a level of economic and environmental destruction never witnessed before.... after the boom bubble bursts.

Last fall, the news that geologists increased their findings from 50 trillion to 500 trillion cubic feet of shale gas in the Marcellus, helped me decide to go forward with investments in commercial properties in our area that have been sitting on the market for 3 years in some cases.

I met with North Strabane and Peters township officials to discuss 6 different projects. I sifted through dozens of properties and consulted with developers, architects and builders. I worked with real estate agents. I was very excited about investing in the 'sweet spot' we have in contrast with many other suffering regions.

Even the corrupt state politics and mis-management didn't discourage me. It appeared as though Washington County, especially North Stabane and Peters Township were insulated from the rest of the state. They certainly have been doing well through this whole 'financial crisis'.
I didn't 'make-up' the facts. I just found them and tested them.

The Banks
First of all, regardless of my own desire to have locally produced energy and a robust economy, the banks... the banks are refusing to write mortgages against frac-drilled properties and neighboring properties within 300 feet of the boundary lines of a frac-drilled property. Even properties with no existing debt and owners with perfect credit records are being refused for credit against millions of dollars of equity.

I got this from a lawyer who specializes in this area:
"Hydrofracturing has already resulted in reduced real estate values and assessments, not only on the property being fracked, but also on the neighboring properties. In addition, the mere signing of a lease may result in reduced property values in the neighborhood. The rationale is that it may be difficult or impossible to obtain future mortgages on leased or drilled properties, and also in obtaining future property insurance, generally known as homeowners insurance. For instance, HUD, a leading federal lender has a regulation which states, "No existing dwelling may be located closer than 300 feet from an active or planned drilling site. Note that this applies to the site boundary, not the actual well site." HUD Handbook 4150.2, page 2.7. It also applies where there is only a lease, and drilling is only "planned" for the future." George A. Mathewson, Esq.

This is not a big deal unless you realize that the proposed well coverage for the area is massive and widespread. So far, Washington County has only a few hundred active well applications, but there are thousands approved for future development. That means no matter where your property is it may be negatively affected by the lack of mortgage funding available and rapidly declining property values. That decline will occur suddenly when the general public becomes aware. And it will seem to be un-expected because it will have been developing under the radar over a period of, so far 5 years.

I didn't know this on April 23rd.

The WaterThe next indisputable fact is the current dumping of frac waste water into the local drinking water supply. The primary measure being taken to 'clean' the frac waste water is 'dilution'. Well, eventually dilution is going to lose ground to higher levels of saturation. Some of the chemicals and elements being dumped are not bio-degradable.

Uranium is not bio-degradable. Most of the toxins have very long life spans and build up over time. At a certain point the balance will tip, seemingly suddenly, and the entire area will have an pernicious water problem.

If you believe anything the drillers say about water re-cycling and safe frac water you are making a big mistake.

The Economic Bubble & FraudSince 2007 most of us now know what an economic bubble is and what happens when it bursts. The Marcellus Shale bubble is far more complicated than the mortgage and credit bubble that we just witnessed in 2008.

In the case of this gas bubble we have U.S. drillers selling off highly inflated drilling rights and equity in their companies to foreign corporations. In many cases the drillers pay a few hundred to a few thousand dollars per acre to lease land. They then turn around and sell-off those same lease rights for $30,000 to $55,000 per acre. In many cases they don't even care about the gas long term. There is a very fast, very big, financial windfall in just appearing to be a leading drilling company. Think ENRON.... They pump up the value of the lease rights by misrepresenting the life span of these wells. Shale gas wells are not known for long life spans but the drillers are telling the public, the politicians and the off-shore investors that the life span is 40, 50 and even 60 years. In fact the production has been dropping off by 75% on 'good' wells in the first 6 months. This is normal for shale gas wells. That is not speculation. That's what IS happening right here in Washington County.

We're talking about millions of acres and many trillions of dollars in Pennsylvania alone. And in large part the representations are fraudulent.

When the bubble pops, thousands of employees will be out of work and the economic activity will spike downward abruptly.

I could write a book about this stuff. There is so much more coming our way, it's difficult to comprehend. But at this point writing about it won't make a difference. So I won't waste anymore time, money or energy. People are still (amazingly) conditioned to trust the government agencies.

What I'm writing now will go un-heeded for the most part. It will only be valuable to a few people who take action to protect themselves.

I never set out to be a defender of the environment. This all started on April 23rd, when I got an email from a property owner I was negotiating with. I was pro-drilling and had planned to benefit from drilling myself. I was far from being an environmentalist or a "tree hugger".Here's a list of other detrimental aspects to the 'gas play'
* Property values here will plummet. Florida real estate is collapsing (again)
just on the fear of the Gulf oil spill coming ashore. And bargain hunters were just getting busy a few months ago, snapping up bargains.

* The taking of private property - Emminent domain will be used to make way for gas transmission pipelines and processing stations.

* Pooling - A form of emminent domain (AKA theft) where property owners are compelled to have their property drilled. Well drilling is only one part of the emminent domain issue. Gas companies also need property access for pipelines, processing plants and underground storage cavities. Hint: Combine this with banks refusing mortgages on leased properties. Who is going to buy it? And what will the state or gas company be motivated to offer if a owner wants to evacuate a toxic industrial site?
* Degradation of infrastructure, roads, bridges.
* The state and local governments will experience revenue shortfalls against spiralling expenses and be unable to repair damages to infrastructure and the environment. They can't print money like the federal government, so they will raise taxes. This too will drive more businesses and residents away.
* Air quality will continue to decline.
* Soil contamination from airborne and run-off effects of VOC's.
* Exodus of capital when things don't pan out according to the hype. Some investors who put up millions between 2006 and 2009 have already taken millions in profits and liquidated their positions to cut their risk exposure and avoid bad publicity.
* Conflict between land owners who lease and those who only receive the negative consequences.
* Higher local energy prices due to the export of our gas resources.
* The destruction of many environment intensive industries, fishing, tourism, agriculture etc.
* Older, more reputable drilling firms, have told me they are staying away from the shale gas play. They see the backlash that's coming because of the tactics most drillers are using.
* There is a pattern of corporate activity that strongly resembles military tactics. And many of those that do this, have a long history of distorting projections, buying off key people in local communities and intimidating whistleblowers.
* Vast amounts of radioactive material will be brought to the surface via thousands of gas wells. This will destroy the air, water and soil in our environment for decades to come. Forget the frac fluids, being dumped into public water supplies statewide. Forget the toxic spills. Forget the blow-off from compressor stations. Forget the 421 DEP documented, toxic spills just in the first six months of 2010.
* All of the industry propagandists, most of the state politicians and local town officials are either lying or are ignorant of the documented incidents regarding public and private water supplies being contaminated in every area of the state where frac drilling is going on.
I didn't know any of this before April 23rd. Now I do... And so do you.

Thursday, June 24, 2010

Not Wyoming Yet: The Marcellus Shale Gas Drilling “Play”

by Hugh Rogers
August, 2008
A couple of years ago, a local geologist warned us about radon. A radioactive gas, radon may be harmless in small quantities but carcinogenic if it builds up in your basement. The geologist told us that radon leaks from the 365 million-year-old black shale that underlies this part of Randolph County.

Some health-related web sites call radon “the silent killer.” You might know it as NORM, “naturally occurring radioactive material.” For about $15, you can get a test kit at a hardware store to see if radon in your house is within safe limits. If it isn’t, you’d better find a way to vent it.

This low-level hazard wasn’t much talked about until last month, when the general public became aware that the natural gas industry had focused on a black shale, the Marcellus Formation. Radiation suddenly appeared in a constellation of dangers the new gas rush could bring. For everyone living above the black shale—it covers 54,000 square miles from southern New York across Pennsylvania to Ohio and West Virginia—the situation was no longer NORMal, and the public was no longer silent.

Corporatism rules America.

Corporations spend billions to generate legislation which benefits their bottom lines. Their lobbyists write the legislation and bribe the corrupt Washington politicians. The American people suffer.

Mega corporations are not inherently evil, immoral, or greedy. The men who run the Mega corporations are evil, immoral and greedy. EPS, profits, and bonuses are what drive corporate executives.

Mega corporations use their political connections, highly paid lobbyists, and vast financial resources to steer legislation in order to reap greater profits.

The people that Josh Fox profiles in his film are poor, uneducated, hard working, and helpless. They are no match for a big corporation. They don’t have the financial resources to fight a corporation with thousands of lawyers and billions of dollars.

Corporations see the "small people" as just another cost of doing business. The deaths of some uneducated country folk are inconsequential to the Harvard MBAs running corporate America.

The gas drilling companies have a checklist on how to rape and pillage the land.
1. They low-ball the country bumpkins who occupy the land for the drilling rights.

2. They promise that the fracking process is safe.

3. When they contaminate the wells and people complain, they deny it was their fault.

4. If the complaints persist, they agree to pay for the well water being cleaned.

5. If this doesn’t work, they pay the occupants a lump sum of money and make them sign a legal document saying they can’t speak about the issue with anyone.

6. When people begin to die, they put their high-powered legal teams into action fighting every charge until the victim gives up.

The Federal and State regulators of the gas industry have been instructed by their politician bosses that the benefit of the doubt should always be given to the corporations. They generate the tax revenue. They generate the jobs. They make the political contributions. The people drinking the contaminated water can’t have any impact on a politician’s re-election.
The unholy alliance between Big Business and Big Government is destroying this country. The "small people" do matter. The time is approaching when the little guy is going to rise up and take back what is rightfully theirs. Some people are waking up. Some people are getting angry. Some people care about the future of this country.

Excerpts from "Too Small To Matter"
by Jim Quinn
Recently by Jim Quinn: Two Decades of Greed – The Unraveling

Wednesday, June 23, 2010

Washington County's Future: A Colossal Fracking Mess

The dirty truth behind the new natural gas. Related: A Vanity Fair video look at a town transformed by fracking.
By Christopher Bateman• Photographs by Jacques del Conte
WEB EXCLUSIVE June 21, 2010

By October 2009, the D.E.P. had taken all the water wells in the Sautners’ neighborhood offline. It acknowledged that a major contamination of the aquifer had occurred. In addition to methane, dangerously high levels of iron and aluminum were found in the Sautners’ water.

The Sautners now rely on water delivered to them every week by Cabot. The value of their land has been decimated. Their children no longer take showers at home. They desperately want to move but cannot afford to buy a new house on top of their current mortgage.

“Our land is worthless,” says Craig. “Who is going to buy this house?”

Read More

Know the Drill - VIDEO
Produced by Jacques del Conte
June 22, 2010

Tuesday, June 22, 2010

EPA Hearing: Canonsburg July 22, 2010

Save this one for the kids and grandchildren so they'll know somebody tried.

EPA 10
EPA 11
EPA 12
EPA 13
EPA 14
EPA 15
EPA 16
EPA 17
EPA 18
EPA 19
EPA 20
EPA 21

HooRah! The real heroes of America have spoken.
The police officers just sat there while the EPA accomplices to the Marcellus Shale Crime Spree, conducted a cover-up in plain view.
There should have been arrests right on the spot. You had the corporate criminals and the government accomplices right there and the cops let 'em get away. That's all this 30 month study is about. It's a cover-up, a delay tactic, a dog and pony show to keep people distracted from the environmental crimes.

I'd Rather Deal With Foreign Terrorists Any Day

Marcellus Shale Coalition Resorting to Full Scale Political Bribery

The two issues below may not seem related at first look. But my sense is that the very capable legal teams who work for the gas drillers and particularly the Marcellus Shale Coalition, know full well that they need to have new laws written and passed to really exploit the shale gas deposits in Pennsylvania. They know the law. That's their job. And as it stands now the law doesn't give them the kind of access they need to Pennsylvania's water resources. They need someone with both state and federal influence to move legislators in their direction.

1.The Marcellus Shale Coalition is negotiating with former Gov. Tom Ridge to enlist his political clout to help the frack drilling industry steamroll your right to clean water.

2. Low and behold, DEP doesn't even have legal authority to issue permits for fresh water withdrawls for drilling in the Commonwealth.

1. Natural-gas companies turn to Ridge to fuel drilling efforts
By Angela Couloumbis

Inquirer Harrisburg Bureau

HARRISBURG - Having already hired three former aides to Gov. Rendell, companies wanting to tap Pennsylvania's vast natural-gas reserves have set their sights on one of the state's best-known political figures: Tom Ridge.

The companies are looking to the former governor to help fix their tattered public image even as they try to influence lawmakers in Harrisburg on key public policy.

Read more:
He will now sell his services to the natural gas companies that are polluting drinking water throughout the Marcellus Shale region of PA. His job will be to convince people in Washington DC that drinking water is suppposed to catch on fire. His job will be to convince you that the documentary GASLAND is propaganda. He will make millions using his connections in Washington DC to
screw the little guy. Who is using their influence to fight for the family in northern PA that can’t drink their water for fear of a slow agonizing death?
Just to show that this isn’t just for Republicans, 3 top officials from Ed Rendell’s administration have been hired by the natural gas companies too. What a great political system we have.

2. DEP Approves Water Withdrawls Illegally

According to the Pennsylvania Department of Environmental Protection’s (DEP) website, in addition to several media reports and documents obtained through recent file reviews, the DEP is purportedly authorizing water withdrawals for Marcellus Shale gas drilling under an allegedly comprehensive regulatory scheme that protects Pennsylvania’s waterways. The fact is, however, that any purported “approval” or
“authorization” or “permitting” by the DEP of a surface water withdrawal in western Pennsylvania would be clearly illegal, beyond the DEP’s statutory authority and in direct contravention of the rights of those who hold valid surface water rights under Pennsylvania law. At best, the DEP’s recent conduct discussed below amounts to the DEP intentionally ignoring and facilitating illegal water withdrawals by numerous Marcellus shale drilling operations.
Allegheny Defense Project
Protecting and Restoring the Forests of the Allegheny Bioregion

Allegheny Defense Project, 117 West Wood Lane, Kane, PA 16735

(814) 778-5173;

July 26, 2010

Via Electronic Mail and Certified Mail, Return Receipt Requested

John Hanger, Secretary
Department of Environmental Protection
Rachel Carson State Office Building
400 Market Street
Harrisburg, PA 17101

Dear Secretary Hanger:

Marcellus Shale gas drilling poses significant risks to Pennsylvania’s waterways, both in terms of water quality and quantity. Drilling a Marcellus Shale gas well requires millions of gallons of water that drilling companies withdraw from our streams and rivers. According to the Pennsylvania Department of Environmental Protection’s (DEP) website, in addition to several media reports and documents obtained through recent file reviews, the DEP is purportedly authorizing water withdrawals for Marcellus Shale gas drilling under an allegedly comprehensive regulatory scheme that protects Pennsylvania’s waterways. The fact is, however, that any purported “approval” or “authorization” or “permitting” by the DEP of a surface water withdrawal in western Pennsylvania would be clearly illegal, beyond the DEP’s statutory authority and in direct contravention of the rights of those who hold valid surface water rights under Pennsylvania law. At best, the DEP’s recent conduct discussed below amounts to the DEP intentionally ignoring and facilitating illegal water withdrawals by numerous Marcellus shale drilling operations. At worst, the DEP is, in direct violation of its authority under Pennsylvania law, purporting to authorize the withdrawal of water by entities that in fact also have no legal right to make such withdrawals under Pennsylvania law.

There are two major problems with the DEP’s actions with regard to “approvals” of water withdrawals by Marcellus shale drillers. First, any notion that the DEP has a comprehensive regulatory scheme in place to keep a check on water withdrawals for Marcellus Shale gas drilling is
simply erroneous. In fact, water resources law in Pennsylvania “is not guided by any comprehensive statutory or regulatory program.”1 Second, and most importantly, the DEP actually has no authority whatsoever to authorize or permit water withdrawals in Pennsylvania. In other words, if the DEP “authorizes” or “permits” water withdrawals for Marcellus Shale gas drilling, it is acting without authority and encouraging unlawful conduct.
The body of law that continues to govern surface water withdrawals in western Pennsylvania, outside of the Delaware and Susquehanna watersheds, is riparian rights common law. Riparian water rights are those rights “derived from ownership of the banks of a watercourse that allow the use by riparian property owners of the water flowing in the watercourse.”
Under this doctrine, domestic needs of the riparian owner have priority and only have a right to use the water on the 1 Craig M. Wilson, “Water Resources,” ch. in Pa. Environmental Law and Practice, Terry R. Bossert & Joel R. Burcat, eds. (5th Ed. 2008), PBI No. 5203, p. 189. 2 Id. 3 Id.
2 riparian land.4 Diversions by non-riparian owners or for uses elsewhere are not protected by Pennsylvania common law.5 Put another way, as the DEP is well aware,6 under Pennsylvania law it simply is not legal for just anyone to put a hose into the Allegheny River or Tionesta Creek and
withdraw hundreds of thousands of gallons of water. Only individuals or entities that actually own real property along the banks of the Tionesta Creek have the legal right to withdraw water from that creek.

According to the DEP’s “Water Management Plan Example Format Instructions For Marcellus Shale Gas Well Development,”7 Marcellus Shale gas developers are told to:
Describe location of proposed source relative to nearby roads or landmarks. For sources not subject to SRBC or DRBC approval, attach a copy of the notification letter provided to municipality and county
where source is located.
For sources subject to SRBC and DRBC approval, notification to the county and municipality per the SRBC and DRBC procedures suffices. For sources not subject to SRBC and DRBC approval, a onetime notice letter must be provided to the county and municipality where the source is located prior to submission of the Water Management Plan or supplement to the plan first listing that source. For water sources previously approved by DEP which are being included in a plan, no additional county and municipal notification is required.
This is repeated on the DEP’s “Water Management Plan For Marcellus Shale Gas Well Development Example Format” application that operators fill out and submit to DEP:
For sources in Susquehanna River Basin, refer to a water withdrawal and consumptive use metering and monitoring plan meeting SRBC requirements. For sources in Delaware River Basin, refer to a
water withdrawal and use monitoring plan meeting DRBC requirements. Water withdrawal and use monitoring plans approved meeting SRBC and DRBC requirements may be incorporated by reference and are accepted by DEP.

For sources in other basins, provide a water source and use monitoring plan.8 4 Id. 5 Id. Note: A distinction, of course, must be made between water withdrawals in the Susquehanna and Delaware River watersheds and withdrawals outside those watersheds. The Susquehanna River Basin Commission (SRBC) and the Delaware River Basin Commission (DRBC) are authorized to permit water withdrawals within their respective
watersheds through federal interstate compacts. The Ohio River Watershed, which covers much of the western third of the Commonwealth, has no such commission; therefore, water withdrawals there are subject to riparian rights common law as will be explained in greater detail below.

6 Pamela Bishop, “A Short Review of Pennsylvania Water Law,” Feb. 2006. Available here:

See also, (stating “under [the Water Rights Act of 1939], public water supply agencies must obtain Water Allocation Permits from the [DEP] to acquire rights to use surface water sources in Pennsylvania. All other withdrawals of surface and groundwater are subject to common law rules that govern landowners’ rights to withdraw water from sources on their land for their uses on that property.”) (emphasis added).

Available here: (Form 5500-PM-OG0087, 4/2009 Instructions).


This alleged DEP authority to approve water withdrawals has been covered by local media. For instance, the Johnstown Tribune-Democrat recently reported that:
Chief Gas & Oil, under a permit from the Department of Environmental Protection, recently opened a second natural gas extraction well site in Jefferson Township, Somerset County.
DEP spokeswoman Helen Humphreys said the company had been approved to pull water from the Casselman River for the drilling of its Saylor Well in Middle Creek Township, opened in 2009.

But the permit did not include this latest endeavor. “They said they misunderstood,” Humphreys said. “They thought they were approved to remove water for these wells and they will be coming in to discuss this with us.”
[…] The violation is not expected to impact the Jefferson Township well development because the company has the water it needs through other approved sources, [Chief Gas & Oil spokeswoman Kristi] Gittins said.

[…] The Casselman situation has generated concerns from [Casselman River Watershed Association President Roger] Latuch and others regarding the amount of water the state permits allow the companies to withdraw from the rivers and benchmarks for when the levels get low due to

DEP Secretary John Hanger said the state is aware of the water issues, and his department has made water a top priority with Marcellus drilling.
“(Companies) have to file a water plan establishing where the water is coming from and the amount,” Hanger said.
The new regulations went into effect in fall 2008. Since that time, there have been few problems, he said.
“Water withdrawals are something we have good regulation on, and we are enforcing them,” Hanger said.

In November 2008, Pittsburgh’s WTAE News investigated the legal authority for water withdrawals for Marcellus Shale gas drilling in western Pennsylvania. That investigation led WTAE to conclude that drilling companies were simply withdrawing water from western Pennsylvania’s streams, rivers, and reservoirs without anyone’s permission. At most, the report stated that:
DEP says it will attempt to use the state Clean Streams Law to regulate water withdrawals from streams and rivers, but we asked, so far not one permit has been denied for that reason. As will be explained further below, however, the Clean Streams Law does not provide the DEP 9 Mellott, Kathy. State: Water withdrawal violated drilling permit. May 1, 2010. See,

10 WTAE Team 4: Pa. Streams Drained Dry By Drillers: Western Pa. Streams Emptied By Natural Gas Drilling. Nov. 13, 2008. See,
authority to permit water withdrawals.

In December 2009, WTAE followed up on the water withdrawals associated with Marcellus Shale gas drilling and reported the following:
It takes millions of gallons of water to drill into the Marcellus Shale beneath western Pennsylvania, and there’s a lot of contaminated water to get rid of after the drilling, but Team 4 has discovered that the state Department of Environmental Protection is not collecting reports from drillers about where they’re getting water to fracture the Marcellus Shale or where they’re disposing contaminated water after drilling.

Water withdrawal reports are supposed to be filed with DEP quarterly, while disposal reports are supposed to be filed every two years.

“Have any been filed yet?” Parsons asked DEP spokeswoman Helen Humphreys.
“Well, they haven’t been using it for two years yet, so the answer is no,” Humphreys said.
“So, Helen, the DEP has really no idea what’s really happening on the ground, real time?” Parsons asked.

“I don’t think that’s true at all,” Humphreys said.

“How would you, if you aren’t getting these reports?” Parsons asked.

“Well, because we have a good idea what’s in the water,” Humphreys said. “Again, this information is available to the department any time we ask for it.”11
If there is any doubt that the DEP is approving large-scale water withdrawals for Marcellus Shale gas drilling, when it in fact has no authority to do so, documents that ADP obtained during recent file reviews at the DEP’s Northwest Regional Office dispel that myth. These documents reveal that the DEP is conflating its duties under the Water Resources Planning Act and the Clean Streams Law to delegate unto itself authority that neither statute provides.
The first document, a Marcellus Shale gas well drilling permit application for East Resources, identifies “Special Permit Conditions” that include:
The permittee shall not withdraw or use water from water sources within the Commonwealth of Pennsylvania, for well fracing activities, unless the permittee does so in accordance with a Water Management Plan approved by the Department.12 This language is clearly intended to convey to gas companies drilling into the Marcellus Shale that once they receive a drilling permit pursuant to the Oil and Gas Act, as long as the “Special Permit
Conditions” language is incorporated into that drilling permit, they have also been “permitted” by DEP to withdraw water “from water sources within the Commonwealth of Pennsylvania.”
As stated above, however, the DEP lacks any authority to actually approve, authorize, or permit any such withdrawals. 11 WTAE Team 4: No Marcellus Shale Drilling Water Reports On File With Pa.: Range Resources Says Drillers
Keeping Track, Reports Are Available. Dec. 16, 2009. See,
12 Attachment A.
The Water Resources Planning Act of 2002 (WRPA), the statute authorizing the development of Water Management Plans, is strictly a planning statute. The WRPA requires that “each regional committee shall guide the development of and recommend to the Statewide committee a regional plan component for review, approval and incorporation into the State water plan.”13 Nothing in the WRPA authorizes or expands DEP’s authority to regulate, permit, or control water allocations or water withdrawals.
Another document, a May 7, 2010 DEP Inspection Report, identifies the Allegheny River as the water source for East Resources’ Marcellus Shale gas drilling operations. The report indicates that East Resources is “approved” to withdraw 600,000 gallons of water per day (gal/day). The report also states that:
Access to Allegheny River acceptable from any of the 4 possible withdrawal points on T415 (Boyer Crossing Rd.) (emphasis added)15
A few days later, on May 11, 2010, the DEP sent a letter to East Resources, notifying the company that its Water Management Plan was “approved” and it could withdraw the above-referenced 600,000 gal/day from the Allegheny River. The DEP’s letter invokes the Clean Streams Law in this so-called “approval” letter:
Pursuant to the Clean Streams Law, as amended, 35 P.S. Section 691.1 et seq., this approval does not authorize and shall not be construed as an approval to authorize diminution that is causing or may cause pollution.16
This is a remarkable statement. First, it implies that the Water Management Plan is being “approved” (at least in part) pursuant to the Clean Streams Law. There is nothing in the Clean Streams Law, however, that provides the DEP any authority to permit water withdrawals. The
Clean Streams Law is almost entirely concerned with water quality, not quantity. In fact, the word “quantity” appears only twice in the substantive body of the Clean Streams Law.17
Second, it is important to note that DEP’s disclaimer that “this approval does not authorize…diminution that is causing or may cause pollution,” while invoking the underlying purpose of the Clean Streams Law (i.e., preventing water pollution) is actually contained in a letter approving a Water Management Plan, which is authorized by the Water Resources Planning Act.

As stated above, however, that statute is a planning statute that does not delegate any substantive regulatory obligations to the DEP. In other words, the DEP appears to knowingly conflate its duties under the Clean Streams Law and Water Resources Planning Act to essentially invent a new authority that has not been delegated by the Pennsylvania Legislature nor signed into law by the Governor.18 13 27 Pa.C.S. § 3111(a).
14 27 Pa.C.S. §§ 3111(c); 3136.
17 The first is in reference to the Clean Water Fund for certain discharges (Sec. 8(b)(2)) and the second is in reference to the operation of coal mines (Sec. 315(c)).
18 Just to be clear, what ADP questions and challenges here is the DEP’s authority to authorize or permit a withdrawal of surface water in the first instance and contrary to existing Pennsylvania riparian law principles. If a riparian owner in fact has the right to withdraw water from a surface source, ADP believes that the DEP likely has some authority under
the Clean Streams Law to regulate the amount of such otherwise valid surface water withdrawals by a riparian owner in order to protect in-stream flows and overall water quality in a particular water body.

Other documents further demonstrate the DEP’s unlawful conduct related to water withdrawals for Marcellus Shale gas drilling operations. For instance, a May 7, 2010 Inspection Report regarding Pennsylvania General Energy’s (PGE) proposed Marcellus Shale gas drilling shows that the DEP
considered “approving” a withdrawal amount of nearly 1 million gallons per day from the Allegheny River.19 Other documents reveal that the DEP “approved” Hanley & Bird to withdraw 126,720 gal/day from Little Sandy Creek in Jefferson County, 1.4 million gal/day from Redbank Creek in Jefferson County, and 4.32 million gal/day from the Clarion River in Clarion County.

ADP is especially troubled by the differences between what information the DEP requires and what duties it imposes on applicants when it “approves” a Water Management Plan and when it approves an actual permit to drill for natural gas under the Pennsylvania Oil and Gas Act. For instance, an
applicant for a gas-drilling permit must provide proof that it has notified the surface owner and nearby property owners, including in particular owners of nearby drinking water sources, who may be impacted by such drilling. 20 This in effect requires the applicant to have a legitimate right to drill and allows the surface owner and other potentially impacted property owners to object. In contrast, when approving water withdrawal plans the DEP requires no proof whatsoever that the applicant in fact has the legal right to make any of the water withdrawals listed in the proposed plan
and the DEP does not require the applicant to notify the actual riparian owners along the stream or rivers where the applicant proposes to withdraw water. This omission is particularly striking with regard to riparians who are located directly downstream from the very large withdrawals by Marcellus drillers and who are therefore much more likely to be directly impacted by those illegal withdrawals. The only explanation that ADP can think of for these different approaches to “permitting” is that the DEP simply does not want to know or does not care that it is “authorizing” patently illegal water withdrawals by Marcellus drillers. Such a head-in-the-sand approach to “water regulation” is certainly not “comprehensive” and is not what Pennsylvanians have the right to expect from the agency created to protect the Commonwealth’s environment, including its surface water resources.

Even if we were to assume that the so-called “comprehensive program” the DEP has in place for water withdrawals associated with Marcellus shale gas drilling had a legitimate basis in the law, which again it does not, it certainly could not be said, as the DEP has claimed on its website and in
media reports, that it is actually effective in protecting Pennsylvania’s waterways. First and foremost, there is no indication that the DEP is considering the cumulative impacts of all these multiple water withdrawals. For instance, despite the fact that the DEP either “approved” or was about to “approve” Water Management Plans for both East Resources and PGE to withdraw a combined total of 1.6 million gal/day from the Allegheny River in Liberty Township, McKean

County, there is no indication that the DEP actually considered the cumulative impact of those withdrawals on the Allegheny River. Rather, it appears that the DEP analyzed both withdrawals in isolation even though it was “approving” both withdrawal rates along the same stretch of river for a similar 5-year period. Nor is there any indication that the DEP is considering reasonably foreseeable impacts from future Marcellus Shale gas drilling and associated water withdrawals, despite the fact that the natural gas industry plans to drill thousands of Marcellus Shale gas wells
legal authority to do is to “authorize” a water withdrawal, in any amount, by an individual or entity that is not a riparian owner and otherwise has no legal right to withdraw water from a particular water body.

19 Available here:
Note: We do not know whether DEP has actually approved this amount, but in light of all the other records we reviewed, it would seem unlikely that DEP did not approve PGE to withdraw this or a similar amount.
20 58 P.S. § 601.201(b) over the next couple decades.

Other documents further highlight concerns about the veracity of the DEP’s monitoring and enforcement. For instance, in a recent file review, ADP found the following in an email correspondence between DEP employees Donald Luttman and Derek Smith on April 29, 2010 regarding East Resources’ use of water from three reservoirs in McKean County:

[…]There appear to be some permit compliance issues. In addition to the comments below the permit required them to participate in a study with the Fish and Boat Commission to determine conservation release flows from all three reservoirs. The study was conducted but there is no other
correspondence in the files. The permit doesn’t require them to implement the results of the study.

[…] It appears that Special Condition 6 of the WA Permit “The permittee shall continue to operate and maintain measuring and recording devices to determine the amount of water withdrawn from the Heffner, Marilla and Gilbert Reservoirs” is not being met. Apparently, they are saying they are
meeting requirement because flows from all three reservoirs are metered at one location. Is water from Marilla and Gilbert Reservoirs being pumped to Heffner Reservoir? Do you agree they are not complying with Condition 6 and that meters are required at each Reservoir individually?

It appears that the leak and loss for 2009 and 2008 was 28.1% and 26.7%[.] Should they be required to reduce to less than 20%?

They are indicating “N/A” to question whether they are reporting conservation releases. Do you know why? Permit requires conservation release from Heffner Reservoir, however permit says “A continuous flow of not less than 0.16 cfs/square mile from 6.6 square miles of watershed area above the dam shall be maintained at all times in Tunungwant Creek at a point immediately below the junction of the spillway channel and the creek.” This should say West Branch Tunungwant Creek.

Therefore, the[y] cannot comply with permit because it is written incorrectly.21
Another DEP employee, Ronald Lybrook, responded to both Mr. Smith and Mr. Luttman on May 10, 2010 by stating:
Our preliminary review of the Bradford Water Allocation Permit indicates non-compliance. Don Luttman and I intend to conduct a field inspection within the next two weeks.
My recommendation is that the WMP not be approved until a compliance determination is made. 22 Several issues are raised by these emails. First, if the DEP requires an approved “Water Management Plan” (WMP), why is East Resources withdrawing water without an approved WMP?

Second, if East Resources was required to participate in a study to determine conservation release flows, why are the results of that study not enforceable, especially if those results indicate measures for protecting water resources? It would be a complete waste of taxpayer money to conduct studies that end up having no real-world consequences once they are completed. Third, how can the DEP allow water withdrawals to occur from reservoirs when it does not even know how those reservoirs

are being metered?23 Fourth, it is less than comforting that when the DEP is aware of noncompliance issues, it will investigate “within the next two weeks.” This less-than-urgent approach 21

toward investigating possible water quantity and/or quality issues underscores ADP’s long-standing assertion that the DEP simply does not have the workforce to monitor the oil and gas drilling activities that it is permitting all over the Commonwealth.
ADP requests the following information regarding the DEP’s regulatory authority to permit water withdrawals for Marcellus gas drilling and fracing from western Pennsylvania waterways:
1. List the specific regulatory authority of the DEP to permit water withdrawal from a Pennsylvania waterway by a Marcellus drilling company who is not a riparian owner along that waterway.

2. List the specific authority of the DEP to permit a Marcellus drilling company to withdraw water in one watershed and remove it for use in another watershed.

3. Why is the DEP not giving notice to riparian owners, especially downstream riparians, of water withdrawals in their watersheds by Marcellus drilling companies and why is the DEP not requiring proof of a right to withdraw water for each of the proposed withdrawals included in a proposed Water Withdrawal Plan?

In conclusion, whatever “program” the DEP supposedly has in place to manage water withdrawals associated with Marcellus Shale gas drilling, it is not reflective of the kind of comprehensive management scheme that the DEP promotes on its website and in the media. Furthermore, it is of
no consequence what program the DEP has in place because it lacks the authority to authorize, permit, or otherwise approve water withdrawals in the Commonwealth. The SRBC and DRBC manage water withdrawals within their respective river basins while much of the remainder of the
Commonwealth is regulated under riparian rights common law – and under that doctrine, only the riparian owner has the right to make reasonable use of the water on the riparian land.


/s/ Bill Belitskus


ADP Board President

Leanne Marten (Allegheny National Forest)

Robert Fallon (Allegheny National Forest)

Anthony Scardina (Allegheny National Forest)

Shawn Garvin (U.S. EPA)

Kent Connaughton (U.S. Forest Service, Eastern Region)

David Densmore (U.S. Fish & Wildlife Service)

John Quigley (PA DCNR)

John Arway (PA Fish & Boat Commission)

James Delaney (PA Game Commission)