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Settlement reached in Chesapeake Bay Foundation challenge of DEP permitting process for natural gas operations

Posted: August 14, 2011

A synopsis on the settlement

On July 6, 2011, the Environmental Hearing Board approved a settlement to resolve litigation between the Chesapeake Bay Foundation and Pennsylvania’s Department of Environmental Protection (DEP) over DEP’s expedited erosion and sediment control general permit (E&S general permit) authorization process.  Chesapeake Bay Found. v. Dep’t of Envtl. Prot., EHB Docket No. 2009-116-L.  E&S general permits are those required for earth disturbance activities associated with natural gas production.  As part of the settlement, DEP will propose amended E&S general permit requirements to be published in the Pennsylvania Bulletin and made available for public comment.  The recommendations will maintain an expedited permit process, but the process will be unavailable for projects that are “located in, or with the potential to discharge to,” waters of High Quality or Exceptional Value.  Projects that require well pads to be constructed in flood plains, as well as projects that are to take place on lands contaminated by regulated substances, also will be ineligible for expedited review.  The settlement additionally requires DEP to recommend that certain drilling sites not be eligible for waivers under § 205(b) of the Oil & Gas Act, 58 Pa. Stat. § 601.205(b), which prohibits natural gas wells within 100 feet of specified bodies of water and wetlands.  Sites restricted from receiving a locational waiver generally will be those located within flood plains or floodways.  For more information on Marcellus Shale legal issues, please visit the Agricultural Law Resource and Reference Center’s Marcellus Shale Resource Area.

reprinted from the August 2011 issue of the Agricultural Law Brief by  by Michael A. Magee, Research Assistant