Conservation Organizations Question Legality of SRBC Actions
SRBC abrupt adjournment and preemptory approval of fracking water withdrawal may be illegal
American Rivers | Earthworks | Sierra Club PA
December 22, 2011
Seven conservation and environmental groups have sent a letter to the Susquehanna River Basin Commission (SRBC), asking the Commissioners to reconvene for the purposes of completing its meeting held on December 15 and pointing out that the Commission’s approval of 26 water withdrawal permits for shale gas development projects is not legal because it occurred after the meeting was adjourned.
Last week, the Commission hastily adjourned its meeting in Wilkes- Barre, after a group of citizens disrupted the meeting. The complete text of the letter follows at the bottom of this release.
The SRBC held its December 15 meeting to consider a series of natural gas drilling water withdrawal applications. In response to some outspoken members of the public, the meeting was adjourned; then, after adjourning, theCommissioners proceeded to vote off the record to approve the water withdrawal applications.
By adjourning the meeting prematurely, the SRBC prevented the testimony of non-protesting members of the public who wished to testify on the individual water withdrawals. Effectively, the SRBC’s action penalized the entire public for the actions of a few individuals and violated the SRBC’s own rules.
The SRBC has been notified that actions taken by the Commission on December 15 were done "off the record," and therefore may not be legally effective.
QUOTES FROM VARIOUS ORGANIZATIONS
"Commission decisions need to be made in an open, public forum. We expect the Commission to reconvene and invite the public."
Conservation Chair, Sierra Club Pa
"Hydraulic fracking is a critical and divisive issue that is already affecting thousands of families, water quality and landscapes. While we respect the efforts of the Susquehanna River Basin Commission managing water resources of the Basin, we need decisions to be made properly and that didn't happen in this case."
Director, Stewards of the Lower Susquehanna
Lower Susquehanna Riverkeeper
“SRBC meetings often don’t generate much public turnout, let alone oppositional turnout, and what happened last week may have made reality on the ground and the strength of anti-drilling views clear to the Commissioners,” said Nadia Steinzor of Earthworks’ Oil & Gas Accountability Project. “Gas development is so controversial because of its many negative impacts, in particular to water resources. The SRBC must uphold comment periods and manage meetings so that the public can openly and respectfully share their views and knowledge—which will hopefully in turn encourage the Commissioners to make decisions that truly protect the Basin.”
Marcellus Shale Regional Organizer, Earthworks
“The Susquehanna River Basin Commission must responsibly allow for public comment on permits under review at their meetings, as stated in the public notice and agenda. It is inappropriate to approve water withdrawals without allowing the public’s concerns about large and excessive withdrawals and their impact on clean water to be formally considered by the Commission.”
Liz Garland Deardorff
Director, American Rivers Pennsylvania Clean Water Program
“It’s the public that owns the water. The SRBC is managing that water in a public trust. Decisions about who gets to use it must be made with public input and in public view.”
PA State Director, Clean Water Action
December 21, 2011
VIA ELECTRONIC MAIL
Executive Director, Susquehanna River Basin Commission
Richard A. Cairo
General Counsel, Susquehanna River Basin Commission
1721 N. Front Street, Harrisburg, PA 17102-2391
Re: Commission Failure to Follow Procedure Resulted in Ineffective Approval of
26 Water Projects at Dec. 15, 2011 Meeting
Dear Mr. Swartz and Mr. Cairo,
The undersigned organizations send you this letter because we believe the Commission improperly approved pending docket action items and improperly curtailed public comment at its December 15, 2011 meeting in Wilkes-Barre. The Commission should reconvene at a date in the near future to appropriately reconsider the docket and allow public comment. The facts meriting this action are as follows:
On December 15, the Commission appropriately completed the majority of its action items and provided an opportunity for general public comment. The Commission later considered the last remaining action items: 26 pending water withdrawal projects primarily for shale gas operations. While the Commission solicited and listened to specific questions concerning the proposed water withdrawals during a presentation on those projects by Commission staff, the scheduled public comment period specific to those proposals had not yet begun when disruptive behavior occurred.
Prior to this meeting the Commission published a public notice in the Federal Register and Pa Bulletin stating in relevant part:
Interested parties may appear at the hearing to offer written or oral comments to the Commission on any matter on the hearing agenda, or at the business meeting to offer written or oral comments on other matters scheduled for consideration at the business meeting. The chair of the Commission reserves the right to limit oral statements in the interest of time and to otherwise control the course of the hearing and business meeting.
When disruptive behavior made the proceedings unintelligible, the Commission chair briefly attempted to control the proceedings and, failing to do so with her voice and gavel, adjourned the meeting. The Commission did not state its intent to subsequently reconvene, and some attendees in the audience left the meeting at that point. The Commissioners and Commission staff then excused themselves only to return minutes later where they voted and approved 22 of the projects at issue, off-the-record and without having formally reconvened. None of the remaining individuals wishing to provide public comment were able to exercise that right.
We commend the Commission for providing a general comment period, however, that period is not a substitute for an opportunity to comment on particular applications, consistent with the SRBC’s published notice. Indeed, Commission staff knew of at least one individual, Don Williams, who specifically noted his intent to provide particular comments on each scheduled water withdrawal project prior to - and at - the December 15th meeting but, due to the abrupt adjournment, was unable to exercise that right.
We believe the off-the-record approval of 22 water withdrawal projects may be legally ineffective due to the previous adjournment and the Commission’s failure to control the meeting and allow public comment. The Commission should reconvene in the near future to reconsider those ineffective docket approvals and allow related public comment.
Although the Commission’s regulations at 18 C.F.R. § 808.1 et seq. do not squarely address the instant issue, it is very clear from both eye-witness reports and video of the proceedings that there was in fact adjournment prior to approval of 22 water withdrawal projects. Because the majority of the proposed water withdrawals concerned shale gas operations that entail potentially significant direct, indirect and cumulative impacts, those approvals demand the utmost transparency and accountability. In addition, the Commission’s regulations recognize the inherent importance of substantive public participation, yet the Commission inappropriately approved docket items post adjournment of the public hearing without providing for such public participation. With these facts in mind, we respectfully urge the Commission to:
1)Publish notice of a reconvened public hearing for a date in the near future;
2)Meet, properly reconsider, and vote on the off-the-record 26 water projects with appropriate standards and time for public comment at that meeting; and
3)Notify the 26 water project applicants that they in fact do not have legitimate approval, and may not withdrawal water until such approvals are granted.
The undersigned organizations did not participate in the disruptions that occurred at the meeting and believe the Commission must take the aforementioned actions and, in so doing, uphold its commitment and duty to encourage respectful public participation, transparency, and the rule of law.
We recognize the difficulty in providing clear and concise responses to all of the organizations listed below, and therefore ask that an official response to this inquiry be sent to Guy Alsentzer, Director of Stewards of the Lower Susquehanna, at Guy@LowSusRiverkeeper.org, who shall disseminate communications among the undersigned.
Marcellus Regional Organizer
Pa Sierra Club
Susquehanna River Sentinel
Stewards of the Lower Susquehanna
Lower Susquehanna RIVERKEEPER®
Associate Director of River Protection
Pennsylvania State Director
Clean Water Action
For more information:
Thomas Au, Sierra Club Pennsylvania, 717-234-7445
Nadia Steinzor, Earthworks, 315-677-4111
Liz Garland Deardorff, American Rivers, 717-763-0742