Judge Upholds Forest Service Protection of Water in Allegheny National Forest

Erie federal judge rejects oil and gas industry motion

A Forest Service ban that keeps Marcellus shale drillers from using surface or groundwater from the Allegheny National Forest stands after a federal judge refused to overturn it.

In a ruling Friday, U.S. District Judge Sean McLaughlin said a long-running, three-sided dispute involving the oil and gas industry, the federal agency and environmental groups has not addressed water rights.

Specifically, the judge said his 2009 preliminary injunction ordering the Forest Service to resume processing drilling proposals in the forest and an earlier 1980 federal court decision confirmed only that, under Pennsylvania law, the federal government and other surface property owners can`t block mineral owners` access to the minerals. The decisions don`t address water rights.

The Forest Service stopped processing notices, or proposals, from drilling companies as part of a 2009 settlement with environmental groups requiring it to conduct an environmental impact study before allowing new drilling in the forest.

Later that year, McLaughlin issued a preliminary injunction overturning that part of the settlement. The industry in July asked the judge to find the Forest Service in contempt of his injunction for two reasons.

The industry argued that the agency`s water ban violated state common law giving mineral owners reasonable access to surrounding water. The industry also argued the agency was violating the injunction by taking longer than 60 days to process the drilling proposals.

In addition to rejecting the water ban argument, the judge also rejected the processing time argument.

While there is “some evidence to suggest that delay has replaced diligence as the hallmark of the Forest Service`s processing of drilling proposals,” the industry didn`t provide clear and convincing evidence the agency is deliberately dragging its feet, McLaughlin said. Instead, the Forest Service presented credible evidence that at least some of the delays are caused by companies failing to file all the information required in the notices, the judge said.


For Immediate Release: July 6, 2011
Contact: Kirsten Stade (202) 265-7337
— New Study Details Changes in Soil Chemistry and Devastation of Trees and Plants

Washington, DC — A new study has found that wastewater from natural gas hydrofracturing in a West Virginia national forest quickly wiped out all ground plants, killed more than half of the trees and caused radical changes in soil chemistry.  These results argue for much tighter control over disposal of these “fracking fluids,” contends Public Employees for Environmental Responsibility (PEER).

The new study by Mary Beth Adams, a U.S. Forest Service researcher, appears in the July-August issue of the peer-reviewed Journal of Environmental Quality.   She looked at the effects of land application of fracking fluids on a quarter-acre section of the Fernow Experimental Forest within the Monongahela National Forest.  More than 75,000 gallons of fracking fluids, which are injected deep underground to free shale gas and then return to the surface, were applied to the assigned plot over a two day period during June 2008.  The following effects were reported in the study:

  • Within two days all ground plants were dead;
  • Within 10 days, leaves of trees began to turn brown.  Within two years more than half of the approximately 150 trees were dead; and
  • “Surface soil concentrations of sodium and chloride increased 50-fold as a result of the land application of hydrofracturing fluids…”  These elevated levels eventually declined as chemical leached off-site.  The exact chemical composition of these fluids is not known because the chemical formula is classified as confidential proprietary information.

“The explosion of shale gas drilling in the East has the potential to turn large stretches of public lands into lifeless moonscapes,” stated PEER Executive Director Jeff Ruch, noting that land disposal of fracking fluids is common and in the case of the Fernow was done pursuant to a state permit.  “This study suggests that these fluids should be treated as toxic waste.”

For the past twenty-five years, the Forest Service has not applied any environmental restrictions on private extraction efforts, even in wilderness areas.  As a result, forests, like the Monongahela, which sits astride the huge Marcellus Shale gas formation, have struggled with many adverse impacts of widespread drilling.  By contrast, the nearby George Washington National Forest (NF) has recently proposed to ban horizontal drilling, a practice associated with hydrofracking, due to concern about both the ecosystem damage and also the huge amount of water required for the fracking process.  Two subcommittees of the House of Representatives will hold a joint hearing this Friday to examine the George Washington NF’s singular pro-conservation stance.

“Unfortunately, the Forest Service has drilled its head deeply into the sand on oil and gas operations harming forest assets,” Ruch added, noting the National Wildlife Refuges also lack regulations to minimize drilling impacts.  “The Forest Service needs to develop a broader approach than asking each forest supervisor to cast a lone profile in courage or cowardice.”


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