Envirosphere

On September 28, 2011, DEC issued proposed regulations that would limit high-volume hydraulic fracturing during natural gas drilling operations, including a ban on fracking in the New York City watershed and in the vicinity of key water resources.

The proposed regulations would prohibit fracking within 500 feet of the state's 18 primary aquifers and within 4,000 feet of an unfiltered surface water supply watershed and would require disclosure of chemicals used during fracking. According to DEC, the proposed regulations are subject to four public hearings and a public comment period that was open until Dec. 12, 2011. According to DEC, the proposed regulations will create a legal framework for implementing the proposed mitigation measures contained in the draft Environmental Impact Statement. The proposed regulations contain several parts, including amendments to the State Pollutant Discharge Elimination System (SPDES).

Under the proposed regulations, natural gas companies would be required to disclose the chemical additives used in fracking, which is the process of injecting water, sand, and chemical additives into rock layers to allow gas to flow into a well. The proposed rules also would require that all flow-back water and production brine be treated, recycled, or properly disposed. In addition, natural gas companies would be required to develop comprehensive stormwater pollution prevention plans and plans for the use and testing of blowout preventers. In addition, the proposed regulations contain detailed requirements for well construction, site preparation, and the operation and maintenance of fracking wells.

On October 19, 2011, DEC and the New York City Department of Environmental Protection (DEP) reached a draft agreement to reduce combined sewer overflows (CSO) into area water bodies.

The agreement modifies New York City's approach to improving harbor water quality, under which the city will invest an estimated $187 million in green infrastructure projects by 2015, part of a planned $2.4 billion public and private investment over the next 20 years. The city will also complete work on approximately $1.6 billion in gray infrastructure projects. Under the agreement, DEP will use green infrastructure to significantly reduce amounts of stormwater from entering the city's combined sewer system from 10 percent of available impervious surfaces in combined sewer drainage areas by 2030.

Milestones to reach this requirement include managing 1.5 percent of available impervious surfaces by 2015, 4 percent by 2020, 7 percent by 2025 and 10 percent by 2030. Under this new agreement, DEP estimates it will invest $187 million in green infrastructure toward achieving the first milestone scheduled for 2015. If the city misses this milestone, it must submit a contingency plan to implement more green or gray infrastructure. If the city implements an approved contingency plan and still does not meet the milestones, it must pay a penalty. The city estimates it will require a total of $2.4 billion in both public and private investments in green infrastructure projects to meet the terms of the consent order over the next 20 years.

The draft agreement also requires DEP to establish detailed Long-Term Control Plans between 2013 and 2017 to effectively address any remaining concerns with CSOs. Under the agreement, the city will pay an additional $5.15 million for Environmental Benefit Projects including: (1) $2 million to build and monitor green infrastructure demonstration projects in the Newtown Creek and Bronx River drainage basins to determine if the green projects are successful; (2) $3 million for the city's existing grant fund to perform green infrastructure projects on private property; (3) and up to $150,000 for water quality sampling in the Hutchinson River.

Under the draft agreement, DEP will continue to build $1.6 billion in other traditional gray infrastructure projects to reduce combined sewer overflows. In addition, the city will pay DEC a $200,000 penalty while an additional $1 million penalty is suspended contingent upon the city meeting a future milestone for completing a project to improve performance of the Jamaica Bay wastewater treatment plant.

To allow time to determine if green infrastructure projects can serve as effective alternatives to large-scale gray infrastructure facilities, the proposal defers making a decision to move forward with CSO tunnels for Newtown Creek and Flushing Bay until 2017, which are estimated to cost approximately $1 billion each. The draft agreement achieves $1.4 billion in cost savings for gray infrastructure projects through more efficient gray projects. The proposal takes an adaptive management approach that allows DEP to propose alternative ways to meet its required green infrastructure performance targets and to make up for missed targets, by changing its investment and design and construction strategy to reflect current conditions and up-to-date information.