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Pennsylvania's oil and gas drillers to honor Act 13 buffers

| Monday, Jan. 6, 2014, 11:48 p.m.

Pennsylvania's oil and gas drillers have agreed to a request from Gov. Tom Corbett that they comply with buffer zones intended to protect waterways and wetlands even though the state Supreme Court struck down those environmental rules last month.

The voluntary agreement will keep deep-shale drilling pads and conventional oil and gas wellbores at least 100 feet from those environmentally sensitive areas. The buffer zones were included in oil and gas reforms, known as Act 13, that were passed in 2012.

The court's “action, which could imperil our water quality, is simply unacceptable,” Corbett said in the announcement. “I am calling upon Pennsylvania's oil and gas operators to honor both the spirit and intent of these setback provisions to continue helping us protect Pennsylvania's water and natural resources.”

Corbett said three of the region's largest drilling trade groups said their members will comply. The Marcellus Shale Coalition and the Pennsylvania Independent Oil & Gas Association confirmed the agreement. The Associated Petroleum Industries of Pennsylvania could not be reached for comment.

The Supreme Court issued a 4-2 decision on Dec. 19, throwing out parts of the state's oil and gas reforms. Chief Justice Ronald D. Castille wrote an opinion for three of the four justices in the majority roundly rejecting parts of the law as a failure to meet constitutional standards for environmental protection.

That included the buffer zones. While the zones were supposed to protect sensitive environmental areas from drilling, the law allowed the Department of Environmental Protection to grant waivers and allow drilling in those areas. The law then failed to set any terms for those waivers, and that undermined the whole statute, Castille wrote.

The law “fails both to ensure conservation of the quality and quantity of the Commonwealth's waters and to treat all beneficiaries equitably,” Castille wrote. “We are constrained to conclude that Act 13 has failed to properly discharge the Commonwealth's duties as trustee of the public natural resources.”

The justices said in their ruling that they couldn't throw out only the provision for waivers and leave other provisions intact. Because the state didn't intend to enforce the setbacks without allowing the waivers, the justices said they were obligated to strike the entire section of the law, setbacks and all.

If drillers decide to operate in the buffer zones around streams and wetlands, the governor expects them to adhere to extra precautions the DEP has long required for waivers to work in those areas, Corbett spokeswoman Valerie Caras said. It would be difficult for drillers to work in those areas because of opposition in some municipalities, said Lou D'Amico, executive director of the Pennsylvania Independent Oil & Gas Association.

“In municipalities that want this control, we would be unable; and in others without rules, it would be contrary to our best interests to not comply with this request,” he said.

How to deal with the issue had become a source of conflict between the Corbett administration and some environmentalists. The environmentalists had said the DEP should be able to apply the setbacks in its own permitting, but the Corbett administration said it lacked any legal authority to set that type of regulation.

The state needs to set compulsory rules as soon as possible to ensure companies stay in line, said George Jugovic, a senior attorney in Pittsburgh for Citizens for Pennsylvania's Future. The Corbett administration wants to do that, but parts of the case are still in front of lower appeals courts and the state needs clarity before it can set rules, Patrick Henderson, Corbett's deputy chief of staff and energy executive, said through a spokesman.

“I hope they are working on other permanent solutions, other than just voluntary requests,” Jugovic said. “All companies don't have the same standards. They all don't think alike.”

Timothy Puko is a staff writer for Trib Total Media. He can be reached at tpuko@tribweb.com.

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