State Of New York v. United States Army Corps of Engineers et al

Filing 1

COMPLAINT against Peter A. DeLuca, Rowan W. Gould, Lisa Jackson, Jonathan B. Jarvis, Kenneth Salazar, United States Army Corps of Engineers, United States Department of the Interior, United States Environmental Protection Agency, United States Fish and Wildlife Service, United States National Park Service Disclosure Statement on Civil Cover Sheet completed -yes,, filed by State Of New York. (Attachments: # 1 Civil Cover Sheet) (Siegfried, Evan)

FILED

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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STATE OF NEW YORK,

"-J• OOKLYN OFFICE

Plaintiff,

v.
UNITED STATES ARMY CORPS OF ENGINEERS;
BRIGADIER GENERAL PETER A. DELUCA, in his official
capacity as Division Engineer, North Atlantic Division of the
United States Army Corps of Engineers;
UNITED STATES FISH AND WILDLIFE SERVICE;
ROWAN W. GOULD, in his official capacity as Acting Director
of the United States Fish and Wildlife Service; UNITED STATES
NATIONAL PARK SERVICE; JONATHAN B. JARVIS,
in his official capacity as Director of.the United States National Park
Service; UNITED STATES DEPARTMENT OF THE INTERIOR;
KENNETH SALAZAR, in his official capacity as Secretary of the
United States Department of the Interior; UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY; and
LISA JACKSON, in her official capacity as Administrator of the
United States Environmental Protection Agency,
·

COMPLAINT

ROSS, J•

, ~4

Defendants,

---------------------------------------------------------------------------------X
Plaintiff State of New York ("New York"), by Eric T. Schneiderman, Attorney General
of the State of New :York, as and for its complaint, alleges as follows:

NATURE OF THE ACTION
1.

New York brings this action for declaratory and injunctive relief, in its proprietary

capacity and as parens patriae on behalf of its citizens, against defendant federal agencies United
States Army Corps of Engineers ("ACE"), United States Fish and Wildlife Service ("FWS"),
United States Natio,nal Park Service ("NPS"), United States Department of the Interior ("DOl"),
and United States Environmental Protection Agency ("EPA"), and chief executives of these
agencies (collectively, "Defendants" or "Federal Agencies"). New York seeks to compel these
Federal Agencies to comply with the National Environmental Policy Act of 1969,42 U.S.C. §

4321 et seg. ("NEPA"), by preparing and making available for public comment a draft
environmental impact statement ("EIS") before proceeding to adopt proposed Delaware River
Basin Commission ("DRBC") regulations that would authorize natural gas development
("DRBC Regulations") within the Delaware River Basin (the "Basin").
2.

The Basin is an area of 13,539 square miles, draining parts of Pennsylvania, New

.Jersey, New York, and Delaware. The Upper Delaware River within the Basin is renowned for
its pristine waters that serve as the primary source of clean unfiltered drinking water for 9 million
New Yorkers each day, and is a federally designated "Scenic and Recreational River''
administered by the NPS. The Basin provides an important source of public water supply
beyond New York, and serves as home to endangered species and migratory birds under FWS
jurisdiction. Below the Upper Delaware, the Delaware Water Gap and a reach of the lower
Delaware also are included in the National Wild and Scenic Rivers System, combining to cover
three-quarters of the non-tidal segment of the Delaware River. The Delaware River Port
Complex (including docking facilities in Pennsylvania, New Jersey and Delaware) is the largest
freshwater port in the world.
3.

The national importance of the Basin is

reflect~d

in the Delaware River Basin

Compact (the "Compact"), a fifty-year old agreement among the federal government and the
State~

ofNew York, New Jersey and Delaware, and the Commonwealth of Pennsylvania to

manage and protect water resources within the Basin. The federal statute approving and
effectuating the Compact establishes that the DRBC is a federal agency, and provides that the
functions and jurisdiction of the United States under future legislation such as NEP A shall not be
impaired or affected by the Compact. Pursuant to federal law, the federal member of the DRBC
is an Army officer within the ACE who functions as the representative of the Federal Agencies

2

with respect to the actions and policies of the DRBC. Following the subsequent enactment of
NEP A, the DRBC and the federal Council on Environmental Quality ("CEQ"), the federal
agency charged with oversight of the federal government's implementation ofNEPA,
determined that the DRBC is subject to NEPA. Thereafter, for financial reasons, the DRBC
suspended its NEPA implementation, stating that it would rely instead on NEPA compliance by
the Federal Agencies participating in the Commission through the federal member. The DRBC
is not named as a defendant in this action because the federal approval statute exempts the
Commission from the Administrative Procedure Act.
4.

Promulgation of the DRBC Regulations is expected to result in the development

of between 15,000 and 18,000 natural gas wells within the ~asin in Pennsylvania and New York,
which includes a large portion of the New York City Watershed. EPA has expressed "serious
reservations about whether gas drilling in the New York City watershed is consistent with the
1

vision of long-term maintenance of a high quality unfiltered water supply." The New York City
Department of Environmental Protection ("NYCDEP"), which supplies drinking water from that
watershed, has concluded based on third-party scientific studies that natural gas development
would "pose an unacceptable threat to the unfiltered, fresh water supply of nine million New
Yorkers, and cannot safely be permitted within the New York City watershed."2
5.

In areas of Pennsylvania outside of the Basin, natural gas well development has

been authorized, and is proceeding. Over 2,000 natural gas wells have been drilled, resulting in
hundreds of violations of water pollution laws and the pollution of drinking water supplies relied

1

Letter from John FiJippeiJi, Chief of EPA's Strategic Planning and Multi-Media Programs Branch, to New York
State Department of Environmental Conservation, dated December 30, 2009.
Letter from Steven W. La witts to New York State Department of Environmental Conservation, dated December
22,2009, http://www.nyc.gov/html/dep/pdf/natura1_gas_drilling/12_22_2009_impact_statement_letter.pdf

3

on by hundreds of thousands of people. In addition, the Pennsylvania Department of
Environmental Protection ("PADEP") has found that the cumulative effects of air pollution
emissions from development of these wells may contribute to violations of fedeial air pol~ uti on
standards developed to protect public health. 3
6.

NEPA is a procedural statute regulating the decision making process of federal

agencies without mandating any particular substantive result. Its purpose is to ensure that federal
agencies act transparently -- with full public participation -- in considering the potential
significant environmental impacts of proposed actions before making final decisions. NEP A's
''core requirement" is that all federal agencies with decision making authority over an action
prepare an EIS, subject to public review and comment, if the action could potentially cause such
environmental impacts. "Federal" actions subject to NEPA include pr.ojects and programs
entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies, and
new or revised agency rules, regulations, plans, policies and procedures.
7.

The Federal Agencies have determined that authorization of natural gas well

development in the Basin would potentially result in significant cumulative adverse
environmental impacts and that a study of those impacts should be performed. But Defendants
refuse to comply with NEPA and refuse to prepare an EIS assessing the cumulative
environmental impacts. Under NEP A, an EIS must include analysis of the environmental
impacts of a proposed action, and consideration of alternatives to the action and measures to
mitigate adverse environmental impacts.

3

Pennsylvania Department of Environmental Protection Northeastern PA Marcellus ShaJe Short-T.enn Ambient Air
Sampling Report, at p. 21 (Jan. 12, 2011).

4

8.

Ne'Y York brings this action to protect its waters, air quality, climate, public

health, and landholdings within the Basin which have been placed at risk by Defendants' NEPA
violations and to vindicate the State's procedural rights under that statute.
JURISDICTION AND VENUE
9.

This action arises under NEPA, the Administrative Procedure Act, 5 U.S.C. §§

551-706 ("APA"), and the Compact. PlaintiffNew York alleges that Defendant Federal
Agencies' refusal to comply with NEPA concerning the authorization of natural gas development
in the Basin pursuant to the DRBC Regulations is arbitrary, capricious, an abuse of discretion
and otherwise not in accordance with law under 5 U.S.C. § 706(2)(A).
10.

The Court has subject matter jurisdiction over this action under 28 U.S.C. § 1331

because it raises a federal question, and under the statute effectuating the Compact, Pub. L; 87328, 75 Stat. 688, § 15.1 (p) (1961 ), because this action arises under the Compact. New York
seeks declaratory and injunctive reliefunder 28 U.S;C. §§ 2201, and 2202; and 5 U.S.C. § 701 et
seg., which provides for judicial review under the APA.
11.

This action is br?ught against federal agencies and employees acting in their

official capacities. Venue is proper within this district pursuant to 28 U.S.C. § 139l(e)(l)
because defendants General DeLuca and the ACE reside within the district, with their offices
located at Building 302, General Lee Avenue, Brooklyn, New York 11252. Venue is also proper
within this district pursuant to 28 U.S.C. § 1391(eX2). A substantial part of~e events or
omissions giving rise to plaintiffs claim occurred in this district because these defendants'
decision not to prepare an EIS as required by NEPA likely occurred within their offices in
Brooklyn, and because much of the work in preparing that EIS would have occurred in those
offices. Venue is also proper within this district pursuant to 28 U.S.C. § 139l(e){3), which

5

establishes venue in an any judicial district in which a plaintiff resides, if no real property is
involved in the action.

THE PARTIES
12.

PlaintiffNew York is a sovereign state of the United States of America and brings

this action in its proprietary capacity and as parens patriae on behalf of its citizens and residents
to protect public health, safety, welfare, and the environment.
13.

Defendant ACE is a federal agency involved in water resource management

within the Basin. The ACE employs the Division Engineer, North Atlantic Division.ofthe ACE,
as the ex officio federal member ofDRBC pursuant to Section 5019(a) of the Water Resources
Development Act of 2007, Public Law 110-114 ("WRDA"). Under WRDA, the Secretary of
ACE "shall allocate funds to the Delaware River Basin Commission ... to fulfill the equitable
funding requirements" for the federal government under the Compact. WRDA, § SO 19(b). The
ACE exercises authority over navigable waters within the Basin under the federal Rivers and
Harbors Act, .33 U.S.C. § 401 et seq., and the filling and dredging of navigable waters within the
Basin under section 404 of the federal Clean Water Act, 33 U.S.C .. § 1344. The ACE is a federal
agency with decision-making authority under the Compact to which General DeLuca reports on
DRBC matters.
14.

Defendant Brigadier General Peter A. DeLuca ("General DeLuca") is the

Division Engineer, North Atlantic Division of the ACE, who serves as the federal member of the
DRBC. Genera DeLuca is employed by the ACE, and is sued in his official capacity. He
participates in, and exercises decision making authority over, actions proposed to be taken by
DRBC. In this capacity, General DeLuca reports to, and represents, federal agencies, including
the ACE, on DRBC matters.

6

15.

Defendant United States Fish and Wildlife Service ("FWS") is a federal agency

and bureau within the Department of the Interior ("DOl") involved in water resource
management within the Basin. FWS and DOl have trust: authority over endangered terrestrial
fish and wildlife species within the Basin under the federal Endangered Species Act of 1973, 16
U.S.C. § 1531 et seq., and birds under the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq.,
and Bald and Golden Eagle Protection Act, 16 U.S.C. §§ 668-668d. Federally listed endangered
species within the Basin protected by DOl and FWS include the d~arf wedge mussel, Indiana
bat, bog turtle, and Northeastern bulrush. These agencies have responsibility for over 200
species· of migratory birds identified within the drainage area of the Upper Delaware River
within the Basin, including the largest wintering population of bald eagles within the
Northeastern United States. Many species of migratory birds for which DOl and FWS have'
responsibility breed in or migrate through the high quality riparian corrid9rs of the ·Basin. FWS
has also recently approved creation of the Cherry Valley National Wildlife Refuge,
encompassing over 20,000 acres in an area in eastern Pennsylvania which drains into the
Delaware River. DOl and FWS are federal agencies with decision-making authority under the
Compact according to General DeLuca, who states that he reports to them and represents them
on DRBC matters.
16.

Defendant Rowan W. Gould is Acting Director ofFWS, and is sued in his official

capacity.
17.

Defendant United States National Park Service (''NPS") is a federal agency and

bureau within Defendant DOl involved in water resource management within the Basin. NPS
and DOl exercise authority over, and manage, the Upper Delaware Scenic and Recreational
River, the Delaware Water Gap National Recreation Area along the Middle Delaware National

7

..
Scenic River, and the Lower Delaware Wild & Scenic River. The Upper Delaware River within
the Basin is a federally designated "Scenic and Recreational River" under the Wild and Scenic
Rivers Act of 1968, 16 U.S.C. § 1271 et seq. The Upper·Delaware is approximately 73 miles
long, flowing from Hancock, New York, to Sparrowbush, New York. The river and its
tributaries offer some of the finest recreational opportunities in the northeastern United States,
including sightseeing, boating, camping, hunting, fishing-- including world-class cold water
trout streams, hiking, and bird watching. The Delaware Water Gap National Recreation Area is
over 69,000 acres in size, located along 40 miles of the Middle Delaware National Scenic River
portion of the Delaware River. The Recreation Area, which receives over 5 million visitors each
year, boasts spectacular waterfalls, hiking trails, campgrounds, swimming beaches, and picnic
sites. The Lower Delaware Wild & Scenic River is noted for its natural beauty and historic
riverside towns and mills. NPS and FWS are federal agencies with decision-making authority
under the Compact according to General DeLuca, who states that he reports to them and
represents them on DRBC matters.
18.

Defendant Jonathan B. Jarvis is Director of the NPS, and is sued in his official

capacity.
19.

Defendant Kenneth Salazar is Secretary of the DOl, and is.sued in his official

capacity.
20.

Defendant EPA is a federal agency involved in water resource management

within the Basin. EPA exercises authority within the Basin pursuant to various federal
environmental statutes, including the federal Safe Drinking Water Act, 42 U.S.C. § 300f et ~'
Clean Water Act, 33 U.S.C. § 1251 et seg., Clean Air Act, 42 U.S.C. § 7401 et seq., and
Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seg., and as a party to the 1997

8

New York City Watershed Memorandum ofAgreement ("MOA"). The MOA is an agreement
among EPA, New York agencies, New York City, New York City Watershed municipalities, and
environmental groups to protect the City's watershed through a complex cooperative effort to
prevent water pollution. Under the MOA, EPA expressed its intention "to assure the continued
adequate supply of exceptional quality drinking water for the eight million residents of the City
of New York and the one million New York State residents outside the City who depend upon
the.New York City drinking water supply system." MOA, paragraph 2. Upon information and
belief, EPA is a federal agency to which General DeLuca reports and represents on DRBC
matters.
21.

Defendant Lisa Jackson is Administrator of the EPA, and is sued in her official

capacity.

STATUTORY AND REGULATORY· FRAMEWORK
A.

The Delaware River Basin Compact and the DRBC
22.

The Compact is an agreement among the federal government, the

state~

of

Delaware, New Jersey, and New York, and the Commonwealth of Pennsylvania, to manage and
regulate water resources within the Basin. In forming the Compact, the parties agreed that "the
conservation, utilization, development, management, and control of the water and related
resources of the Delaware River Basin under a comprehensive multipurpose plan will bring the
greatest benefits and produce the most efficient service .in the public welfare." Compact,
Whereas Clause.
23.

Congress and the respective state legislatures voted to approve the Compact, and

President Kennedy signed the Compact in 1961. See 75 Stat. 688 (September 27, 1961 ).

9

24.

The Compact created the DRBC to manage and regulate water resources within

the Basin. Each party to the Compact appoints one DRBC Commissioner having one vote on the
Commission. Compact,§§ 2.2, 2.5.
25.

The current federal Commissioner, General DeLuca, reports to and represents

FWS, NPS, and EPA, on matters concerning the Basin and the DRBC.
26.

The congressional statute approving and effectuating the Compact on behalf of

the federal government designates the DRBC as a "federal agency." Pub. L. 87-328, 75 Stat.
688, § 15(o) (1961). The Commission's regulations are published in the Code of Federal
Regulations. See 18 C.F.R. Parts 400,401,410,420,430. USA.gov, the United States
Government's official web portal, lists the DRBC in its "Index of U.S~ Government Departments
and Agencies." While the federal effectuation statute provides that the DRBC is a federal
agency, it also

s~ates

that the Commission is not a federal agency for certain specified purposes,

for example, for purposes of the Administrative Procedure Act and the Tucker Acts. Pub. L. 87328, 75 Stat. 688, §lS(o) (1961).
27.

CEQ has long held that DRBC is subject to NEPA because it is a federal agency

with "jurisdiction by law" over water resource projects within the Basin. 49 Fed. Reg·. 49750,
4977 4 (Dec. 21, 1984 ). CEQ continues to express that view on its website where it lists DRBC
as a NEPA federal agency having suchjurisdiction. 4 Following enactment ofNEPA, DRBC
acknowledged that it was subject to that statute, amending its Rules of Practice and Procedure in
1970 to "require environmental assessments and the preparation of environmental impact
statements." DRBC Resolution 70-23.

4

See http://ceq.hss.doe.gov/nepa/contocts.cfm; http://ceq.hss.doe.gov/nepa/regs/agency/agencies.cfm;
http://ceq.hss.doe.gov/nepa/regs/ceq/iii-7app2.pdf.

10

28.

In 1980, DRBC suspended its environmental review regulations because it lacked

sufficient funds to prepare EISs and stated that "an appropriate agency of the executive branch of
the federal government can assume the 'lead agency' ·and.· other environmental assessment
functions for significant projects within the basin" under NEPA. DRBC Resolution No. 80-11
(July 23, 1980). Recently, DRBC stated that it is not subject to NEPA, noting that four of the
five DRBC commissioners are appointed by states. 5 In accordance with that statement, DRBC
refuses to comply with NEPA.
29.

Section 3.8 of the Compact gives the Commission broad approval authority over

projects within the Basin. It states: "No project having a substantial effect on the water
resources of the basin shall hereafter be undertaken by any person, corporation or governmental
authority unless it shall have been first submitted to and approved by the commission...."
·.Compact,§ 3.8.
B.

NEPA

30.

NEPA was enacted in 1970, effecting a "dramatic change in the federal agencies'

decision-making procedures [reflecting] Congress' determination that the federal government
should lead the nation in preventing the continued environmental degradation caused by
technological advances." M. Gerrard, 1 Environmental Law Practice Guide § 1.01 at 1-6
(Matthew Bender 2003 ).
31.

NEP A imposes on federal agencies an obligation to consider every significant

aspect of the environmental impact of a proposed action, and to inform the public that it has
indeed considered environmental concerns in its decision-making process. Under NEPA, every
federal agency is required to prepare an EIS for any major federal action

5

'~significantly

affecting"

DRBC Rulemaking to Implement a Flexible Flow Management Progi'am for the New York City Delaware Basin
Reservoirs: Response to General Comment Subjects, January 2 J, 2009.

11

the quality of the human environment. See 42 U.S.C. § 4332(2)(C). Preparation of an EIS is
NEPA's "core requirement" for all actions which could cause such impacts, providing a
springboard for public comment.
32.

NEPA created the federal CEQ to, among other things, implement policies to

further the statute's purpose of incorporating environmental considerations within the decisionmaking process of federal agencies. 42 U.S.C. §§ 4342-4344. CEQ has issued regulations for
carrying out NEPA's requirements which are binding on all·federal agencies. 40 C.F.R. §§
1500.3, 1507.1.
33.

Under NEPA regulations, when multiple federal agencies have "jurisdiction by

law" over a major federal action significantly affecting the human environment, each federal
agency is obligated to prepare an EIS, or reasonably rely on an EIS prepared by another federal
agency, before it approves the action. 40 C.F.R. §§ 1501.5(a), 1501.6. An agency has
jurisdiction by law over an action if it has "authority to approve, veto, or finance all or part of the
proposal." Id., § 1508.15.
34.

A "federal action" includes "projects and programs entirely or partly financed,

assisted, conducted, regulated, or approved by federal agencies; new or revised agency rules,
regulations, plans, policies, or procedures." Id., § 1508.18. A federal action is deemed "major"
if it is "significantly affecting" the quality of the human.environment. Id., § 1508.18 ("Major
reinforces but does not have a meaning independent of significantly."). Under NEPA caselaw, if
any 'significant' environmental impacts might result from the proposed agency action, then an
EIS must be prepared before the action is taken.
35.

An ElS must include a detailed statement of the environmental impacts of a

proposed action, adverse environmental effects·that cannot be avoided, and alternatives to the

12

proposed action. 42 U .S.C. § 4332(2)(C). Environmental impacts include direct, indirect, and
cumulative effects of the action (which include related past, present, or reasonably foreseeable
future actions). 40 C.F.R. §§ 1502.16, 1508.7, 1508.8.
36.

Consideration of alternatives "is the heart of the EIS [and] should present the

environmental impacts of the proposal and the alternatives in comparative form,

thu~

sharply

· defining the issues and providing a clear basis for choice among options by the decision-maker
and the public." 40 C.F.R. § 1502.14. The EIS must also include appropriate measures to
mitigate environmental impacts. ld., §§ 1502.14(t), 1502.16(h).
37.

To reduce delay and inefficiency, federal agencies must perform environmental

review at the "earliest possible time" in the decision-making process. 40 C.F.R. § 1501.2; see
§ 1500.5 ("Agencies shall reduce delay by integrating the NEPA process into early planning.")

Federal agencies "shall commence preparation of an environmental impact statement as close as
possible to the time the agency is developing or is presented with a proposal." Id., §1502.5.
They must "integrate the requirements ofNEPA with other planning and. environmental review
procedures required by law or by agency practice so that all such procedures run concurrently
rather than consecutively." Id., § 1500.2(c). In the context of a proposed rule, such as the
DRBC Regulations, "the draft EIS should normally accompany the proposed rule." ld., §
1502.5(d). Conducting environmental review early in the agency's decision-making process is
necessary so that such review "will not be used to rationalize or justify decisions already made."
I d., § 1502.5.

38.

The "lead" federal agency preparing the draft EIS must provide notice to, and

make that document available for comment by, other involved federal agencies, state and local
agencies, and the public. 40 C.F.R. §§ 1503.1, 1506.6. The lead federal agency must assess and

13

consider such comments and respond to them in a final EIS. Id., § 1503.4. The lead agency's
response to comments can include modifying the proposed action or developing and evaluating
alternatives to the proposed action not previously considered. Id. The agency's final decision on
the proposed action must be set forth in a public record of decision that summarizes the decision
and states "whether all practicable means to avoid or minimize environmental harm from the
alternative selected have been adopted, and if not, why they were not." ld., § 1505.2(c):
STATEMENT OF FACTS
A.

Failure of Defendant Federal Agencies and the DRBC to Prepare an EIS
39.

On May 19, 2009, the Executive Director of the DRBC issued a determination

under Section 3.8 of the Compact (the "Determination") prohibiting natural gas extraction
projects (unless authorized by the Commission) within the Basin's "Special Protection Waters,"
a large portion of the Basin which includes, among other areas, the full extent of the Basin in
New York and nearby areas in Pennsylvania which lie within the natural gas bearing formation,
called the "Marcellus Shale."
40.

The fyiCJrcellus Shale is a geologic formation containing substantial amounts of

natural gas that are being extracted in Pennsylvania and other states using a technique consisting
of first drilling vertically dawn, then angling toward the shale formation, then drilling
horizontally hundreds of feet within the formation, and then hydraulically fracturing the shale
(collectively referred to here as "hydrofracking"). Hydrofracking entails pumping millions
gallons of water, sand, and chemicals (some of which are hazardous) deep underground to cause
fractures along a horizontal well bore within the shale to release the natural gas trapped within.
41.

Hydrofracking allows the extraction of natural gas from "low permeability"

geologic formations, such as the Marcellus Shale, from which natural gas could not be

14

economically extracted using conventional technologies. While horizontal drilling and hydraulic
fracturing are not new technologies when conducted separately, only recently have they been
implemented together o.n a large scale to extract natural gas from low permeability formations.
42.

Hydrofracking in the Basin will-involve pumping millions of gallons of water

containing "fracking" additives into the ground under high pressure, at each well. The fracking
additives include many chemicals which may pose risks to health and the environment, including
the aromatic hydrocarbons benzene, toluene, ethyl benzene, and xylene (often referred to as
BTEX); microbiocides; glycols; glycol ethers; and petroleum products. 6 Flowback water,
brought to the surface in the hydrofracking process, and some production water transported to
the surface during the production phase, will contain these fracking additives and other potential
contaminants, and thus must be properly handled. The potential risk that these additives pose to
the Delaware Basin must be thoroughly evaluated before natural gas development is authorized.
43.

In issuing the Determination, the DRBC Executive Director found that "as a result

of water withdrawals, wastewater disposal and other activities, natural gas extraction projects in
these [gas· bearing] formations may individually or cumulatively affect the water quality of ·
Special Protection Waters by altering their physical, biological, chemical or hydrological
characteristics." 7 Pending finalization of these regulations, the DRBC has not issued drilling
permits for production of natural gas within the Special Protection Areas and, on June 14, 20 I 0,
it extended that prohibition to wells intended solely for exploratory purposes with the exception
of certain exploratory wells which it has "grandfathered." The DRBC estimates that between
15,000 and 18,000 natural gas wells would be developed within the Basin.
6

DSGEIS, pp. 5-46 through 5-66.

Determination of the Executive Di~ector Concerning Natural Gas Extraction Activities in Shale Formations
Within the Drainage Area of Special Protection Waters, DRBC, dated May.19, 2009.

7

15

44.

In 2010, the national environmental group American Rivers designated the Upper

Delaware River as the nation's most endangered river because "this clean water source is
threatened by natural gas
45.

activitie~ in the Mar'Cellus Shale."8

In response to that designation, the DRBC issued a statement elaborating on its

view that natural gas development could pose significant adverse cumulative environmental
impacts within the Basin:
The collective effects of the thousands of wells and supporting
facilities that are projected in the basin pose potentially significant
adverse effects on the surface water and groundwater of the basin
... There are also impacts to the land which can affect water
resources. The headwaters region where gas drilling activities
would be located is the most sensitive and vulnerable area of any
watershed. Over 80 percent of the DRB headwaters area is
covered with forests that are critical to the protection and
maintenance of water resources. One big concern is the effect of
forest fragmentation on our waters. 9
46.

Although the DRBC found that natural gas development in the Basin poses

potentially significant adverse.environmental impacts, it has refused to comply with NEPA and
refused to prepare a draft EIS for the DRBC Regulations which would authorize that
development.
47.

The Federal Agencies have also determined that natural gas development in the

Basin poses potentially significant adverse environmental impacts while also refusing to p~epare
a draft EIS. FWS and NPS have stated that "[l]arge-scale changes in land use and increased
water withdrawals, like those associated with natural gas development (including the
construction of exploratory, wells) will likely affect the Services' trust resources and should be

8

9

http://www.americanrivers.org/assets/pqfs/mer-20 10/americas-most-endangered-rivers-20 1O.pdf.
http://www.state.nj.us/drbc/DRBCstatement_EndangeredRivers_6-2-201 O.pdf

16

reviewed for both individual and cumulative environmental effects."

10

.
As alleged in paragraph

4, above, EPA has determined that natural gas development within the New York City
Watershed (which includes a portion of the Basin) threat~ns the City 1 s "'high quality unfiltered
water supply." General DeLuca has stated that the federal government's "position is to continue
fully supporting the need for a cumulative impact study."
48.

11

Nevertheless, the Federal Agencies have refused to perform that study. Instead,

they have approved moving forward with the rulemaking by "agree[ing] to vote [within the
DRBC] against a moratorium on regulation development pending completion of an impact
study." 12 On May 5, 2010, Lt. Colonel Thomas J. Tickner of the ACE, predecessorto General
DeLuca as the federal member of the. DRBC, approved commencement of the rulemaking for the
DRBC Regulations on behalf of the other Defendants by voting to have the DRBC develop those
regulations in draft form and make them available for public comment.
49.

On May J2, 2010, XTO Energy, Inc. ("XTO Energy") applied to the DRBC for

approval of a project to withdraw water for its natural gas exploration and production activities
in Broome and Delaware counties in New York from a site on Oquaga Creek, a stream known
for its excellent trout fishing, within Broome County, New York, within the drainage area of the
Upper Delaware River. The DRBC has solicited public comments and scheduled hearings
concerning the application for June 2011. In the event that the-DRBC approves the application,
XTO Energy will have the right to develop the withdrawal site, potentially risking harm to the
Oquaga Creek.

10

Letter from Marvin E. Moriarty and Dennis Reidenbach to Carol Collier, dated June 25, 2010.

11

Letter from Duke DeLuca to Congressman Maurice Hinchey, dated September 14, 2010.

12

Letter from Peter A. DeLuca to Congressman Maurice Hindley, dated November 24, 2010.

17

50.

On December 9, 2010, over the objection ofNew York's Governor David

Paterson, the DRBC published the regulations in draft form on the website of Defendant NPS
without preparing a draft EIS as required by NEP A. Priot to publication of the regulations, New
York's Governor Paterson wrote to the DRBC Executive Director criticizing the Commission's
decision to move forward with regulations without ''the advantage of the full investigations and
public deliberations taking place in New York." 13 Governor Paterson was referring to the
environmental review process in New York concerning its proposed new permit conditions for
natural gas development, involving the preparation and revision of a supplemental EIS under
New York's State Environmental Quality Review Act, the State's analogue to NEPA.
51.

NYCDEP provides water to 9 million New Yorkers each day, most of which is

drawn from the Delaware sub-basin of the New York City Watershed which is located within the
Basin. On April 7, 2011, NYCDEP submitted comments concerning the DRBC Regulations to
the DRBC, echoing Governor Paterson's objection. NYCDEP stated that the DRBC's
regulations are premature because the agency "should conduct a rigorous analysis of the
potential cumulative impacts natural gas de.velopment could have on water quantity and ~ater
quality in the Delaware River Basin." 14 NYCDEP also n~ted that ''its own study determined
. that, based on the best available science and the current state of technology, hydrofracking
cannot safely be conducted in the New York City Watershed." 15
52.

On Aprill5, 2011, New York Attorney General Eric T. Schneiderman filed

comments with the DRBC requesting that it comply with NEP A by preparing a draft EIS for the

13

Letter from David A. Paterson to Carol CoJiier, dated December 6, 20 I 0.

14

Letter from Paul V. Rush to Paul Schmitt, dated Apri1 7, 201 1.

15

ld.

1~

DRBC Regulations. The comments requested that the EIS consider as an alternative to the
DRBC Regulations a prohibition of natural gas development within the New York City
Watershed in the Basin. The comments also discussed the risk of environmental harm posed by
natural gas development in the Basin, including the potential for water and air pollution.
53.

On April18, 2011, Attorney General Schneiderman wrote to General DeLuca of

the ACE, with copies to other Defendant Federal Agencies and the DRBC, to request that the
federal agencies agree within 30 days t.o comply with NEP A and prepare a draft EIS. In the
letter, the Attorney General stated that, in the absence of such agreement, his office intended to
sue the appropriate federal agencies to compel preparation of that study. A copy of the Attorney
General's letter is attached to this Complaint as Exhibit A.
54.

The next day, on April 19, 2011, Chesapeake Energy Corporation, a national

leader in natural gas development, experienced a blowout of a natural gas well in Bradford
County, Pennsylvania, located outside of the Basin, during the hydraulic fracturing process. As a
result of the blowout, thousands of gallons of water containing fracking chemicals were
discharged into a nearby creek, and seven families were evacuated from the area.
55.

On May 24, 2011, General DeLuca responded to Attorney General

Schneiderman's letter, stating that involved federal agencies would not undertake environmental
review of the proposed the DRBC Regulations under NEPA because "the DRBC itself is not a
federal agency subject to NEP A, and the mere participation of a federal officer in the DRBC
regulatory process does not constitute a ·federal action." A copy of General DeLuca's letter is
attached to this Complaint as Exhibit B.

19

B.

New York Resources Placed at Risk by the DRBC Regulations
~atershed

I.

The New York City

and Other Water Resources

56.

The Basin in New York consists of areas with underlying Marcellus Sha1e .i:fl

Broome, Delaware, Greene, Sullivan, Ulster and Orange Counties. Approximately 40 percent of
the Basin in New York is comprised of the Delaware sub-watershed of the New York City
Watershed. That sub-watershed is a critical water resource for New York because it provides
most of the clean unfiltered drinking water consumed by 9 million people in New York City, its
suburbs, and upstate communities each day.
57.

When drinking water is obtained from surface waters (such as reservoirs and

rivers), it is generally "filtered" to remove contaminants prior to distribution to consumers.
However, water obtained from the Delaware sub-watershed and other areas in the New York
City Watershed (collectively referred to as the "West of Hudson Watershed") is not filtered.
Indt:ed, West of Hudson water is the largest unfiltered surface drinking water supply in the
nation.
58.

West ofHu~son water, including the Delaware sub-watershed within the Basin, is

collected by streams and reservoirs from pre<!ipitation, runoff from rain and melting of snow,
groundwater infiltration, and other sources. The water is disinfected and distributed by a system
of aqueducts, tunnels and pipes to consumers in New York City, its northern suburbs, and in
upstate-communities. In accordance with successive Filtration Avoidance Determinations
("FADs"), rather than filtering the water, the City has spent almost $1.5 billion on pollution
prevention efforts to protect the West of Hudson Watershed and ensure safe drinking water. This
''pollution prevention" approach, adopted instead of filtration, represents the longstanding

20

.·
consensus ofNew York, Defendant EPA, New York City, Watershed communities, and
environmental groups, as agreed in the MOA.
59.

16

The pollution prevention approach include·s purchasing Watershed lands to serve

as buffers for pollutant discharges, strict regulation of human activities that generate pollution,
upgrading sewage treatment plants, and various other pollution prevention programs. Pollution
prevention and filtration avoidance have been effective in ensuring the safety of West of Hudson
water and have been endorsed by the National Research Council (which functions under the

•

auspices of the National Academy ofSciences). 17 In addition, the program has been much less
expensive than filtration, which would require capital expenditures of over $1 0 billion and
annual operation and maintenance costs exceeding $1 00 million.
60.

Authorization of natural gas development in the New York City Watershed within

the Basin. could pose significant cumulative adverse environmental impacts to that clean
unfiltered drinking water supply, as EPA has already found. Widespread drilling could present
risk of spills, discharges of pollutants, and other incidents of concern, risking contamination of
the water supply with ·radioactive materials, brine, methane, aromatic hydrocarbons, heavy
metals, pathogens, turbidity, phosphorus, and other potentially harmful substances. Natural gas
development would result in the disturbance of undeveloped and typically forested land within
the Basin which, according to the DRBC, is Hcritical to the protection and maintenance of water
resources." Natural gas development could introduce industrial activity on a large scale to an
area long characterized by more benign and less intensive land uses which, unlike naturalgas

16

See "New York City Watershed Memorandum of Agreement" {January 21, 1997) at
www .nysefc.org?home/index.asp?page=294.
17

National Research Council, Watershed Management for Potable Water Supply: Assessing the New York City
Strategy (2000) ("NRC Study").

21

development, have proven compatible with clean, unfiltered drinking water. Unless
comprehensively -studied in an EIS and consideration given to a prohibition on natural gas
development in the New York City Watershed, such development has the potential to adversely
affect the City's water quality, public confidence in its water, and the City's "filtration
avoidance" status. Water quality has already been compromised in the East of Hudson portion of
the New York City Watershed (the Croton sub-watershed), causing the City to minimize its
reliance on that water source and, pursuant to a federal court order' forcing it to spend
approximately $3 billion to construct a filtration plant to improve Croton water quality.
61.

Well development and natural gas production has the potential to exacerbate

existing water quality problems in the West of Hudson Watershed. An effort to adopt
regulations should consider the potential impact of increased discharges of stormwater polluted
by turbidity, pathogens, phosphorus, and the wide variety of potential pollutants associated with
natural gas development. Turbidity not only facilitates the transportation of pollutants, but it can
shelter pathogens from exposure to attack by chlorine, a disinfectant routinely used in the West
of Hudson Watershed to protect public health. In addition, the organic particles that contribute
to turbidity can also combine with chlorine to create disinfection by-products which may
increase the risk of cancer or early term miscarriage for people drinking the water. 18 For these
reasons, EPA prohibits raw water turbidity measurements in unfiltered drinking water at the
intake to the distribution system in excess of 5 nephelometric turbidity units. See 40 CFR §
141.71 (a)(2).
62.

Violations of this turbidity standard could provide grounds for the City to be

forced to filter the water from its West of Hudson Watershed. In its 2007 FAD, EPA found that

18

See NRC Study at 2, 5-6, 102-05, 109.

22

..
"significant improvement to the City's ability to prevent, manage, and control turbidity in the
City's Catskill portion of the West of Hudson Watershed is required in order to maintain
filtration avoidance for the long-term." 19 The widespread development of natural gas within the
Delaware portion of the Watershed could add to the turbidity problem already experienced in the
Catskill portion.
63.

Preventing pathogens from contaminating the water is of particular concern for

the West of Hudson Watershed because of the risks pathogens pose to public health. Pathogens
include viruses and bacteria, such as Giardia lamblia, Cryptosporidium, and E. coli 01 57 :H7,
which can cause serious illness or death, especially among the very young, the elderly, and
people !Vith compromised immune systems. 20 Because ofthe health risks·ofpathogens, EPA
requires that each unfiltered water system meet strict requirements "ensuring that the system is
not a source of a waterborne disease outbreak." 40 C.F .R. § 141.71. If the West of Hudson
. Watershed fails to comply with these requirements, the City could be forced to filter that water
supply. The potential for gas development in this area to increase pathogens in this critical water
supply must be evaluated.
64.

Stormwater discharges of the nutrient "phosphorus" are also of great concern in

the West of Hudson Watershed because it contributes to the eutrophication of reservoirs,
pathogenic and other contamination, and creation of harmful disinfection by-products. A
eutrophic reservoir suffers from abundant algae growth (called algae blooms) in the growing
seasons if phosphorus discharges into it are excessive. Algae blooms can impair. the taste and
19

2007 FAD, pp. 13-14.

20

In 1993, the water supply for the City of Milwaukee became contaminated with Cryptosporidium causing over
400,000 people to suffer stomach cramps, fever, diarrhea and dehydration, and kiiJing over 100 people. In August
1999, the largest outbreak of waterborne E. coli 01 57:H7 illness in United States history occurred at the Washington
County Fair in New York, when a drinking water supplyweiJ became contaminated with that pathogen, infecting
781 people, and resulting in the hospitalization of 71 people and two deaths.

23

odor of reservoir water and deplete levels of dissolved oxygen in the reservoir's bottom waters,
impairing aquatic life and ~eleasing into the water metals and phosphorus previously bound in
the sediment. 21 Phosphorus-induced algae blooms increase organic and other matter suspended
in the water and facilitate pathogenic contamination and can potentially result in the adverse
effects associated with chlorination discussed above. 22
65.

Phosphorus pollution (and resulting algae growth) has been a longstanding

problem for the City's Cannonsville Reservoir, which has the largest drainage area of the four
City reservoirs within the Basin. Stormwater discharges of phosphorus from natural gas
development has the potential to contribute to that problem and thus such impacts must be
evaluated.
66.

In addition to storm water discharges, groundwater contamination of the various

pollutants described in this section could also pollute watercourses and other surface waters in
the West of Hudson Watershed which supply drinking water. The potential for spills and leaks
from above-ground tanks, pits and containers, and leaks from defects in well design or
construction must be evaluated to. determine the potential risk to groundwater, Groundwater
generally flows toward and recharges surface waters. Local geologic features below the land
surface, such as faults, fractured bedrock, coarse gravel, or other permeable materials can
facilitate the migration of contaminated groundwater to surface waters. Such potential risks to
surface and groundwater must be evaluated prior to the issuance of regulations.

21

NRC Study at 106-07.

22

NRC Study at 2. .

24

2.

The Upper Delaware River

67.

The remainder of the Basin in New York, and much of the Basin with underlying

Marcellus Shale in Pennsylvania, drains to the Upper Delaware River, which forms a portion of
the Pennsylvania-New York border. The Upper Delaware River is a federally designated
"Scenic and Recreational River" under the federal Wild and Scenic Rivers Act of 1968, 16
U.S.C. § 1271 et seq. Among its unique features, the Upper Delaware provides winter habitat
for more bald eagles than any other river in the northeastern United States. The river and its
tributaries are also among New York's most prized cold water trout fisheries with strong support
among angler organizations.
68.

Thousands ofNew Yorkers enjoy fishing and recreational boating on the Upper

Delaware River, and use the adjacent 11,967 acre Mongaup Valley Bird Conservation Area and
various boat launches, and other facilities owned and/or operated by New York along the River.
In addition, the Basin is home to a variety of federally listed endangered. species, including the
dwarf wedgemussel which is found over a 22-mile section of the ·upper Delaware.
69.

Gas well development in Pennsylvania currently is proc~eding on a large scale

outside the Basin and will likely do so within the Basin upon finalization of the DRBC
Regulations and the DRBC's issuance of natural gas development permits under those
regulations. Portions of several Pennsylvania counties within the Basin, including nearly all of
Wayne County and a small portion of Lackawanna County, drain into the Upper Delaware River.
Ten natural gas wells located in these counties have _been drilled there, and natural gas
development companies already hold 51 additional dri1ling permits issued by the Pennsylvania
Department ofEnvironmentalProtection ("PADEP") to drill within that portion ofthe Basin.

25

.·
70.

Development of gas wells in Pennsylvania within the Basin would present risks of

unplanned and unexpected spills, discharges of pollutants, and other incidents (such as the April
19, 2011 blowout in Bradford Township) which would contaminate the Upper Delaware River.
This would risk harm to the health, safety, and welfare of New Yorkers who use the River for
contact recreation (swimming, boating, and fishing), and risk harm to New York's proprietary
interests in: the River, the State's boat launches and·related facilities, the Mongaup Valley Bird
Conservation Area, and other New York interests in land near the Upper Delaware.
71.

From January 1, 2008 through August 20, 2010, natural gas development in

Pennsylvania outside of the Basin resulted in PADEP's issuance of 1,614 violations to drilling
operators (not including traffic citations or written warnings), of which 1,056 were judged as
having "the most potential for direct impact on the environment. "
72.

23

One pollution incident occurred in Pennsylvania's Monongahela River in 2008,

impairing the drinking water supply for hundreds of thousands of people over a period of
months, when commercial and publicly owned treatment works discharged inadequately treated
wastewater from natural gas wells. As a result of these discharge.s, concentrations of total
dissolved solids and sulfate in the river reached historic highs, exceeding drinking water quality
standards at all 17 potable water supply intakes south to the West Virginia state line, and
bromides concentrations became elevated, potentially subjecting people ingesting the water to
increased health risks.

23

24

Pennsylvania Land Trust Association{October 1, 2010) available at http://conserveiand.org/violationsrpt.

24

Paul Handke, Water Program Specialist, Pennsylvania Department of Environmental Protection, "Trihalomethane
Speciation and the Relationship to Elevated Total Dissolved Solid Concentrations Affecting Drinking Water Quality
at Systems Utilizing the Monongahela River as a Primary Source During the Third and Fourth Quarters of2008."
Available at:
http://files.dep.state.pa.us/Water/Wastewater%20Management/WastewaterPorta1Files/MarcellusShaleWastewaterPa
rtnership/dbp_mon_report_dbp_<;orrelation.pdf

26

3.

Air Pollution and Climate Change

73.

The equipment and processes used for ,drilling, completion, and production of

natural gas are sources of air pollutants such as volatile organic compounds ("VOCs';), nitrogen·
oxides ("NOx"), carbon monoxide ("CO"), particulate matter ("PM"), and a variety of air toxics,
including benzene (a known human carcinogen), toluene, and hydrogen sulfide.
74.

Sources of emissions associated with natural gas development include: (1)

combustion from engines, compressors, line heaters, and flares during exploration, drilling, and
production; (2) venting and flaring of gas constituents; (3) emissions from heavy-duty support
trucks; and (4) fugitive emissions from gas wells and associated gas pipelines and other
distribution facilities. Added up, these sources have the potential to significantly impact air
quality not only on a local basis, but also on a regional basis.
75.

In addition to being unhealthy to breathe in their own right, VOCs and NOx react

with other compounds in the atmosphere to produce ground level ozone and PM2.s (airborne
particulate matter with aerodynamic diameter of less than2.5 microns). Many low income and
communities of color are especially at risk from ozone and PM2.s pollution.
76.

In New York, ozone pollution is primarily a concern during the sum~r months

when the weather conditions needed to form ground level ozone - sunshine and hot temperatures
- normally occur. Ozone is unhealthy to breathe, especially for people with respiratory diseases,
children, the elderly, and adults who are active outdoors. Symptoms include reduced lung
function and chest pain, and can lead to respiratory diseases such as bronchitis or asthma. In the
New York City Metropolitan Area alone in the summer of 201 0, residents were subjected to 17
days when measured ozone levels were above the EPA's current health based 8-hour ozone
national ambient air quality standard ("NAAQS") of 0.075 parts per million.

27

77.

Short-term and long-term exposure to PM2.s can cause a variety of harmful health

effects, including premature death, chronic respiratory illness, decreased lung function,
cardiovascular disease, and asthma. Certain subgroups in :the population, including infants,
children, senior citizens, and people with existing lung and heart diseases (including diabetes)
are more susceptible to harm from this pollutant than the rest of the population. A New York
State Department of Health study found a statistically significant association between PM2.5 and
. emergency room visits in the Bronx, which includes many environmental justi~e communities. 25
78.

New York generally pays 50 percent of Medicaid health care costs incurred

within the State. Increased ozone and PM2.s pollution as a result of natural gas well development
in the Basin will likely increase the healthcare services used by Medicaid patients within the
State, thereby increasing New York's Medicaid expenditures.
79.

Many areas within New York are downwind of the Basin, and currently exceed

the NAAQS for ground-level ozone of0.075 parts per million. NYSDEC has recommended to
EPA that Orange, Ulster and Greene Counties, which are each partially within the Basin, and
many additional counties downwind of the Basin, including the New York City Metropolitan
Area, be designated as in nonattainment of the 0.075 parts per million ozone NAAQS under the
federal Clean Air Act, 42 U.S.C. § 7409.
80.

EPA has designated the New York City Metropolitan Area as in nonattainment

for both the annual and 24 hour PM2.s NAAQS under that statute. As a result, New York has
taken measures to reduce PM2.s pollution in that Area pursuant to air quality plans that do not
contemplate emissions from upwind

nat~ral

gas development. Such development will likely ·

undermine New York's efforts to reduce PM2 .s pollution.
New York St~te Department of Health, Center for Environmental Health, "A Study of Ambient Air
Contaminants and Asthma in New York City: Final R-eport," July 2006, NYSERDA Report 06-02.
25

28

81.

PAD EP has already concluded that the cumulative effects of air pollution

emissions from the development of some 2,000 natural gas wells wit}:lin Pennsylvania may
contribute to violations within Pennsylvania of federal air pollution standards developed to
protect public health.
82.
portion

26

Because New York is often downwind of many areas within the Pennsylvania

of the Basin, emissions of ozone and PM2.s precursors as a result of natural gas

development in Pennsylvania would likely contribute to nonattainment of NAAQS in New York,
and impair New York's ability to meet air quality goals under applicable State Implementation
Plans ("SIPs"), as required by the Clean Air Act. The air pollution resulting from such
development would likely harm the health, safety, and welfare ofNew Yorkers who live
downwind of the Basin, and impair New York's proprietary interests in its air quality, Medicaid
program, and compliance with the SIP (rendering such compliance more difficult). The DRBC
Regulations do not propose any mitigation measures for these air pollution impacts.
83.

Climate. change will result in harm to New York's environment, public health,

safety and welfare, and proprietary interests. Climate change is primarily caused by the emission
of greenhouse gases, such as carbon dioxide ("C0 2") and methane, the principle component of
natural gas.
84.

Although, from a climate change perspective, the combustion of natural gas is

generally regarded as producing less C02 emissions than the combustion of coal or oi~ on a per
unit energy produced basis, natural gas development can result in significant emissions of
methane directly to the atmosphere, thereby further contributing to climate ehange. Methane is a
greenhouse gas 25 times more potent over a l 00 year timeframe than C02 . Thus, the release of
natural gas to the atmosphere during production, distribution, storage or use of natural gas can
26

See infra. at fn 3.

29

reduce or eliminate climate change benefits associated with natural gas when compared to other
fossil fuels.
85.

The DRBC Regulations would authorize natural gas well development without

analyzing potential adverse climate change impacts resulting from the venting and leakage of
methane during production, distribution, storage or use of natural gas within or from the Basin,
or measures to mitigate those potential impacts. The failure to take mitigation measures would
cause harm to the health, safety, and welfare ofNew Yorkers, and harm to New York's
proprietary interests as well.
CLAIM FOR RELIEF
Violations of NEPA, 42 U.S.C. § 4332(2)(C);
NEPA Implementing Regulations,
40 C.F.R. § 1500 et seq.;
and APA, 5 U.S.C. §§ 701-706
86.

Plaintiff New York reaUeges the allegations set forth in all preceding paragraphs

and incorporates them herein by reference.
87.

The development of the DRBC Regulations authorizing natural gas development

within the Basin under the Compact (the "Action") is a "federal action" within the meaning of
NEPA and its implementing regulations b~cause the DRBC is a federal agency, is promulgating
those regulations, and is responsible for implementing them.
88.

The Action is a "federal action" because federal agencies play a significant rple in

conducting, approving, and implementing the Action.
89.

Defendant Federal Agencies have "jurisdiction by law" ove·r natural gas

development within the Basin because they have authority to approve the DRBC Regulations
and take measures to implement them under the Compact and other federal laws.

3{)

90.

The Action is a "major" federal action within the meaning ofNEPA and its

implementing regulations.
91.

Defendants have approved commencement of the Action and have participated in

measures to carry out the Action pursuant to their authority under the Compact by approving
drafting of the DRBC Regulations by the Commission's staff, publication of those regulations in
draft form, making the regulations available for public comment using the website of the NPS,
and extending the period for such comments through April 15,2011.
92.

Defendant Federal Agencies have taken in measures to carry out the Action by,

among other things, participating in the scheduling of hearings and soliciting of comments
concerning the application of XTO Energy to withdraw water within the Basin to support its
planned natural gas extraction activities there. Defendants have engaged in that conduct despite
having determined that water withdrawals for natural gas development purposes pose potentially
significant adverse environmental impacts (distinct from water withdrawals for other purposes)
and that a cumulative environmental ·impact study addressing water withdrawals amorig other
matters is necessary.
93.

Although the DRBC Regulations would authorize natural gas development in the

Basin and despite Defe~dants' determinations that the Action would potentially cause significant
environmental impacts, Defendant Federal Agencies have refused, and continue to refuse, to
prepare an EIS for the Action or' otherwise comply with NEP A.
94.

By approving commeocement of the Action and implementing measures to carry

it out while refusing to prepare a draft EIS, Defendant Federal Agencies have violated, and
remain in violation of, NEPA, 42 U.S.C. § 4332(2XC).

31

....
95.

By approving commencement of the Action and implementing measures to carry

it out while refusing to prepare a draft EIS, Defendant Federal Agencies have violated, and
remain in violation of, NEP A's implementing regulations ·which require them to: (i) perform
environmental review at the "earliest possible time" in the decision-making process (40 C.F.R. §
150 1.2); (ii) "commence preparation of an environmental impact statement as close as possible
to the time the agency is developing or is presented with a proposal" and see to it that ''the draft
EIS should normally accompany the proposed rule" (Id., §§ 1502.5; 1502.S(d)); and (iii)
"integrate the requirements ofNEPA with other planning and environmental review procedures
required by law or by agency practice so that all such procedures run concurrently rather than
consecutively" (I d., § 1500.2(c)).
· 96.

By engaging in conduct to carry out the Action prior to preparing an EiS and

issuing a NEP A record of decision, Defendants have limited the choice of reasonable
alternatives, and risk causing adverse environmental impacts, in violation of 40 C.F .R. §
1506.1 (a).
97.

Defendant Federal Agencies' unlawful refusal to prepare a draft EIS pursuant to

NEP A while approving commencement of the Action and carrying out significant aspects of the
Action is subject to judicial review under Section 706(2) of the AP A. Defendant Federal
Agencies' refusal to comply with NEPA and prepare a draft EIS is not in accordance with law
and is arbitrary, capricious, and an abuse of discretion.
98.

The APA, 5 U.S.C. § 703, and the Declaratory Judgm~nt Act, 28 U.S.C.

§ 2201(a), entitle PlaintiffNew York to a declaration that Defendant Federal Agencies have
violated NEPA, NEPA's implementing regulations; and the APA, 5 U.S.C. §§ 702 & 7{)3,
authorizes the award of injunctive relief for such violations.

32

PRAYER FOR RELIEF

WHEREFORE, PlaintiffNew York respectfully requests that the Court issue a
judgment and order:
a)

declaring that Defendants are in violation of NEP A by refusing to prepare a draft

EIS for development of the DRBC Regulations authorizing natural gas development within the
Basin under the Compact;
b)

declaring that Defendants are in violation ofNEPA's implementing regulations by

failing to prepare a draft EIS for development of the DRBC Regulations authorizing natural ga_s
development within the Basin under the Compact, as required by 40 C.F.R. §§ 1500.2(c), 1501.2,
1502.5, 1502.5(d);
c)

declaring that Defendants are in violation of 40 C.F.R. § 1506.l(a) by carrying

out significant aspects of the Action before issuance of a record of decision under NEP A;
d)

enjoining Defendants to comply with NEP A by promptly preparing a draft EIS

subject to public· comment, which shall include consideration as an alternative to the DRBC
Regulations a prohibition on natural gas development within the New York City Watershed
within the Basin, and which shall also include an analysis of reasonable measures to mitigate all
potentially significant adverse environmental impacts; and by taking all further measures
required by NEPA;
e)

enjoining Defendants immediately to cease approving or carrying out any aspect

of the Action until they have fully complied with their obligations under NEPA;

33

f)

awarding Plaintiff New York its reasonable fees, costs, expenses, and

disbursements, including attorneys' fees, associated with this litigation under the Equal Access to
Justice Act, 28 U.S.C. § 2412(d); and
g)

awarding Plaintiff such additional and further relief as the Court may deem just,

proper, and necessary.
Dated: May 31,2011
Albany, New York
ERIC T. SCHNEIDERMAN
Attorney General ofthe State ofNew York
Attorney for Plaintiff State of New York

By:

~~

~-

. PhiliJ)ein (PB 1742)
.
Watershed Inspector General
Assistant Attorney General
New York State Attorney General's Office
Environmental Protection Bureau
·The Capitol
Albany, New York 12224
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
Of Counsel:
.
Michael J. Myers
Chief, Affirmative Litigation
Assistant Attorney General
Morgan Costello
Adam Dobson
Assistant Attorneys General

34

EXHIBIT A

STATEOFNEWYORK
OFFICE OF THE ATTORNEY GENERAL

Eruc T. SCHNEIDERMAN

DIVISION OF SOCIAL JUSTICE

ATTORNEY GENERAL

ENVJRONMENTAL PROTECTION BuREAU

April 18, 20 1I

By Overnight Delivery

Peter A. DeLuca
Brigadier General, U.S. Army
Division Engineer/DRBC Federal Commissioner
U.S. Army Corps of Engineers, North Atlantic Division
Bldg 302, General Lee Avenue
Brooklyn, New York 11252

Re:

Proposed Regulations Concerning Natural Gas Development
in the Delaware River Basin ·

Dear Genera] DeLuca:

I write to request that federaJ agencies involved in the promulgation ofNatural Gas
Development regulations for the Delaware River Basin ("the Basinn) comply with the National
Environmental PoJicy Act, 42 U.S.C. § 4321 et ~· ("NEPA"), by preparing a draft
environmental impact statement ("draft EIS") as quickly as possible, and before finalization of
regulations authorizing gas weJJ development within the Basin.
The regulations, proposed by the Delaware River Basin Commission ("DRBC" or "the
Commission"), would authorize drilling for natural gas within the Delaware sub-basin ofNew
York City's West of Hudson Watershed ("WOH Watershed"), and in the drainage basin ofthe
Upper Delaware River, a federally designated ''Scenic and Recreational River" shared by New
York and Pennsylvania. The WOlf Watershed is a critical water resource in New York,
providing over 90 percent of the w?flltered water consumed by 9 mi11ion New York residents and
visitors each day.
As discussed in comments concerning the proposed regulations filed by my office with
the DRBC on April 15, 2011 (see copy enclosed), natural gas development poses risk of harm to
water, air, and public health within the Basin, and heightened risk within New York City's WOH
Watershed. In fact, the New York City Department of Environmental Protection ("NYCDEP"),
the entity responsible for providing an adequate supply of safe clean drinking water drawn from
New York City's watershed, has concluded that natural gas development would "pose an

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unacceptable threat to the unfiltered, fresh water supply of nine million New Yorkers, and cannot
safely be permitted within the New York City watt:rshed." 1
·
Involved federal agencies, including the DRBC, the United States Army Corps of
Engineers (''Army Corps"), the Fish and Wildlife Service ("FWS"), and the National Park
Service ("NPS"), have a1J acknowledged that proposed natural gas development would risk
significant environmental harm within the Basin and that a cumulative environmental impact
analysis should be performed. Prior to proposing the regulations, the DRBC determined that
natural gas deveJopment "may individually or cumulatively affect the water quality of Special
Protection Waters by aJtering their physical, biological, chemical or hydrological
2
characteristics." As federal commissioner o~ the DRBC who "reports to" and acts as
'"representative of' involved federal agencies, you stated that the "administration's position is to
continue fully supporting the need for a cumulative impact study." 3 Similarly, FWS and NPS
have stated tbat "[l]arge-scaJe changes in land use and increased water withdrawals, like those
associated with natural gas development (inc]uding the construction of exploratory wells) will
likely affect the Services' trust resources and should be reviewed for both individual and
cumulative environmental effects." 4 Nevertheless, these federal agencies have approv~d moving
forward with the rulemaking by "agree[ing] to vote against a moratorium on regulation
development pending completion of an impact study.'' 5
The involved federal agencies' failure to prepare a draft EIS violates NEPA. NEPA's
purpose is to ensure that federal agencies act transparently -- with full public participation -- in
considering the potential significant environmental impacts of their decisions. NEP A imposes on
federal agencies the "obligation to consider every significant aspect of the environmental impact
of a proposed action [and to] inform the public that it has indeed considered environmental
concerns in its decision-making process." Baltimore Gas and Electric v. NRDC, 462 U.S. 87, 97
( 1983). Preparation of an EIS, subject to public comment, is the '"core requirement" of NEP A
for every action which "might" cause significant environmental impacts. Robertson v. Methow
VaHey Citizens Council. 490. U.S. 332, 349 (1989); American Bird Conservancy, Inc. v. FCC,
516 F.3d 1027, 1034 (D.C. Cir. 2008); 42 U.S.C. § 4332(C).
Because proposed natural gas development in the Basin may have significant
environmental impacts, involved federal agencies have vio]ated NEPA by failing to prepare an
EJS concerning the proposed regulations. The proposed reguJations are a direct action of the
1
Letter from Steven W. Lawitts to New York State Department ofEnvironmentaJ Conservation, dated
·
December 22, 2009,
http://www.nyc.gov/html/dep/pdf/natural_gas_drilling!I2_22_2009_irnpact_statement_letter.pdf.
2
Determination of the Executive Director Concerning Natural Gas Extraction Activities in Shale
Formations Within the Drainage Area of Special Protection Waters, DRBC, dated May t9, 2009.
3

Letter from Duke DeLuca to Congressman Maurice Hinchey, dated September 14, 2010; Letter from
Peter A. DeLuca to Congressman Maurice Hinchey, dated November 24,2010 (copies enclosed).

4

Letter from Marvin E. Moriarty and Dennis Reidenbach to Carol Collier, dated June 25, 2010 (copy
enclosed).
s DeLuca lerter, dated November 24, 20 I 0.

2

DRBC, a federal agency which must comply with NEP A. See Delaware River Basin Compact,
§ 15.1 (o) (DRBC is a federal ag~ncy); 49 Fed. Reg. 49750,49774 (December 21, 1984) (Council
on Environmental Quality ("CEQ") holds that DRBC is. subject to NEPA because it is a federal
agency with approvaJ authority over water resource matters within the Basin); see also Andrus v.
Sierra Club, 442 U.S. 347, 357-58 (1979) (CEQ interpretations ofNEPA are given substantial
deference). The Army Corps and other involved federal agencies are also required to comply
with NEPA because of their participation in, and approval of, the decision to perfonn the
rulemaking. 40 C.F.R. § 1508.15. Moreover, NEPA required the involved federal agencies to
prepare the draft EIS at the time the proposed regulations were published. See 40 C.F.R. §§
1502.5(d) ("the draft EIS should normally accompany the proposed rule"); 1500.2(c) (agencies
must integrate the requirements ofNEPA with other planning and environmental review
procedures required by law or by agency practice so that all such procedures run concurrently
rather than consecutively.").
The proposed regulations do not distingujsh between gas well development within the
unfiJtered WOH Watershed and the area of the Basin outside that watershed. In light of the
heightened risk of gas welJ development within the WOH Watershed, the draft EIS should
develop and analyze, as an alternative, a prohibition on gas well development within the WOH
Watershed.
The cumulative impacts of regulations authorizing natura) gas development in the Basin
may have significant environmental impacts, and an EIS assessing those impacts is necessary.
According]y, please contact me within 30 days to let me know whether the involved federal
agencies will comply with NEPA by promptly preparing the required draft EIS. If they will not
do so, I intend to take Jegal actjon against the appropriate involved federal agencies to compel
such compliance.
My staff and I are available to discuss this matter. Please contact Lemuel M. Srolovic,
Bureau Chief, Environmental Protection Bureau at [phone] or at
[e-mail] .gov.
Very truly yours,

Eric T. Schneiderman
Attorney General

Enclosures
cc (by first class mail):
Executive Director, DRBC
Administrator, EPA

3

Regional Administrator, EPA Region ll
Regional Administrator, EPA Region Ill
Director, U.S. Fish and Wildlife Service

Director, U.S. National Park Service
Governor, State ofNew York
Commissioner, New York State Department of Environmental Conservation
Commissioner, New York State Department of Health
Commissioner, New York City Department of Environmental Protection
Governor, State of Delaware
Governor, State ofNew Jersey
Governor, Commonwealth of Pennsylvania

4

EXHIBIT B

U.S. ARMY CORPS OF ENGINEERS
NORTH ATLANTIC DIVISION
FORT HAMILTON MILITARY COMMUNITY

302 GENERAL LEE AVENUE
BROOKLYN, NEWYORK 11252-6700

May

~4,

2011

Eric Schneiderman, Esq.
New Yark State Attorney General
26th Floor
120 Broadway
New York, NY 10271-0332
Dear Mr. Schneiderman: .
I have received your April18, 2011 letter on the "Proposed Regulations Concerning Natural
Gas Development in the Delaware River Basin." The Delaware River Basin Commission
(DRBC) has conducted an open public process in the development of regulations for natural gas
development. Through this process, the Commissioners, including one from New York State,
have held many meetings on this issue, and have published draft regulations for public comment.
That comment period has now closed and the DRBC is in the process of evaluating the
comments received.
Your letter requests that as part of the DRBC' s process to develop regulations for natural gas
development the DRBC undertakes an environmental review under the National Environmental
Policy Act (NEP A). While we share and understand your concerns about the environmental
issues surrounding proposed development in the Delaware River Basin, the DRBC itself is not a
federal agency subject to NEPA, and the mere participation of a federal officer in the DRBC
regulatory process does not constitute a federal action. We therefore believe that the federal
commissioner is neither required to produce, nor has the statutory authority to perform, a study
under NEPA as part of this process.
As you know, New York State is represented on the DRBC by Mr. Mark Klotz, Director,
Division of Water of the New York State Department of Environmental Conservation. I, in my
capacity as federal commissio.ner, have been working with him, the DRBC's New Jersey,
Pennsylvania, and Delaware representatives, and the DRBC staff to reach a resolution on these
important issues. I would urge you to coordinate withNew York State's representative on the
commission.
In addition, I would note that there are a number of other federal activities underway to help
evaluate and manage environmental risks associated with natural gas development. The U.S.
Environmental Protection Agency (EPA) is conducting a comprehensive research study to
investigate the potential adverse impact that hydraulic fracturing may have on water quality and
public health, specifically drinking water and groundwater. The scope of the proposed research
includes the full lifespan of water in hydraulic fracturing, frmn acquisition ofthe water, through
the mixing of chemicals and actual fracturing, to the post-fracturing stage, including the

-2-

management of tlow back and produced water and its ultimate treatment and disposal. Initial
research.results are expected by the end of2012 with a goal for a report in 2014.
The U.S. Geological Survey (USGS) is undertaking a range of science activities to study and ,
monitor the impacts of natural gas production. The U.S. Department of Energy continues to
evaluate the impacts of natural gas drilling, including funding multiple projects to develop
environmental tools and technologies to address concerns about produced water. In addition, the
Secretary's Energy Advisory Board has undertaken a review of hydraulic fracturing and will
make recommendations on ways to improve the safety and environmental perforn1ance of this
practice. Its final recommendations will be provided in November 201 1.
We do not believe that litigation is necessary or an appropriate n1eans to address our shared
concerns about the impacts of natural gas production. I understand that our staffs have had a
positive initial meeting on these issues and 1 am still willing to meet with you personally to
discuss our shared concerns.