New York’s fracking clock reset for end of February

The Cuomo administration has met a deadline to file a draft of its regulations to govern shale gas development, giving the state Department of Environmental Conservation an extra 90-days to finish the job that it began in 2008.

Several sources close to developments told me that today that the regs were filed with the Department of State yesterday, although the process has inexplicably been kept out of the public eye. According to protocol spelled out in the State Administrative Procedures Act (SAPA), the draft regulations will have to be publically posted by December 12 – two weeks after they were filed.

[Update 11/30/12: The regs are now available online by clicking here. Thirty-day public comment period will begin Dec. 12]

The state filed for the 90-day extension to allow time for an independent panel of health experts to review draft policy after environmental groups raised concerns it insufficiently addressed concerns over fracking’s impact on public health.

The regs are being developed as the state works on a review of the impacts of hydraulic fracturing that it began in the summer of 2008, called a Generic Environmental Impact Statement (SGEIS). While there is no firm deadline to complete the SGEIS, the Administrative Procedures Act prevents rules from being finalized before the environmental review is complete. Although Cuomo has been silent on the controversial issue, his administration’s compliance with the rulemaking deadline sends a signal that he intends to complete the review and the regulations by March, at which time permitting for High Volume Hydraulic Fracturing could begin in New York after being on hold since the shale gas rush began four and a half years ago.

There are other scenarios, however. If the work is not completed within 90 days, the administration could still let the process expire and reopen the process for public hearings. (Public hearings allow residents to speak in front of DEC staff in an open forum while their comments are recorded on the record and tends to be a much bigger tool for activists than a public comment period, which allows comments in writing only.)

The administration’s efforts to meet yesterday’s deadline shows that officials are doing what they can to keep the process from expiring and reopening the hearing process. The biggest wild card, however, remains with the Legislature, which has been under pressure from both drilling opponents and proponents. Leadership in the Democratic controlled Assembly have shown a willingness to ban fracking, while the Republican controlled Senate has been supportive of drilling. While Democrats still control the Assembly, control of the Senate following the recent election will be unknown for some time.