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2339268_1We regularly receive telephone calls and emails, from folks who have followed our newsletters or blog entries over the past few years, asking our perspective on when (more recently IF) the Natural Gas Program will proceed in New York. A simple response might be, “Only the Governor knows!” But I no longer believe even Andrew Cuomo really knows when and how gas well drilling permits will again be issued by the Department of Environmental Conservation.

On Monday, February 4, 2013, Joe Martens, Commissioner of the DEC, was at a legislative budget hearing and was asked by a State Senator when the shale gas drilling regulations would be completed. His response, “We do not have a timetable.” The DEC has been in the environmental review process for 4 ½ years, with a total moratorium on horizontal drilling permits, in anticipation of updating the DEC’s regulations for horizontal drilling in shale gas formations (specifically the Marcellus Shale Formation in New York).

The environmental review has been undertaken pursuant to the State Environmental Quality Review Act (SEQRA). However, the proposed new regulations coming from the SEQRA process must also be processed under the State Administrative Procedures Act (APA), which has its own timing requirements. If the proposed regulations are not “finalized” by February 27th, which in turn requires they be published by February 13, 2013, the APA process must be started over.

Part of the most recent delay in the SEQRA and APA processes has resulted from Martens’ request to have the NYS Department of Health (DOH) study the potential health impacts of the drilling activities – including the issue of fracking. Nirav Shah, the DOH Commissioner, anticipates having that report out “in a few weeks.” If that report recommends additional regulations then the APA process will – once again – be delayed for who knows how many months.

Many folks – on both sides of the issue – think it’s time for Commissioner Martens, and Governor Cuomo, to act. Almost 5 years is long enough to thoroughly study and make an informed decision. It’s time to make a decision – and let the lawsuits (no matter which way the decision goes) begin! The people deserve action from their government – and then the people can act accordingly.

The members of the firm’s Natural Gas Working Group work with landowners who desire to preserve, protect and exercise their real property rights – including their mineral rights relevant to any natural gas activities – whether or not they choose to enter into a natural gas lease. If they do decide to enter into such a lease arrangement, we assist in negotiating for adequate provisions that provide protections and enforcement rights to preserve the current and future intended use of the property – not just for the period of drilling but for future generations as well.

Gerald A. Lennon is a partner on the Real Estate Team and is in charge of the firm’s Natural Gas Working Group. He can be reached by phone at 845-778-2121 toll free or 845-778-2121 and by email.

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Jacobowitz and Gubits Counselors at Law