Friday, December 23, 2011
FULL TEXT of letter to SRBC
If you want a PDF copy of the original letter, send me an e-mail.
Note: During the "cut & paste" process, I noticed a few spacing errors below. I may not have corrected them all. Apologies if I missed any.
December 22, 2011
VIA ELECTRONIC MAIL
Executive Director, SusquehannaRiver Basin Commission
Richard A. Cairo
General Counsel, SusquehannaRiver Basin Commission
1721 N. Front Street, Harrisburg, PA17102-2391
Re: Commission Failure to Follow Procedure Resulted in Ineffective Approval of 26 Water Projects at Dec. 15, 2011 Meeting
Dear Mr. Swartz and Mr. Cairo,
The undersigned organizations send you this letter because we believe the Commission improperly approved pending docket action items and improperly curtailed public comment at its December 15, 2011 meeting in Wilkes-Barre. The Commission should reconvene at a date in the near future to appropriately reconsider the docket and allow public comment. The facts meriting this action are as follows:
On December 15, the Commission appropriately completed the majority of its action items and provided an opportunity for general public comment. The Commission later considered the last remaining action items: 26 pending water withdrawal projects primarily for shale gas operations. While the Commission solicited and listened to specific questions concerning the 26 proposed water withdrawals during a presentation on those projects by Commission staff, the scheduled second public comment period had not yet begun when disruptive behavior occurred.
Prior to this meeting the Commission published a public notice in the Federal Register and Pa Bulletin stating in relevant part:
"Interested parties may appear at the hearing to offer written or oral comments to the Commission on any matter on the hearing agenda, or at the business meeting to offer written or oral comments on other matters scheduled for consideration at the business meeting. The chair of the Commission reserves the right to limit oral statements in the interest of time and to otherwise control the course of the hearing and business meeting."
When disruptive behavior made the proceedings unintelligible, the Commission chair briefly attempted to control the proceedings and, failing to do so with her voice and gavel, adjourned the meeting. The Commission did not state its intent to subsequently reconvene, and some attendees in the audience left the meeting at that point. The Commissioners and Commission staff then excused themselves only to return minutes later where they voted and approved the 26 projects at issue,off-the-record and without having formally reconvened. None of the remaining individuals wishing to provide public comment were able to exercise that right.
We commend the Commission for providing a general comment period, however, that period is not a substitute for an opportunity to comment on particular applications, consistent with the SRBC’s published notice.Indeed, Commission staff knew of at least one individual, Don Williams, who specifically noted his intent to provide particular comments on each water withdrawal prior to and at the December 15th meeting but, due to the abrupt adjournment, was unable to exercise that right.
We believe that off-the-record approval of the 26 water withdrawal projects may be legally ineffective due to the previous adjournment and the Commission’s failure to control the meeting and allow public comment. The Commission should reconvene in the near future to reconsider those docket approvals and allow related public comment.
Although the Commission’s regulations at 18 C.F.R. §808.1 et seq. do not squarely address the instant issue, it is very clear from both eye-witness reports and video of the proceedings that there was in fact adjournment prior to approval of the 26 water projects. Because the majority of the proposed water withdrawals concerned shale gas operations that entail potentially significant direct, indirect and cumulative impacts, those approvals demand the utmost transparency and accountability. In addition, theCommission’s regulations recognize the inherent importance of substantive public participation, yet the Commission inappropriately approved docket items post adjournment of the public hearing without providing for such public participation. With these facts in mind, we respectfully urge the Commission to:
1) Publish notice of a reconvened public hearing for a date in the near future;
2) Meet, properly reconsider, and vote on the off-the-record 26 water projects with appropriate standards and time for public comment at that meeting; and
3) Notify the 26 water project applicants that they in fact do not have legitimate approval, and may not withdrawal water until such approvals are granted.
The undersigned organizations did not participate in the disruptions that occurred at the meeting and believe the Commission must take the aforementioned actions and, in so doing, uphold its commitment and duty to encourage respectful public participation, transparency, and the rule of law.
We recognize the difficulty in providing clear and concise responses to all of the organizations listed below, and therefore ask that an official response to this inquiry be sent to Guy Alsentzer, Director of Stewards of the Lower Susquehanna, at Guy@LowSusRiverkeeper.org,who shall disseminate communications among the undersigned.
Marcellus Regional Organizer
Pa Sierra Club
Susquehanna River Sentinel
Director & Staff Attorney
Stewards of the Lower Susquehanna
Lower Susquehanna RIVERKEEPER®
Associate Director of River Protection
Pennsylvania State Director
Clean Water Action