JOSEPH J. HEATH
ATTORNEY AT LAW
716 EAST WASHINGTON STREET
SUITE 104
SYRACUSE, NEW YORK 13210-1502
315-475-2559
Facsimile
315-475-2465
December 15, 2008 Electronic Mail to dmnog@gw.dec.state.ny.us
Attn: Scope Comments
Bureau of Oil & Gas Regulation
NYSDEC Division of Mineral Resources
625 Broadway, Third Floor
Albany, NY 12233-6500
Re: ONONDAGA NATION COMMENTS ON DRAFT SCOPE FOR DRAFT SUPPLEMENTAL GENERIC ENVIRONMENTAL IMPACT STATEMENT (dSGEIS) ON THE OIL, GAS AND SOLUTION MINING REGULATORY PROGRAM WELL PERMIT ISSUANCE FOR HORIZONTAL DRILLING AND HIGH-VOLUME HYDRAULIC FRACTURING TO DEVELOP THE MARCELLUS SHALE AND OTHER LOW PERMEABILITY GAS RESERVOIRS
Greetings:
I am writing to you in my capacity as General Counsel for the Onondaga Nation. The Onondaga Nation would like to present you with the following comments concerning the
above-mentioned draft scoping document on hydraulic-fracturing, or hydro-fracking. In brief, the Onondaga Nation requests that you:
(1) Consult with the Onondaga Nation and the Haudenosaunee Confederacy, pursuant to the DEC Policy for Indian Nation Consultation prior to commencing preparation of the dSGIES;
(2) Ensure that archaeological and historic sites, sacred areas, traditional cultural properties and landscapes are adequately protected from environmental impacts of horizontal drilling and high-volume hydraulic fracturing; and
(3) Adequately assess all potential environmental impacts of this dangerous mining activity.
I. The Onondaga Nation Political, Cultural, and Spiritual Interests in the Environment
The Onondaga Nation is the cental Nation of the Iroquois or Haudenosaunee Confederacy. Onondaga is a non-gambling, traditional government which is still governed, as it has been for centuries, by its Council of Chiefs, who are selected by its Clan Mothers. The Nation is extremely active in a wide range of environmental issues. The Onondaga Nation’s currently recognized, sovereign territory is located just to the south of Syracuse, New York. However, the Nation’s Treaty Protected Territory covers an area of more than 2 million acres. Situated throughout the Nation’s more than 2 million acres of Treaty Protected Territory are specific environmental concerns, such as the Onondaga Lake watershed, and sensitive archeological sites including unmarked burials, precontact and post contact sites, sacred spaces, and traditional cultural properties and landscapes.
The Nation and its people have a unique spiritual, cultural, and historic relationship with the land, which is embodied in Gayananshogowa, the Great Law of Peace. This relationship goes far beyond federal and state legal concepts of ownership, possession, or other legal rights. The Haudenosaunee people are one with the land and consider themselves stewards of it. It is the duty of the Nation’s leaders to work for a healing of the land, to protect it, and to pass it on to future generations.
The Onondagas know that every part of the natural world is important and interrelated; when humans tinker more and more with the natural balance, we do so at the peril of our grandchildren. The Onondaga Nation engages in their extensive environmental work on behalf of its people and all people, in the hope that it may hasten the process of reconciliation and bring lasting justice, peace and respect among all who live in what is now New York State.
II. DEC Policy for Contact, Cooperation and Consultation with Indian Nations
We recognize that DEC is currently moving forward with a strong Indian Nations consultation policy, which states that DEC will consult with Indian Nations on a government-to-government basis on all environmental and cultural resource matters of mutual concern. The Policy further states that DEC is committed to working cooperatively with Indian Nations to address issues of mutual concern involving environmental resources, whether located on or outside of Indian Nation Territory; that DEC recognizes that environmental resources transcend these boundaries, and that protection and preservation of
those resources requires close cooperation between the Department and Indian Nations.
These mining activities affect Indian Nation interests. As defined by DEC’s cnsultation policy, “Affecting Indian Nation Interests” means: a proposed action or activity, whether undertaken directly by the Department or by a third party requiring a Department approval or permit, which may have a direct foreseeable, or ascertainable effect on environmental or cultural resources of significance to one or more Indian Nations, whether such resources are located on or outside of Indian Nation Territory.
This form of mining will have profound environmental effects within the aboriginal territory of the Onondaga Nation – on water, land, air, culture, spirituality – and will effect the Nations’ abilities as stewards responsible for the protection of Mother Earth. Not only does the proposed mining affect the Haudenosaunee and Onondaga Nation’s interests in the environment and cultural resources, but in addition, the Marcellus shale formation lies below Haudenosaunee lands which are protected by federal treaties of 1784, 1789 and the 1794 Treaty of Canandaigua. Because federal law recognizes and supports Indian Nation “ownership” of the minerals beneath their Treaty Protected Territories, it is critical that New York State undertake consultation immediately to ensure that the State is acting within its authority in regulating these mining activities.
At this time, the DEC has not initiated consultation with Indian Nations concerning hydraulic fracturing and other mining, though public meetings have been scheduled and are ongoing. Thus, these mining activities are an urgent and prime example of the need for Indian Nation consultation and an opportunity to put DEC’s consultation policy to work. The Onondaga Nation expects DEC to initiate consultation on these issues presented by this letter immediately, due to the speed with which DEC is moving its environmental review process forward.
III. Protection of Cultural Resources
The Haudenosaunee, including the Onondaga Nation, used to inhabit the majority of the area that will be impacted by this drilling, and there are hundreds of former pre- and postcontact sites and tens of thousands of unmarked graves of ancestors that require protection from disturbance. Federal law requires consultation with Indian Nations concerning any potential disturbance of archeological sites. Furthermore, the State Historic Preservation Office will need significant additional staff to be able to properly review each well application and its potential impact on archeological sites and resources.
Moreover, Article 14 of the New York Parks, Recreation and Historic Preservation Law requires State agencies to consult with the Commissioner of Parks prior to undertaking any project “if it appears that any aspect of the project may or will cause any change, beneficial or adverse, in the quality of any historic, architectural, archeological, or cultural property that is listed on the national register of historic places or property listed on the state register or is determined to be eligible for listing on the state register by the commissioner.”
There is no indication in the scoping documents that NYSDEC has fulfilled its consultative obligation, among other things. This oversight is particularly outrageous, insofar as it is well documented in the scholarly literature that substantial cultural resources are present throughout the geographic area underlain by the Marcellus shale formation, and are likely to be damaged or destroyed by these mining activities unless avoided by prior documentation and study.
The procedure set forth in the NYPRHP Law at §14.09.2 calls for the State Historic Preservation Office to review and comment on proposed projects which have the potential to impact any property listed or eligible for listing on the National or State registers of historic places. The environmental review process must not proceed without this consultation. In addition, Indian Nation consultation, pursuant to DEC’s consultation policy, must occur as soon as possible with the DEC and the State Historic Preservation Office to discuss proposed limits on activities to be permitted in the future in order to protect areas of cultural and historical importance.
In addition to the failure to allow consultation with Indian Nations concerning cultural resources, the original GEIS1 further:
1. Fails to protect cultural or Indian Nation sites unknown to the State Historic Preservation Office and the Office of Parks, Recreation and Historic Preservation
2. Fails to include the protection of cultural resources on state owned lands: state lands are exempted from any archaeological review;
3. Fails to afford any protection or protocol for the inadvertent disturbance
4. Fails to protect sacred sites or traditional cultural properties or landscapes;
5. Fails to take into account how visual, noise and air quality may affect archaeological sites, sacred sites or traditional cultural properties or landscapes, and ongoing cultural practices connected with these sites;
6. Fails to define “disturbance”; and
7. Fails to provide a defined and specific area of affect that is “on or near archaeological or historic sites.”
Again, Indian Nation consultation must begin immediately, considering the speed with which DEC is trying to move the environmental review process forward.
IV. Other Issues for Indian Nation Consultation
The Onondaga Nation has specific concerns with the environmental effects of this type of mining due to the ever increasing body of evidence that these mining techniques pose serious risks to ground and surface water, as well as air quality. The Nation strongly opposes this new method of natural gas exploitation. We have very fundamental concerns that this type of drilling presents extreme threats to water resources, will result in air pollution complications of a chilling magnitude and will endanger the earth, its groundwater and other components.
The fact that each of these wells will use up to 5 million gallons of water illustrates the great need for New York to pass a law regulating this and other types of massive water withdrawals from our surface and ground waters. There is no such legal protection at this time. We are also greatly concerned with the massive amounts of “produced water” that will come out of the wells, or remain in the ground. The Nation feels that “open pits,” no matter how they are lined, are simply not safe, as they have resulted in hundreds, if not thousands of instances of contaminated groundwater in western states. Therefore, these fracking fluids and produced water must be stored only in steel storage tanks. The state must also forbid the storage of fracking fluids or produced water under ground.
These massive volumes of “produced water” will not only be contaminated by the fracking fluids, but also will contain high concentrations of salt, benzene, tolulene, xylene and, in some incidents, “naturally occurring radioactive materials.” These millions of gallons of produced water will have to be de-toxified or treated before the water can be discharged into our surface waters. There simply are not enough treatment facilities available and municipal wastewater treatment plants should not be used. The gas companies must be mandated to build their own treatment plants before any such drilling takes place.
Further, the DEC needs to include in its evaluation of the environmental risks posed by this method of gas exploitation an assessment of the risk posed by every chemical that is used at every stage of this process. These dangerous chemicals are likely to impact everyone who lives in the Marcellus Shale area, and therefore, can not be kept secret by the drilling companies. These companies must reveal all of the chemicals used in this fracking process to the Department, all New York citizens and to all Haudenosaunee Nations and citizens.
Additionally, this method of drilling has also been documented to have a very negative impact on air quality, with unacceptable ozone contribution, methane releases and extremely large amounts of green house gas emissions. These drilling operations are highly industrial in nature, with large numbers of diesel engines running 24/7 to perform the drilling, pumping, and compression. When the high number of trucks which are necessary to bring the water to and from the drilling sites are added to this picture, it becomes even more unthinkable.
The drilling process is simply taking the state’s energy policy in the wrong direction and should be re-examined carefully. Instead of relying more and more on the extraction and burning of fossil fuels, our state should be developing energy policies which will move us to totally renewable sources, such as solar and wind.
The Onondaga Nation and its environmental consultants have not been able to create a scenario by which the benefits of this type of development outweigh its known dangers and risks. Moreover, the Onondaga Nation has concerns about the extent of this type of mining throughout New York State for the last 50 plus years, and requests maps and other materials that provide the location of mines throughout the State.
In conclusion, I would like to encourage the Department to look more globally at the impact of this drilling method on all Haudenosaunee Nations and their territories, by reflecting on the recently adopted United Nation Declaration of Indigenous Rights. Particularly, your attention is drawn to Article 29, which reads in part: “Indigenous peoples have the right to conservation and protection of the environment and the productive capacity of their lands or territories and resources.”
Please contact me immediately to initiate consultation with the Onondaga Nation on this important matter.
Sincerely,
/s/ Joseph J. Heath
Joseph J. Heath
cc: Onondaga Nation Council of Chiefs
Haudenosaunee Environmental Task Force
Tags: air quality, BTEX, DEC, diesel, fracking, groundwater, hydraulic fracturing, methane, NORM, Onondaga, open pits, produced water, scope, SGEIS, water
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