The Pennsylvania Environmental Hearing Board Clouds the Waters: Should Well Operators Appeal PADEP Determinations that Oil and Gas Activities Have Affected Water Supplies?

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A recent Pennsylvania Environmental Hearing Board (“EHB”) decision may create uncertainty as to whether oil and gas well operators can or should appeal determination letters issued by the Department of Environmental Protection (“PADEP”), under section 3218 of Pennsylvania’s newly codified statute relating to oil and gas development, when PADEP has determined that oil and gas operations have impacted a water supply. In Kiskadden v. DEP, the EHB held that a landowner may appeal a PADEP determination letter indicating that gas well activities did not affect the landowner’s water supply. This decision is of interest to well operators because the EHB has on multiple occasions dismissed appeals brought by operators on grounds that operators may not appeal PADEP determination letters reflecting PADEP findings that oil and gas activities did affect public or private water supplies.

Section 3218 (former section 208 of the Oil and Gas Act) sets forth the procedure for landowners and water purveyors to allege pollution or diminution of water supplies as the result of drilling or operation of oil or gas wells Under section 3218, a landowner or water purveyor may allege to PADEP that a water supply has been affected by an oil or gas well and request a PADEP investigation. Upon notice, PADEP is obligated to investigate the claim and then make a determination within 45 days of notification. If PADEP finds that pollution or diminution was caused by an oil or gas well, the agency must issue an order as necessary to ensure compliance with the statute’s requirements for restoration or replacement of the water supply.

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