By Mark Szybist and George Jugovic, Jr., PennFuture Guest Authors

Citizens for Pennsylvania’s Future (PennFuture) and FracTracker Alliance have collaborated to create a unique GIS map that enables the public to investigate how shale gas development is changing the face of our public lands. The map allows viewers to see, in one place:

• Pennsylvania’s State Forests, Parks and Game Lands;
• State Forest tracts containing active oil and gas leases;
• State Forest areas where the oil and gas rights have been “severed” from the surface lands and are owned by third parties;
• State Forest lands that are to be protected for recreational use under the federal Land and Water Conservation Fund Act;
• The location of unconventional shale gas wells that have been drilled on State Forest and State Game Lands; and
• The boundaries of watersheds that contain one or more High Quality or Exceptional Value streams.

The goal of this project was to develop a resource that would highlight the relationship between unconventional shale gas development and public resources that the State holds in trust for Pennsylvania’s citizens under Article I, Section 27 of the Pennsylvania Constitution. It is our hope that the map will be useful to citizens, conservation groups and others in planning educational, advocacy, and recreational activities.

The Public Lands Map

A full screen version of The Public Lands Map can be found here.

Background

Public lands held in trust by the Commonwealth of Pennsylvania for citizens of the state are managed by various state agencies and commissions. The vast majority of State lands, though, are managed by just two bodies – the Department of Conservation and Natural Resources (DCNR) and the Pennsylvania Game Commission (PGC). Under Act 147 of 2012, the Department of General Services has the authority to lease other lands controlled by the state. In recent years, DCNR and the PGC have made liberal use of their powers to lease State lands for oil and gas development.

DCNR: State Forests, State Parks, and Publicly Owned Streambeds

The DCNR manages approximately 2.2 million acres of State Forest lands and 283,000 acres of State Park lands, as well as many miles of publicly owned streambeds. The Conservation and Natural Resources Act (CNRA) authorizes DCNR to develop oil, gas and other minerals under these lands, so long as the state controls those mineral rights. In some cases, separate persons or entities own the surface of the land and mineral rights. Where DCNR does not control the mineral rights, the owners of the oil and gas have the ability to make reasonable use of the land surface for mineral extraction, subject to restrictions in their property deeds.

Before the start of the Marcellus era, the DCNR leased about 153,268 acres of State Forest lands for mineral development. These leases largely allowed the drilling of “conventional” shallow vertical gas wells. Between 2008 and 2010, the DCNR, under Governor Ed Rendell, leased another 102,679 acres of public lands for natural gas development – but this time the leases were for the drilling of horizontal wells in “unconventional” shale formations using high-volume hydraulic fracturing.

Following the lease sale, DCNR published a report on October 26, 2010 that stated any further gas leasing of State Forest Lands would jeopardize the sustainability of the resource. As a result, Governor Rendell signed Executive Order 2010-05, which placed a moratorium on the sale of any additional leases for oil and gas development on lands “owned and managed by DCNR.

On May 23, 2014, Governor Tom Corbett revoked Governor Rendell’s moratorium, and issued a new Executive Order that allowed the issuance of additional leases for gas development beneath State Lands so long as the leases did not entail “additional surface disturbance on State Forest or State Park lands.” Ultimately, Governor Corbett’s DCNR did not enter into any leases under the new Order. However, between January 2011 and January 2015, Governor Corbett’s DCNR did issue leases for gas extraction beneath a number of publicly owned streambeds, which, according to the Post-Gazette, raised $19 million. Governor Corbett’s DCNR also renewed at least one State Forest lease that otherwise would have expired.

On January 29, 2015, Governor Tom Wolf issued another Executive Order on the matter, which re-established a moratorium on the leasing of State Park and State Forest lands “subject to future advice and recommendations by DCNR.” The Order allows for the continued leasing of publicly owned streambeds. As of the publication of this blog, the DCNR is fighting two lawsuits concerning the leasing of the lands it manages, one by the Pennsylvania Environmental Defense Foundation and one by the Delaware Riverkeeper Network.

PGC: State Game Lands

The PGC manages more than 1.5 million acres of State Game Lands that it may lease for gas development under the Pennsylvania Game and Wildlife Code. The PGC can also exchange mineral rights beneath State Game Lands for “suitable lands having an equal or greater value.” To date, the PGC has entered into surface and non-surface leases (technically, cooperative agreements for the exercise of oil and gas production rights) for natural gas development totaling 92,000 acres, of which about 45,000 acres were leased since 2008.

Land and Water Conservation Fund Act Lands

The LWCF Act is a federal law administered by the National Park Service (NPS) that authorizes federal grants to state and local governments for “outdoor recreation.” When a state accepts money for a recreational project, it agrees to protect the recreational value of the area supported by the grant. If the state later decides to take or allow actions that would “convert” parts of the protected area to a non-recreational use (1) the state must seek prior approval from the NPS, and (2) the NPS must perform an environmental assessment of the proposed conversion under the National Environmental Policy Act. The NPS may approve a conversion of LWCF-supported lands only if those lands will be replaced with “other recreation properties of at least equal fair market value and of reasonably equivalent usefulness and location.”

Between 1978 and 1986, Pennsylvania received three LWCF grants (Project Numbers 42-00580, 42-01235, and 42-01351) to support recreational opportunities on State Forest lands. Most of the money was used to improve roads in various State Forests to improve access for hunters, hikers and anglers. The LWCF layer on the Public Lands map represents those areas that Pennsylvania agreed to protect in exchange for these grants.

In 2009 and 2010, Pennsylvania entered into leases opening up about 11,718 acres of LWCF-protected areas to unconventional gas development. On the map, these areas can be highlighted by selecting “Land and Water Conservation Fund Lands” and “SF Lands – DCNR Leases”; the purplish, overlapping areas represent the leased LWCF lands.

Governor Corbett’s DCNR refused to recognize that shale gas development on public lands constituted a “conversion” under the LWCF Act. The Sierra Club was the first to identify this problem in a 2011 letter to the NPS and the DCNR. That letter requested, among other things, that the NPS formally determine the extent to which DCNR leasing of LWCF-protected State Forest lands has violated the LWCF Act. Nearly four years later, the NPS has yet to determine whether drilling and fracking of unconventional gas wells and construction of the necessary support structures constitutes a “conversion” and loss of recreational opportunities under the LWCF Act.

A Note on the Map Layers

The sources of the GIS layers in the Public Lands map are explained in the “Details” section of the map. For the most part, PennFuture and FracTracker obtained or created the layers from public sources and through open records requests to the DCNR. In all cases, the layers came from the DCNR with a disclaimer as to the accuracy of the data and a warning about relying on the data.

GIS layers that are not currently on the map, but that this project hopes to add, include:

• State Game Lands that have been leased for drilling;
• State Park and Game Lands where the oil and gas rights have been “severed” and not controlled by the State;
• Publicly owned streambeds that the State has leased for oil and gas development;
• Public lands containing areas of significant ecologic value; and
• Compressor stations, natural gas and water pipelines, and fresh water and wastewater impoundments.

Persons having access to this data are invited to contact PennFuture or FracTracker.