The state Department of Health signaled to environmental regulators today that the health assessment for the hydrofracking review will take longer.

That paved the way for DEC Commissioner Joe Martens to essentially announce that while the agency won’t be able to meet its Wednesday deadline for the thick environmental impact statement, which also puts the final Feb. 27 release of its regulations in question as well.

But Martens announced in a statement that the DEC could still continue on the fracking permits even if the regulations aren’t in place and the health impact doesn’t show serious issues with fracking and human health.

“If the DOH Public Health Review finds that the (Supplemental Generic Environmental Impact Statement) has adequately addressed health concerns, and I adopt the SGEIS on that basis, DEC can accept and process high-volume hydraulic fracturing permit applications 10 days after issuance of the SGEIS,” Martens said. “The regulations simply codify the program requirements.”

It’s a slightly difficult thing to discern, especially since Martens’ statement is a bit difficult to parse through.

So the next question becomes: What happens if permits for high-volume fracking are issued without the regulations in place? That could lead to a lengthy court challenge, environmental groups told me today as they read through both DOH Commissioner Nirav Shah’s letter as well as the Martens statement.

If the regulations and SGEIS stayed paired, that would require a re-opening of a 45-day public comment period, plus at least one public hearing. That’s a prospect that could once again delay fracking from moving forward.

But separating the environmental impact statement from the official regulations could also lead to legal challenges.

In a statement, the Sierra Club — which split its statmenets between a glowing one for Shah and a skeptical response to Martens — referred to the environmental review process as a “de fact regulatory program” that is of questionable legality should permits be issued.

“The Sierra Club cautions that moving forward with permitting, after the SGEIS has been completed and before a new regulatory review has been finalized will be met with fierce opposition. We trust that the DEC will indeed take this opportunity to reevaluate the legality of using an environmental review process as a de facto regulatory program. “

While the industry is eager to move forward to natural gas drilling in parts of upstate, they were heartened by Martens’s stance on moving forward with permits.

“Given the DEC Commissioner’s assurances that this delay will not mean delays for issuing permits, we respect the administration’s need to finish this last study and finally come to resolution. We also know that it can and must end with a decision to move forward with creating jobs in the Southern Tier. The clock is ticking. It’s time for action. It’s time for safe natural gas development.”

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