DRBC to Finally Decide on Fracking Ban?
Nearly three and a half years: That’s how long the Delaware River Basin Commission has been sitting on regulations it opened for public comment that could decide the fate of oil and natural gas development within the region. It appears this week the commission will finally (maybe) answer the question: Can shale development occur in the Delaware River Basin?
For those who haven’t been following this saga for more than a decade, the DRBC is composed of the Army Corps of Engineers and the governors of Pennsylvania, New York, New Jersey and Delaware. The four states also fund it – along with fees, fines and grants –to oversee water quality in the basin. The basin has been under a de facto moratorium since 2011 when the commission first put forward regulations that it has yet to vote on, although since New York passed a fracking ban in 2014, the impacts of this are largely concentrated to two counties in Pennsylvania that are believed to have producible shale resources: Wayne and Pike counties.
Meanwhile, a similar commission, the Susquehanna River Basin Commission – which is “next door” to the DRBC – has been safely overseeing shale development in Pennsylvania for more than a decade. In fact, in 2018 Pa. Dept. of Environmental Protection Secretary Patrick McDonnell – who is the governor’s representative for both the SRBC and DRBC – told state senators that in regard to fracking, “what we’ve seen in the studies that we’ve seen are; it has been fine on the SRBC side.”
Until scheduling the meeting last week, the DRBC has been relatively quiet on the regulations that thousands responded to – both from those who wish to see development and those who do not – with one hydrogeologist saying the “concerns are grossly overemphasized.”
During this period of relative silence, the DRBC has been engaged in litigation:
- In May 2016, the Wayne Land and Mineral Group filed a lawsuit against the DRBC asking that a federal court determines if the commission has jurisdictional authority to regulate well pads. In January, a federal judge determined that this case will go to trial and denied the ability to file amicus briefs to two groups, the National Resources Defense Council and the Catskill Mountainkeeper.
- In January, Damascus Township in Wayne County joined state Sens. Lisa Baker (R) – who represents one of the highest producing gas counties, Susquehanna, as well as Wayne – and Gene Yaw (R) – whose region includes several prolific shale producing counties in the Susquehanna River Basin – along with the State Senate Republican Caucus to file another lawsuit against the DRBC. This lawsuit argues there has been a taking of both private and Commonwealth-owned lands as a result of the DRBC’s actions (or inactions).
In three and a half years not a lot has changed – the regulations are still the same, litigation is still ongoing and oil and natural gas continues to be safely produced across much of Pennsylvania.
Continue reading EID’s post from 2017 for everything you need to know about this upcoming decision.
Original Post – Sept. 8, 2017
Delaware River Basin Commission Reportedly Set to Announce Permanent Fracking Ban
The Delaware River Basin has been under a de facto moratorium for the past seven years while the Delaware River Basin Commission (DRBC) has debated new regulations that many – including landowners currently pursuing a lawsuit – feel are an overreach of the DRBC’s authority. Now the DRBC is reportedly set to announce its plans to pursue a permanent ban on fracking in the region, despite the pending lawsuit and requesting no input from the public.
In a strange turn of events this week, the Associated Press reported Thursday that an anonymous inside source had leaked news of DRBC’s intentions to put a permanent ban in place. AP reported that DRBC was to make its plan public on Friday, but as of 6 p.m. EST, no official announcement had been made. Regardless of whether AP’s report becomes reality, it does not change some important facts regarding development in the DRBC that EID has previously detailed.
#1. DRBC should not have any authority over fracking in the first place
It may come as a shock to many, but two counties in Pennsylvania — the second highest natural gas producing state in the country — are unable to develop recoverable natural gas within their borders due to a de facto moratorium.
That’s because the DRBC — a four-state federal compact created in 1961 to oversee water quality in the Delaware River watershed — has been sitting on draft rules to regulate hydraulic fracturing since they were issued in November 2011. The inexplicable delay likely has something to do with the considerable influence the regional anti-fracking community has on the commission. But at the end of the day, no matter how much money or pressure is bestowed upon the DRBC by local Keep It In The Ground activists, the fact remains that it was simply never intended to regulate land use.
As Thomas West, managing partner of West Law Firm, an energy and environmental law firm, recently said,
“Their primary purpose is to regulate water activities to make sure we don’t have unnecessary diversion of water from one place to another. I don’t think they have any business trying to prohibit fracking.”
The DRBC’s efforts to regulate projects that, for all intents and purposes, are a form of land use that merely use water — water that would be legally permitted and provided by sources that have nothing to do with the Delaware River – represents a gross overreach of its authority.
#2. Wayne County property wwners are currently pursing a lawsuit to reaffirm DRBC is overstepping its authority
The DRBC’s overreach is something that landowners residing in the river basin have taken to court. The Wayne Land and Mineral Group filed a lawsuit against the DRBC last year, and that suit is currently in the Third Circuit Federal Court of Appeals, where it is expected to be decided relatively shortly. DRBC’s attempt to have that suit dismissed was rejected in Federal Court earlier this year, and the lawsuit could ultimately prevent the DRBC from having any authority to continue with this moratorium, let alone a ban, if the court rules in favor of the NWPOA.
#3. There is no evidence to justify the alleged harm that would warrant a ban
Pennsylvania is no stranger to oil and gas development, and as such, just over the Delaware River Basin line, the Susquehanna River Basin offers an excellent example of just how manageable water withdrawals would be in the Delaware.
The Susquehanna River Basin Commission (SRBC) has studied both water quality and quantity in the basin and in 2013 determined there have been no “significant” impacts to the river over three years, despite the fact it runs through the heart of drilling regions in the state.
Potential impacts in the Delaware River Basin would be even less considering the two Pennsylvania counties within the basin would see a fraction of the development that has taken place throughout the Susquehanna River Basin.
But even if SRBC hadn’t conducted that study, there are no fewer than 28 studies by government, academic and regulatory authorities that have determined fracking is not a major threat to drinking water. Most notable of these studies is the EPA’s landmark five-year report, which found no evidence of widespread water contamination of drinking water from fracking.
Further, the Pennsylvania Department of Environmental Protection (DEP) released a report in 2016 that found there is no water contamination threat posed by fracking to streams, lakes and groundwater in Pennsylvania. In fact, there are no fracking-related activities listed as “high priority sources” on a table in the report titled “Major Sources of Groundwater Contamination.”
DRBC’s reported plans to impose a permanent ban on the oil and gas industry is hardly based in science or reality. Far from it. Instead it seems the DRBC is taking a lesson from its New York members’ playbook and choosing politics and hysteria over facts and logic, and it will apparently be up to the courts to set this injustice right.