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.