The DRBC Show About, Well, Nothing!
We all remember the show Seinfeld, don’t we? When the show was proposed by the producers it was meant to be the show about nothing. I began working with EID – Marcellus back in August of last year. My first big project was to keep an eye on decisions being made by the Delaware River Basin Commission (DRBC) and I even made the long drive to Trenton for an uneventful meeting. It turns out this assignment was a lot easier than I thought it would be, simply because nothing, absolutely nothing, has happened. The DRBC seems they have fallen off the face of the Earth and residents of Broome, Delaware, Sullivan and Wayne Counties are extremely frustrated at being misused and abused by this do-nothing agency.
This is what the agency is supposed to be about, although that water quality raises issues, given that the states already regulate it and anything the DRBC does is redundant, but let’s give them the benefit of the doubt for the moment.
The DRBC is a federal-interstate compact government agency that was formed by concurrent legislation enacted in 1961 by the United States and the four basin states (Pennsylvania, New York, New Jersey, and Delaware). Its five members include the basin state governors and the Division Engineer, North Atlantic Division, U.S. Army Corps of Engineers, who serves as the federal representative. The commission has legal authority over both water quality and water quantity-related issues throughout the basin. (from DRBC website)
Back in September of 2011, the Commission was supposed to vote on whether or not they would allow natural gas exploration in the basin. After this was postponed, we held our breath for October of 2011. While several supporters of natural gas exploration were anxiously awaiting a decision from the panel, they cleared a Tuesday to travel to Trenton, New Jersey to express their support for natural gas development in the basin. Then, a couple of weeks before they were scheduled to head down river, the Commission postponed their meeting again! This time they postponed the meeting until November. Sadly, below you can read how far they have come since then.
The commissioners at their May 5, 2010 meeting unanimously directed staff to develop draft regulations in the shales for notice and comment rulemaking and postponed the DRBC’s consideration of well pad dockets until regulations are adopted. The special meeting scheduled for Nov. 21, 2011 to consider adoption of draft natural gas development regulations was postponed to allow additional time for review by the five DRBC members. There are still some unresolved issues that the commissioners are working through and no new date has yet been announced for a vote on the draft regulations. At the most recent DRBC meeting held on May 10, 2012, Lieutenant Colonel Philip Secrist, as commission chair, announced that the commissioners are convening meetings with their respective technical staff to share information and reconcile concerns regarding requirements of the draft rule. (from DRBC website)
Here’s what two landowners depending on the DRBC to issue regulations regarding natural gas development in the basin had to say about the heart breaking inability of the agency to act, which surely violates principal of due process. No government agency is entitled to put something into limbo forever, which is the same thing as denying an application with no right of appeal. Yet, they’re doing it and getting away with it. List to what Curt Coccodrilli and Dale Teeple had to say about the matter.
The DRBC is touted as a “model agency.” But, we know that it is, and has been, far overstepping its bounds and trying to exert far more power than it should have for too long. Now, by refusing to vote on the regulations, it has instituted an all out ban on natural gas development. It has not done so in so many words, but the effect is obvious from our viewpoint and deliberate from theirs. New Jersey and Delaware should get on the wagon and hold their payments, too.
Governor Tom Corbett’s administration has been pushing the Delaware River Basin Commission to make some decisions.
Gov. Tom Corbett’s administration has been lobbying neighboring states to approve regulations to open the Delaware River basin to natural gas drilling, a plan that came to a screeching halt in November when Corbett’s counterpart in Delaware said the proposal lacked sufficient public health protections. “That’s been a frustration since the November meeting was canceled,” said Corbett spokesman Patrick Henderson. “We have been having discussions with the DRBC staff as recently as this week.”
Pennsylvania officials also have been reaching out to colleagues in New Jersey and Delaware to “answer any technical questions they have,” Henderson said. “It’s simply a matter of raising their comfort level and getting the three votes that we need” to adopt the DRBC regulations. (www.mcall.com)
Exactly why we’re waiting on Delaware is not clear to anyone in the upper basin, but, fortunately, these recent comments by Henderson suggest Pennsylvania is no longer waiting on a state that wrongly implies, for the sake of cheap political points, that it get its water from the Delaware. We’re now talking about three votes and not worrying whether Delaware, in particular, is on board or not. Hooray for PA!
Nonetheless, and setting aside the real damages to local residents who still, after 4+ years, don’t know when or if natural gas development will be allowed in their region, the single most frustrating thing may be the fact the DRBC staff has already drafted regulations and simply refuses to vote on them. This is an outrageous dereliction of duty on the part of Pennsylvania’s fellow Commission members. This failure is made even worse by the fact natural gas development isn’t really going to be regulated by the DRBC, but the individual state anyway. Take a look at what the DRBC has to say about that!
The revised draft regulations are divided into sections that address the purpose, authority and scope of the rule (7.1); definitions (7.2); administrative processes (7.3); water sources and conditions of bulk water use and management approvals for natural gas development projects (7.4); the protection of high value water resource landscapes and commission-designated Special Protection Waters through mandatory Natural Gas Development Plans for lease holdings of 3,200 acres or more and for all project sponsors who intend to develop more than five well pads (7.5); and the transfer, treatment and discharge of wastewater generated by natural gas development activities (7.6).
The commission will rely on the oil and gas program of the state in which a natural gas well is located to regulate the construction and operation activities of the natural gas well and well pad for which separate administration by the commission would result in unnecessary duplication. If a state or federal regulatory requirement is more stringent than a DRBC requirement, the more stringent regulation would apply. Upon its effective date, which will be 60 days after commission approval, Article 7 would supersede the Executive Director’s Determinations dated May 19, 2009, June 14, 2010 and July 23, 2010. (from DRBC Website)
So it appears we have a situation where the single thing accomplished by the states working together, through the DRBC, is that some member states now won’t allow others to do their jobs. What purpose is the DRBC serving if Delaware, New Jersey and New York can prevent Pennsylvania from regulating natural gas within its own borders, when that is exactly what the draft regulations propose? Why would any state allow this to happen? Wouldn’t New York and Pennsylvania be better served by simply withdrawing from the Commission or not funding it at all?
Many landowners in Broome, Delaware, Sullivan and Wayne Counties are banking on natural gas for some help in this wobbly economy. After speaking with several landowners, it’s become clear these hard working people are wit’s end and ready to sue somebody! The Department of Environmental Conservation has produced regulations for hydraulic fracturing in New York and these look to be adopted this summer. Pennsylvania has had its ducks in a row with natural gas for some time now, so what are we waiting for? Why are we allowing New Jersey and Delaware, two states that are primary beneficiaries of inexpensive Marcellus Shale gas, to forever delay things when the latter shows its appreciation by demagoguing about impacts on water they don’t even get from the Delaware? Natural gas development has been proven safe, the DRBC staff has produced draft regulations and the Delaware River Basin Commission members are still stalling – doing nothing – but this isn’t Seinfeld. It’s real life and real people are hurting. Enough already with all this nothing! It’s time to act before someone gets sued.