ChesterNewMatterSummer2017 - 10

Save Our Environment

DRBC Fracking Moratorium Survives Court Challenge:
What's Next for Shale Gas Development in the
Delaware River Watershed?

By John R. Embick, Esquire
Chairman of the Environmental
Law Section

O

n March 23, 2017, Federal District Court Judge
Robert D. Mariani dismissed a challenge brought
under the Declaratory Judgment Act to the alleged
seven-year fracking moratorium imposed by the Delaware
River Basin Commission ("DRBC") in the matter of Wayne
Land and Mineral Group, LLC v. Delaware River Basin
Commission, et al., Doc. No. 3:16-CV-00897 (M.D. PA). The
case was brought by Wayne Land and Mineral Group LLC
("WLMG"), an entity who sought a determination that its
proposed shale gas development project was not subject to the
jurisdiction of the DRBC.
The Delaware River arises in the Catskill Mountains of New
York and flows more than 300 miles to the Atlantic Ocean at
the mouth of the Delaware Bay. The watershed of the basin
comprises almost 13,500 square miles of land and comprises
a little less than one-half of one per cent of the land area of
the continental United States (compare this to the enormous
area which comprises the Chesapeake Bay Watershed). Nearly
1,000 community water systems - including New York City
and Philadelphia - depend, in full or in part, on the important
water resources of the Delaware River Basin.
In addition to domestic water supply uses, there are a variety
of additional water uses in the Basin: including recreation,
fisheries, wildlife, energy, industry, and navigation (the
Delaware Bay is one of the largest and most heavily used
petroleum transportation "roads" in the nation). The Delaware
River Basin watershed exhibits many diverse land uses -
from forests to agriculture to densely populated and heavily
developed urban landscapes.
The DRBC was formed by an agreement or "Compact"

10 | New Matter

between the states of New York, New Jersey, Pennsylvania,
Delaware and the United States, which became effective in
1961.
Pursuant to the Compact, the DRBC has jurisdiction over
and reviews "projects" which affect water resources in the
Delaware River Basin. See DRBC Compact, § 3.8. In 2009,
a determination of the then Executive Director Carol Collier,
indicated that the DRBC had jurisdiction over gas projects.
See DRBC EDD 2009. The DRBC then allegedly imposed a
moratorium on fracking at a meeting on May 5, 2010, pending
the development of DRBC regulations.
DRBC staff published draft regulations governing natural
gas development projects for public comment on December
9, 2010, and also conducted public hearings on the proposed
regulations. The DRBC received oral comments and
approximately 69,000 written comments. In November 2011,
the DRBC published a revised set of draft regulations. In the
intervening time, the DRBC staff and the Commissioners have
continued to consider the public comments and the results
of further scientific studies and regulatory developments in
federal and state jurisdictions, but no final regulations have
been promulgated.
Only three states in the Nation have prohibited fracking.
They include Vermont, New York and Maryland.
Vermont's prohibition is interesting because that state does
not have known deposits of Marcellus Shale, so you would not
expect fracking to be employed in Vermont (however, there
may be other shale deposits in Vermont). U.S. Senator Bernie
Sanders' (I-VT) unsuccessful 2016 presidential campaign
platform contained an anti-fracking plank.
New York's fracking ban grew out of a moratorium, which
was supplanted by a ban imposed via executive order by
Governor Mario Cuomo in 2014. New York studied fracking
for several years, before concluding the fracking process should
be prohibited.



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