ChesterNewMatterSummer2017 - 13
Save Our Environment
Continued from page 11
DRBC before the project could be implemented. See WLMG v.
DRBC, Slip Op. at 43.
WLMG had argued that the gas development proposal
was not subject to DRBC jurisdiction because: (1) the well
pad and the appurtenant facilities to be constructed on the
Property, as well as all related activities to be carried out on
the Property, will be designed, built, operated and carried out
for the exploration, extraction and development of natural gas
and not for the conservation, utilization, control, development
or management of water resources; (2) WLMG does not
propose to develop, construct or operate a water withdrawal,
dam, impoundment or reservoir, or to construct or operate a
wastewater treatment or discharge facility in connection with
the development on the Property; and (3) all water used in
connection with the planned Well Pad on the Property will be
obtained from properly licensed and approved sources owned
and operated by persons or entities other than WLMG, will be
managed and delivered to the Well Pad in accordance with all
applicable laws and regulations and any applicable fees will be
paid; and (4) all wastewater generated in connection with the
Well Pad on the Property will be managed by properly licensed
and/or permitted entities other than WLMG in accordance
with all applicable laws and regulations.
disapprove such project based on its determination that the
project would or would not substantially impair or conflict
with the Commission's comprehensive plan.
Surprisingly, during the evidentiary hearing before Judge
Mariani, the current DRBC Executive Director and the
Former Executive Director, seemed to indicate that the DRBC
would have accepted any gas development proposal for a
determination of DRBC jurisdiction, based on the 2009 EDD,
and despite the Commission's decision in 2010 not to accept
applications for gas well projects pending the enactment of
drilling regulations. No party apparently appealed these earlier
actions of the DRBC.
I think it is likely that pressure will build for DRBC to
reach a decision on fracking. Given the difference in policy
determinations about fracking of, on the one hand, New York
and Maryland, and, on the other hand, Pennsylvania, it seems
like the DRBC could go either way. Based on the WLGM v.
DRBC case, it is also likely that a gas development project
soon will be submitted for, at minimum, a formal DRBC
jurisdictional determination.
Judge Mariani disagreed, saying:
"In accordance with its authority to interpret the terms of
the Compact, the Court finds that the allegations of the
Plaintiffs Complaint, taken as true and viewed in the light
most favorable to WLMG, establish that WLMG's proposed
activities constitute a "project" as that term is defined in
Section 1.2(g) of the Compact. That section provides:
(g) "Project" shall mean any work, service or activity
which is separately planned, financed, or identified by
the Commission, or any separate facility undertaken
or to be undertaken within a specified area, for the
conservation, utilization, control, development
or management of water resources which can be
established and utilized independently or as an addition
to an existing facility, and can be considered as a
separate entity for purposes of evaluation; ...."
Compact ยง 1.2(g). Slip Op. at 41.
Judge Mariani found that the gas well project undeniably
required water resources to be utilized for its implementation,
and that WLMG had clearly conceded that it did would do so
in its complaint.
Accordingly, Judge Mariani concluded that section 3.8 of
the Compact requires Plaintiff to submit an application to the
Commission for a determination as to whether its proposed
"project" has a "substantial effect on the water resources of the
Basin" and, if so, whether the Commission shall approve or
New Matter | 13
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