DRBC formalizes hydraulic fracturing ban

Rules to be developed regulating inter-basin wastewater and water transfers

The following appears in the March 2021 issue of The PIOGA Press.

The Delaware River Basin Commission (DRBC) on February 25 voted to ban high-volume hydraulic fracturing for natural gas in the four-state Delaware River watershed. The action itself comes as no real surprise, only that it took so long to finalize.

The DRBC has had a temporary moratorium on fracking since 2010. In November 2017, the commission proposed an amendment to its rules to make the prohibition permanent and took public comment on the matter. Since then, all has been quiet, except for a statement in April 2018 saying the commission had no timetable for final action on the proposal.

The DRBC is a compact made up of Pennsylvania, New York, New Jersey and Delaware, along with a federal representative from the U.S. Army Corps of Engineers. The commission oversees matters involving water quality and water supply in the 13,539-square-mile Delaware Basin. For all but Pennsylvania, where the Marcellus Shale extends to the very northeastern tip of the Commonwealth, the matter of banning natural gas development is a moot point. The other three states either have no oil and gas activity, or in the case of New York, already banned high-volume hydraulic fracturing.

The representatives of all four states voted in favor of the ban. The Coast Guard member abstained, saying he hadn’t had the time to coordinate with the Biden administration.

Pennsylvania’s vote to impose the ban was particularly disappointing, as was the statement from Governor Tom Wolf: “Having supported this effort since I was a candidate for governor of Pennsylvania, I am proud to join with other DRBC commissioners in preserving the water resources of this unique region for generations to come,”

The commission listed the following as the determinations that led to the decision to impose the ban. Essentially everything can be refuted based on experience here in Pennsylvania in the neighboring Susquehanna River Basin, as managed by the Susquehanna River Basin Commission. We are reprinting these bullet items verbatim.

  • As the scientific and technical literature and the reports, studies, findings and conclusions of other government agencies reviewed by the commission have documented, and as the more than a decade of experience with HVHF (high volume hydraulic fracturing) in regions outside the Delaware River Basin have evidenced, despite the dissemination of industry best practices and government regulation, HVHF and related activities have adversely impacted surface water and groundwater resources, including sources of drinking water, and have harmed aquatic life in some regions where these activities have been performed.
  • The region of the Delaware River Basin underlain by shale formations is comprised largely of rural areas dependent upon groundwater resources; sensitive headwater areas considered to have high water resource values; and areas draining to DRBC Special Protection Waters.
  • The geology of the region in which shale formations potentially containing natural gas are located in the basin is characterized by extensive geologic faults and fractures providing preferential pathways for migration of fluids (including gases).
  • If commercially recoverable natural gas is present in the Delaware River Basin and if HVHF were to proceed in the basin, then:

–  Spills and releases of hydraulic fracturing chemicals, fluids and wastewater would adversely impact surface water and groundwater, and losses of well integrity would result in subsurface fluid (including gas) migration, impairing drinking water resources and other uses established in the comprehensive plan.

–  The fluids released or migrating would contain pollutants, including salts, metals, radioactive materials, organic compounds, endocrine-disrupting and toxic chemicals and chemicals for which toxicity has not been determined, impairing the water uses protected by the comprehensive plan.

–  HVHF activities and their impacts would be dispersed over and adversely affect thousands of acres of sensitive water resource features, including, among others, forested groundwater infiltration areas, other groundwater recharge locations and drainage areas to Special Protection Waters, where few existing roads are designed to safely carry the heavy industrial traffic required to support HVHF, prevent dangerous spills or provide access to remediate spills that occur.

This isn’t the end of the story. The formal ban came a month after a federal judge set an October trial date to hear a long-running challenge from landowners to the drilling moratorium, which is now a permanent ban. Pennsylvania Republican lawmakers, along with Damascus Township in Wayne County, also filed a separate federal legal action last month alleging that the moratorium illegally usurps the state legislature’s authority to govern natural resources.

Coming next: Wastewater regulations

Along with the fracking ban, the commission also adopted a resolution directing DRBC staff to propose regulations no later than September 30 addressing transfers of water and wastewater out of and into the Delaware River Basin. The resolution indicates the rules are to address, and the public notice is to seek comment on, the following:

  • Conditions under which an exportation of water from the basin may be approved or prohibited;
  • Conditions under which an importation of wastewater into the Basin may be prohibited; and
  • Any other provisions concerning inter-basin transfers of water and wastewater that commenters believe are necessary and appropriate to protect the public health or to preserve the waters of the basin for uses in accordance with the DRBC’s comprehensive plan.

The final rule and related documents are at www.state.nj.us/drbc/about/regulations/final-rule_hvhf.html.

PIOGA’s reaction to the DRBC ban:

“For more than 10 years, the member states of the Delaware River Basin Commission have ignored the facts about natural gas development in Pennsylvania through an ill-advised moratorium on drilling in a small section of Pennsylvania that is within the basin.

“The DRBC’s action continues to show that pressure from a small number of activists and politicians can drown out science and a decade of successful natural gas drilling in other areas of the Commonwealth, including the neighboring Susquehanna River Basin, which has seen thousands of wells drilled within its large geographical area and has consistently found no impact to water resources.

“The mantra of “listening to the science” has been a frequent talking point in recent months on a number of health and environmental issues facing our nation. We learned with the DRBC’s decision that the phrase can be nothing more than lip service. This decision robs landowners of their property rights, and they should give every consideration to mounting legal challenges to fight for those rights.”

Comment from State Senator Gene Yaw (R-Lycoming, Chairman of the Senate Environmental Resources and Energy Committee):

“The DRBC ban is not just an assault on a highly regulated industry that employs thousands of Pennsylvanians, but it’s another example of neighboring state’s dictating our energy policy. The commission is using New York’s failed policies to institute a ban on development. Pennsylvania has robust rules and regulations in place to protect our environmental resources, which have allowed for the safe development of natural gas in our state. This action serves to undermine economic development and job growth in the region and statewide.”

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