The Delaware River is the longest un-dammed river east of the Mississippi. Over 15 million people across four states - Pennsylvania, New Jersey, New York and Delaware - rely on the river for a variety of consumptive and non-consumptive uses, including for drinking water, agricultural, recreational, and industrial uses. In Pennsylvania, this great water resource brings millions of dollars in recreation and tourism.
And yet, there is controversy in Pennsylvania over whether to open up this critical Basin to natural gas development, in particular the unconventional horizontal, high-volume hydraulic fracturing method, commonly known as “fracking”. So far, the interstate commission that oversees the use and protection of the Delaware River resources – the Delaware River Basin Commission (“DRBC”) – has not allowed fracking in the basin, citing the known short- and long-term risks and lack of proven protections of water resources. But the pressure has been mounting on the DRBC to allow natural gas extraction in the Basin.
PennFuture supports the current moratorium on fracking in the Delaware River Basin, is advocating for a permanent ban on natural gas extraction in the Basin, and has partnered with Conservation Voters of PA and others to get thousands to sign onto a petition asking DRBC to permanently ban unconventional natural resource extraction in the Basin. PennFuture will resist any proposal that threatens this great water resource in Pennsylvania.
The Delaware River Basin Commission
Established in 1961, the Delaware River Basin Commission created a federal Compact between the four Basin states and the federal government with the purpose of managing and restoring water quality to the Delaware River.
Before the DRBC was created, the Delaware River was largely considered to be an open sewer. The water was so polluted that it peeled paint from ships, made people ill just from the smell, and, in parts, could not sustain fish and other aquatic life. But now, the Delaware is hailed as one of the world’s top water quality restoration success stories, and its improved water quality has allowed river-based recreation to become one of the major economic drivers for the four-state area. This success was made possible by the DRBC, which allows for a unified approach to managing a river system without regard to political boundaries.
How the DRBC Protects the Basin Resources: the Compact
The Compact charges the Basin states with developing and adopting water resource programs. Commission programs include water quality protection, water supply allocation, regulatory review, water conservation initiatives, watershed planning, drought management, flood loss reduction, education/outreach, and recreation.
One of the more critical programs, designed to “keep the clean water clean,” is the Special Protection Waters program, which prevents degradation in streams and rivers considered to have exceptionally high scenic, recreational, ecological, and/or water supply values through stricter control of wastewater discharges and reporting requirements.
In addition to developing water resource programs, the DRBC has the authority to regulate certain activities in the Basin in order to protect and restore the water quality of the Delaware. According to Section 3 of the Compact, the DRBC must review and approve applications for any projects that may have a substantial effect on the Basin’s water resources, and approval may only be given when the Commissioners find and determine that the project would not substantially impair the water resources. Specifically, in recognizing the importance of protecting high quality waters – such as Special Protection Waters – the DRBC has the discretion to require project sponsors to obtain DRBC approval even where those projects may not meet other review and approval thresholds.
The Substantial Risks to Basin Resources from Gas Drilling
Pennsylvania is no stranger to natural resource extraction. But high pressure hydraulic fracturing used to produce natural gas from the Marcellus and Utica Shale formations poses substantial risks to fresh water resources. The process uses several million gallons of water, sand and chemical additives, under immense pressure, to release natural gas from deep inside the earth. Estimates vary, but about ten percent of this chemical mixture returns to the surface as what the industry refers to as “flowback water.” The fluids are high in dissolved solids and may contain sand, heavy metals, oil, grease, man-made organic chemicals and radioactive elements. This fluid would cause serious pollution if discharged into Pennsylvania waters without treatment. This means that millions of gallons of contaminated water must be stored and eventually transported off-site across Pennsylvania for treatment or disposal.
The DRBC has identified three significant areas of concern regarding fracking in the Basin:
- Withdrawals of groundwater and surface water for drilling projects in the Marcellus Shale may reduce the volume of water available for other purposes, such as drinking water supply, aquatic life, and recreation;
- Drilling operations may result in additional discharge of pollutants into groundwater; and
- The flowback water requires disposal and treatment which has the potential to pollute Delaware River Basin waters.
While running for office, Tom Wolf, the current Governor of Pennsylvania and one of the five Commissioners, made it a campaign promise to continue supporting a moratorium on fracking in the Delaware River Basin, and recently reiterated his position that gas production should not take place in the Basin.
Thus, it’s no wonder the DRBC has been hesitant to allow fracking to occur within the Basin.
Current Status of Fracking in the Basin: The “De Facto” Moratorium
In response to the noticable increase in the number of active and planned natural gas extracion projects within the Delaware River Basin, between 2009 and 2010, the Executive Director of DRBC issued several formal determinations that set the stage for the current moratorium on natural gas development in the Basin. Citing the potential significant environmental and water quality impacts, these decisions prohibited any natural gas extraction project (including associated infrastructure and exploratory wells) from occuring in the Basin within the drainage area of Special Protection Waters wihtout first applying for and obtaining DRBC approval. The determination also stated that DRBC would be promulgating regulations pertaining to natural gas development projects in the Basin.
In 2010, the DRBC issued draft Water Quality Regulations (Article 7) to protect the water resources of the Delaware River Basin during the construction and operation of natural gas development projects. The draft regulations apply broadly to all “natural gas development projects,” including the construction and operation of all natural gas wells in the Basin, regardless of the target geologic formation, whether a well is for production or exploration, or whether high-volume or low-volume hydraulic fracturing is contemplated. The DRBC received approximately 69,000 public comments on the draft regulations. Despite revisions in 2011, the Commissioners declined to take a final vote on adoption of the draft regulations, citing the need for more information on the potential harmful environmental impacts. This delay has resulted in the current “de facto” moratorium on gas development in the Basin.
Court Ruled: DRBC Has Authority to Regulate Fracking
In May 2016, a group of mineral rights owners sued the DRBC in federal district court in Pennsylvania, challenging the Commission’s authority to regulate gas development in the Basin. In a decision issued this March, the federal court concluded that the DRBC has the authority to regulate natural gas extraction activities, including well pads and related drilling, fracturing, and operation of natural gas wells under the Compact. Wayne Land and Mineral Group, LLC v. DRBC (M.D. Pa, Mar. 23, 2017) WLMG filed a Notice of Appeal to the U.S. Court of Appeals for the Third Circuit on April 7, 2017. The Court of Appeals has not yet issued its decision.
Under the District Court’s ruling, WLMG, and any other person seeking to undertake natural gas development projects in the Basin, must obtain the DRBC’s approval before undertaking those activities. And the DRBC has indicated that it will not consider or approve any natural gas extraction projects in the Basin without final regulations.
The DRBC has identified specific and serious concerns about the risk of harm posed by unconventional natural gas development in the Basin, and has held off on allowing such risky extraction unless and until it can ensure the protection of the water resources of Basin.
Considering the precious nature of the Basin’s resources, and the possible long-term impact that natural gas development can have on water resources, PennFuture is calling on the DRBC to issue a permanent ban on fracking in the Basin.
We can't afford the risk of serious environmental harm that may result from wide-spread natural gas development in the Basin. It’s taken the DRBC over half a century to bring the Delaware River back from the brink of collapse, and now is not the time to jeopardize those efforts.
PennFuture will continue to be at the forefront of this issue, advocating for the protection of the Delaware River Basin resources.