Pennsylvania

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Wayne County landowners sue DRBC to allow gas drilling along the Delaware

A view of the Delaware River from Morrisville, Pa.

Kim Paynter / WHYY

A view of the Delaware River from Morrisville, Pa.

A new lawsuit seeks to jump start natural gas drilling in Northeast Pennsylvania along the Delaware River where a defacto moratorium on Marcellus Shale gas production has been in place for six years. The federal suit filed by the Wayne Land and Mineral Group challenges the authority of the Delaware River Basin Commission to regulate natural gas drilling. The DRBC, a four-state agency that includes a federal representative, oversees water quality for the Delaware River based on a compact signed back in 1961. The lawsuit argues the DRBC has overreached its authority.

“The Commission, relying on the enormous power that it contends has been delegated to it by Section 3.8 of the Compact, and seeking to placate those State governments and special interest groups opposed to natural gas development, has declared that all natural gas well pads and related facilities targeting shale formations in the Basin are “projects” that it will review under Section 3.8 of the Compact.”

In May 2009, the commission decided through an executive determination that all gas drilling activity in the basin needed to be reviewed by the agency. The decision was based in part on concerns that hydraulic fracturing would jeopardize water quality in the river and its tributaries.  A year later, the five Commissioners voted unanimously to hold off on any decisions regarding drilling in the Basin until new regulations were adopted.

But deliberations over how to regulate gas drilling have been in limbo ever since. And the Wayne County landowners say they are stuck in a Catch-22.

An anti-drilling lawn sign in East Stroudsburg, Pa.

Susan Phillips / StateImpact PA

An anti-drilling lawn sign in East Stroudsburg, Pa.

State environmental regulators won’t approve a permit to drill without the greenlight from the Delaware River Basin Commission.  Meanwhile, the commission has not implemented its own gas drilling regulations and so won’t review any applications for well pads.

The group’s attorney David Overstreet says the group wants to drill an exploratory well and comply with all state and federal regulations.

“They’re not arguing that these activities shouldn’t be regulated,” said David Overstreet, “or that they shouldn’t comply with state or federal requirements.”

Overstreet says the question is, how are “projects” defined. “Do they include farms and suburban subdivisions and shopping centers?” he said.

The DRBC issued a statement that said it “intends to defend its authority under the Delaware River Basin Compact.”

“The Delaware River Basin Compact has been a federal and state law since 1961. The commission, working closely with its federal and state partners, will continue to manage the basin’s water resources, under the authority and requirements of the 1961 Compact creating the DRBC, to ensure that projects do not substantially impair or conflict with its comprehensive plan.”

Environmentalists quickly condemned the lawsuit, and defended the DRBC’s current interpretation of its compact.

“The DRBC’s authority over shale gas extraction, given the impacts of drilling and fracking for gas, is legally clear and strong,” said Delaware Riverkeeper Maya van Rossum in a statement. “The Delaware Riverkeeper Network will be seeking to intervene and to defend our watershed from this specious claim that, if successful, would inflict so much harm on so many.”

Records show the 76 acre plot on undeveloped land in Wayne County was sold by David Jones to the Wayne Land and Mineral Group for $173,745.58 in October 2015. Jones had originally acquired the land with his wife in 2009 for $262,473.31. One of the current landowners includes Curt Coccodrilli, a member of the Northern Wayne Property Owners Alliance, which has opposed the DRBC’s de facto moratorium. Coccodrilli could not be reached for comment.

The de-facto moratorium imposed by the Commission prevents drilling for natural gas in Pennsylvania’s Wayne and Pike counties.

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