The Delaware River Basin Commission confirmed on Monday that it will consider adopting new rules that would ban natural gas drilling in the basin, a policy that would formalize a de facto moratorium that has been in place since 2010.
The interstate regulator of water quality and supply in the basin said in a statement that its public meeting this week will consider a resolution that would require its executive director to draft a new rule containing the proposed ban, which would be sent out for public comment by the end of November, and potentially adopted later.
“If the proposed resolution is approved by the commission on Sept. 13, the revised draft rules to be published on a later date would include prohibitions related to the production of natural gas utilizing horizontal drilling and hydraulic fracturing within the Delaware River Basin,” the DRBC said in a press release.
The resolution stated that the commissioners had “closely followed the evolving scientific literature on the impacts of natural gas development on water resources,” and considered “information from many stakeholders with diverse views” about gas development.
“WHEREAS, the combination of hydraulic fracturing with horizontal drilling and related activities for extracting natural gas from tight shale formations presents risks, vulnerabilities and impacts to surface and ground water resources across the country;
WHEREAS, the DRBC commissioners have conferred in good faith on the complex and evolving science and policy questions related to natural gas development;”
Also referring to the Delaware as the drinking water supply for 15 million people in New York, New Jersey, Pennsylvania and Delaware, the resolution, in addition to asking staff to draft a “prohibition” on gas drilling in the basin, also seeks new regulations on the transport, disposal, and treatment of fracking wastewater.The Delaware River Basin Commission is comprised of representatives appointed by the governors of the four states, along with a federal representative from the Army Corps of Engineers. While gas drilling was encouraged in the rest of Pennsylvania by both Gov. Ed Rendell and later Gov. Tom Corbett, drilling along the Delaware River encountered regulatory scrutiny from the DRBC.
In May of 2009, DRBC executive director at the time, Carol Collier, issued an “Executive Director Determination” that all natural gas production activity in the basin needed to be reviewed by the Commission. Collier was concerned about the water withdrawals needed for drilling as well as the impact on water quality from fracking. In May 2010 the five Commissioners voted unanimously to hold off on any decisions regarding drilling in the Basin until new regulations were adopted.
In December of 2010, the DRBC released its proposals. The agency received an unprecedented response from both sides of the issue. The agency posted its revised draft regulations online in early November, 2011. But just days before the commission planned to vote on the new rules, it canceled the meeting, and to this date, has yet to revisit the subject in a public forum. Monday’s statement from the DRBC made clear that it would not take public comment on the issue at Wednesday’s meeting.
Only two Pennsylvania counties with shale gas reserves lie along the Delaware River – Pike and Wayne counties. New York state imposed its own fracking ban in 2014.
Carol Collier, the former executive director of the Delaware River Basin Commission, says the decision will protect drinking water for residents of the four states.
“To me the area of gas producing rock in the Delaware River Basin is so small compared to the extent of the Marcellus and Utica shale plays,” Collier said. “And so many people are dependent on its water resources.”
The DRBC’s announcement follows an Associated Press report last week saying the commission had decided to consider a permanent ban some seven years after the de facto moratorium was put in place, and six years after the commissioners averted a vote on the hotly contested issue. That failure to make a formal decision on whether to allow gas drilling in the four-state watershed fueled an ongoing campaign by environmental groups for a permanent ban.
Environmentalists argue that allowing fracking in the basin would endanger drinking water supplies for some 15 million people in Pennsylvania, New York, New Jersey and Delaware. After last week’s AP report, environmental groups hailed the potential policy shift as a victory after years of campaigning.
Iris Marie Bloom is executive director of Protecting Our Waters, which had pushed for a ban on fracking in the watershed and lobbied Philadelphia lawmakers to support a permanent moratorium.
“We’re thrilled to have the DRBC considering a fracking ban, an outright and permanent ban, that’s what we’ve all been working for tens of thousands of us in four states,” said Bloom. She credited grassroots lobbying to the decision.
But some said Monday’s DRBC statement failed to specify a permanent ban on fracking that they seek, and worry that wastewater disposal and treatment would be allowed in the basin.
Maya van Rossum, leader of the Delaware Riverkeeper Network fears the resolution green lights the storage, treatment and disposal of fracking waste water from areas where it is permitted — such as Pennsylvania outside the Basin — and it would allow the inter-basin transfer of water and waste water for fracking. Studies have shown that some of the greatest risks to surface water involve fracking waste water spills and improper treatment.
“The language opens the door wide to some of the most devastating impacts of drilling and fracking,” she said.
The resolution represents a “rollback” from the protection given by the existing de facto moratorium, van Rossum said.
Jeff Tittel, director of the New Jersey Sierra Club, said a ban on fracking would be a major step forward but allowing the processing of fracking waste and taking water from the basin to allow fracking elsewhere would be a “giant step backwards.”
But Carol Collier, who is now senior advisor for Watershed Management &
Policy at the Patrick Center for Environmental Research, a division of the Academy of Natural Sciences of Drexel University, said she welcomed new regulations on storage, treatment and transfer of waste water. But much work remains to be done.
“If you have commercial facilities, I think it can be treated properly,” she said. “But right now some of the contaminants don’t even have standards so there’s a lot of work there that needs to be done to make it safe.”
The language of the resolution suggests the commissioners are open to longstanding concerns expressed by environmentalists that the chemicals used in fracking threaten the safety of ground water as a source of drinking water.
The resolution said the combination of hydraulic fracturing and horizontal drilling creates “risks, vulnerabilities and impacts to surface and ground water resources across the country.”
It said the health, safety and welfare of 15 million residents of the Delaware Basin, as well as commerce and industry, depend on the conservation and management of the area’s water resources.
The area that contains shale gas in Wayne and Pike counties also supports a vibrant tourism industry of fishing, boating and hiking near the popular Delaware Water Gap National Recreation Area.
David Kinney, a spokesman for Trout Unlimited, praised the move.
“We’ve long been concerned about the risks of natural gas development to water resources in the region, including in the Delaware River Basin, which is home to a world-class wild trout fishery that draws anglers from all over,” he said. “We support the DRBC’s efforts to keep clean water clean, and we’re looking forward to participating in this process to ensure continued protection of the watershed and its coldwater fisheries.”
The Pennsylvania Chamber of Business and Industry attacked the proposal, saying that natural gas development can be done safely, and ends up improving environmental quality by producing cleaner-burning natural gas.
“This resolution is misguided and we hope the Commission does not adopt it,” the chamber said in a statement.
It urged Pennsylvania Gov. Tom Wolf not to support the resolution, saying that to do so would be inconsistent with his plans to build up natural gas infrastructure while raising revenue through a severance tax on the industry.
“It is difficult for us to understand how a ban on drilling in some Pennsylvania counties is consistent with these positions,” the chamber said.
Wolf’s spokesman, J.J. Abbott, said Wolf is reviewing the draft resolution, and believes that “any decision regarding the future of this shared resource must be made in concert with the other DRBC members.”
Delaware Gov. John Carney said he is reviewing the document in light of the 2016 Delaware River Basin Conservation Act, which for the first time provides federal funding and technical expertise for conservation in the basin. As a former Congressman, Gov. Carney played a leading role in getting the law passed.
Delaware’s former governor, Jack Markell, played a crucial role in averting the DRBC’s 2011 vote when he said he would not vote to allow fracking in the basin.
New York State, which has its own ban on fracking, sees the Delaware River as a “critically important” source of drinking water, fish and wildlife, said Sean Mahar, a spokesman for the state’s Department of Environmental Conservation.
Reid Porter, a spokesman for the American Petroleum Institute, said the group opposes any fracking ban. “We oppose Delaware River Basin Commission’s current de facto moratorium and any ban on hydraulic fracturing, it is bad public policy,” Porter said.
He said that allowing gas development in the basin would generate more jobs and more local tax revenue while producing more cleaner-burning natural gas.
The DRBC said the resolution is procedural, and, if adopted, would lead to a new phase in the rulemaking process but not to any draft regulations on natural gas drilling being adopted at Wednesday’s meeting. The statement said the commissioners would take no public comments on the issue at the meeting.