Mary Cummings Jordan / WHYY
View of the Delaware River from Bucks County, Pa.
In 1961, President Kennedy signed a compact with the Governors of New York, New Jersey, Pennsylvania and Delaware, which created a partnership between those states and the federal government to manage water in the Delaware river basin. The Delaware River Basin Commission consists of governors from the four states, and the federal government is represented by the Army Corps of Engineers. The DRBC manages water quality, withdrawals, droughts, floods, conservation and permitting for the river and its tributaries. It’s funded by the states, the federal government, permit fees, fines, as well as public and private grants.
The Delaware River is the longest free-flowing river east of the Mississippi with its headwaters located in Hancock, N.Y. It stretches 330 miles and empties into the Delaware Bay. The river provides drinking water to about 13 million people in New York, New Jersey, Pennsylvania and Delaware. In 1968 the Delaware River was declared a “Wild and Scenic River” by President Lyndon Johnson, which affords it special protection. Parts of the river have also received the designation of “special protection waters.” Two primary regulatory functions of the DRBC are water quality and quantity. The DRBC has about 30 staff members, including several hydrogeologists and water resource engineers. Before the DRBC stepped into the natural gas debate, it was an agency that conducted most of its business free of public scrutiny. But the development of the Marcellus Shale has changed that.
About one-third of the Delaware River Basin, in New York and Pennsylvania, lies above Marcellus Shale natural gas deposits. In May of 2009, DRBC executive director 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 the drilling practice known as “hydraulic fracturing,” or 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.
A de-facto moratorium imposed by the Commission prevented drilling for natural gas in Pennsylvania’s Wayne and Pike counties, as well as parts of southern New York, until the DRBC established its own regulations for gas drilling. In 2021 the Commission banned fracking in the watershed. (If DRBC rules are more stringent than state regulations, the DRBC rules would supersede the states.) The gas industry has cried foul, saying the DRBC overstepped its authority.
But before enacting a ban, the DRBC released regulatory proposals in December of 2010. Following that, it held public hearings and received an unprecedented response from both sides of the issue. In May, 2011 New York Attorney General Eric Schneiderman filed a lawsuit against the federal government, charging the U.S. Army Corps of Engineers in its role as a member of the Commission violated the National Environmental Policy Act. The lawsuit says NEPA requires the DRBC to do a more thorough environmental review before implementing any new regulations. In August, 2011 environmental groups filed a similar lawsuit.
After reviewing more than 60,000 public comments, the DRBC posted its revised draft regulations online in early November, 2011. Environmental groups, such as the Delaware Riverkeeper Network, criticized the draft rules and continued to lobby for a more extensive environmental impact study. Environmentalists said the new rules do not go far enough to protect drinking water supplies. They planned a large demonstration and civil disobedience at a scheduled November 21, 2011 meeting where the DRBC planned to vote on the new rules. But just days before that meeting, Delaware Governor Jack Markell announced his intent to reject the proposed rules. Like the environmentalists, Markell wanted the DRBC to conduct an environmental impact study before drafting new regulations. With Pennsylvania and New Jersey likely to approve the new regulations, that put the federal government in the position of casting a deciding vote. But before hundreds of protestors descended upon Trenton, NJ, the divided Commission canceled the meeting.
Subsequently, New York decided to ban fracking completely within its borders at the end of 2014, citing health concerns.
A group of landowners in Wayne County, Pennsylvania sued the DRBC in federal court in May 2016, arguing the agency does not have the authority to regulate gas drilling.
On November 30, 2017 the DRBC released proposed rules that would ban fracking in all shale formations in the Delaware River Basin, established a public comment period and scheduled public hearings.
The Commission voted to ban fracking February 25, 2021. All four basin states — Pennsylvania, New Jersey, Delaware and New York — voted to ban the practice, citing scientific evidence that fracking has polluted drinking water, surface water, and groundwater. Republican lawmakers challenged the ban in court but their case was dismissed by a federal appeals court in September, 2022 due to lack of standing. In December, 2022 the Commission prohibited fracking wastewater discharges, but did not rule out the possible transport and storage of wastewater in the Basin.
The Delaware River Basin Commission said its decision will control future pollution, protect public health and preserve the waters of the basin.
In voting to ban the practice, the four states that are part of the commission cited scientific evidence that fracking has polluted drinking water, surface water, and groundwater.
Senate Republicans say the Delaware River Basin Commission doesn’t have the authority to impose a moratorium on fracking in the basin.
The Delaware River Basin Commission has a de facto ban on fracking in place, but it is considering new rules that would include allowing the storage, treatment, and disposal of fracking waste, and the removal of water for fracking in other places.
New prohibitions would be a big victory for environmentalists and residents who have been campaigning for them for years.
Companies are allowed to protect trade secrets, and the health risks of unidentified chemicals are unknown. Advocates push for disclosure, saying the public needs to know about the chemicals in order to help protect drinking water.
