Ban Fracking in the Delaware River Basin (MD, NY, NJ, PA, DE)

by Duane Nichols on April 2, 2018

The Delaware River Basin is in NY, NJ, PA, MD, and DE

Time For a Full Fracking Ban in the Delaware River Basin

From an Article by Rob Friedman, Natural Resources Defense Council, March 30, 2018

Today marks the conclusion of a four-month long comment period on proposed fracking regulations in the Delaware River Basin. The draft regs were put forward by the Delaware River Basin Commission (DRBC), the body responsible for regulating activities affecting water quality in the Delaware River Basin. Securing a fracking ban would be a huge victory in the fight for clean water and against dirty fossil fuels.

The Delaware River Basin extends from the Catskills in New York to parts of New Jersey, Pennsylvania, Delaware, and Maryland, and is a vital water source for over 17 million people, about five percent of the nation’s population. Due to the watershed’s outstanding natural, cultural, and recreational contributions to the nation, Congress has designated several segments of the Delaware River and its tributaries for protection under the Wild and Scenic Rivers Act.

The Commission took a big step in proposing a fracking ban for the River Basin, but the proposed ban does not go far enough, as it leaves open the potential for activities that could undermine the ban. These include permitting fracking wastewater storage, treatment and disposal in the basin, and allowing for the export of freshwater from the basin for use in fracking elsewhere. Over the course of the comment period, hundreds of citizens from across the watershed came out to six listening sessions to speak in support of a full ban.

NRDC’s comment letter on the proposed ban makes three main points:

1. The DRBC rightly proposes a ban on fracking in order to protect the region’s environment and economic livelihood: Fracking industrializes communities, contaminates drinking water and destroys fragile ecosystems.
2. The DRBC should ban the treatment and disposal of fracking wastewater in the watershed: Fracking generates massive amounts of polluted wastewater that threaten the health of our drinking water supplies, rivers, streams, and groundwater. These threats to water quality are present well beyond the footprint of the fracking well, even into areas where fracking itself is banned. Even industrially-treated fracking wastewater can harm water quality.
3. The DRBC should ban water withdrawals for fracking where it is permitted: Fracking is a highly water-intensive process, requiring millions of gallons of water to frack each well. Removing water for fracking would harm the watershed by threatening regional drinking water security and creating drought conditions that harm aquatic species, among other impacts.

For these reasons and more, NRDC stands with our allies across the region in supporting a full and complete fracking ban in the Delaware River Basin. You can read our full comments here, which includes a detailed report on the public health and environmental impacts of fracking wastewater.

Despite the critical role it plays in the lives of millions of Americans, this unique area has been at risk to fracking for over ten years. While home to bass, spawning shad, trout, and one of the healthiest American eel populations in the country, the Delaware River Basin also sits on top of the Marcellus Shale, a prominent source of natural gas. For over seven years, NRDC and our allies have urged the DRBC to stop fracking in this important region. And since 2011, there has been a de facto moratorium on fracking and its associated activities.

NRDC commends the DRBC for proposing a ban on fracking in the watershed. While an important step, a ban on drilling alone is insufficient to protect the Delaware River Basin. The time has come to make the moratorium a full ban.

{ 2 comments… read them below or add one }

Duane Nichols April 13, 2018 at 10:29 pm

http://www.buckscountycouriertimes.com/news/20180410/drbc-receives-nearly-9000-submissions-on-fracking-ban-proposal

DRBC receives nearly 9,000 submissions on fracking ban proposal

Article by Kyle Bagenstose, Bucks County Courier Times, April 10, 2018

Public comment on the controversial proposal closed March 30.

With public comment closed on a controversial fracking ban proposal for the Delaware River basin, regulators must now tackle an arduous task: combing through nearly 9,000 submissions received over the past four months.

“It’s going to take some time,” said Peter Eschbach, spokesman for the Delaware River Basin Commission (DRBC).

The proposed regulations are among the most controversial in years put forth by the DRBC, an interstate regulatory group composed of Pennsylvania, New Jersey, New York, Delaware and the federal government. Introduced last fall, the proposal calls for the banning of hydraulic fracturing — or fracking — in the basin. The process involves injecting highly pressurized fluids underground to crack up rocks and release natural gas deposits.

Fracking arrived in Pennsylvania about a decade ago, leading to a boom that has made the state the nation’s second-highest producer of natural gas, but also caused concerns about pollution of the environment and drinking water. Eastern Pennsylvania has been shielded from any drilling since the DRBC declined to pass any regulations in 2011, creating a de facto moratorium.

Enter last fall, when the commission put forth updated proposals that would ban fracking in the basin — a measure long sought by environmentalists — but allow for the disposal of treated wastewater and extraction of river water for fracking operations outside the basin.

Now that public comment has concluded, even the number of comments submitted is subject to controversy. The DRBC’s website states it received 8,687 online submissions and 227 oral comments.

But on Tuesday, the Bristol Borough-based Delaware Riverkeeper Network blasted the numbers as misleading, claiming a network of anti-fracking groups submitted “at least 40,000” comments to the organization.

“This discrepancy is due to the fact that the DRBC counted thousands of individual comments submitted by members of the organizations as a single comment,” the Riverkeepers wrote in a statement.

Eschbach said this charge is untrue, and that DRBC staff technically look at each response as a “submission,” which could contain any number of individual “comments.”

Using a software system called SmartComment, staff mark down and catalogue each time a comment is made in a submission.

“We’re committed to making sure that everyone’s voice is heard,” Eschbach said.

SmartComment does recognize form letters and automatically condenses them into a single bucket, saving staff from analyzing each one, Eschbach said. But he added staff still keep a tally of how many such submissions it receives, and offered a single submission that included a petition of about 20,000 names as an example.

“The actual comment is about a paragraph long,” Eschbach said. “But it’s probably about 20,000 comments.”

Eschbach said commission staff have yet to count how many total comments have been received, which will only come after each submission is analyzed.

A review by this news organization of the last 100 submissions received ahead of the March 30 public input deadline showed a range of responses. About 62 percent said they wanted a full ban on all fracking-related activities, while another 12 percent said they opposed fracking generally. About 19 percent said they believed the DRBC proposals are unfair to the drilling industry and wanted the regulations withdrawn, while just 7 percent said they favored the regulations as currently proposed.

In addition to a more rigorous review of comments, also time consuming for the DRBC will be responding to the submissions. Eschbach said commission staff will have to respond to each type of comment, potentially after consulting with subject matter experts within the organization or even conducting new research.

The commission’s findings will be summarized in a “comment response document” that will be presented to the DRBC’s five representatives. Eschbach says that report will generalize how many comments were received in favor of each particular opinion, although it may not include the exact numbers. It will also include any changes to the proposal recommended by agency staff.

Ultimately, the decision will be a political one. The governors of Pennsylvania, New York and Delaware already voted to propose the regulations, meaning one would need a change of heart, or calculus, for the regulations to take a different path.

Groups on both sides of the debate used closing of public comment as an opportunity to reiterate their stance. In a press release, the pro-drilling industry group Marcellus Shale Coalition said the regulations violated the U.S. Constitution and lambasted the politics of the process.

“The proposed ban would represent the epitome of an illegal taking” of property owners’ mineral rights, the coalition argued. ”(And) it is clear that a majority of commissioners have already made up their political minds on this matter.”

The coalition also argued drilling could be done safely, claiming the industry has a 97 percent compliance rate with environmental regulations in the state and has spent “hundreds of millions” of dollars on environmental safeguards.

“Pennsylvania’s unconventional shale gas industry has a demonstrated track record of operating in a manner that protects our shared environment,” the release said.

Groups such as the Philadelphia-based environmental nonprofit PennFuture, on the other hand, argued in favor of a complete ban.

“The risks on water resources by fracking are well known,” wrote Abigal M. Jones, staff attorney. “The commission has the authority and duty to protect the important water resources and should adopt the proposed ban to fulfill that duty.”

Among the proponents of a ban are the Newtown Township supervisors, who recently voted 4-1 to submit a comment calling for a ban of all fracking-related activities. But the town is also considering preemptive action, with supervisors saying they may dust off a proposal to amend the township’s joint municipal zoning ordinance, which it shares with Upper Makefield and Wrightstown.

The amendment would establish “oil and gas drilling, processing and transport” as a new land use, requiring conditional approval for fracking. It would also only allow drilling in Wrightstown’s rural industrial and quarry/agriculture districts, not on any property subject to a conservation easement or open space restrictions.

Newtown Township Supervisor John Mack said board members recently had discussed resuming work on that amendment, though it has not yet been placed on any planning commission meeting agenda.

The proposed amendment came under review at a January 2017 community meeting, where attorney Jordan Yeager, of Doylestown Township’s Curtin & Heefner law fim, discussed its pros and cons as a way to regulate gas and oil drilling at the municipal level.

Yeager noted in a letter to the Riverkeepers that officials in the jointure municipalities should not approve the amendment without first revising it, saying a lack of scientific due diligence could render the municipalities vulnerable to legal challenges under the state’s environmental laws.

Amendments to the joint zoning ordinance cannot go into effect until all three municipalities approve them.

Wrightstown supervisors have considered the fracking jointure amendment on and off for the past two years, said Chester Pogonowski, the board’s chairman. Right now, he said, there is no consensus and there is no scheduled discussion.

The amendment has not yet been in front of Upper Makefield’s board of supervisors, said Chairman Tom Cino. Some environmental groups have been critical of the proposal, saying it could signal to drillers that the township is open for business.

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Morgan-Besecker July 16, 2018 at 7:11 am

Court reinstates lawsuit over fracking in Delaware River Basin

From an Article by Terry Morgan-Besecker, Citizen’s Voice, Wilkes-Barre, PA, July 14, 2018

A company that wants to drill for natural gas in the Delaware watershed will get a second chance to challenge the Delaware River Basin Commission’s authority to regulate the activity.

The 3rd Circuit Court of Appeals recently ruled U.S. District Judge Robert D. Mariani erred when he dismissed a lawsuit filed by Wayne Land and Mineral Group, which seeks to construct a hydraulic fracking well pad to explore for natural gas within the watershed.

Hydraulic fracturing is a process that uses high pressure to inject a large volume of water, chemicals and sand into Marcellus Shale, causing it to crack and release natural gas.

The DRBC placed a moratorium on fracking within the watershed in 2010 until it could develop regulations to cover the practice. It still has not done so. Environmental groups viewed Wayne Land’s lawsuit as an attack on the moratorium.

The suit argued the DRBC did not have authority over fracking because the activity did not constitute a “project” as defined by the DRBC’s compact — an interstate agreement that regulates use of water from the Delaware River.

Mariani rejected the group’s challenge last year, finding that language within the compact clearly covers fracking. The 3rd Circuit court disagreed.

In a 48-page opinion filed earlier this month, the court said definition of a project was ambiguous. It sent the case back to Mariani with instructions to hear additional evidence to determine what types of activities the drafters of the compact meant to include.

David Overstreet of Pittsburgh, Wayne Land’s attorney, said the ruling is key victory for his client. The case reinstates the lawsuit, but more importantly the 3rd Circuit Court indicated it had concerns about how the DRBC defined a “project.”

In the opinion, the court said it was mindful of concerns about employing an overly broad interpretation of a project because it could “sweep nearly any activity that happens to use basin water.” That could “potentially include the construction of a new skyscraper in New York City or a small housing development in rural Pennsylvania,” the court said.

“The position of the commission is that anything that uses water is a project,” Overstreet said. “I think the court of appeals said that simply goes too far.”

Maya von Rossum of the Delaware Riverkeeper Network, an environmental group that intervened in the case, does not see the ruling as a defeat.

“It just means we get the opportunity to go back to court to build a record as to how devastating drilling and fracking operations are and why it is essential that DRBC regulates it,” she said.

The 3rd Circuit Court stressed it is not taking any position regarding the merits of arguments put forth by the DRBC, Wayne Land or others that intervened in the case. That issue must be decided by Mariani after further evidence is presented.

“To be clear, at this stage, we are not adopting or endorsing Wayne’s interpretation or the commission’s or anyone else’s,” the court said. “We are simply noting that the parties have posited reasonable interpretations that bear their own strengths and weaknesses.”

Source: https://www.citizensvoice.com/news/court-reinstates-lawsuit-over-fracking-in-delaware-river-basin-1.2361614

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