Delaware • New Jersey • Pennsylvania
New York • United States of America
Legal Challenge by Wayne Land and Mineral Group, LLC
On May 17, 2016, Wayne Land and Mineral Group, LLC filed a complaint against the Delaware River Basin Commission (DRBC) in federal district court. The DRBC will not be commenting on this active legal matter at this time.
Much of the new drilling interest taking place in northeastern Pennsylvania and southern New York is targeted at reaching the natural gas found in the Marcellus Shale formation, which underlies about 36 percent of the Delaware River Basin. Because the Marcellus Shale is considered a tight geologic formation, natural gas deposits were not previously thought to be practically and economically mineable using traditional techniques. New horizontal drilling and extraction methods, coupled with higher energy costs, have given energy companies reason to take a new interest in mining the natural gas deposits within the Marcellus Shale.
However, these new extraction methods require large amounts of fresh water to fracture the formation to release the natural gas. A significant amount of water used in the extraction process is recovered, but this "frac water" includes natural gas and chemicals added to facilitate the extraction process, as well as brine and other contaminants released from the formation.
Why Is The DRBC Involved?
The DRBC is a federal-interstate compact government agency that was formed by concurrent legislation enacted in 1961 by the United States and the four basin states (Pennsylvania, New York, New Jersey, and Delaware). Its five members include the basin state governors and the Division Engineer, North Atlantic Division, U.S. Army Corps of Engineers, who serves as the federal representative. The commission has legal authority over both water quality and water quantity-related issues throughout the basin.
In connection with natural gas drilling, the commission has identified three major areas of concern:
- Gas drilling projects in the Marcellus Shale or other formations may have a substantial effect on the water resources of the basin by reducing the flow in streams and/or aquifers used to supply the significant amounts of fresh water needed in the natural gas mining process.
- On-site drilling operations may potentially add, discharge, or cause the release of pollutants into the ground water or surface water.
- The recovered "frac water" must be treated and disposed of properly.
Note: The commission does not get involved in the private negotiations taking place between natural gas drilling companies and private property owners. However, property owners are advised to seek appropriate technical and legal representation to ensure that they obtain adequate protection of their property.
At the DRBC's March 15, 2017 business meeting, LTC Michael A. Bliss, commission chair pro tem, speaking on behalf of the commissioners gave the following update on the status of DRBC adoption of regulations for natural gas development activity:
- The commissioners will be considering for action at today’s business meeting the draft 2017-2019 Water Resources Program. It is accurate that the draft 2017-2019 Water Resources Program includes a statement about natural gas rulemaking. It is also accurate that the same or similar statements have been included in each Water Resources Program since 2010 that has been adopted and approved by the commissioners following a duly noticed public hearing.
- There is no other activity or action planned on natural gas development rulemaking at today’s quarterly Commission business meeting.
- On May 5, 2010, at a DRBC business meeting, the DRBC commissioners unanimously directed DRBC staff to develop draft regulations on well pads in the shales for notice and comment rulemaking and postponed the DRBC’s consideration of well pad dockets until regulations are adopted.
- By Resolution and Order dated December 8, 2010, the Commission preserved the right of certain persons to file an application raising the issue of whether exploratory natural gas well projects are properly subject to the Commission’s review and approval jurisdiction, and to obtain an administrative hearing if the application is denied or not considered. In one pending federal court litigation, DRBC offered the plaintiff-landowner seeking to install a natural gas well and develop it through hydraulic fracturing the opportunity to seek a jurisdictional determination from the Commission.
- Draft natural gas development regulations were published on December 9, 2010 and the comment period closed on April 15, 2011. Nearly 69,000 comments were submitted, and revised draft natural gas development regulations were issued on November 8, 2011.
- Regulations have not yet been adopted, and since 2011 the Commission has neither received nor processed any applications for natural gas development projects. The effect has been a de facto moratorium on unconventional shale gas drilling within the Delaware River Basin.
- DRBC staff and the staff of all of the signatory parties collectively have spent, and continue to spend, extensive time and effort on matters relating to the regulation of natural gas development in the Delaware River Basin. Since 2010, the Basin states in which tight shale formations potentially containing recoverable natural gas are most likely to occur (PA and NY) have also worked to finalize laws, regulations and, in the case of New York, a state environmental impact analysis, to regulate or control natural gas development activities. The process has been dynamic and complex.
- There have been numerous meetings and discussions between DRBC staff and member agencies on this issue since 2010, and those meetings and discussions are expected to continue in the future. The commissioners and staff will not comment publicly on any ongoing deliberations.
- The current activities of the DRBC staff, including the DRBC executive director and counsel, related to natural gas development activities are undertaken with the knowledge and support of the DRBC commissioners.
- The DRBC commissioners, not the DRBC staff or executive director, are the decision makers on this matter.
- There are no current plans to take a vote on the draft rules that were published in 2011. Any new or continued rulemaking initiated by the Commission would be subject to further public notice and comment.
- A vote on any rulemaking can occur only at a duly noticed DRBC business meeting that is open to the public.
- The DRBC commissioners continue to confer in good faith on a path forward.
- The commissioners recognize that there is a desire for more information and updates on these matters, and we encourage the public and the media to reference the DRBC web site for the most accurate and up-to-date public information.