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.
The commissioners at their May 5, 2010 meeting unanimously directed 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. Draft natural gas development regulations were published on December 9, 2010; 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. The special meeting scheduled for Nov. 21, 2011 to consider adoption of the revised draft natural gas development regulations was postponed to allow additional time for review by the five DRBC members.
The scientific and policy questions that the commission must resolve in the course of preparing natural gas regulations are extremely complex, and the stakes for the larger region are high. Over 15 million people in four states rely on waters of the Delaware River Basin for drinking water, recreation, commercial, industrial, and other uses. It is vital to the future of the entire region for the commission to strike the appropriate balance between the use of the region's water resources for one purpose, natural gas exploration and production, and competing uses of the same water resources for drinking water supply and to meet other human, economic, and ecological needs.
At the DRBC's July 2013 business meeting, the commission chair gave a status update. Noting that DRBC staff and the collective staff of all of the signatory parties have spent thousands of hours on moving the natural gas process forward since the November 2011 meeting postponement, she concluded by saying, "I and my colleagues are continuing to confer in good faith and with forward momentum within and outside of our regularly scheduled business meetings to reach concensus on a path forward that provides for the development of a potentially valuable energy source while protecting the vital water resources within the basin."
Any decision to move forward regarding adopting regulations for natural gas development will come from the commissioners. There is no timeframe for when the draft regulations will again come up for a vote, which can only occur at a DRBC business meeting that is open to the public and for which the public has received the required advance notice.
Further information regarding the rulemaking will be posted on DRBC's web site as soon as it becomes available.