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Final Rule with Respect to High Volume Hydraulic Fracturing and Final Amendments to the Rules of Practice and Procedure Concerning Project Review Classifications and Fees
Final Rule: Summary & Background

Title:

Final Amendments to the Comprehensive Plan and Implementing Regulations with Respect to High Volume Hydraulic Fracturing; and Final Amendments to the Rules of Practice and Procedure Concerning Project Review Classifications and Fees

Action:

Final Rule, adopted February 25, 2021

Summary:

The Delaware River Basin Commission is amending its Comprehensive Plan and adopting new regulations to provide that high volume hydraulic fracturing (HVHF) in hydrocarbon-bearing rock formations is prohibited within the Delaware River Basin.

The Commission is simultaneously adopting amendments unrelated to the prohibition on HVHF to its rules concerning the classification of projects for review under Section 3.8 of the Compact and regulatory program fees. These changes do not substantively alter Commission review requirements or fees.

Background:

On September 13, 2017, the DRBC Commissioners by a Resolution for the Minutes directed the Executive Director to prepare and publish for public comment a revised set of draft regulations, to include, among other things, "prohibitions relating to the production of natural gas utilizing horizontal drilling and hydraulic fracturing within the basin."

The proposed rulemaking was published on November 30, 2017. Extensive opportunity for public input on this proposed rule was provided during the public comment period that took place from November 30, 2017, to March 30, 2018. Additional information can be found below.

Final Rule: Findings & Determinations

After a deliberate and extensive rulemaking process, the Commission found and determined that:

  • As the scientific and technical literature and the reports, studies, findings and conclusions of other government agencies reviewed by the Commission have documented, and as the more than a decade of experience with HVHF in regions outside the Delaware River Basin have evidenced, despite the dissemination of industry best practices and government regulation, HVHF and related activities have adversely impacted surface water and groundwater resources, including sources of drinking water, and have harmed aquatic life in some regions where these activities have been performed.
  • The region of the Delaware River Basin underlain by shale formations is comprised largely of rural areas dependent upon groundwater resources; sensitive headwater areas considered to have high water resource values; and areas draining to DRBC Special Protection Waters.

  • The geology of the region in which shale formations potentially containing natural gas are located in the Basin is characterized by extensive geologic faults and fractures providing preferential pathways for migration of fluids (including gases).

  • If commercially recoverable natural gas is present in the Delaware River Basin and if HVHF were to proceed in the Basin, then:

    • Spills and releases of hydraulic fracturing chemicals, fluids and wastewater would adversely impact surface water and groundwater, and losses of well integrity would result in subsurface fluid (including gas) migration, impairing drinking water resources and other uses established in the Comprehensive Plan.

    • The fluids released or migrating would contain pollutants, including salts, metals, radioactive materials, organic compounds, endocrine-disrupting and toxic chemicals and chemicals for which toxicity has not been determined, impairing the water uses protected by the Comprehensive Plan.

    • HVHF activities and their impacts would be dispersed over and adversely affect thousands of acres of sensitive water resource features, including, among others, forested groundwater infiltration areas, other groundwater recharge locations and drainage areas to Special Protection Waters, where few existing roads are designed to safely carry the heavy industrial traffic required to support HVHF, prevent dangerous spills or provide access to remediate spills that occur.

For these reasons and other grounds described in the administrative record for this rulemaking:

  • HVHF poses significant, immediate and long-term risks to the development, conservation, utilization, management and preservation of the water resources of the Delaware River Basin and to Special Protection Waters of the Basin, considered by the Commission to have exceptionally high scenic, recreational, ecological and/or water supply values.

  • Controlling future pollution by prohibiting such activity in the Basin is required to effectuate the Comprehensive Plan, avoid injury to the waters of the Basin as contemplated by the Comprehensive Plan and protect the public health and preserve the waters of the Basin for uses in accordance with the Comprehensive Plan.
Final Rule: Changes to Project Review Classifications & Fees

Amendments unrelated to HVHF were also adopted. The changes do not substantively alter Commission requirements or fees, but better align the rules with the Commission’s practices, eliminate unnecessary language, clarify language that has been misconstrued and, in instances, replace the discretion of the Executive Director with that of the Commission. 

Changes to Project Review Classifications:

  • Retain Commission review of alterations to wetlands of less than 25 acres, where a state or a federal level review and permit system is not in effect, while eliminating additional triggers for such review;

  • Remove the provision for review of regional wastewater treatment plans developed pursuant to the Federal Water Pollution Control Act, because the basin states have effective programs for the transparent development and implementation of such plans;

  • Replace the discretion of the Executive Director with that of the Commission to require review under Section 3.8 of the Compact of any project having a potential substantial water quality impact on waters classified as Special Protection Waters; and

  • Clarify that the Commission as a whole, not merely any single agency of a signatory party, may determine that a project in an excluded classification is required to be submitted for review under Section 3.8 of the Compact.

Changes to Regulatory Program Fees:

  •  Replace the term "docket application fee" with the more accurate term "application fee," because project review does not always involve a "docket."
Final Rule: Changes to Proposal

Changes to the Proposed Rule:

Upon adopting its final rules concerning HVHF, the Commission is:

  • Withdrawing proposed section 440.4: Exportation of water for hydraulic fracturing of oil and natural gas wells;

  • Withdrawing section 440.5: Produced Water (and importation of wastewater);

  • Revising section 440.2: Definitions, to eliminate terms associated solely with the two [above-referenced] withdrawn sections;

  • Withdrawing – within Part 401 of Title 18 of the Code of Federal Regulations, comprising the Commission’s Rules of Practice and Procedure – proposed amendments to section 401.35: Classification of Projects for Review, concerning the importation and exportation of water and wastewater into and from the Basin; and

  • Withdrawing – within Part 401 of Title 18 of the Code of Federal Regulations, comprising the Commission’s Rules of Practice and Procedure – proposed amendments to section 401.43: Regulatory Program Fees, related to wastewater treatability studies. 

Please Note:

  • The final rules have been revised to eliminate all references to the deleted sections.

  • Public comments specific to these sections are not addressed in the Commission’s Comment and Response document. 

  • The topics of water exportation and wastewater importation will be addressed as appropriate through one or more separate Commission actions. 

  • The Comprehensive Plan amendments and final rules replace the Executive Director Determinations of May 19, 2009, June 14, 2010, and July 23, 2010.

  • The Resolution for the Minutes of May 5, 2010, which postponed the Commission’s consideration of well pad projects until the adoption of final rules, expires by its own terms.
Final Rule: Supporting Documentation

Resolution 2021-1:

Comment and Response Document:

Final Section 401.35 - Classification of Projects for Review under Section 3.8 of the Compact:

Final Section 401.43 - Regulatory Program Fees:

Final Part 440 - HVHF:

Notice of Final Rule: Federal Register

Additional Resources:

News Release (issued February 25, 2021)

Resolution for the Minutes directing the Executive Director to publish for comment proposed amendments to the Comprehensive Plan and implementing regulations with respect to transfers of water and wastewater from and to the Delaware River Basin (pdf)

FAQ: Final Rules Addressing Hydraulic Fracturing Activities within the Delaware River Basin (pdf)

Proposed Rule: Key Info & Link for Full Archives

On November 30, 2017, the Commission posted on its web site the draft proposed regulations regarding hydraulic fracturing activities in the basin and the schedule of planned public hearings and written comment period.

Complete information on the proposed rulemaking

Proposal Summary:

The Delaware River Basin Commission proposed to amend its Special Regulations by the addition of a section on hydraulic fracturing in shale and other rock formations, including:

  • The prohibition of high volume hydraulic fracturing (HVHF) in such formations;

  • Provisions related to water use for hydraulic fracturing; and

  • Provisions related to the management of produced water from hydraulic fracturing.

The Commission also proposed to amend its Administrative Manual – Rules of Practice and Procedure by the addition of project review classifications and fees related to the management of produced water from hydraulic fracturing of hydrocarbon bearing rock formations.

Minor amendments to the project review classifications unrelated to hydraulic fracturing were also proposed.

Notice of Proposed Rulemaking and Proposed Rules:

On Friday, March 30, 2018, the 120-day comment period closed on this proposed rulemaking.

Public Submissions on the Proposal:

During the comment period the Commission received a total of 8,903 comment submissions.

Online: The DRBC received 8,679 written submissions on-line through its online comment system: http://dockets.drbc.commentinput.com/?id=PGChb

Public Hearing Transcripts: The Commission received 223 oral comments during six public hearings

The Commission also received one (1) set of written comments in hard copy, through the exception process.

Related Resources

Learn More: DRBC Natural Gas Webpage

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______________________________________
Notice Final Rule Adopted & Posted: February 25, 2021

Pamela Bush, Esq.
Commission Secretary & Asst. General Counsel
Pamela.Bush@drbc.gov