A U.S. Circuit Court of Appeals recent decision in favor of a natural gas company calls into question the Delaware River Basin Commission’s ability to oversee hydraulic fracturing, or fracking, for natural gas in the watershed.
The commission — an intergovernmental body charged with protecting water resources in the Delaware River basin, which includes the Lehigh Valley — regulates projects that have a substantial effect on water within the region. But the commission’s definition of the term “project” is ambiguous and may not include hydraulic fracturing, Judge Kent Jordan wrote in his opinion.
On July 3, Jordan sided with the company, Wayne Land and Mineral Group LLC, when he vacated a lower court’s dismissal of the company’s case and remanded it back to that court to determine whether the DRBC’s founders would have intended to have the commission oversee natural gas fracking.
Wayne Land and Mineral Group sued the DRBC in 2016, contending it had been wronged by the commission’s 2009 moratorium on fracking for natural gas. The company — which owns natural gas-laden land in Wayne County, within the Delaware River watershed — contended that moratorium “is wrongly impeding its investment-backed expectations,” according to Jordan’s opinion.
The DRBC was created through a 1961 compact signed by the governors of Delaware, New Jersey, New York, Pennsylvania and the federal government that gave the commission powers to protect water quality and quantity in the Delaware River basin. That compact allows the DRBC to create a comprehensive plan that covers “the immediate and long range development and uses of the water resources of the basin.”
According to the compact, the DRBC will review projects that have “a substantial effect on the water resources of the basin” and approve those that don’t substantially impair the water. A project is defined as an activity undertaken for “the conservation, utilization, control, development or management of water resources.”
Jordan questioned whether that should include fracking. He said the definition of project is too broad, even if coupled with the DRBC’s mission to protect the basin’s water quality and supply.
“Breadth does not equal clarity,” he wrote.
Jordan raised three issues with the definition of the term “project”: It may give the commission more power than the compact drafters intended; it is ambiguous; and it may be in conflict with other portions of the compact text.
Fracking uses a lot of water — one well, and there are often several wells on a development, can use more than 5 million gallons of fresh water — and creates wastewater laden with chemicals used to extract natural gas. That’s enough to qualify the practice as a “project” to be regulated by the DRBC, its attorneys argued.
“Deliberate, repetitive use of water is an essential part of fracking, and the Commission contends that is enough to conclude that the purpose of fracking is to utilize water resources,” Jordan’s opinion states.
“Second, the Commission says that, even if one well only uses a relatively minor amount of water, the collective quantity of water used by all the fracking wells that could be drilled in the Basin is so large that it cannot be allowed to escape the Commission’s reach.”
A DRBC spokeswoman declined to comment on the ongoing case.
A project, as defined in the compact, has more to do with the purpose of a development than its water usage, said David Overstreet, the attorney representing Wayne Land and Mineral Group. Only developments built with the purpose of using or storing water, like a dam or a wastewater treatment plant, should fall under the definition, he argued.
“Think about it,” Overstreet said. “If all you have to do is utilize water, that makes every kiddie pool a ‘project.’”
The case may not be the last word on natural gas fracking in the watershed. In November, the DRBC issued a set of draft rules that would prohibit fracking in the basin, though they proposed allowing “related activities” such as using the region’s freshwater for fracking and disposing of fracked wastewater at treatment facilities within the basin.
A vote on the draft rules has not been scheduled, DRBC spokesperson Kate Schmidt said.
Regardless of the outcome of the legal battle, Delaware Riverkeeper Maya van Rossum intends to keep pushing for a ban on fracking in the watershed. As a leader with the environmental nonprofit Delaware Riverkeeper Network, she intervened in the case on behalf of the region’s citizens and its environment.
The fracking fracas won’t be over even if the court ultimately rules in favor of the company, Rossum said.
“The DRBC has broad authority, and there are many pathways to supporting its legal authority to continue to prevent this industry from entering our watershed,” she said.
She’s optimistic about the Circuit Court’s decision to remand the case, which she described as a “renewed opportunity” to talk about the importance of regulating fracking in the watershed. She declined to elaborate on what she contends constitutes a project.
Overstreet, too, predicted there would “almost certainly” be another legal fight if the commission issues a ban on frack drilling.
“Sooner or later these landowners who have had their interest taken for decades will be entitled to compensation,” he said.
