Org. Argues Delaware River Fracking Needs Oversight

In a case concerning fracking regulation in the Delaware River Basin, the Natural Resources Defense Council argued in an amicus curiae brief that regulation from an interstate commission is vital, arguing that Wayne Land and Mineral Group should not be allowed to participate in fracking on their land without approval. They say if fracking activity is allowed it would remove millions of gallons of water and lead to impairment of water quality, harming wildlife and residents who drink the water.

The National Resources Defense Council (NRDC) and Catskill Mountainkeeper filed an amicus brief in the Pennsylvania Middle District Court in a case filed against the Delaware River Basin Commission. The Petitioner, Wayne Land and Mineral Group, LLC (WLMG), is represented by Overstreet & Nestor. The Delaware River Basin Commission is represented by Warren Environmental Counsel.

The NRDC helped enact the Clean Water Act and advocates for the Clean Water Rule which gives protections to “hundreds of thousands of miles of streams and tens of millions of acres of wetlands” in the United States. They claim to have expertise in hydraulic fracturing or fracking.

“Fracking is a hazardous industrial process for which water is the primary constituent, and whose waste product, also composed primarily of water, has contaminated waterbodies and drinking water supplies across the country, including in the nearby Susquehanna River Basin,” the brief says. They said fracking uses millions of gallons of water per well, most of which is contaminated after use and shouldn’t be put back into the water supplies.

The initial complaint, filed in May 2016, asked the court to rule that the Delaware River Basin Commission did not have the authority to review or approve a gas well pad. The Commission claimed authority to review any contracts was given to them through the Delaware River Basin Compact. WLMG was restricted from constructing a well pad and drilling without approval from the Delaware River Basin Commission, which they claimed should be a constitutionally protected right to use the property it owns, including 75 acres inside the basin.

WLMG argued in the complaint that they “should not be required to engage in an expensive, time consuming and ultimately futile exercise of attempting to obtain review and approval by the Commission for its Well Pad where, as set forth (in the complaint), no such review and approval is required under the Compact.” The compact says projects need approval if they have a “substantial effect on the water resources of the basin,” and that they would run the well pad in a way that it would not have an effect on the water.

The amicus curiae brief from the NRDC explains that the Delaware River Basin Commission has helped make the basin an important fishery after forming in the 1960s when high levels of pollution in the river threatened fish populations and commercial fishing.

“Today, the Delaware River Basin is a bucolic landscape that serves as crucial habitat for countless species of flora and fauna, a source of recreation for fishermen, boaters, tubers, naturalists, and swimmers, and a significant contributor to the local economy,” the brief states. They claim 16 million people rely on the river for drinking water, including the populations of New York City and Philadelphia.

The brief says that WLMG in its complaint “minimizes the centrality of water use in fracking and related activities in an attempt to exempt their proposed activity from regulation,” but they “distort the reality of the fracking process.” They say fracking involves substantial water use and could “dramatically harm the valuable water resources of the Delaware River Basin.”