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Energy Industry Slams DRBC on Proposed Fracturing Rules

The Delaware River Basin Commission (DRBC) said it is reviewing more than 8,600 written comments received during a four-month public comment period over proposed rules governing hydraulic fracturing (fracking) in the basin, but a date has not been set for enacting final rules.

At issue are proposals issued last November to permanently ban fracking within the Delaware River Basin and discourage fresh water exports and wastewater imports that could be used to support the practice elsewhere. Much of the basin in New York and Pennsylvania overlaps the Marcellus Shale.

"The commission will take time to review and consider the oral comments and written submissions received, determine whether any changes based on the comments are appropriate, and prepare a response document," the DRBC said on March 30, the deadline for the 120-day public comment period. "There is no set schedule for a vote by the commissioners to adopt final rules. As always, the commission may adopt final rules only at a duly-noticed public meeting."

The DRBC said it received 8,687 written comments online. It also received 227 oral comments during six public hearings over the proposals.

Many comments were submitted by supporters of responsible oil and gas development within the basin. Among them, the Pennsylvania Independent Oil & Gas Association (PIOGA) said it was "concerned" about the process by which the DRBC was developing its rules.

"Under well established principles of administrative law, notice and comment rulemaking is required so that government agencies and entities and officials do not make binding law without input from and accountability to the public," wrote PIOGA general counsel Kevin Moody. "If this 'proposed' rule is in reality a 'final' rule with a predetermined outcome, the notice and comment process, including public hearings, is a sham undermining the validity of any rule finalized by the DRBC.

"Real rights and real property are at stake here; DRBC should take all necessary measures to assure protection of both."

Marcellus Shale Coalition President Dave Spigelmyer wrote that the DRBC doesn't have the authority to ban fracking within the basin, and that a ban would be unconstitutional because it would equate to a "categorical regulatory taking" of the property rights.

"To prohibit the development of this critical energy resource...defies common sense, sound science, responsible policymaking, and perhaps most importantly the authority of the DRBC and the U.S. Constitution," Spigelmyer wrote. "It improperly infringes on the property rights of thousands of property owners within the basin and relegates them to second-class citizens while depriving their families and communities of the economic opportunities that rightfully belong to them."

William Troop, who chairs the Wayne County Planning Commission in Pennsylvania, said state residents trust their government and the various commissions that operate within it. But conflicting policies, such as allowing fracking within the Susquehanna River Basin, creates "confusion and distress" among the citizenry.

"No reasonable person can think that Pennsylvania would allow the residents of the Susquehanna River Basin to knowingly be exposed to a risk involving their drinking water," Troop wrote. "No one will argue that the value of a resource, or of a single human life, is more valuable in one basin than in the other.

"The only sensible thing, both for state government and for the DRBC to do, is to bring these opposing treatments of the same natural resource into harmony. This means allowing development in the Delaware River Basin. To do otherwise runs counter to every American value of fair play, consistency and the rule of law."

Environmental groups urged the DRBC to move forward with the proposals.

"Without a permanent fracking ban, residents in the Delaware River Basin could be faced with well pads, compressor stations, drilling rigs, and countless miles of pipeline construction," wrote Sierra Club spokesman Tom Torres of the the Pennsylvania chapter. "Once trees are clear cut, wells are drilled, and water is contaminated, there is no going back."

Stephanie Herron, a member of the Delaware chapter of the Sierra Club, wrote that "[in order] for the regulations to be fully protective, we need comprehensive a ban on all fracking-related activities, including the [withdrawal] of water from the Delaware to be used in the process of fracking elsewhere and the storage, processing and disposal of fracking wastewater."

The DRBC is led by the governors of Delaware, Pennsylvania, New Jersey and New York and the federal government, represented by the commander of the U.S. Army Corps of Engineers' North Atlantic division.

In 2009, the DRBC said all gas drilling in the basin should be reviewed but said it would not approve any development until rules were adopted governing the industry. The agency postponed the gas development review in 2010 and failed to act on adopting rules in 2011, leaving in place a de facto moratorium.

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