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Gas Drilling Rules to be Unveiled for Delaware Watershed

Marcellus Shale operators -- and drilling opponents -- waiting for the Delaware River Basin Commission (DRBC) to issue proposed natural gas development rules should get their wish Thursday morning, officials said.

The DRBC late Wednesday said it would publish the proposed rules beginning at 9 a.m. ET.

The multi-state commission has regulatory jurisdiction over the 13,000-plus-square mile Delaware River watershed in Pennsylvania, New York, New Jersey and Delaware. The commission is represented by the governors of the four states, as well as a representative of the Army Corps of Engineers.

At issue is the DRBC's determination in June that companies drilling exploratory wells to test theories about where gas may be found must obtain DRBC's approval before drilling within its jurisdiction (see Daily GPI, June 16; May 12). Staff also was tasked with determining whether 11 exploratory wells in Pennsylvania already approved by the commission should be exempt from potential regulations.

Commission staff failed to meet a self-imposed end-of-summer deadline to issue draft drilling rules for public comment. In September the proposed drilling rules again were delayed (see Daily GPI, Sept. 24). A commission spokesman had said Wednesday he didn't know when the draft rules would be published.

"The proposed natural gas development regulations have not even been published as of now," Communications Manager Clarke Rupert said. Staff members were continuing "to work diligently on getting the draft regulations 'out on the street' in December."

When the draft rules are issued, "there will be a written comment period and most likely three public hearings on the proposed rulemaking," Rupert noted. "The written comments received during the comment period and oral testimony presented at the hearings will become part of the rulemaking record and be considered by the commissioners prior to any action on the proposed regulations."

There's been no shortage of advice for which direction the DRBC should go. Pennsylvania Gov. Ed Rendell, who is leaving office at the end of the month, said in November his DRBC vote "doesn't matter" and has indicated he would approve of gas drilling in the watershed. However, in a letter sent Monday by outgoing New York Gov. David Paterson, the DRBC was asked to "halt its efforts to enact regulations covering certain elements of natural gas extraction activities within New York state" until New York officials are able to review hydraulic fracturing (fracking) practices.

The New York Assembly late last month sent Paterson a bill that would temporarily ban fracking in the state -- the governor had not signed nor vetoed the legislation as of Wednesday (see Shale Daily, Dec. 1).

"New York is presently proceeding with a careful and comprehensive review of the broad array of scientific and technical issues associated with high-volume hydraulic fracturing," Paterson wrote. "Indeed, horizontal hydraulic fracturing to produce natural gas is not under way in New York and will not be under way until completion of this review."

Chief among the items being assessed, said Paterson "are the potential risks and technical remedies necessary to assure the protection of the biological, chemical and physical integrity of the state's surface and ground waters. A supplemental environmental impact statement review is under way, as are efforts to develop the regulatory, engineering, financial assurance, enforcement and staffing elements of any potential program."

New York regulators already have determined that separate environmental reviews would be necessary for any natural gas projects that might be proposed within the unfiltered New York City drinking water watershed, which comprises a "significant" portion of the Delaware River basin within New York, he noted.

DRBC's "proposed program, covering only a very small portion of New York state, could well conflict with the technical and regulatory protocols ultimately adopted in New York, causing confusion, duplication, redundant regulatory fee assessments, differing regulations in different locations and possible mismanagement."

Given that Andrew Cuomo will become New York's governor in January, Paterson said it would be appropriate for DRBC to "avoid upsetting the transition process and policy prerogatives of the incoming governor."

On Tuesday Bob Martin, who is commissioner of the New Jersey Department of Environmental Protection, urged DRBC in a letter to strictly regulate fracking operations in New York and Pennsylvania to protect his state's surface drinking water. The shale play doesn't extend into the Garden State.

Without safeguards to ensure water supplies are not contaminated with drilling fluids, "drilling in the Marcellus Shale is unacceptable to New Jersey -- as we believe it is to the DRBC, indicated by last spring's vote to postpone additional approvals of extraction wells," Martin wrote.

New Jersey, he said, "does not aim to unnecessarily delay another state's development; we want only to ensure that any drilling proceeds in an environmentally safe manner. When individual member states provide adequate safeguards to protect the Delaware River, the DRBC's regulatory floor will be obviated by the 'home rule' of the member states' more stringent regulations."

Several environmental groups also are pressuring the DRBC to enact stringent drilling measures. According to the Delaware Riverkeeper Network, an estimated 10,000 individuals and organizations have written the commission to request that a cumulative impact study be performed on the river basin before regulations are considered.

Because of the DRBC's mandate to protect the watershed, the commission "does not really have a choice" about whether or not to regulate gas drilling, said Tracy Carluccio, deputy director of Delaware Riverkeeper. If it chose not to impose regulations, the decision "would be open to immediate legal challenges because that would be absolutely unacceptable."

Protecting Our Waters, an environmental coalition, urged its members to write to the DRBC and Pennsylvania's Rendell asking that the temporary drilling ban in the Delaware Basin be extended. "We are insisting not only on a cumulative impact study first, but on a full democratic process, fully informed by adequate science, which would require declaring the Delaware River watershed off limits for fracking for three to five years," the coalition stated.

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