Two conservation groups are suing the Delaware River Basin Commission (DRBC) for allowing natural gas development in the watershed prior to a moratorium instituted last year. The plaintiffs have asked the court to have the drilled wells removed, “and the sites cleaned up and restored to natural conditions.”

The lawsuit was filed Tuesday by the Delaware Riverkeeper Network and Damascus Citizens for Sustainability in U.S. District Court for the District of New Jersey. The plaintiffs are challenging decisions by the DRBC and Executive Director Carol Collier that exempted some wells drilled into the Marcellus Shale portion of the watershed.

“These wells, extending thousands of feet into the earth, have numerous environmental impacts and pose numerous risks of contamination and pollution before any natural gas is ever extracted from them,” the lawsuit alleges. “By giving these wells a free pass to be constructed and drilled without commission oversight, defendants failed to meet their legal obligations toward the Special Protection Waters (SPW) of the Delaware River, whose extraordinarily clean waters provide drinking water for millions of Americans, as well as waters necessary to the recreational, agricultural, industrial, commercial, aesthetic and other requirements of citizens” from New Jersey, New York, Pennsylvania and Delaware. The watershed extends into portions of those four states.

The DRBC in 2009 said energy companies had to obtain commission approval before beginning any gas extraction project within the drainage area of the basin’s SPW (see Daily GPI, June 1, 2009). Last year it went further, placing a moratorium on future gas drilling pending a full review of the rules. Public hearings on DRBC’s proposed rules, issued in December, begin later this month (see Shale Daily, Jan. 25; Dec. 10, 2010).

The plaintiffs claim that the DRBC’s determination in 2009 “left open a loophole for exploratory wells.” The DRBC’s supplemental directive last year closed that loophole. However, while the exemption was in place, drilling permits were approved in Pennsylvania’s portion of the watershed by the state’s Department of Environmental Protection, which grandfathered some drilling in the basin.

“Since the DRBC is supposed to protect the river and the clean drinking water for over 15 million people, they shouldn’t have allowed these wells to proceed without DRBC oversight,” said Delaware Riverkeeper spokeswoman Maya van Rossum. “These wells threaten pollution and may have already caused pollution. We want these wells removed and the land restored.”

Plaintiffs claim that the DRBC also ignored the National Park Service (NPS) by not reviewing the grandfathered wells. The NPS had invoked its authority under the DRBC’s rules to refer all exploratory wells to the commission for review, and “Collier had no authority to allow any exemptions from this federal referral.”

The conservation groups say they “obtained and submitted” a series of nine reports from experts on issues related to the pollution risks associated with drilling the grandfathered exploratory wells, “which are essentially vertical gas wells that are not yet hydraulically fractured but which inflict all the impacts of well construction and drilling, including the use of drilling chemicals in fragile geology, the clearing of land in ecologically sensitive areas, and the installation of an industrial operation in rural landscapes.

“Moreover, the wells, in what may be environmentally risky locations, can become long-term production wells. The expert reports showed clearly that state regulations are not adequate to prevent pollution from the grandfathered wells; that groundwater, streams and the mainstem river would pay the price; and that the wells would violate the DRBC’s anti-degradation requirements.”

When the DRBC terminated the hearing process, “it forced us to go to court to uphold the protection the [commission] provides for the critical water resources for New York City, Philadelphia and all the other communities and water supply systems that depend on the Delaware River for water,” says Barbara Arrindell, director of Damascus Citizens for Sustainability.

“The proper process would be to look first, before allowing any wells, at the cumulative impacts that would be produced by this type of industrial development. It certainly is wrong to allow these gas wells without any review whatsoever. The DRBC does not exist to facilitate the aims of the drillers.”

Collier’s “actions on the grandfathered wells were arbitrary, capricious, an abuse of her discretion and in violation of applicable law,” the conservation groups allege. They are seeking a declaratory judgment that the DRBC and the executive director “violated applicable law, that no further exploratory wells should proceed, and that the already drilled wells were wrongly allowed, should be removed, and the sites cleaned up and restored to natural conditions.”