Court Rejects Challenge to DRBC Moratorium

By: Michael K. Reer

On March 24, 2017, The U.S. District Court for the Middle District of Pennsylvania dismissed a landowner challenge to the Delaware River Basin Commission’s de facto moratorium on unconventional development activities in the eastern third of Pennsylvania. In 2010, the DRBC placed a moratorium on shale gas development projects until the Commission could enact new regulations governing the practice – which have yet to be finalized. The landowner group challenging DRBC’s jurisdiction over natural gas development alleged that the DRBC does not have authority to prohibit or regulate shale gas drilling operations in the basin.

The DRBC includes portions of New York, New Jersey, and the eastern third of Pennsylvania. The Delaware River Basin Compact defines “project,” in part, as “any separate facility undertaken or to be undertaken within a specified area, for the conservation, utilization, control, development or management of water resources which can be established and utilized independently . . .” The Court found that “[d]espite the DRBC’s best efforts to side-step this issue, it is apparent from the fact of Plaintiff’s Complaint that its proposed activities which include inter alia, a ‘natural gas well pad, a gas well and related facilities and associated activities,’ constitute a ‘project’ subject to DRBC project review.”

The landowner group is expected to appeal the decision. Wayne Land & Mineral GRP., LLC v. Del. River Basin Comm’n, No 3:16-CV-00897 (M.D. Pa. 2017).
Thursday, April 13, 2017

DRBC Releases Proposed Draft Regulations to States

By:  Michael K. Reer


On January 4, 2016, the Pennsylvania Department of Environmental Protection reported that the Commonwealth attended a Delaware River Basin Commission meeting in November 2016 at which draft regulations covering oil and natural gas development activities in the Delaware River Basin were discussed. In 2010, the DRBC placed a moratorium on shale gas development projects until the Commission could finalize new regulations governing the practice.

The DRBC has broad authority under the Delaware River Basin Compact to “establish standards of planning, design and operation of all projects and facilities in the basin which affect its water resources . . .” The Delaware River Basin includes portions of New York and New Jersey and the eastern third of Pennsylvania. Approximately 36% of the basin contains Marcellus shale. The DRBC has expressed concern that shale gas drilling projects could: (1) reduce the flow in local streams and aquifers; (2) add pollutants into the ground water or surface water; and (3) result in inadequately treated natural gas wastewater.

On May 17, 2016, the Wayne Land and Mineral Group, LLC filed a complaint against the DRBC in federal district court, alleging that the DRBC does not have authority to prohibit shale gas drilling operations within the basin. The case is ongoing and captioned as Wayne Land & Mineral GRP., LLC v. Del. River Basin Comm’n, No. 3:16-CV-00897 (M.D. Pa. filed May 17, 2016).
Thursday, January 12, 2017

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