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December 08, 2016
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A question of intent

The table of compatible uses on page 134 of the River Management Plan (RMP) lists “gas/oil fields” as a permitted conditional use in the Delaware River corridor. But whether that phrase, written in 1986, can be taken to refer to modern horizontal hydro-fracking operations is a matter of controversy. In thrashing out the issue, we have heard both proponents and opponents of drilling in the corridor make varying assertions as to the RMP’s “original intent” on the subject.

The issue came up at two recent Upper Delaware Council (UDC) meetings, but led to two different conclusions. At the March UDC meeting, a number of members argued that the people who drew up the plan could not possibly have intended the term “gas well” to mean the gigantic industrial installations comprised by modern horizontal hydro-fracking, which didn’t exist at the time. But at a meeting of the UDC’s Project Review Committee the previous week, Tom Shepstone opined that that’s exactly what the plan intended, claiming authority on the grounds that he was chairman of three of the groups involved in drafting the plans and saying that “no one knows more than I do about what it says and what it means.”

The problem with taking the word of any one individual as to the plan’s original intent, however, is that a great many people were involved in constructing the RMP, and they don’t all agree. Glenn Pontier, editor of The River Reporter at the time, for instance, was involved in various phases of the RMP’s development, including serving on the Plan Oversight Committee. He believes that the introduction of hydro-fracking would run counter to the whole concept of the RMP. The genius of the plan, in his view, is the fact that it sought to preserve not only natural resources but the entirety of the valley, including its commerce centers, its people and its occupations. That’s why it made sense to include traditional land uses like bluestone mining and agriculture in the river valley. In contrast, modern horizontal hydro-fracking, which Pontier said “was never contemplated,” would violate the very character of the society that the plan was designed to preserve.

Barbara Yeaman, a member of the Plan Oversight and Land Use Guidelines committees, shares Pontier’s reservations. When asked whether horizontal hydro-fracking would be included under the land-use guidelines, she responded, “Oh no, that would be heavy industrial use. That could even start condemnation proceedings.”

Of course, others involved in creating the plan no doubt agree with Shepstone. But that just means that any attempt to construe the RMP via the opinions of the people who wrote it, while it can unearth valuable insights, is not by itself going to settle the controversy.

There are other ways, however, to help divine the intent of controversial passages. To begin with, we can and should look at the legislation that lies behind the RMP, the Wild and Scenic River Act. If “original intent” is important, it is the intent of the federal law that carries the fundamental legal force. And section 1281 of that act says that rivers in the system should be “administered in such manner as to protect and enhance the values which caused it to be included in said system without, in so far as it is consistent therewith, limiting other uses that do not substantially interfere with public use and enjoyment of these values….”

Among those values are “outstandingly remarkable scenic and recreational, geologic, fish and wildlife, historic, cultural or other similar values,” which are to be “protected for the benefit and enjoyment of present and future generations.” We think it’s clear that modern horizontal hydro-fracking fails this test of “substantial interference.”

We can also look within the four corners of the RMP itself for context. That’s the line that National Park Service Superintendent Sean McGuinness took when, at the UDC meeting, he brought up the concept of heavy industrial use, an incompatible use anywhere in the corridor. Due to technological innovation, what is understood by the words “gas well” may change over time. But nobody who has seen a hydro-fracking operation, or even an exploratory well like the Crum Well in Milanville, PA, has any doubt that it is a heavy industrial use.

Talking to the people involved in drafting the RMP is an enlightening exercise, but by itself it can’t yield a definitive interpretation. At the end of the day, the plan and the law of which it is the implementation must speak for themselves. On that basis, we think the UDC got it just right when they told the Delaware River Basin Commission that modern horizontal hydro-fracking is a heavy industrial use and is inconsistent with the fundamental purposes and vision of the RMP. We hope that they proceed to carry out their conformance reviews on the basis of this understanding.