An unacceptable precedent
In a comment letter to the Delaware River Basin Commission, the Upper Delaware Council (UDC) has gone on record as saying that modern hydro-fracking is a heavy industrial use and, hence, specified by the RMP as incompatible. Thus it seems clear that they must require their member towns to adopt zoning ordinances that keep the activity out of the river corridor. The murky state of New York law has admittedly made this difficult for them, but we don’t see how that lets them off the hook for going with the best strategy available—and that seems to be the CEDC approach. The fact that the CEDC is a non-profit organization that does its work pro bono means that doing so should not entail huge expense.
If Cochecton should nevertheless decline to consider the CEDC approach, the next question is whether the UDC should recommend that its ordinance be deemed “substantially non-conforming.”
The word “substantially” is admittedly tricky here. It could be argued that unconventional gas drilling is only one of many activities, and that an ordinance that fails to protect against one thing cannot be described as substantially failing. But this is not just one activity among many. It is an activity that has the documented capacity to contaminate aquifers. It involves massive industrial installations and traffic. It is probably the single biggest threat to the integrity of the corridor, and those special qualities whose protection the Wild and Scenic River Act mandates, that we have seen in the history of the RMP.
And the problem goes beyond Cochecton itself. If the UDC gives a pass to an ordinance that fails to grapple with unconventional drilling, it sets a precedent for all member towns—including those in Pennsylvania, which currently have an acknowledged right to ban drilling in some zones. Such a precedent would be especially unfortunate if the passage of a law or the settlement of a court case subsequently make it unambiguously clear that New York State towns do have the capacity to zone the location of gas drilling.