A tale of two states: now, what about the river corridor?
March 1, 2012 —
Recently there have been two important but very different legal developments on the two sides of the Delaware River. Both are related to the ability of municipalities to zone the location of natural gas drilling. Both have a significant potential to affect the health and welfare of the Upper Delaware Scenic and Recreational River.
The Upper Delaware Council (UDC), the body formed to administer the River Management Plan (RMP) for the river corridor, has said that modern techniques for natural gas extraction are a heavy industrial use. The RMP designates heavy industrial activity an incompatible use anywhere in the river corridor. The UDC has therefore held that keeping surface activities related to natural gas drilling out of the corridor is necessary to preserve the qualities for which the area was designated in the federal Wild and Scenic Rivers Act. But the RMP is written in such a way that that law is effected entirely through state and local government—and largely via zoning. And that means that the legal context provided by the states for such zoning is critical.
On the Pennsylvania side of the river, that context has been effectively destroyed by the passage of legislation which, incidental to imposing impact fees on natural gas drilling, creates a system of statewide rules that supersede local ordinances with regard to the location of drilling. Those rules allow gas drilling pretty much everywhere, at least as a conditional use. The state, in short, has rendered local municipalities impotent to implement the rules that could keep drilling out of the corridor. The townships are being forced into a position where they cannot conform with the RMP.
The Commonwealth of Pennsylvania signed on to the RMP. It has a delegate on the council. There is an executive order in effect that state agencies will comply with the plan. And yet, Pennsylvania has taken an action that disables UDC member townships from complying with the plan with respect to this heavy industrial use.