UPPER DELAWARE RIVER VALLEY — The rulemaking process for an area as pristine as the Delaware River can take a long time. A pair of issues before the Delaware River Basin Commission (DRBC) illustrated how extensive and contentious the process of rulemaking can be.

The DRBC passed a long-awaited set of regulations on fracking byproducts in a December 7 meeting, and discussed the results of an EPA petition that called on the commission to speed up its rulemaking process for water quality. 

Frack-adjacent activities

The DRBC voted to ban the process of high volume hydraulic fracturing [HVHF], also known as “fracking,” from the basin in February of 2021. The vote capped off a decade-plus of discussion and advocacy. Anti-fracking advocates rejoiced, while natural gas advocates such as Tom Shepstone called it “a fatal misstep” and promised to fight it. 

Legal challenges to the frack ban have so far failed to overturn it. One such challenge, brought by Pennsylvania State Senate members Lisa Baker (R-20) and Gene Yaw (R-23) among the plaintiffs, was dismissed for lack of standing in September; another case, brought by Wayne County landowners, was stayed through agreement of the parties while the Baker-Yaw case proceeded, and is now starting back in motion. 

“The WLMG [Wayne Land and Mineral Group] case stands in the way of the DRBC’s future power grabs and the Third Circuit knows,” wrote Shepstone in a February 2021 blog post following the DRBC’s ban. 

The environmental advocates who supported the fracking ban had their own unfinished business to pursue. 

The DRBC did not rule at the time on the importation of fracking wastewater into the river basin. It voted to develop such rules later in the year. 

Advocates pushed for those rules to include a “full fracking ban” that would ban fracking wastewater imports or exports of water for the purposes of fracking. “We do not want our watershed to be used to help sacrifice other communities and other rivers to the fracking industry,” said Maya van Rossum, leader of the Delaware Riverkeeper Network, at the time of the fracking ban. 

A set of draft rules released in October 2021 didn’t go as far as advocates wanted, and they campaigned from then on to strengthen the proposed regulations. 

The Delaware River Frack Ban Coalition states that nearly 12,000 individuals submitted comments to the DRBC, “virtually all calling for a full fracking ban”; the DRBC states that it received 73 oral comments and 2,388 “comment submissions,” with many submissions containing multiple individual comments. 

The DRBC passed its final regulations at a meeting on December 7. 

The rules discourage, limit or place conditions on the exportation of water from the basin and the importation of water into the basin. They provide for the exportation of basin water (subject to DRBC approval) under certain conditions: if it will serve a straddled or adjacent public water system; if it is required on a temporary, short-term or emergency basis to meet public health and safety needs; or if it is an exportation of wastewater. 

The rules prohibit the discharge of fracking wastewater to the water or the land of the Delaware River Basin, but nevertheless allow it to be imported, transported, stored and treated here. The DRBC in its comment and response document made the case that it anticipates that only low volumes of HVHF wastewater will be transported into the basin, with the amount and severity  of potential spills being low enough that they will not affect the waters of the basin. 

The DRBC made few adjustments to the rules between their October 2021 introduction and their December 2022 adoption. The adjustments made clarify that wastewater can only be exported to a public wastewater collection system or, if it can’t lawfully be discharged as such, to an authorized waste management facility. They also cleared up the wording of several points, including the definition of “discharge.”

The rules for the exportation of water don’t specifically address fracking. The “health and safety” clause does implicitly eliminate such use, according to Pam Bush, an attorney and regional planner with the DRBC, who spoke at the December 7 meeting. “An application of water to serve HVHF activities will not meet these threshold criteria for review of exported water or wastewater.”

Advocates expressed concerns that the DRBC’s resolution fell short of preventing the river basin from contamination by imported fracking wastewater. They did not give a final statement on the matter; the DRBC had not provided the text of its resolution in advance of the meeting, and the representatives present said they needed time to fully review that text. 

“It will take time to review the modifications you’ve offered to the DRBC rules today… It sounds like some of them might be significant and meaningful, but in what ways is really difficult for us to determine without a thorough and comprehensive review,” said Tracy Carluccio, speaking on behalf of the Delaware Riverkeeper and the Delaware River Frack Ban Coalition. “As the saying goes, the devil is in the details, and we will be digging in.”

The DRBC has broad authority, but not limitless, said Steve Tambini, executive director of the DRBC. 

Oxygen, dissolved

Fracking wasn’t the only item of contention at the December 7 meeting. Joining it was a recent decision by the federal Environmental Protection Agency (EPA) to regulate the water quality of the Delaware River. 

Dissolved oxygen is necessary for aquatic life, and specific levels have to be maintained in the River to support its ecosystem. 

The DRBC passed a resolution in 2017 recognizing the improvement in the river’s dissolved oxygen levels and embarking on a study to explore further improvements. The study concluded in 2022, five years later. The process of rulemaking is yet to follow, and is expected to conclude in March 2025. 

Environmental advocates found the DRBC’s timetable too slow, and filed a petition with the EPA in April, 2022, hoping to speed it up. The petition claimed that additional research was unneeded given the research already present, and that the DRBC and the basin states “have similarly failed to take action to institute water quality legal standards essential for protecting critical species such as the federally endangered Atlantic Sturgeon of the River,” according to a press release from the DRN. 

The EPA made a determination on the petition at the start of December. While it acknowledged the work done by the DRBC, it questioned the commission’s stated deadline of March 2025, a deadline that, the EPA noted, will presumably be followed by an additional period of administrative detail. The EPA set its own deadline of 12 months from December 2022, to be followed by a comment period, and stated that it welcomed the opportunity to discuss an acceleration of the DRBC’s own deadline. 

Advocates praised the decision as a boon for the river’s aquatic life, especially its Atlantic sturgeon. “EPA’s decision to grant our petition is powerful and important and may be a last best hope for saving the genetically unique Atlantic sturgeon from the lack of oxygen so severely compromising their continued existence,” said van Rossum. 

Tambini emphasized at the DRBC’s December 7 meeting that the EPA’s decision was based on the DRBC’s science, and said that while the DRBC would abide by the EPA’s determination, it viewed the EPA’s intervention as unnecessary.