For Immediate Release

May 19, 2009

(WEST TRENTON, N.J.) -- Delaware River Basin Commission (DRBC) Executive Director Carol R. Collier today announced that she has issued a determination notifying natural gas extraction project sponsors that they may not commence any natural gas extraction project located in shale formations within the drainage area of the basin’s Special Protection Waters without first applying for and obtaining commission approval.

“This determination explains DRBC regulatory requirements on an interim basis and asserts commission review over all aspects of natural gas extraction projects in shale formations within the drainage area of the basin’s Special Protection Waters, regardless of the amount of water withdrawn or the capacity of domestic sewage treatment facilities accepting fracking wastewater,” Collier said.  “The commissioners intend to adopt regulations pertaining to the subject matter contained in this determination after public notice and a full opportunity for public comment, but this rulemaking process can be lengthy.  In the meantime, DRBC will apply this determination in combination with its existing regulations.”

In taking this action, Collier considered and determined that as a result of water withdrawals, wastewater disposal, and other activities, natural gas extraction projects in shale formations may individually or cumulatively affect the water quality of Special Protection Waters by altering their physical, biological, chemical or hydrological characteristics.  This finding is in accordance with Section 2.3.5 B.18 of the commission’s Rules of Practice and Procedure, which provide that any project “that the Executive Director may specially direct by notice to the project sponsor or land owner as having a potential substantial water quality impact on waters classified as Special Protection Waters” may be required to undergo review.

“The intent behind this executive director determination is to provide directional signals, not put up roadblocks,” Collier said.  “Each of these activities, if not properly performed, may cause adverse environmental effects on water resources.  The bottom line for the DRBC is to ensure that proper environmental controls are provided to safeguard our basin's water resources that are used by nearly 15 million people.”

 Most of the shale formations that may be subject to new horizontal drilling and hydraulic fracturing techniques requiring large volumes of water in the basin are located within the drainage area to DRBC’s designated Special Protection Waters (SPW). The commission’s SPW program is designed to prevent degradation in streams and rivers considered to have exceptionally high scenic, recreational, ecological, and/or water supply values through stricter control of wastewater discharges, non-point pollution control, and reporting requirements. Coverage of the DRBC’s SPW anti-degradation regulations includes the 197-mile non-tidal Delaware River from Hancock, N.Y. south to Trenton, N.J. and the land draining to this stretch.

Under this determination, a natural gas extraction project encompasses the drilling pad upon which a well intended for eventual production is located, all accompanying facilities and related activities, and all locations of water withdrawals used or to be used to supply water to the project.  Wells intended solely for exploratory purposes are not covered by this determination.  An exploratory well is one that the project sponsor intends to plug and cap at the conclusion of exploratory activities without use for production or fracking.  Exploratory wells are subject to state regulation.

“To determine whether the Rules of Practice and Procedure require DRBC review of any projects falling outside this determination, we continue to recommend that any company proposing natural gas extraction activities anywhere in the basin contact DRBC staff to schedule a pre-application meeting,” Collier said.

The DRBC recognizes that each natural gas extraction project also will be subject to the review of the environmental agency of the state in which the project is located and, in some cases, subject to federal agency review.  The commission intends to coordinate with and, where feasible, to utilize the review process and approvals of the applicable state or federal agency to minimize duplication of effort and redundant requirements imposed on project sponsors.

Any person adversely affected by this determination may request a hearing by submitting a request in writing to the commission secretary within 30 days of the date of this determination in accordance with the DRBC’s Rules of Practice and Procedure.

The DRBC was formed by compact in 1961 through legislation signed into law by President John F. Kennedy and the governors of the four basin states with land draining to the Delaware River (Delaware, New Jersey, New York, and Pennsylvania).  The passage of this compact marked the first time in our nation’s history that the federal government and a group of states joined together as equal partners in a river basin planning, development, and regulatory agency.

Additional information, including the complete determination, can be found by clicking here.

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