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DRBC Proposed Regulations Addressing Importation and Exportation of Water and the Discharge of Wastewater from High Volume Hydraulic Fracturing

On October 28, 2021, the Commission published on its web site proposed amendments to its regulations regarding the importation and exportation of water and wastewater into and from the Delaware River Basin and the discharge of wastewater from high volume hydraulic fracturing, along with a schedule of public hearings and a written comment period. The written comment period closed February 28, 2022.

At its Special Public Business Meeting on February 25, 2021, a deadline of September 30, 2021, was set for the publication of these proposed amendments. At the DRBC's 3Q Business Meeting on September 9, 2021, the Commissioners unanimously approved a Resolution for the Minutes extending through November 30, 2021, the date by which DRBC will publish proposed amendments and implementing regulations with respect to transfers of water and wastewater from and to the Delaware River Basin.

Final Rule Prohibiting High Volume Hydraulic Fracturing: February 25, 2021

On February 25, 2021, the Delaware River Basin Commission held a special public business meeting. At the meeting, the Commissioners approved a final rule prohibiting high volume hydraulic fracturing (HVHF) in hydrocarbon-bearing rock formations in the Delaware River Basin. This rulemaking was published for comment on November 30, 2017, with the public comment period closing on March 30, 2018.

In a separate action, the Commissioners directed the executive director to propose amendments by September 30, 2021, to update the Commission’s rules concerning importation of wastewater from outside the basin and exportation of basin waters (see above).

View Notice of Final Rulemaking (complete information on final and proposed rulemakings)

FAQ: Final Rules Addressing Hydraulic Fracturing Activities within the Delaware River Basin (pdf)

View News Release (issued February 25, 2021)

HVHF & the Delaware River Basin
DRBC's Special Protection Waters and the Marcellus Shale Formation
Map showing DRBC's Special Protection Waters and the Marcellus Shale formation. View map as pdf

About 40 percent of the Delaware River Basin is located in portions of Pennsylvania and New York underlain by the Marcellus and Utica Shales.

Although the presence of commercially viable natural gas in these tight shale formations within the DRB is not known, in regions of Pennsylvania west of (but not immediately adjacent to) the basin divide, oil and natural gas are being extracted from the Marcellus and Utica formations.

This is done by a process of directional drilling and hydraulic fracturing using large volumes of water and generating large volumes of toxic wastewater, referred to as high volume hydraulic fracturing (HVHF). HVHF, in combination with directional drilling, has been widely used to extract oil and gas from tight rock formations, such as shales, since around 2008.

DRBC defines HVHF as hydraulic fracturing using a combined total of 300,000 or more gallons of water during all stages in a well completion, whether the well is vertical or directional, including horizontal, and whether the water is fresh or recycled and regardless of the chemicals or other additives mixed with the water.

The South Newark basin, which underlies portions of Pennsylvania and New Jersey, may also contain oil and gas deposits capable of extraction using HVHF.

Why Is The DRBC Involved?

The DRBC has legal authority over both water quality and water quantity-related issues in the basin. 

Delaware River Basin Compact (pdf)

All of the basin areas underlain by the Marcellus and Utica Shales, with the exception of portions of Schuylkill County, Pa., drain to DRBC’s Special Protection Waters.

DRBC’s water quality management policy objective for Special Protection Waters is "that there be no measurable change [in the quality of these waters] except toward natural conditions."

These waters have exceptionally high scenic, recreational, ecological and/or water supply values, not just to the DRBC, but nationally. The non-tidal main stem within and downstream of potential HVHF activity includes 147 river miles designated by Congress as parts of the National Wild and Scenic Rivers System, including 113 river miles that have also been designated as units of the National Park System.

In addition, in much of the Basin underlain by hydrocarbon-bearing shales, water users are dependent upon ground water for drinking water and other uses. To protect the quality of the groundwater, the Commission has prohibited the introduction of harmful or toxic concentrations of substances into groundwater.

DRBC Rulemaking and Regulation:

When the potential for developing natural gas within the basin using HVHF and the risks to water resources posed by such activities became known to the Commission, staff undertook a scientific, technical, regulatory and policy analysis to determine the appropriate response in light of the Commission’s statutory mission and Comprehensive Plan.

On September 13, 2017, the DRBC Commissioners by a Resolution for the Minutes directed the Executive Director to prepare and publish for public comment a revised set of draft regulations, to include, among other things, "prohibitions relating to the production of natural gas utilizing horizontal drilling and hydraulic fracturing within the basin."

The proposed rulemaking was published on November 30, 2017. Extensive opportunity for public input on this proposed rule was provided during the public comment period that took place from November 30, 2017, to March 30, 2018. 

After a deliberate and extensive rulemaking process, the Commission found and determined that:

  • As the scientific and technical literature and the reports, studies, findings and conclusions of other government agencies reviewed by the Commission have documented, and as the more than a decade of experience with HVHF in regions outside the Delaware River Basin have evidenced, despite the dissemination of industry best practices and government regulation, HVHF and related activities have adversely impacted surface water and groundwater resources, including sources of drinking water, and have harmed aquatic life in some regions where these activities have been performed.
  • The region of the Delaware River Basin underlain by shale formations is comprised largely of rural areas dependent upon groundwater resources; sensitive headwater areas considered to have high water resource values; and areas draining to DRBC Special Protection Waters.

  • The geology of the region in which shale formations potentially containing natural gas are located in the Basin is characterized by extensive geologic faults and fractures providing preferential pathways for migration of fluids (including gases).

  • If commercially recoverable natural gas is present in the Delaware River Basin and if HVHF were to proceed in the Basin, then:

    • Spills and releases of hydraulic fracturing chemicals, fluids and wastewater would adversely impact surface water and groundwater, and losses of well integrity would result in subsurface fluid (including gas) migration, impairing drinking water resources and other uses established in the Comprehensive Plan.

    • The fluids released or migrating would contain pollutants, including salts, metals, radioactive materials, organic compounds, endocrine-disrupting and toxic chemicals and chemicals for which toxicity has not been determined, impairing the water uses protected by the Comprehensive Plan.

    • HVHF activities and their impacts would be dispersed over and adversely affect thousands of acres of sensitive water resource features, including, among others, forested groundwater infiltration areas, other groundwater recharge locations and drainage areas to Special Protection Waters, where few existing roads are designed to safely carry the heavy industrial traffic required to support HVHF, prevent dangerous spills or provide access to remediate spills that occur.

For these reasons, on February 25, 2021, the DRBC adopted a new regulation that states, in part: 

  • HVHF poses significant, immediate and long-term risks to the development, conservation, utilization, management and preservation of the water resources of the Delaware River Basin and to Special Protection Waters of the Basin, considered by the Commission to have exceptionally high scenic, recreational, ecological and/or water supply values.

  • Controlling future pollution by prohibiting such activity in the Basin is required to effectuate the Comprehensive Plan, avoid injury to the waters of the Basin as contemplated by the Comprehensive Plan and protect the public health and preserve the waters of the Basin for uses in accordance with the Comprehensive Plan.

  • HVHF in hydrocarbon bearing rock formations is prohibited within the Delaware River Basin.

Notice of Final Rule Regarding HVHF (also includes info on Sept. 2017 proposed rulemaking)

Additional Resources

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