MSC: Draft DRBC Regulations Duplicative, Exceed Body’s Legal Authority

Canonsburg, PA – Pursuant to the Delaware River Basin Commission (DRBC) public notice for comment on Proposed Amendments to the Water Quality Regulations, Water Code and Comprehensive Plan to Provide for Regulation of Natural Gas Development Projects (hereinto “draft regulations”), the Marcellus Shale Coalition (MSC) this week submitted comments outlining concerns with the draft regulations, while emphasizing support for working with the DRBC throughout the regulatory process.

“The MSC supports DRBC in its stated mission of ensuring that proper environmental controls are provided to safeguard the water resources of the Delaware River Basin, and of establishing a regulatory scheme within the scope of DRBC authority that complements state and federal requirements,” said Kathryn Klaber, president of the MSC. “However, the MSC has significant concern regarding the scope of the draft regulations, which we believe exceed DRBC’s legal authority and duplicate member state jurisdiction and existing DRBC programs in several critical respects.”

Specifically, the MSC’s comments, in part cite the following areas of paramount concern:

  • Requirements for the Siting, Design and Operation of Well Pads: The Draft Regulations contain very detailed and far-reaching land use requirements pertaining to the siting, design, construction and operation of well pads for natural gas activities – representing a significant and unnecessary departure from the agency’s role of managing water resources in the basin. These proposed regulations contain a host of new construction and operational standards that are either not required by or inconsistent with state regulatory requirements.
  • Exceed the Scope of DRBC authority: DRBC’s regulatory authority is derived from, and thus limited by, the Delaware River Basin Compact, which established DRBC in 1961 as a regional agency to manage and control the water resources of the Delaware River Basin. The Compact does not grant DRBC review and approval authority over land use as outlined in the draft regulations.
  • Duplicative of State Requirements: Both New York and Pennsylvania have comprehensive oil and gas regulatory programs.  DRBC should defer to the member state programs in all areas where they regulate, and thereby avoid unnecessary, duplicative requirements and administrative costs.
  • Natural Gas Development Plan (NGDP) is Unworkable: A requirement to submit a 5-year NGDP for review and approval, which would compel operators to prepare detailed, forward-looking information about the development of all of their leasehold areas in the Basin, is unworkable and demonstrates a fundamental misunderstanding of the manner in which natural gas development occurs. This level of detail – over the entirety of an operator’s lease holdings to be developed in 5-years – would be impossible to assemble with any meaning or accuracy in advance.
  • Water Related to Natural Gas Development: The Draft Regulations addresses water sources for uses related to natural gas development.  Much of this section is unnecessary, since DRBC already has a well-established program for review and approval of water withdrawals.  DRBC should utilize its existing program for Project Review under Section 3.8 of the Compact and should not adopt a special water source program for water used in natural gas operations.  No other industry is singled out by DRBC with an industry-specific water source regulation.

In addition to submitting formal comments, the MSC, partnering with American Petroleum Institute (API), requested an independent analysis of the draft regulations by ALL Consulting, a professional consulting firm specializing in water management, planning and energy development. The complete analysis, available HERE, was submitted to the DRBC for review and consideration. Following are several key findings of the analysis:

  • The consumptive water use requirements for natural gas development at full build-out, as compared to other water uses within the Basin, are relatively minor. The nuclear power industry uses more than 10 times the amount of water that would be used for natural gas development; golf course maintenance uses more than 20 times the amount; and thermoelectric power generation and agriculture use more than 45 times the amount.
  • The land footprint for natural gas development, as compared to other land uses, is relatively minor. The footprint for natural gas development would be less than the footprint for golf courses in the Basin and 50 times less than the footprint for homes in the Basin.
  • Absent a variance, the siting restrictions and setbacks contained in the Draft Regulations would preclude natural gas development in more than half of the land area overlying the Marcellus Shale formation in the Basin.
  • Many of the submittals, reporting requirements and notices required by the Draft Regulations are duplicative of host state requirements.
  • The process of applying for and obtaining approval to develop natural gas wells pursuant to the Draft Regulations is likely to take as long as 24 months.

The ALL Report also includes a comprehensive bibliography of technical resources that address many of the issues raised in comments to DRBC regarding shale gas development in the Basin.