On May 16, 2019, Delaware Governor John Carey, New Jersey Governor Phil Murphy, and Pennsylvania Governor Tom Wolf signed a proclamation in support of a permanent fracking ban in the Delaware River Basin.

The Delaware River Basin is a 330-mile-long river watershed running through four states: New York, Pennsylvania, New Jersey, and Delaware. Since 1961, the Delaware River Basin Commission (“DRBC”), a regional interstate and federal agency, has managed the basin. The governors for the four basin states and the commander of the U.S. Army Corps of Engineers for the North Atlantic Division make up the voting members of the agency.

Almost a decade ago, in 2010, the Commission implemented a moratorium to study the potential effects of hydraulic fracking on the basin. According to the Commission, “about 40 percent of the basin’s geographic area are underlain by the Marcellus and Utica shales . . . [but the] presence of commercially viable natural gas from these formations within the basis is not known.” Nevertheless, with approximately fifteen million people relying on the basin for drinking water, the Commission has been cautious to permit any activity that could pollute or deplete the natural resource.

In September 2017, the commissioners directed the executive director to draft regulations prohibiting high volume hydraulic fracking for the production of natural gas in the basin. The Commission subsequently released draft regulations amending the DRBC’s Special Regulations and Administrative Manual – Rules of Practice and Procedure. According to the Commission, the purpose of the proposed prohibition is to “conserve, preserve and protect the quality and quantity of the Basin’s water resources.”

If adopted, the proposed regulations will not only permanently ban high volume hydraulic fracking within the basin, but will also discourage the “diversion, transfer or exportation of water from sources within the Basin to support hydraulic fracturing outside the Basin” and the “importation of wastewater.” While the median water use for a gas well is four million gallons per fracking activity, the regulations define “high-volume” as using “a combined total of 300,000 or more gallons,” effectively banning most, if not all, fracking activity.

During the comment period, the DRBC received over 8,600 comments and submissions from members of the public. Now, more than a year later, the Commission has yet to finalize the proposed regulations. While the Commission is under no deadline to decide its next steps, with three governors recently announcing their support—and New York’s governor preventing the construction of the NESE pipeline—the ban is expected to pass.

Beyond igniting public comment, the DRBC’s proposed regulations have also sparked legislation supporting both landowner’s rights and the basin’s environmental protection.

Last week, the Pennsylvania House debated  Bill 827, introduced by representative Jonathan Fritz, which proposes treating the fracking ban like a government taking in an eminent domain proceeding. If passed, Fritz’s bill will compensate landowners for economic loss due to the ban.

Moreover, on May 22, 2019, U.S. Congresswoman Bonnie Watson Coleman announced a $10 million dollar appropriation for the basin. In a statement, Congresswoman Watson Coleman told the media that the appropriation “represents an important investment in our environment, a step toward protecting our natural resources, and a tool to reverse the impact of various manmade threats to the river.”

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