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December 8, 2011

The final version of the natural gas drilling regulations of the Delaware River Basin Commission (DRBC), still awaiting approval by the commissioners after the postponement of a vote on November 21, contains one phrase that we were very happy to see: “Natural gas exploration and extraction activities are deemed incompatible land uses at locations in the UPDE Corridor [Upper Delaware Scenic and Recreational River Corridor].” The Upper Delaware Council (UDC) is on record interpreting the River Management Plan (RMP) the same way, and to the extent that the DRBC is a member of the council, it is appropriate that it should acknowledge and enshrine this principle in its rule.

Unfortunately, it appears from the ensuing language of section 7.5 that the agency is unwilling to follow this thought to its logical or legal conclusions.

To begin with, we find it baffling that, having conceded that natural gas drilling activities are incompatible with the corridor, the DRBC goes on immediately to say that it will allow them nevertheless via variances, in the phrase: “Accordingly, natural gas development activity is prohibited in such areas without a variance issued in accordance with Section 7.5(d)(2) below.” The RMP, on the basis of which the UDC finds natural gas activities an incompatible use, “stipulates an agreement between all levels of government for implementing the Upper Delaware legislation” (RMP page ii). The DRBC, accordingly, has a commitment to providing the special protections mandated by that act of Congress as specified in the RMP. What makes it think it has the power to make unilateral exceptions?

Perusal of the section that specifies the conditions under which variances can be granted fails to enlighten us. The first criterion is covered by the vague phrase “undue burden on the project sponsor.” The project sponsor being presumably a private company, the corresponding burden would be an impact on profits. What exactly does that have to do with public resource protection?

The second condition says that variances will be granted if “the proposed siting conditions would be equally or more protective of water resources of the basin…. ”

“More protective” than what? The section never specifies. It spells out factors, like spills and endangered species, with respect to which the siting must be more protective. But we are never told what the proposed corridor site is to be compared to.