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December 05, 2016
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A question of intent

Of course, others involved in creating the plan no doubt agree with Shepstone. But that just means that any attempt to construe the RMP via the opinions of the people who wrote it, while it can unearth valuable insights, is not by itself going to settle the controversy.

There are other ways, however, to help divine the intent of controversial passages. To begin with, we can and should look at the legislation that lies behind the RMP, the Wild and Scenic River Act. If “original intent” is important, it is the intent of the federal law that carries the fundamental legal force. And section 1281 of that act says that rivers in the system should be “administered in such manner as to protect and enhance the values which caused it to be included in said system without, in so far as it is consistent therewith, limiting other uses that do not substantially interfere with public use and enjoyment of these values….”

Among those values are “outstandingly remarkable scenic and recreational, geologic, fish and wildlife, historic, cultural or other similar values,” which are to be “protected for the benefit and enjoyment of present and future generations.” We think it’s clear that modern horizontal hydro-fracking fails this test of “substantial interference.”

We can also look within the four corners of the RMP itself for context. That’s the line that National Park Service Superintendent Sean McGuinness took when, at the UDC meeting, he brought up the concept of heavy industrial use, an incompatible use anywhere in the corridor. Due to technological innovation, what is understood by the words “gas well” may change over time. But nobody who has seen a hydro-fracking operation, or even an exploratory well like the Crum Well in Milanville, PA, has any doubt that it is a heavy industrial use.

Talking to the people involved in drafting the RMP is an enlightening exercise, but by itself it can’t yield a definitive interpretation. At the end of the day, the plan and the law of which it is the implementation must speak for themselves. On that basis, we think the UDC got it just right when they told the Delaware River Basin Commission that modern horizontal hydro-fracking is a heavy industrial use and is inconsistent with the fundamental purposes and vision of the RMP. We hope that they proceed to carry out their conformance reviews on the basis of this understanding.