NJ Legislators Look To Block Fracking to Protect Delaware River

Legislature engages the fracking debate, as DEP undermines DRBC regional powers

Assemblywoman Connie Wagner (D-Bergen) testifies to Assembly Committee (12/9/10)

[Update: 12/12/10 – NY Times reports: New York Governor Vetoes Fracking Bill  – just as I warned, NY policy is dominated by the gas industry. NY Governor Paterson joins NJ DEP Commissioner Martin in opposing DRBC regulation on the grounds of “duplication“:

The news comes on the heels of proposed new fracking regulations by the Delaware River Basin Commission, a regional regulatory agency that oversees the Delaware River watershed in New York, Pennsylvania, New Jersey and Delaware. Those proposed rules were promulgated by three of the four governors that make up the commission.

Governor Paterson objected, stating in a letter that they “could well conflict with the technical and regulatory protocols ultimately adopted in New York, causing confusion, duplication, redundant regulatory fee assessments, differing regulations in different locations and possible mismanagement.” – ed update]

The Assembly Environment Committee met yesteday to discuss a bill (A 3314) that would prohibit the Christie Administration from supporting any withdrawal of Delaware River water to support gas well fracking in neighboring upriver states of Pennsylvania and New York.

This bill prohibits any New Jersey member of the Delaware River Basin Commission from supporting or voting to support the issuance, by the commission or any other entity, of any permit or other kind of approval to withdraw water for the purposes of hydraulic fracturing for natural gas exploration or production.

The move came the same day that the Delaware River Basin Commission (DRBC) publicly released loophole ridden draft regulations to protect the river from fracking operations.

Earlier this week, DEP Commissioner Martin issued a press release and a letter urging the DRBC to strictly regulate fracking to protect NJ’s water supply and the water quality of the Delaware River, which provides drinking water to over 3 million NJ residents.

But Martin is spinning, creating a false appearance of  supporting strong regulation, while caving in to the gas industry and promoting their economic interests over environmental and public health protection.

A close reading of the fine print reveals that Martin’s position is that DRBC basin-wide regulations should only be in place until Pennsylvania and New York adopt their own state level regulations, after which DRBC would defer to state regulators.

“New Jersey will continue to support firm DRBC regulations to protect the Delaware River until Pennsylvania and New York put regulations in place,” Commissioner Martin wrote. “New Jersey does not aim to unnecessarily delay another state’s development; we want only to ensure that any drilling proceeds in an environmentally safe manner.”

Martin is expressly undermining the regional compact and regional regulatory powers of DRBC, in favor of individual state level regulation.

That is a horrible policy, given the economic pressures and deep conflicts on interest in New York and Pennsylvania to develop economically lucrative natural gas supplies. The politically powerful gas industry has undue influence in both states, and a gold rush mentality is driving both states, particularly in light of the economic recession.

NJ must not allow our water supply to be held hostage to New York and Pennsylvania’s weak regulations and short sighted economic considerations of other states.

Instead, the Legislature must set the policy and DEP Commissioner Martin – as NJ’s representative on DRBC – must aggressively protect NJ’s interests through his powers as a member of the DRBC.

Unfortunately, the DRBC itself has caved on this critical issue of State control over drilling – including lifting their own moratorium and reversing prior positions.

This is a deeply irresponsible political capitulation to the powerful gas industry. It is an act of political cowardice under the guise of avoiding “duplication”:

The provisions of this Article rely on the state oil and gas regulatory programs of Pennsylvania and New York where separate administration by the Commission would result in unnecessary duplication. The Article supersedes the Executive Director’s Determinations issued on May 19, 2009, June 14, 2010 and July 23, 2010.

In the Gulf of Mexico, the federal Minerals Management Service engaged in lax regulatory oversight and instead acted an economic booster of BP and the oil and gas industry. Following similar “agency capture” politics, State level gas regulatory programs are even more dominated and controlled by the gas industry than federal MMS.

If enacted, the proposed Legislation would force Martin and the Christie Administration to back up their allegedly protective rhetoric with concrete actions through exercise of NJ’s considerable powers on the DRBC. NJ also can seek to convince fellow non gas state Delaware to frustrate Pennsyvania and New York’s threats to regional water supplies.

With perhaps 10,000 fracking wells using 5 million gallons of water each, that amounts to 50 BILLION gallons of water withdrawn from a basin where available water is spoken for. Recurrent droughts and migration of the salt line which could destroy Philadelphia and South Jersey water supply intakes highlight this emerging regional Water War.

DRBC is an inter-state compact designed to protect the Delaware River and assure an adequate high quality water supply, ecological health, fishing, and water related recreational opportunities in the Delaware River Basin.

At yesterday’s hearing, I joined Delaware Riverkeeper, Environment NJ and Food and Water Watch in testimony in support of the bill. (click on to listen).

chemical and gas lobbyists oppose A3314

Not surprisingly, lobbyists for the NJ Petroleum Council and Chemical Industry Council testified in opposition.

The Petroleum Council lobbyist stated that EPA found that fracking posed no risk to human health or the environment, which is as close to a flat out lie as you can get. EPA is now conducting a national study to document those risks.

Industry testimony made a flat out threat – citing conversations with Pennsylvania and New York colleagues – that any move to use DRBC to restrict gas drilling would spur retaliation that would destroy the DRBC compact.

Similarly, the Chemical Industry Council lobbyist misleadingly claimed that fracking had been in practice for more than 60 years with no harms to drinking water. This is another outright lie, because the horizontal high pressure chemical intensive fracking process is a recent engineering and technological development that is very different from historic vertical drilling practices.

I outlined the legislative and regulatory history that led to the corrupt Congressional exemption of fracking from federal environmental laws; an EPA whistleblower’s criticism of the EPA Report that Congress used to support those exemptions; the ongoing EPA national study on fracking; the numerous EPA noted deficiencies in NY State DEC’s draft “Supplemental Generic Environmental Impact Statement“; and recent political developments in New York State. (seee also” “On the Threshold of a Fracking Nightmare“

I suggested amendments to strengthen the bill, as follows:

• Amend Section 2 a at line 33 to include “or any other DRBC approval“. The  objective is to expand the restriction to DRBC activities that are broader than individual project specific water withdrawals;
• In light of yesterday’s DRBC releases of draft regulations, the bill also should prohibit voting to approve those regulations;
• New Section 3 – “The Department of Environmental Protection shall not issue any approval pursuant to the Water Quality Planning Act (cite) for amendments to areawide wastewater or water quality management plans related to wastewater generated by fracking“.
• New Section 4 – “The Department of Environmental Protection shall not issue any approval pursuant to the Water Pollution Control Act (cite) or delegated federal Clean Water Act  (cite) NJPDES/NPDES permits to authorize the treatment of wastewater generated by fracking or the discharge of pollutants to NJ waters from treated fracking wastewaters.” 
• New Section 5 – impose a temporary moratorium pending EPA study and adoption of national regulations under the Clean Water Act and Safe Drinking Water Act – “No state agency or authority shall act to issue any state approval, permit, or financial support for any activity related to fracking unless and until the US EPA finalizes the national Hydraulic Hyrdofracturing Study and promulgates final regulations pursuant to the Clean Water Act and the Safe Driking Water Act that govern fracking.”
• In addition to DRBC compact powers, there also are protections for downriver states under inter-state provisions of the Clean Water Act – I think they were used informally to coordinate water quality related activities with NY regarding the Ramapo and Walkill rivers, but this requires additional research.

Thanks to sponsors Assemblywomen Wagner and Huttle, Assemblyman Gusciora, and Chairman McKeon for taking this issue on. Let’s see to it that they follow through.

We’ll keep you posted as this issue develops.