Tom Shepstone
Shepstone Management Company, Inc.

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It’s but a taking and the DRBC members just proved it to everyone by announcing they support a ban that doesn’t even allow the export of water for fracking.

The Delaware River Basin Commission is now totally corrupted. A majority of members, including Pennsylvania’s Governor Tom Wolf and two others, have decided to throw any pretense of fracking legality to the wind to pander to the Delaware Povertykeeper and friends. The DRBC is considering a fracking ban under Article 5 of its compact as Plan B in the event they lose the lawsuit brought by the Wayne Land and Mineral Group.

They know the law is against them on the WLMG case and their argument for the Plan B frack ban is even weaker. The agency just showed us, though, they don’t really care whether they win or lose. Indeed, they’d probably prefer losing to avoid a gigantic takings lawsuit to which they are vulnerable. Why do I say that? Because, they just proposed something that absolutely proves their proposed ban has absolutely nothing—zero—to do with water quality.

Is that what the DRBC is up to with its now proposed “full fracking” ban? It sure looks like it.

Here’s the news from the Bucks County Courier Times (emphasis added):

Pennsylvania Gov. Tom Wolf, along with Democratic Delaware Gov. John Carney, said during an event in Philadelphia on Thursday they now support a full ban on fracking activities in the Delaware River basin, a position long sought by environmental activists in the region.

Wolf and Carney previously supported a ban on using hydraulic fracturing — a drilling technique being used to extract large bounties of natural gas in Pennsylvania — in the basin. The governors represent two of five voting members of the Delaware River Basin Commission, an interstate regulatory agency that also includes the governors of New York and New Jersey, along with a representative of the federal government.

In 2017, Wolf and Carney joined New York Gov. Andrew Cuomo in pushing through a 3-1-1 vote on draft DRBC regulations that would ban fracking activities in the basin, which stretches 13,539 miles across the four states.

But the draft regulations did not ban the importation of wastewater from drilling operations outside of the basin, nor the withdrawal of raw water from the basin to be used for drilling operations elsewhere. Officials with the DRBC have said the draft regulations would actually strengthen importation and exportation protections from a current lack of regulation, but environmental groups have loudly demanded a full ban.

Read the whole article to grasp the intellectual dishonesty of Tom Wolf, Pennsylvania’s vacuous trust-funder in chief. That’s not the point, though, that I wish to emphasize. No, I want every reader to focus on the bolded words above, which illustrate an irrefutable point.

It is clear these three DRBC commissioners, a majority, are acting on behalf of a tiny minority of special interests clamoring for what they call a “full fracking ban,” which they mean not only a fracking ban with the basin, but also a ban on imports of fracking wastes and the export of water to other basins for use of fracking anywhere outside the basin. Such a ban on exports to other basins has no relationship to water quality in the Delaware River Basin. It is, rather, a blatant attempt to shut down fracking outside the basin, which means there is no Article 5 justification whatsoever and, therefore, the ban represents a pure taking of property.

Key to understanding this is the fact the DRBC regularly approves water withdrawals for export out of basin for other water uses. For example, here is a withdrawal approved to transfer up to 13 million gallons per month to the Mohawk-Hudson River Basin. Let’s not forget either that New York City withdraws up to 800 million gallons per day and New Jersey withdraws up to 100 million gallons per day for use outside the basin. There are also various water bottlers who constantly withdraw water for sale outside the basin. And, it’s all exactly the same fresh water that would be withdrawn for fracking outside the basin.

So, given that basic fact, how would this exported water for fracking have one iota of greater impact on water quality than these other uses? How, in fact, would any water export impact water quality in the Delaware River Basin? At most, it’s a water quantity issue, not a water quality one and, even at that, the water withdrawals for such fracking would be tiny compared to others. There is simply no case to be made that exporting water to the SRBC to hydraulically fracture a well could, in any way, impact Delaware River water quality.

No, it’s all about stopping natural gas development in and out of the basin and taking the property of not only DRBC region residents but also SRBC residents by denying water that would be made available for any other use. It displays, with stunning clarity, the falsehoods that form the foundation of the proposed DRBC fracking ban. It’s not about water quality at all.

So, why are three governors proposing such foolishness? Because, their goal isn’t to protect water quality but, rather, simply to appease and pander to a small but vocal group of political supporters while ensuring a loss in court that protects against what are patently valid taking claims that would cost the states unaffordable sums. This is how politics works and the DRBC has surrendered any pretense of being anything other than political. It’s a joke; staffed by incompetents unable to lead and controlled by four conniving governors unwilling to lead on anything other than gimmickry, confidence tricks.and golden parachutes out of takings lawsuits. Perhaps it’s time to file one.