The DRBC is making the case for its indefensible fracking ban on the basis of a fraudulent claim and a theory of regulation with no equal in power grabs.
The proposed DRBC fracking ban is a power grab. It is an illegal expansion of authority granted to the agency under the Delaware River Compact. The Compact gives the DRBC the power to establish standards for treatment of wastes that might be discharged into the waters of the basin. The DRBC proposes to use this very slender authority to bootstrap itself into the position of being able to ban certain land uses and industrial processes (horizontal drilling combined with hydraulic fracturing).
Worse, it proposes to do so without regard to the ability of those land uses and processes to meet such standards, ignoring the fact they not only can, but are being met, in other areas governed by the same people. And, that’s still not the worst of it.
As I noted here, “the DRBC and SRBC compacts creating the agencies were acts of Congress. They are, therefore, the only source of authority either agency ultimately possesses.” Here is the DRBC version with regard to authority to regulate water quality (emphasis added):
The commission, after such public hearing may classify the waters of the basin and establish standards of treatment of sewage, industrial or other waste, according to such classes including allowance for the variable factors of surface and ground waters, such as size of the stream, flow, movement, location, character, self-purification, and usage of the waters affected. After such investigation, notice and hearing the commission may adopt and from time to time amend and repeal rules, regulations and standards to control such future pollution and abate existing pollution, and to require such treatment of sewage, industrial or other waste within a time reasonable for the construction of the necessary works, as may be required to protect the public health or to preserve the waters of the basin for uses in accordance with the comprehensive plan.