The Delaware River Basin Commission – the multi-state body responsible for safeguarding water quality of the Delaware River Basin – has moved to further protect the 13,579 square-mile watershed from the dangers of fracking. On December 7, 2022, the Commission finalized new rules that, among other things, ban the discharge of fracking wastewater. With this development, Vermont is no longer the only state in the country to prohibit fracking wastewater discharge; however, the Commission’s regulations do not go quite as far as Vermont’s, which also prohibit the collection and storage of fracking wastewater.
Fracking wastewater consists of fracking fluid (itself a mixture of water, sand, and thousands of toxic chemical additives) and naturally occurring constituents (such as radioactive elements) that are picked up as the injected water flows back to the surface. Even when fracking wastewater undergoes treatment, certain chemical additives may either persist in treated effluent or react with the chlorine used to treat wastewater and form potentially dangerous byproduct chemicals. Fracking wastewater can enter the environment either accidentally, via spills during transport or leaks from storage tanks and disposal pits, or intentionally, through reuse for activities like road spreading where wastewater is sprayed directly onto roads to suppress dust and melt ice.
Due to its proximity to the Marcellus Shale, a fracking hotbed, the Delaware River Basin has long been at risk of damage from fracking. This damage, if it occurs, would have widespread impacts. The Delaware River Basin—which extends from the Catskills in New York to parts of New Jersey, Pennsylvania, and Delaware—helps provide drinking water for over 17 million people in the Northeast. And the Basin is a critical habitat for countless species of flora and fauna, including bald eagles, horseshoe crabs, and the Atlantic sturgeon.
The importance of protecting the communities and the natural resources in the Basin meant it was a huge victory when the Commission acted to ban fracking within the Basin. The ban was enacted in February 2021 following years of advocacy by NRDC and our allies, including the Delaware Riverkeeper Network, Catskill Mountainkeeper, Food and Water Watch, League of Women Voters of New Jersey, Environment New Jersey, and Berks Gas Truth.
To fight for this 2021 ban, NRDC worked with fellow coalition members to alert the public, mobilize constituents to attend Commission meetings, and submit comments urging decisive action to protect the Basin. Years of advocacy culminated in a prohibition on high-volume hydraulic fracturing, or fracking using 300,000 gallons of water or more.
While the ban addressed the act of fracking, it did not address the fate of fracking wastewater. It wouldn’t stop anyone from importing outside fracking wastewater into the Delaware River Basin and reusing or discharging it – which would expose Basin water resources to the same contamination against which the fracking ban aimed to protect. The ban also did not address how the Commission should deal with proposals to send Basin water outside the Basin where it could be used for fracking, which could harm adjacent Basin communities by endangering their water and air quality in addition to contributing to the global climate problem. Recognizing these open questions, the Commission proposed new regulations 8 months after enacting the fracking ban that would prohibit the discharge of fracking wastewater within the Basin and clarify when importing wastewater into the Basin or exporting water from the Basin would be permitted.
NRDC and many of our allies supported these enhanced protections to ban on discharge of fracking wastewater. But we argued that the regulations had to cover reuse and storage of fracking wastewater in addition to accidental releases. We were particularly concerned that not including reuse would allow fracking wastewater to be used for activities like road spreading. We also called on the Commission to prohibit any import of fracking wastewater into the Basin and to make sure that Basin water resources could not be exported for fracking use outside the Basin.
In its action earlier this month, the Commission updated the proposed regulations in response to make them more protective, but it stopped short of any explicit pronouncements against fracking wastewater reuse and storage. It also set forth a list of factors the Commission must consider for any proposed water import or export without explicitly stating that imports or exports relating to fracking are not allowed—although the Commission did note in its response to comments that it “does not consider water needed for high-volume hydraulic fracturing to meet the criteria of a ‘public health and safety’ need [required to approve a proposed water export] under any foreseeable circumstances.”
Contrary to the protests of oil and gas industry developers, there is no doubt that these rules are a step in the right direction. But there are still some questions about whether these regulations will be sufficiently protective going forward. Delaware Riverkeeper Network points to potential remaining loopholes, noting that “other technologies for processing such as adding this waste into cement or other products” are still allowed. Wes Gillingham of Catskill Mountainkeeper put it succinctly at the Commission’s meeting to announce the final rules: “We cannot trust this industry, and we need to close every possible loophole.”
The 2021 fracking ban protected the Delaware River Basin from the significant dangers of fracking, and these regulations build on that ban by protecting from some of the dangers of toxic fracking wastewater. But the continued protection of our communities and water resources depends on the Delaware River Basin Commission holding the line by applying these new regulations to discourage import of fracking wastewater that would result in its storage or reuse—not just its discharge. As time bears out the efficacy of the new regulations, we look forward to continuing our work with organizational allies and the Commission to keep our Basin safe.