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A company that wants to drill for natural gas in the Delaware watershed will get a second chance to challenge the Delaware River Basin Commission’s authority to regulate the activity.

The 3rd Circuit Court of Appeals recently ruled U.S. District Judge Robert D. Mariani erred when he dismissed a lawsuit filed by Wayne Land and Mineral Group, which seeks to construct a hydraulic fracking well pad to explore for natural gas within the watershed.

Hydraulic fracturing is a process that uses high pressure to inject a large volume of water, chemicals and sand into Marcellus Shale, causing it to crack and release natural gas.

The DRBC placed a moratorium on fracking within the watershed in 2010 until it could develop regulations to cover the practice. It still has not done so. Environmental groups viewed Wayne Land’s lawsuit as an attack on the moratorium.

The suit argued the DRBC did not have authority over fracking because the activity did not constitute a “project” as defined by the DRBC’s compact — an interstate agreement that regulates use of water from the Delaware River.

Mariani rejected the group’s challenge last year, finding that language within the compact clearly covers fracking. The 3rd Circuit court disagreed.

In a 48-page opinion filed earlier this month, the court said definition of a project was ambiguous. It sent the case back to Mariani with instructions to hear additional evidence to determine what types of activities the drafters of the compact meant to include.

David Overstreet of Pittsburgh, Wayne Land’s attorney, said the ruling is key victory for his client. The case reinstates the lawsuit, but more importantly the 3rd Circuit Court indicated it had concerns about how the DRBC defined a “project.”

In the opinion, the court said it was mindful of concerns about employing an overly broad interpretation of a project because it could “sweep nearly any activity that happens to use basin water.” That could “potentially include the construction of a new skyscraper in New York City or a small housing development in rural Pennsylvania,” the court said.

“The position of the commission is that anything that uses water is a project,” Overstreet said. “I think the court of appeals said that simply goes too far.”

Maya von Rossum of the Delaware Riverkeeper Network, an environmental group that intervened in the case, does not see the ruling as a defeat.

“It just means we get the opportunity to go back to court to build a record as to how devastating drilling and fracking operations are and why it is essential that DRBC regulates it,” she said.

The 3rd Circuit Court stressed it is not taking any position regarding the merits of arguments put forth by the DRBC, Wayne Land or others that intervened in the case. That issue must be decided by Mariani after further evidence is presented.

“To be clear, at this stage, we are not adopting or endorsing Wayne’s interpretation or the commission’s or anyone else’s,” the court said. “We are simply noting that the parties have posited reasonable interpretations that bear their own strengths and weaknesses.”
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