Case 3:16-cv-00897-RDM Document 179 Filed 05/12/20 Page 1 of 57
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
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`Plaintiff,
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`WAYNE LAND AND
`MINERAL GROUP, LLC
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`v.
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`DELAWARE RIVER BASIN
`COMMISSION
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`
`Defendant, and
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`DELAWARE RIVERKEEPER
`NETWORK and MAYA K. VAN
`ROSSUM, THE DELAWARE
`RIVERKEEPER
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`
`Intervenors-Defendants
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`3:16-CV-00897
`(JUDGE MARIANI)
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`electronically
`filed
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`BRIEF OF AMICI CURIAE NATURAL RESOURCES DEFENSE
`COUNCIL AND CATSKILL MOUNTAINKEEPER
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`Case 3:16-cv-00897-RDM Document 179 Filed 05/12/20 Page 2 of 57
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`TABLE OF CONTENTS
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`TABLE OF AUTHORITIES
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`INTEREST OF AMICI CURIAE
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`INTRODUCTION
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`FACTUAL BACKGROUND
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`The Delaware River Basin
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`I.
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`II. The Delaware River Basin Commission Is Largely
`Responsible for One of the Greatest Cleanups in the Nation’s
`History
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`A. Before the Delaware River Basin Commission, the
`Delaware River Basin was a Site of Extreme
`Environmental Degradation
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`B. The Delaware River Basin Today—the Social,
`Economic, and Environmental Importance of the River
`Basin
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`Fracking Fluid and Wastewater Could Harm Human Health
`and the Environment
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`A. Fracking Fluid and Wastewater Production
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`B. Fracking Fluid and Wastewater Are Harmful to
`Human Health
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`i.
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`Fracking Fluid and Wastewater Composition 29
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`1
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`ARGUMENT
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`I.
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`Case 3:16-cv-00897-RDM Document 179 Filed 05/12/20 Page 3 of 57
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`TABLE OF CONTENTS (cont.)
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`C. Fracking Wastewater Is Harmful to the Environment
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`D. Wherever There is Fracking, There are Spills
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`II. The Consumptive Use of Water from the Basin Could Impair
`Both Quantity and Quality of Water Resources in the
`Delaware River Basin
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`III. Fracking Would Significantly Alter Land Use in the River
`Basin, Harming Nearby Water Quality
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`A.
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`B.
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`Importance of Forests to Nearby Water Quality
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`Impacts of Land Use Changes on Aquatic Organisms
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`CONCLUSION
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`CERTIFICATION OF WORD COUNT
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`CERTIFICATE OF SERVICE
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`Case 3:16-cv-00897-RDM Document 179 Filed 05/12/20 Page 4 of 57
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`TABLE OF AUTHORITIES
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`CASES
`Com. v. Shipman, No. 1169 WDA 2012 (Pa. Super. Ct. June 5, 2013) .. 40
`New Jersey v. New York, 347 U.S. 995 (1954) ......................................... 17
`STATUTES
`58 Pa.C.S.A. § 3222.1 ............................................................................... 30
`Delaware River Basin Compact, Pub. L. 87-328, 75 Stat. 688 .. 11, 23, 25,
`47
`
`OTHER AUTHORITIES
`Abrahm Lustgarten, Frack Fluid Spill in Dimock Contaminates Stream,
`Killing Fish, ProPublica, Sept. 21, 2009, https://bit.ly/2YM1Dra ...... 40
`Agency for Toxic Substances and Disease Registry, Toxicological Profile
`For Acetone (1994), https://bit.ly/2xZtNUr .......................................... 31
`Agency for Toxic Substances and Disease Registry, Toxicological Profile
`for Benzene (2007), https://bit.ly/2Y5nt8w ........................................... 31
`Agency for Toxic Substances and Disease Registry, Toxicological Profile
`for Bromoform and Dibromochloromethane (2005),
`https://bit.ly/2KAZtT4 ........................................................................... 32
`Agency for Toxic Substances and Disease Registry, Toxicological Profile
`for Cyanide (2006), https://bit.ly/3eTxmw3 ......................................... 32
`Agency for Toxic Substances and Disease Registry, Toxicological Profile
`for Phenol (2008), https://bit.ly/2yGVdyv. ........................................... 33
`Agency for Toxic Substances and Disease Registry, Toxicological Profile
`for Toluene (2017), https://bit.ly/3cNqezu ............................................ 33
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`Agency for Toxic Substances and Disease Registry, Toxicological Profile
`for Xylene (2007), https://bit.ly/2Y4yCXl ............................................. 34
`American Rivers, Delaware River: 2020 River of the Year,
`https://bit.ly/2SCsp1q (last visited May 5, 2020) ................................ 22
`Annika Walters & David Post, How Low Can You Go? Impacts of A Low
`Flow Disturbance On Aquatic Insect Communities, 21 Ecological
`Applications 163 (2011) ........................................................................ 45
`B. Wright, et al., Impact Assessment of Natural Gas Production in the
`NYC Water Supply Watershed (2010) .................................................. 42
`Blewett, et al. The Effect of Hydraulic Flowback and Produced Water
`On Gill Morphology, Oxidative Stress and Antioxidant Response in
`Rainbow Trout (Oncorhynchus Mykiss), 7 Sci. Rep. 2 (2017),
`https://go.nature.com/2VVcsUU ........................................................... 37
`Concerned Health Professionals of N.Y. & Physicians for Social
`Responsibility, Compendium of Scientific, Medical, and Media
`Findings Demonstrating Risks and Harms of Fracking
`(Unconventional Gas and Oil Extraction), Fifth Edition (2018),
`https://bit.ly/2VGfFIQ ..................................................................... 35, 36
`Delphine Brogna et al., Linking Forest Cover to Water Quality, 9 Water
`176 (2017), available at https://goo.gl/dwzc6i ................................ 48, 49
`DRBC, Basin Water Use, https://bit.ly/2VS9tMQ (last modified Dec. 3,
`2019) ...................................................................................................... 43
`Environment America, Fracking by the Numbers (2013), available at
`https://bit.ly/3dxjy9e ............................................................................. 45
`EPA, Fact Sheet: Bromoform (2016), https://bit.ly/2yNJcqX .................. 32
`EPA, Hydraulic Fracturing for Oil and Gas: Impacts from the Hydraulic
`Fracturing Water Cycle on Drinking Water Resources in the United
`States (2016), available at https://www.epa.gov/hfstudy . 27, 38, 39, 40,
`41, 42, 44, 48
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`Case 3:16-cv-00897-RDM Document 179 Filed 05/12/20 Page 6 of 57
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`Gerald J. Kauffman, Jr., The Delaware River Revival: Four Centuries of
`Historic Water Quality Change from Henry Hudson to Benjamin
`Franklin to JFK, 77 Pa. Hist. 432 (2010), https://bit.ly/3flqQhT 14, 16,
`18
`Gerald J. Kauffman, Partnership for the Delaware Estuary, Inc.,
`Economic Value of the Delaware Estuary Watershed Comprehensive
`Report (2011), https://bit.ly/2xD9Enb .................................................. 22
`Gerald J. Kauffman, Socioeconomic Value of the Delaware River Basin
`in Delaware, New Jersey, New York, and Pennsylvania (2011),
`https://bit.ly/3b9E0Ly ..................................................................... 21, 26
`Gerald Kauffman and Andrew Homsey, Economic Value of Marcellus
`Shale Gas in the Delaware Basin, 2 J. of Envtl. Solutions for Oil, Gas,
`& Mining 33 (2016) ................................................................... 20, 43, 47
`Gerald Kauffman, Governance, Policy, and Economics of
`Intergovernmental River Basin Management, 29 Water Resource
`Mgmt. 5689 (2015), https://bit.ly/2SFOdZV ........................................ 17
`Heather Galbraith, et al., Population Demographics for the Federally
`Endangered Dwarf Wedgemussel, 7 J. of Fish & Wildlife Management
`377 (2016), https://bit.ly/2xQlBWy. ...................................................... 19
`I. Lushchak, Environmentally Induced Oxidative Stress in Aquatic
`Animals, 101 Aquat. Toxicol. 13 (2011) ............................................... 36
`J. M. Castro et al., Risk-Based Approach to Designing and Reviewing
`Pipeline Stream Crossings to Minimize Impacts to Aquatic Habitats
`and Species, 31 River. Res. & Application 767 (2015), available at
`https://goo.gl/5gtBgx ............................................................................. 50
`J. Richenderfer, et al., Water Use Associated with Natural Gas Shale
`Development: An Assessment of Activities Managed by the
`Susquehanna River Basin Commission July 2008 through December
`2013 (2016) ............................................................................................ 43
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`Case 3:16-cv-00897-RDM Document 179 Filed 05/12/20 Page 7 of 57
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`Judith S. Schreiber, Synopsis of Public Health and Environmental
`Risks Associated with Fracking Wastewater (2018), available at
`https://on.nrdc.org/2yMnkwf .......................................................... 25, 33
`K. P. Paaijmans, et al., The Effect of Water Turbidity on the Near-
`Surface Water Temperature of Larval Habitats of the Malaria
`Mosquito Anopheles Gambiae, 52 Int’l J. of Biometeorology 747 (2008)
` ............................................................................................................... 51
`Kate Sinding, Cabot Sanctioned Big Time for Dimock Disaster, NRDC
`Expert Blog, Apr. 20, 2010, https://on.nrdc.org/3b6vwoz .................... 41
`Kelly O. Maloney, et al., Unconventional Oil and Gas Spills: Materials,
`Volumes, and Risks to Surface Waters in Four States of the U.S., 581-
`582 Sci. of the Total Env’t 369 (2017) .................................................. 35
`Lucie Levesque & Monique Dube, Review of the Effects of In-Stream
`Pipeline Crossing Construction on Aquatic Ecosystems, 132 Envtl.
`Monitoring & Assessment 395 (2007) .................................................. 51
`Matthew McFeeley, NRDC Issue Brief: State Hydraulic Fracturing
`Disclosure Rules and Enforcement: A Comparison (2012),
`https://on.nrdc.org/2YhmpyN ............................................................... 30
`N.Y. City Dept. of Env. Prot., Final Impact Assessment Report: Impact
`Assessment of Natural Gas Production in the New York City Water
`Supply Watershed (2009), https://on.nyc.gov/2W8UEa1 .. 21, 23, 26, 29,
`30, 38, 41, 45
`N.Y. City, Comments on Draft Supplemental Generic Environmental
`Impact Statement on the Oil, Gas and Solution Mining Regulatory
`Program (2009), available at https://bit.ly/35WzEGZ. ........................ 41
`N.Y. State Dept. of Env. Conserv., Final Supplemental Generic
`Environmental Impact Statement of Regulatory Program for
`Horizontal Drilling and High-Volume Hydraulic Fracturing to
`Develop the Marcellus Shale and Other Low-Permeability Gas
`Reservoirs (2015), available at https://goo.gl/EzY83S ............ 37, 47, 50
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`N.Y. State Dept. of Health, A Public Health Review of High Volume
`Hydraulic Fracturing for Shale Gas Development (2014),
`https://on.ny.gov/2KAzV8A ................................................................... 35
`N.Y. State Water Resources Institute, Spills and Leaks Associated with
`Shale Gas Development (2011), https://bit.ly/3cNnRNb ..................... 39
`Nolton Johnson, et al., Environmental Considerations for Evaluating
`Interbasin Water Transfers in Georgia (2007),
`https://b.gatech.edu/353wznK .............................................................. 44
`NRDC, In Fracking’s Wake: New Rules are Needed to Protect Our
`Health and Environment from Contaminated Wastewater (2012),
`https://on.nrdc.org/2W6XQSn ....................................... 25, 31, 34, 39, 42
`Pa. Dept. of Conserv. and Nat. Res., Bureau of State Parks, Watershed
`Education Program, Delaware River Basin Facts (2010),
`https://bit.ly/2YFwci6 ............................................................................ 18
`Pa. Dept. of Env. Prot., Permitting Strategy for High Total Dissolved
`Solids (TDS) Wastewater Discharges (2009), https://bit.ly/2KCpLUE
` ............................................................................................................... 36
`Philadelphia Water Dept., Dept. of Public Works, https://bit.ly/2L1snvx
` ............................................................................................................... 16
`Robert J. Rolls, et al., Mechanistic Effects Of Low-Flow Hydrology On
`Riverine Ecosystems: Ecological Principles And Consequences Of
`Alteration, 31 Freshwater Sci. 1163 (2012) ......................................... 44
`SachinDaluja, Flickr (2009), https://flic.kr/p/6jWxAw ............................ 20
`Steven Habicht, et al., The Potential Environmental Impact from
`Fracking in the Delaware River Basin (2015), https://bit.ly/2xdtQvH
` ......................................................................................................... 28, 49
`Susan Brantley, et al., Water Resource Impacts During Unconventional
`Shale Gas Development: The Pennsylvania Experience, 126 Int’l J. of
`Coal Geology 140 (2014), available at https://bit.ly/2KGdUFq .......... 39
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`T. Colborn, et al., Natural Gas Operations from a Public Health
`Perspective, 17 Hum. & Ecological Risk Assessment 1039 (2011),
`https://bit.ly/2A6xJn4 ........................................................................... 28
`U.S. Fish and Wildlife Service, Habitat Suitability Information:
`Rainbow Trout (1984), available at https://goo.gl/7FMk6u ................ 52
`U.S. Govt. Accountability Office, Interstate Compacts: An Overview of
`the Structure and Governance of Environment and Natural Resource
`Compacts (2007), https://bit.ly/2yljg6t ................................................. 21
`REGULATIONS
`Delaware River Basin Water Code, DELAWARE RIVER BASIN
`COMMISSION, § 2.30.2. https://bit.ly/3cNJNHU ................................... 46
`ADMINISTRATIVE MATERIALS
`Notice of Rule and Public Hearing, Administrative Manual and Special
`Regulations Regarding Natural Gas Development Activities;
`Additional Clarifying Amendments, 83 Fed. Reg. 1586 (proposed Jan.
`12, 2018) ................................................................................................ 44
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`Case 3:16-cv-00897-RDM Document 179 Filed 05/12/20 Page 10 of 57
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`INTEREST OF AMICI CURIAE
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`NRDC is a national, nonprofit, nonpartisan environmental
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`advocacy organization with a long history of litigating and advocating
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`for clean water at the state and federal levels, including in New Jersey,
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`Pennsylvania, and New York State. In 1972, NRDC helped enact the
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`federal Clean Water Act, America’s bedrock water-protection law. More
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`recently, in 2015, NRDC was a principal advocate for the issuance of
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`the Clean Water Rule, which returned guaranteed protections under
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`the Clean Water Act to hundreds of thousands of miles of streams and
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`tens of millions of acres of wetlands across the country.
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`NRDC also has deep expertise on the issue of hydraulic fracturing
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`(“fracking”). Among other work, NRDC launched the Community
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`Fracking Defense Project in 2012 to provide communities with policy,
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`legal, and technical tools to protect themselves from the risks of
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`fracking, including groundwater contamination and toxic chemical and
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`wastewater spills.
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`Catskill Mountainkeeper is a nonprofit grassroots advocacy
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`organization headquartered in Livingston Manor, New York. It is
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`dedicated to protecting and preserving the unique and irreplaceable
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`Catskill Region of New York State. Catskill Mountainkeeper strives to
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`be the strongest and most effective advocate for the Catskill region.
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`Through a network of concerned citizens, Catskill Mountainkeeper
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`works to protect the ecological integrity of the Catskill region and the
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`quality of life of all those who live there by promoting regional
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`economies and protecting the natural resources essential to healthy
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`communities.
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`Since its inception, Catskill Mountainkeeper has collaborated with
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`allies to protect the Delaware River Basin. The Catskills are home to
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`the headwaters of the Delaware River, along with the Catskill Delaware
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`reservoir system, which together serve as the drinking water source for
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`New York City.
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`For the past decade, NRDC and Catskill Mountainkeeper have
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`advocated for a fracking ban in the Delaware River Basin, mobilizing
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`their members and submitting technical comments to the Delaware
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`River Basin Commission’s 2018 draft regulations, which, among other
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`things, proposed banning fracking in the River Basin.
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`Case 3:16-cv-00897-RDM Document 179 Filed 05/12/20 Page 12 of 57
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`INTRODUCTION
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`This case asks whether an interstate compact formed for the
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`purpose of conserving, managing, and controlling water and related
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`resources in the Delaware River Basin has the authority to protect that
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`basin from the harmful effects of hydraulic fracturing (“fracking”).
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`Fracking is a hazardous industrial process for which water is the
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`primary constituent, and whose waste product, also composed primarily
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`of water, has contaminated waterbodies and drinking water supplies
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`across the country, including in the nearby Susquehanna River Basin.
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`Defendant Delaware River Basin Commission (“Commission”) and
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`Intervenor-Defendants Delaware Riverkeeper Network and Maya K.
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`van Rossum ably explain in their papers how any activity that includes
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`a deliberate and significant use of water resources constitutes a
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`“project” as defined under the Delaware River Basin Compact. Pub. L.
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`87-328, 75 Stat. 688 (“Compact”) § 1.2(g). The Defendants argue that
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`the Commission may therefore properly exercise regulatory authority
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`over such an activity. We agree.
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`This amicus brief, submitted by two New York-based
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`environmental advocacy organizations with long histories of protecting
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`Case 3:16-cv-00897-RDM Document 179 Filed 05/12/20 Page 13 of 57
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`water quality in the Delaware River Basin, explains how water and
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`wastewater management areinextricable from the fracking process, and
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`how fracking activities may therefore be subject to regulation by the
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`Commission.
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`Fracking consumes millions of gallons of water per fracking well,
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`most of which becomes so contaminated after use that it cannot be
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`returned to the waterbody from which it was extracted. Fracking
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`results in millions of gallons of contaminated wastewater—filled with
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`toxic and carcinogenic chemicals—that have contaminated nearby
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`drinking water supplies, rivers, and streams, causing significant
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`environmental degradation and severe illness for nearby residents.
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`We believe this brief provides an important perspective that is not
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`covered by any other party or amicus in this case.
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`Case 3:16-cv-00897-RDM Document 179 Filed 05/12/20 Page 14 of 57
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`I.
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`FACTUAL BACKGROUND
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`The Delaware River Basin
`The Delaware River Basin is the catchment area of the United
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`States’ longest free-flowing river east of the Mississippi. It is
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`remarkable for its pristine character, geographic scope, and singular
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`utility to the nation’s most densely populated region—the Mid-Atlantic.
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`From the headwaters in the Catskill Mountains to its mouth in
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`the Delaware Bay, the Delaware River spans 330 miles, draws from 216
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`tributaries, and drains surface water from approximately 13,000 square
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`miles across 42 counties in five U.S. states. This includes 6,465 square
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`miles in Pennsylvania, 2,969 square miles in New Jersey, 2,363 square
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`miles in New York, 968 square miles in Delaware, and 8 square miles in
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`Maryland. North to south, the Basin encompasses five distinct
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`physiographic provinces—Appalachian Plateaus, Valley and Ridge, New
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`England, Piedmont, and Coastal Plain—which range in altitude from
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`over 4,000 feet down to sea level.
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`Case 3:16-cv-00897-RDM Document 179 Filed 05/12/20 Page 15 of 57
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`II. The Delaware River Basin Commission Is Largely
`Responsible for One of the Greatest Cleanups in the
`Nation’s History
`The Delaware River is recognized as one of the greatest water
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`pollution cleanup success stories in the United States. Gerald
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`Kauffman, Jr., The Delaware River Revival: Four Centuries of Historic
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`Water Quality Change from Henry Hudson to Benjamin Franklin to
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`JFK, 77 Pa. Hist. 432, 433 (2010), https://bit.ly/3flqQhT [hereinafter
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`Kauffman (2010)]. Once a site of extreme environmental degradation,
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`the Delaware River is now known as an important habitat for hardwood
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`forests and as a sanctuary to rare and endemic species of plants and
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`animals including bears, bald eagles, native trout, and endangered
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`timber rattle snakes. This exceptional transformation, as explained
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`below, is largely due to the formation of the Delaware River Basin
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`Commission and the unprecedented authority it was given over
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`activities in the River Basin.
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`Case 3:16-cv-00897-RDM Document 179 Filed 05/12/20 Page 16 of 57
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`A. Before the Delaware River Basin Commission, the
`Delaware River Basin was a Site of Extreme
`Environmental Degradation
`The cleanup of the river, which began in the 1960s with the
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`formation of the Delaware River Basin Commission, has helped to
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`establish the River Basin as one of the most important fisheries in the
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`nation. Id. at 445 – 48. Today, the tidal estuary portion of the river is
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`home to nearly 50 species of fish and a thriving fishing industry. Id. at
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`433. But in the early 1960s, when the Commission was formed,
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`staggering levels of pollution in the River Basin threatened fish
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`populations—the American shad in particular—and the commercial
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`fishing industry as a whole. Id.
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`Figure 1. Bridgeport Canal in 1928. Source: Philadelphia Water Dept.,
`Dept. of Public Works, https://bit.ly/2L1snvx.
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`Once abundant in fish and other wildlife, centuries of
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`contamination from industrial dumping and sewage had amassed
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`record levels of pollution in the Basin by the mid-twentieth century.
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`Kauffman (2010), supra, at 435 – 45. Industrial activity along the
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`Delaware proliferated during the nineteenth and twentieth centuries.
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`Id. at 438 – 39. Factories, coal mines, and businesses dumped
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`chemicals and other waste into the river at increasingly high rates. Id.
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`at 439. As late as 1951, nearly every large city along the Delaware and
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`its tributaries lacked sewage treatment facilities and thus dumped raw,
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`untreated sewage into the river. Id. at 442 – 43.
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`Aquatic life suffered from the adverse effects of the Delaware’s
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`growing contamination. By the turn of the twentieth century, sturgeon
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`and shad populations, faced with over-harvesting and the rapid
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`deterioration in water quality, declined dramatically. Id. at 439 – 40.
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`And by the second World War, shad had all but disappeared in the
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`region. Id. at 443. By then, the Delaware was considered a “dead
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`river,” one of the most polluted rivers in the world. Id. at 442 – 43.
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`Established in 1961, over a decade before the creation of the U.S.
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`Environmental Protection Agency and the Clean Water Act, the
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`Commission was formed to coordinate the overlapping water
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`management concerns of the four states: New York, New Jersey,
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`Pennsylvania, and Delaware. New Jersey v. New York, 347 U.S. 995
`
`(1954). It remains the only federal/state basin compact with authority
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`in all areas of water supply, water quality, flood mitigation, and
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`watershed management. Gerald Kauffman, Governance, Policy, and
`
`Economics of Intergovernmental River Basin Management, 29 Water
`
`Resource Mgmt. 5689, 5709 (2015), https://bit.ly/2SFOdZV.
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`Case 3:16-cv-00897-RDM Document 179 Filed 05/12/20 Page 19 of 57
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`Regulations imposed by the Commission, which included a
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`wastewater treatment program and strict waste load allocations, put
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`the Basin on a path to recovery. By 1988, the water quality of the
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`Delaware Estuary was found to be better than it had been at any time
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`in the previous century. Kauffman (2010), supra, at 449. By the 1990s,
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`fish species such as striped bass and shad began to spawn again,
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`returning to the Basin, and over 90 percent of the Delaware Estuary
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`met the fishable and swimmable goals set forth in the 1972 Federal
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`Clean Water Act. Id. at 450. It was in large part because of the
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`Commission’s expansive authority that this dramatic restoration was
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`possible.
`
`B. The Delaware River Basin Today—the Social,
`Economic, and Environmental Importance of the
`River Basin
`Today, the Delaware River Basin is a bucolic landscape that
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`serves as crucial habitat for countless species of flora and fauna, a
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`source of drinking water for millions of people, an important source of
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`recreation for fishermen, boaters, tubers, naturalists, and swimmers,
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`and a significant contributor to the local economy.
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`Case 3:16-cv-00897-RDM Document 179 Filed 05/12/20 Page 20 of 57
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`The Delaware is now one of the most important fisheries in the
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`east. The river has seen a 100-mile expansion of spawning grounds,
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`resulting in the resurgence of species whose populations were once
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`depleted, including the striped bass, endangered short-nosed sturgeon,
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`and American shad, which supports a multi-million-dollar fishing
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`market each year. Pa. Dept. of Conserv. and Nat. Res., Bureau of State
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`Parks, Watershed Education Program, Delaware River Basin Facts 3, 4
`
`(2010), https://bit.ly/2YFwci6. The River Basin also provides an
`
`unmatched blend of habitats for smallmouth bass, trout, and one of the
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`healthiest American eel populations in the country. Spawning
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`horseshoe crabs gather in the Delaware Estuary every spring in the
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`greatest numbers in the world. Id. at 4.
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`And the dwarf wedgemussel—once found in Atlantic coastal
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`drainages from New Brunswick, Canada to North Carolina, but now
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`extinct in all of Canada and listed as endangered in the United States—
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`still persists in the Upper Delaware basin, with over 14,000 individuals
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`relying on the Basin’s clean water for survival. Heather Galbraith, et
`
`al., Population Demographics for the Federally Endangered Dwarf
`
`19
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`Case 3:16-cv-00897-RDM Document 179 Filed 05/12/20 Page 21 of 57
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`Wedgemussel, 7 J. of Fish & Wildlife Management 377 (2016),
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`https://bit.ly/2xQlBWy.
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`Figure 2. The revitalized Delaware Water Gap today. Source:
`SachinDaluja, Flickr (2009), https://flic.kr/p/6jWxAw
`
`Altogether, approximately 16 million people (5 percent of the total
`
`
`
`U.S. population) rely on the Delaware River Basin for clean drinking
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`water. Gerald Kauffman & Andrew Homsey, Economic Value of
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`Marcellus Shale Gas in the Delaware Basin, 2 J. of Envtl. Solutions for
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`Oil, Gas, & Mining 33, 36 (2016). This figure includes 8 million
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`individuals who reside within the Basin, along with 7 million residents
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`of New York City and Philadelphia. Id. at 2.
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`Case 3:16-cv-00897-RDM Document 179 Filed 05/12/20 Page 22 of 57
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`New York City gets nearly half of its water from three large
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`reservoirs located on the tributaries to the Delaware. U.S. Govt.
`
`Accountability Office, Interstate Compacts: An Overview of the Structure
`
`and Governance of Environment and Natural Resource Compacts 38
`
`(2007), https://bit.ly/2yljg6t. Due to the high quality of drinking water
`
`from the Delaware River Basin, New York City is one of only five large
`
`cities in the country with a surface drinking water supply that does not
`
`need to filter its water prior to consumption, a measure that saves the
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`City $10 billion per year. N.Y. City Dept. of Env. Prot., Final Impact
`
`Assessment Report: Impact Assessment of Natural Gas Production in the
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`New York City Water Supply Watershed 51 (2009), available at
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`https://bit.ly/2LiwJys. [hereinafter NYC Assessment].
`
`The River Basin also holds tremendous ecological and economic
`
`value. A clean and protected River Basin contributes to the regional
`
`economy by supporting approximately 600,000 jobs, accounting for more
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`than $12 billion in annual wages, in the coastal, ecotourism, recreation,
`
`and water industries. Gerald Kauffman, Socioeconomic Value of the
`
`Delaware River Basin in Delaware, New Jersey, New York, and
`
`Pennsylvania T.E1, T.E3 (2011), https://bit.ly/3b9E0Ly [hereinafter
`
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`Case 3:16-cv-00897-RDM Document 179 Filed 05/12/20 Page 23 of 57
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`Kauffman (2011)].1 Factoring in ecosystems services, the Basin’s
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`annual contribution to regional and local economies totals at least $16
`
`billion—nearly five times the potential annual value of the natural gas
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`industry in the watershed (a mere $3.3 billion). Id.
`
`Since 1965, Congress has repeatedly recognized the Delaware
`
`River Basin’s unique value to the country, designating hundreds of
`
`miles of river and tributary as protected areas. Gerald Kauffman,
`
`Partnership for the Delaware Estuary, Inc., Economic Value of the
`
`Delaware Estuary Watershed Comprehensive Report 12 (2011),
`
`https://bit.ly/2xD9Enb.
`
`In 2020, the national environmental group American Rivers
`
`named the Delaware River the “2020 River of the Year”—a testament to
`
`the Delaware River Watershed’s continuing ecological significance to
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`the country. In presenting the award, American Rivers noted, “the
`
`Delaware shows how a healthy river can be an engine for thriving
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`communities and strong local economies.” American Rivers, Delaware
`
`
`
`1 These figures exclude jobs and wages generated from wastewater
`utilities.
`
`22
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`Case 3:16-cv-00897-RDM Document 179 Filed 05/12/20 Page 24 of 57
`
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`River: 2020 River of the Year, https://bit.ly/2SCsp1q (last visited May 5,
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`2020).
`
`ARGUMENT
`
`In its complaint, Wayne Land and Mineral Group minimizes the
`
`centrality of water use in fracking and related activities in an attempt
`
`to exempt their proposed activity from regulation. But its efforts distort
`
`the reality of the fracking process: that water is the main component of
`
`fracking fluid and fracking wastewater. When a well is hydraulically
`
`fractured, a mixture primarily composed of millions of gallons of
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`water—between 98 and 99.5 percent of the entire fracking solution—is
`
`injected underground at very high pressures to crack open rock layers
`
`and release the oil or gas trapped inside. NYC Assessment, supra, at 51.
`
`Arguing that water use is peripheral to fracking is akin to
`
`claiming that water “just happens” to be used in the operation of dams.
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`There simply is no fracking without substantial water use. As such,
`
`any fracking well pads and structures built appurtenant to fracking
`
`activity necessarily include facilities “for the conservation, utilization,
`
`control, and management of water resources.” Compact § 1.2(g). From
`
`the drilling rig to well casings to frac tanks to water storage to
`
`23
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`Case 3:16-cv-00897-RDM Document 179 Filed 05/12/20 Page 25 of 57
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`wastewater storage, fracking facilities all feature water as their
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`primary constituent.
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`As explained in the remainder of this brief, the withdrawal,
`
`injection, leakage, and disposal of water could dramatically harm the
`
`valuable water resources of the Delaware River Basin—an outcome that
`
`the Commission was explicitly formed to prevent.
`
`I.
`
`Fracking Fluid and Wastewater Could Harm Human
`Health and the Environment
`Fracking fluid and wastewater—of which Wayne Land and
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`Mineral Group concedes it will use, produce, and store millions of
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`gallons (Def.’s Concise S. of Material Facts, ECF No. 169-3 ¶ 10)—can
`
`be harmful to human health and the environment. Fracking generates
`
`massive amounts of fracking fluid and wastewater that threaten the
`
`health of drinking water supplies, rivers, streams, and groundwater.
`
`These threats to water quality are present well beyond the footprint of
`
`the fracking well. The transportation, treatment, and disposal of
`
`fracking wastewater, even without fracking wells nearby, can degrade
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`source water quality, impair long-term watershed health, and expose
`
`watershed residents to chronic levels of toxic chemicals. Because the
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`Commi