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Delaware Riverkeeper Network, and the Delaware Riverkeeper v. Delaware River Basin Commission

August 29, 2011

DELAWARE RIVERKEEPER NETWORK, AND THE DELAWARE RIVERKEEPER, PLAINTIFFS,
v.
DELAWARE RIVER BASIN COMMISSION, AND CAROL COLLIER, IN HER OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR OF THE DELAWARE RIVER BASIN COMMISSION, DEFENDANTS.



The opinion of the court was delivered by: Thompson, U.S.D.J.

NOT FOR PUBLICATION

OPINION

I. INTRODUCTION

This matter has come before the Court upon the Motion to Join and/or Dismiss [docket # 9] filed by Defendants Delaware River Basin Commission ("DRBC") and Carol Collier. Plaintiffs Delaware Riverkeeper Network ("DRN") and the Delaware Riverkeeper oppose the motion [15]. The Court has decided the motion upon the submissions of both parties and without oral argument, pursuant to Fed. R. Civ. P. 78(b). For the reasons stated below, Defendants' motion to join is granted and Defendants' motion to dismiss Collier as a defendant is granted.

II. BACKGROUND*fn1

This case involves Plaintiffs'*fn2 appeal of the Delaware River Basin Commission's ("DRBC" or "Commission") decision authorizing Stone Energy Corporation to withdraw up to

0.7 million gallons of water per day from the West Branch of the Lackawaxen River (WBLR). The DRBC is a federal-interstate compact agency that was created pursuant to the 1961

Delaware River Basin Compact ("Compact"), in order to coordinate the management of water resources among private enterprise and federal, state, and local governments. See Pub. L. 87-328,

75 Stat. 588 (1961); see also Compact, available at http://www.state.nj.us/drbc/regs/compa.pdf. The DRBC implements the Compact's directives through the Delaware River Basin Water Code ("WC"), 18 C.F.R. § 410, and the Administrative Manual: Rules of Practice and Procedure ("RPP"), see 18 C.F.R. §§ 401.81--90; see also RPP, available at http://www.state.nj.us/drbc/regs/rules.pdf.

The Water Code states that "[a]ll projects involving a transfer of water into or out of the Delaware Basin must be submitted to the Commission for review and determination" under the Compact. (Compl. ¶ 17.) It is "the policy of the Commission to discourage the exportation of water from the Delaware River Basin." (Compl. ¶ 20 (citing WC § 2.30.2).) Section 2.30.3 of the Code states that the Commission's "review and consideration of any public or private project involving the importation or exportation of water shall be conducted pursuant to this policy and shall include assessments of the water resource and economic impacts of the project and of all alternatives to any water exportation or wastewater importation project." (WC § 2.30.3.) Accordingly, project applicants must address the economic, social, and water-resource impacts of each alternative; the amount, timing and duration of the transfer and its relation to flow requirements; the volume of the transfer and its relationship to other Commission decisions as well as the quantity of other diversions; and any significant benefits or impairment to the Delaware River Basin as a result of the transfer. (WC § 2.30.4.) In reviewing projects, the Commission must also ensure that "no measurable change" to existing water quality occurs at "Boundary and Interstate Control Points" with respect to Special Protection Waters such as the Delaware River. (Id. at ¶ 24 (quoting WC § 3.10.3.A.2.b.1).) Additionally, applicants pursuing projects located in the drainage area of Special Protection Waters must submit a "Non-Point Source Pollution Control Plan." (Id. at ¶ 25 (citing WC § 3.10.3A.2.e).)

Under the RPP, a party may request a hearing to review a decision made by the Commission within thirty days of the decision. (Id. § 2.6.1C.) The Commission will grant a hearing if it determines that an adequate record regarding the decision is unavailable, the case involves an Executive Director determination requiring further action by the Commission, or a hearing is necessary or desirable. (Id. § 2.6.2A.) Any "final Commission action" is subject to judicial review, as long as the appeal is filed within forty-five days of final Commission action. (Id. § 2.6.10.)

On March 5, 2009, Stone Energy Corporation ("Stone Energy") submitted to the DRBC a docket application requesting approval to withdraw up to 0.7 million gallons of water per day from the WBLR for the purposes of extracting natural gas from shale formations within the Delaware River Basin's drainage area. (Compl. ¶ 27.) On February 24, 2010, the DRBC held a public hearing, in which Plaintiff DRN participated, regarding Stone Energy's application. (Id. at ¶ 30.) The DRBC approved the docket on July 14. (Id. at ¶ 31.) Plaintiff DRN submitted a request for a hearing regarding the DRBC's decision on August 13, which was subsequently denied on September 15. (Id. at ¶ 32--33.)

Plaintiffs timely filed the Complaint [1] on November 1, 2010. Plaintiffs' Complaint alleges that the diminution of the total flow of the WBLR resulting from Stone Energy's water withdrawal could cause harm to the aquatic community and jeopardize water quality in the WBLR. (Id. at ¶ 29.) The Complaint also highlights a "Determination" issued by the DRBC's Executive Director on May 19, 2009, that stated: "[A]s a result of water withdrawals, wastewater disposal and other activities, natural gas extraction projects in these shale formations may individually or cumulatively affect the water quality of Special Protection Waters by altering their physical, biological, chemical or hydrological characteristics." (Id. at ¶ 28.) Plaintiffs claim that Defendants approved the docket without properly applying the standards detailed in the Water Code or requiring Stone Energy to submit information and exhibits required under the RPP. (Id. at ¶¶ 36--40.) Plaintiffs further claim that Defendants failed to ensure that the docket would not cause any "measurable change" in water quality and also failed to require a "non-point source pollution control plan" prior to approval. (Id. at ¶¶ 42--45.) Plaintiffs seek declaratory judgment that Defendants' actions were arbitrary and capricious; an injunction prohibiting Defendants from permitting Stone Energy to proceed with water withdrawals until Defendants have complied with statutory and regulatory requirements; and attorneys' fees and costs. (Id. at 11.)

On April 1, Defendants filed a motion to join Stone Energy as an indispensable party under Federal Rule of Civil Procedure 19, or otherwise dismiss for failure to join under Federal Rule of Civil Procedure 12(b)(7). (Br. in Supp. 7--18) [9]. Defendants also move to dismiss Defendant Collier under Rule 12(b)(6) on the ground that she is incapable of granting the requested relief and therefore is not a proper party. (Id. at 18--20.) Plaintiffs oppose the motion, arguing that Stone Energy is not a necessary party, but that, in the alternative, it may feasibly be joined. ...


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