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Delaware Riverkeeper Network, the Delaware Riverkeeper, and v. Carol Collier

August 29, 2011

DELAWARE RIVERKEEPER NETWORK, THE DELAWARE RIVERKEEPER, AND DAMASCUS CITIZENS FOR SUSTAINABILITY, INC.,
PLAINTIFFS,
v.
CAROL COLLIER, IN HER OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR OF THE DELAWARE RIVER BASIN COMMISSION, AND 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NOT FOR PUBLICATION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 # 8] filed by Defendants Carol Collier and Delaware River Basin Commission ("DRBC"). Plaintiffs Delaware Riverkeeper Network ("DRN"), the Delaware Riverkeeper, and Damascus Citizens for Sustainability, Inc. ("DCS") oppose the motion [14]. 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 necessary parties 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 to exempt from regulation certain wells used for natural gas exploration.

A.The Delaware River Basin Commission ("DRBC")

The DRBC is a federal-interstate compact agency that was created pursuant to the 1961 Delaware River Basin Compact ("Compact"), see Pub. L. 87-328, 75 Stat. 588 (1961); see also Compact, available at http://www.state.nj.us/drbc/regs/compa.pdf.The Compact was enacted by concurrent legislation in the United States Congress and in individual states including New York, New Jersey, Pennsylvania, and Delaware, in order to coordinate the management of water resources among private enterprise and federal, state, and local governments. The DRBC's five Commissioners are, ex officio,the governors of the four member states and the commander of the North Atlantic Division of the U.S. Army Corps of Engineers on behalf of the federal government. These Commissioners collectively serve as the governing body of the Commission, delegate administrative functions and duties, and appoint principal officers including the Executive Director. (Compact §§ 14.1(b), 14.5(a).)

B.The Commission's Rules of Practice and Procedure ("RPP")

The DRBC implements the Compact's directives through 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. Substantively, the Compact prohibits any project having a "substantial effect" on the Delaware River Basin's water resources unless the Commission grants prior approval. (Compact § 3.8.) Under the RPP, certain classes of projects are deemed not to have a "substantial effect" and therefore do not require review by the Commission except as directed by the Executive Director. (RPP § 2.3.5A.) However, a federal or state agency may refer otherwise-excluded projects to the Commission if the agency determines that the project may have a substantial effect on the Basin's water resources. (Id. § 2.3.5C.) A party may request a hearing to review a decision made by the Commission or Executive Director 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 a Director determination requiring further action by the Commission, or a hearing is necessary or desirable. (Id. § 2.6.2A) Hearings are conducted by one or more Commission members, by the Executive Director, or by a Hearing Officer designated by the Chairman. (Id. § 2.6.3A.) Any determination by the Commission is ultimately subject to judicial review, as long as the appeal is filed within forty-five days of final Commission action. (Id. § 2.6.10.)

C.The DRBC's Determinations Regarding Natural Gas Development

The present dispute principally concerns the DRBC's actions with respect to natural gas development in the Delaware River Basin. Natural gas in shale (i.e., sedimentary rock) formations is extracted through a process known as hydraulic fracturing ("hydrofracking"), whereby vertical wells are bored thousands of feet deep and millions of gallons of water mixed with chemical agents are injected into the well at high pressure to fracture the rock and release the natural gas. (Compl. ¶ 38.) This process also involves horizontal drilling to maximize the shale layer. (Id.)According to Plaintiffs' Complaint, hydrofracking-whether for exploration or production-negatively affects water quality, causes toxic pollution, erosion, and various other environmental harms and human health risks. (Id. at ¶ 39--44.) The Delaware River has been designated Special Protection Waters ("SPW") and is therefore protected by anti-degradation regulations requiring maintenance of the existing water quality with "no measurable change" except towards natural conditions. (Id. at ¶ 23 (citing Water Code § 3.10.3.A.2).)

On May 19, 2009, Executive Director Carol Collier issued a "Determination of the Executive Director Concerning Natural Gas Extraction Activities in Shale Formations within the Drainage Area of Special Protection Waters" ("EDD"), stating that natural gas extraction project sponsors may not hydrofrack shale formations within the SPW drainage area without prior approval from the Commission. (Id. at ¶¶ 45--47.) However, the EDD further stated that wells "intended solely for exploratory purposes are not covered by this Determination." (Id. at ¶ 49.) On June 14, 2010, Collier issued a Supplemental Determination ("SEDD"),*fn3 withdrawing the EDD's exclusion of exploratory wells. (Id. at ¶ 56.) However, the SEDD carved out an exemption for exploratory well projects that had already received Pennsylvania Department of Environmental Protection ("PADEP") permits and invested in reliance on the May 2009 EDD. (Id. at ¶ 59.) Newfield Appalachia PA, LLC ("Newfield") is a sponsor of five of these exempted exploratory well projects. (Br. in Supp. 8.) Collier's rationale for the exemption was that, in addition to the sponsors' investment-backed expectations, these wells were subject to state regulation and would "require Commission approval before they can be ...


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