Tom Shepstone
Shepstone Management Company, Inc.

Why is Pennsylvania still in the DRBC? The DRBC has treated the upper Delaware River basin like it was a park and no one lived here.  It’s long past time the Commonwealth starved this beast. 

Seriously.

Why is Pennsylvania still in the Delaware River Basin Commission (DRBC), a joint unit of government that mocks the Commonwealth’s interests while taking its money? The residents of Wayne County have been waiting five long years for this incompetent agency to deliver gas drilling regulations already in place in the Susquehanna River basin for the entire time.

Worse, two of those years have expired with draft regulations sitting on the shelf as the agency has refused to vote.  Meanwhile, the Commonwealth keeps feeding the beast, cooperates with its other endeavors, participates in the activities used by the others to justify delay and lets the other members slap it around without consequence. It’s time for Pennsylvania to pull all funding and effectively disband the agency.

The DRBC was once an effective agency in allocating water flows, but that all ended when former Pennsylvania Governor Tom Ridge, in one of his worst decisions, pushed Carol Collier into the position of Executive Director.  The organization quickly turned toward a much broader true-believer agenda that encompassed not only water flows, but also water quality and land use, with a view toward stopping any new development in the upper basin. Collier, in fact, has nothing but disdain for the residents of the area.  A review of her correspondence indicates an individual who only acknowledges life north of New Hope if forced to do so. It’s just forestland in her eyes; forestland contaminated by human activity.

Fortunately, Collier is leaving, but the damage is done. The agency is now hopelessly political in nature, incapable of making a decision. The Commonwealth is being used as a patsy and no one seems to have the will or the wherewithal to change it. Governor Tom Corbett has spoken out eloquently and forcefully, but Pennsylvania’s partners are unmoved and as belligerent as ever. They are eating our lunch and waiting for more, just like this bear.

Tellingly, there are no consequences for their bad behavior, none at all, which means the Commonwealth is only enabling the delay and the incompetence by continuing to cooperate with and fund the DRBC. It’s time to call an immediate halt to this abuse by cutting all funding.

There’s also another reason to end it; the DRBC is now no more than a tool of the William Penn Foundation, the Pinchot Institute and the Delaware Riverkeeper.  It has literally sold its soul to the Foundation, let the Institute determine its policies and given control of its committee structure to the Riverkeeper.  They’re all the same people, in fact, wearing different hats and the DRBC is the governing arm by which they plan to halt anything in the way of economic development in the upper basin.

We have articulated all this in several posts here and at Energy In Depth, so there’s no need to repeat it now.  What is painfully obvious at this point is that nothing short of a lawsuit will move the DRBC forward.  Promises are repeatedly made to wait for the next election, to wait for the next opportunity for the governors to meet, to wait on this state or that state, but the only thing that ever happens is more delay.

The Marquess of Queensberry – Pennsylvania Prim and Proper

It appears the agency is now waiting on the Pennsylvania election hoping that Corbett will be defeated, setting things back even further.  Yet, Pennsylvania’s official response to this always the same; talk some more in hopes of changing someone’s mind.  It’s a totally failed strategy because the Commonwealth is playing by the Marquess of Queensberry rules and its partners are playing no holds barred and regularly sucker-punching Pennsylvania, with upper basin residents taking those punches.

The only strategy that will work is pulling out and it’s long past time to do it. Why Pennsylvania has tolerated the abuse from its Compact partners is a mystery but it has.  They have, collectively, done nothing of record to move the ball forward except to cooperate with William Penn Foundation initiatives that are clearly intended to delay, not advance, gas drilling regulations.  The lawsuit is coming, but that needs to be matched with a much more aggressive attitude on the part of the Commonwealth that ends all funding unless and until the DRBC approves gas drilling regulations. Nothing less will do.

The DRBC cannot survive without Pennsylvania’s money but it wouldn’t be the first Compact member not to pay its share (the Feds almost never pay and other states have no issue in arbitrarily reducing their contributions), which is reason enough in itself to refuse to pay, but that’s another story.  It wouldn’t be the first state to effectively pull out of a multi-state water compact that no longer served its interests either. The US Supreme Court recently told Oklahoma its sovereign rights trumped the words of the Red River Compact, noting the following:

The sovereign States possess an “absolute right to all their navigable waters and the soils under them for their own common use.” Martin v. Lessee of Waddell, 16 Pet. 367, 410. So, for example,“ ‘[a] court deciding a question of title to [a] bed of navigable water[within a State’s boundaries] must . . . begin with a strong presumption’ against defeat of a State’s title.” United States v. Alaska, 521 U. S. 1, 34.

Why only pull the funding and not simply withdraw altogether? Well, the DRBC, like many compacts, has a life its own. Once you’re in, you can’t get out for 100 years and then only with 20-25 years of notice, meaning the earliest Pennsylvania could formally withdraw by the Queensbury rules is 2061 (48 years hence) and it would give notice no later than 2041. Nonetheless, politicians from everywhere outside the Commonwealth, who aren’t obsessed by playing by those rules, know all you have to do to end something in government is to either stop meeting or stop funding it. New York State and the Federal government are replete with examples. New York has a hydro-fracking advisory committee and an industry advisory committee on natural gas and oil, for example, that it simply doesn’t call to order.

Removing funding to starve the beast is an equally effective way to get it done.  There is no penalty in the Delaware River Compact for not paying dues and that’s what Pennsylvania would be doing if it were truly serious about moving the DRBC forward. It would pull all funding from Pennsylvania and bring the agency to a grinding halt until the other members did the responsible thing and adopted the gas drilling regulations finished over two years ago.

It would, moreover, announce this to the public by having its representative deliver the message at the next meeting and then walk out. It would also publicly demand the agency stop taking money from the foundation that funds the Riverkeeper to attack it and remove the Riverkeeper from all committees for its disruptive activities and unwillingness to engage in civil debate.  It would tell the DRBC to get out of the land use and water quality business, as the states already do that effectively on their own and have sovereignty on those issues, and insist the agency act more like the Susquehanna River Basin Commission, which is a model of how to move forward.

Most importantly, if Pennsylvania were, serious it would tell the DRBC not to expect one more dime from the Commonwealth to pay their salaries until these actions were taken and inform the other states that it intends to start approving projects in Pennsylvania without DRBC approval as an exercise of the rights the Supreme Court says every state has to the land and water within its borders, which includes its natural resources and the ability to develop them.

Is Pennsylvania serious? Governor Corbett’s correspondence suggest he is, but the lack of action or any serious threats by his representatives to force action tell us a different story.  Discerning the true story is difficult.  I am inclined to give the Governor the benefit of the doubt, but, either his strategy or his representation on the DRBC or both are tragically flawed.  The DRBC is kicking Pennsylvania around like its a dead cat and it’s time for the Commonwealth to spring to life and starve the beast that threatens it until it behaves again.  Maybe a lawsuit will help. It’s coming but, in the meantime, wouldn’t it be nice if some of our Pennsylvania legislators introduced legislation to strip all DRBC funding? It’s time.