PRINTER'S NO. 1812
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
1189
Session of
2018
INTRODUCED BY BAKER, SCARNATI, YAW, EICHELBERGER, VULAKOVICH,
HUTCHINSON, WAGNER, RESCHENTHALER, FOLMER, VOGEL, BARTOLOTTA,
ALLOWAY, BROOKS, WHITE, REGAN, DiSANTO AND MARTIN,
JUNE 1, 2018
REFERRED TO ENVIRONMENTAL RESOURCES AND ENERGY, JUNE 1, 2018
AN ACT
Designating certain activity by the Delaware River Basin
Commission as the exercise of the power of eminent domain
that entitles the owners of the property in question to
appropriate and just compensation.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Short title.
This act shall be known and may be cited as the Delaware
River Basin Commission Eminent Domain Activity Act.
Section 2. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Ban." A prohibition on high-volume hydraulic fracturing
within the basin enacted and implemented pursuant to a
resolution of the commission dated September 13, 2017. The term
includes any other resolution or action of the commission or
executive director that has the same or similar effect,
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regardless of when adopted or taken, to prohibit or
substantially limit high volume hydraulic fracturing within the
basin.
"Basin." The area of drainage into the Delaware River and
its tributaries, including the Delaware Bay, as defined in the
compact.
"Commission." The Delaware River Basin Commission.
"Compact." The Delaware River Basin Compact authorized by
the act of July 7, 1961 (P.L.518, No.268), known as the Delaware
River Basin Compact.
"Executive director." The Executive Director of the Delaware
River Basin Commission.
"Impacted county." Any of the following:
(1) Carbon County.
(2) Lackawanna County.
(3) Luzerne County.
(4) Monroe County.
(5) Pike County.
(6) Wayne County.
Section 3. Legislative findings.
The General Assembly finds that:
(1) The Marcellus and Utica shale gas formations
combined are one of the largest, if not the largest, gas play
in North America. These formations run through, among other
areas, the northeastern part of Pennsylvania, including the
following impacted counties: Carbon, Lackawanna, Luzerne,
Monroe, Pike and Wayne.
(2) Rights to mineral estates, and, in particular, to
oil and gas estates in the impacted counties, have
significant value.
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(3) The impacted counties are located, in whole or in
part, in the basin.
(4) The commission was established pursuant to the
compact between the states of Delaware, New Jersey, New York
and the Commonwealth of Pennsylvania and the United States of
America.
(5) In general, the purpose of the commission is to:
(i) Encourage and provide for the planning,
conservation, utilization, development, management and
control of the water resources of the basin.
(ii) Provide for cooperative planning and action by
the signatory parties of the compact with respect to
water resources.
(iii) Apply the principle of equal and uniform
treatment to all water users who are similarly situated
and to all users of related facilities, without regard to
political boundaries.
(6) On September 13, 2017, the commissioners by a
resolution for the minutes directed the executive director to
prepare and publish for public comment a revised set of draft
regulations to include a prohibition of high-volume hydraulic
fracturing within the basin.
(7) The ban on high-volume hydraulic fracturing in the
impacted counties contemplated by the commission will render
the oil and gas estates located in the impacted counties
worthless and will deprive the owners of these estates of all
economically viable use of those estates.
(8) The Commonwealth as well as the other signatory
parties have conveyed to the commission certain authority,
and section 14.14 of the compact purports to provide to the
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commission certain rights and powers regarding condemnation
and condemnation proceedings with respect to a "project" or a
"facility."
(9) Section 14.14(c) of the compact also provides that
any taking must be paid for by the commission and not by the
signatory parties.
(10) The ban on hydraulic fracturing in the impacted
counties contemplated by the commission constitutes a taking
of the property of the owners of the oil and gas estates in
the impacted counties.
(11) The commission has only the authority expressly
granted to it by the compact. The signatory parties and their
subdivisions retain such authority as has not been
specifically granted to the commission.
(12) The Commonwealth has not delegated to the
commission the ability to determine what activity constitutes
a "taking."
(13) While the General Assembly does not desire by this
act to determine whether the commission has the authority to
exercise the powers of eminent domain in this instance and
does not seek to prevent any lawful and authorized action of
the commission to achieve its purposes, the General Assembly
seeks to establish that the ban on hydraulic fracturing in
the impacted counties contemplated by the commission
constitutes a taking of the property of the owners of the oil
and gas estates in the impacted counties.
Section 4. Designation of condemnation.
A ban by the commission that affects lands in an impacted
county shall be deemed to have rendered the oil and gas estates,
including, but not limited to, the oil and gas estates located
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in the impacted counties, worthless and will deprive the owners
of the estates of all economically viable use of the oil and gas
estates.
Section 5. Legal effect of ban.
A ban under section 4 shall constitute a taking by the
commission of the property of the owners of the oil and gas
estates in the impacted counties and the owners shall be
entitled to be paid appropriate and just compensation by the
commission, in accordance with law, as a remedy for the taking.
Section 6. Effective date.
This act shall take effect immediately.
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