Figure 3.2: The riparian rights doctrine provides landowner A with access and withdrawal rights to the river. Landowner B has no riparian rights.  Source: Answers.com riparian owner definition. Available online at http://www.answers.com/topic/riparian-owner.
The doctrine of riparian rights limits landowners to withdraw for “reasonable use.” However, the reasonable use definition varies based on state law. In at least two Marcellus play states (New York and Pennsylvania), withdrawals from major water bodies are coordinated by river basin commissions. The Delaware River Basin Commission (DRBC) coordinates withdrawals from the Delaware River in eastern New York and Pennsylvania (Figure 3.3). Likewise, the Susquehanna River Basin Commission (SRBC) coordinates withdrawals from the Susquehanna River in east-central New York and Pennsylvania (Figure 3.4). The SRBC could also coordinate withdrawals for gas companies operating in western Maryland, though withdrawn water would need to be transported from eastern Maryland or southeastern Pennsylvania.
Figure 3.3: The Delaware River Basin Commission coordinates withdrawals
from the Delaware River in eastern New York and Pennsylvania.
Source: Delaware River Basin Commission. Available online at http://www.state.nj.us/drbc/naturalgas.htm
Figure 3.4: The Susquehanna River Basin Commission coordinates withdrawals
from the Susquehanna River in east-central New York and Pennsylvania.
Source: Susquehanna River Basin Commission, Available online at http://www.srbc.net/atlas/downloads/BasinwideAtlas/PDF/1151_SRBC_Counties.PDF
The SRBC and DRBC must review and approve any project proposing to withdraw 100,000 gallons per day (GPD) or more (based on a 30-day average) from surface waters or groundwater.180,181 In addition, the SRBC must authorize consumptive use (that iswater that does not return to the Susquehanna River) of 20,000 GPD or more (also based on a 30-day average).182 Withdrawal applications are evaluated for their potential adverse impacts to water bodies, including excessive lowering of water levels; rendering competing supplies unreliable; causing permanent loss of aquifer storage capacity; degrading water quality to levels that could be injurious to any existing or potential water use; adversely affecting fish, wildlife, or other living resources or their habitat; and substantially impacting the low-flow of perennial streams.183
The SRBC staff reviews withdrawal applications on a quarterly basis. Because the natural gas industry requires a more rapid turn-around for permit approvals, the SRBC reformed the permit-approval process for natural gas companies between 2008 and 2009.184 The reforms provided gas companies with greater flexibility to purchase water from municipal supplies, including lower-quality municipal treatment plant effluent.185 The DRBC also reformed its permit approval process in 2009 to require natural gas extraction projects to obtain explicit commission approval.186 DRBC staff may not approve withdrawals for hydraulic fracturing. Rather, the decision is made by a majority vote of commissioners at a public hearing.187
The riparian rights system and permitting processes require gas companies to pay several fees to withdraw water legally. Landowners with riparian rights may charge for access to their property, and fees can vary based on ease-of-access, distance from wells, and other site-specific variables. In addition, river basin commissions charge to review permits (Table 3.1). Fee schedules are tiered and based on the planned withdrawal, beginning at 20,000 GPD for consumptive use applications.188 Further, a company that modifies its application by requesting additional withdrawals may be required to pay additional review fees.189 Finally, the river basin commission may charge annual compliance and monitoring fees and fees for consumptive use withdrawals.190 The SRBC, for example, charges $0.28 per $1,000 gallons withdrawn for consumptive use.
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