                             PRECEDENTIAL
     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               _____________

                   No. 17-1800
                  _____________

  WAYNE LAND AND MINERAL GROUP LLC,
                       Appellant

                         v.

    DELAWARE RIVER BASIN COMMISSION

MAYA VAN ROSSUM; DELAWARE RIVERKEEPER
              NETWORK

   On Appeal from the United States District Court
       for the Middle District of Pennsylvania
              (D.C. No. 3-16-cv-00897)
      District Judge: Hon. Robert D. Mariani
                 _______________

                    Argued
     November 7, 2017 and November 20, 2017

Before: JORDAN, HARDIMAN and SCIRICA, Circuit
                  Judges.

                (Filed: July 3, 2018)
                 _______________
Jeffrey Belardi
Belardi Law Office
410 Spruce Street – 4th Fl.
Scranton, PA 18503

Christopher R. Nestor
Overstreet & Nestor
1425 Crooked Hill Road - #62066
Harrisburg, PA 17106

David R. Overstreet [ARGUED]
Overstreet & Nestor
461 Cochran Rd.
P.O. Box 237
Pittsburgh, PA 15228

Joseph R. Rydzewski
Spall Rydzewski Anderson Lalley & Tunis
2573 Route 6
Hawley, PA 18428
      Counsel for Appellant

Mark L. Greenfogel
Kenneth J. Warren [ARGUED]
Warren Environmental Counsel
975 Mill Road
Millridge Manor House Suite A
Bryn Mawr, PA 19010

      Counsel for Appellee Delaware River Basin
      Commission




                              2
Mark L. Freed
Jordan B. Yeager [ARGUED]
Curtin & Heefner
2005 S. Easton Road – Ste. 100
Doylestown, PA 18901
      Counsel for Intervenor-Defendant Appellees
      Maya Van Rossum and Delaware Riverkeeper Network

Matthew H. Haverstick [ARGUED]
Eric J. Schreiner
Joshua J. Voss
Kleinbard
1650 Market Street - 46th Fl.
Philadelphia, PA 19103
       Counsel for Not Party Amicus Appellants
                     _______________

                OPINION OF THE COURT
                    _______________

JORDAN, Circuit Judge.

      Wayne Land and Mineral Group, LLC, a company that
wants to obtain natural gas by fracking reserves in
Pennsylvania, 1 appeals from the dismissal of its complaint for

      1
         “Fracking,” or hydraulic fracturing, is the process by
which a mixture of water and various chemicals is injected into
the ground at high pressure to cause the release of natural gas
trapped in shale rock formations. See Fracking, Merriam-
Webster.com (last updated Mar. 29, 2018); see also Hydraulic
Fracturing, McGraw-Hill Dictionary of Scientific and
Technical Terms (6th ed. 2003).




                              3
failure to state a claim. Wayne sought a ruling in the District
Court under the Declaratory Judgment Act that an interstate
compact does not give the Delaware River Basin Commission
authority to review Wayne’s proposed fracking activities. The
Commission argued in response that Wayne’s claim was
properly dismissed as unripe, that Wayne lacks standing, that
there has been no final agency action, and that Wayne has not
exhausted available administrative remedies. The District
Court rejected those arguments but nevertheless denied
Wayne’s request for relief and dismissed the case under
Federal Rule of Civil Procedure 12(b)(6), after determining
that Wayne’s proposed activities constituted a “project”
subject to the Commission’s oversight, according to the
unambiguous terms of the interstate compact. Because we
conclude that the meaning of the word “project” as used in the
compact is ambiguous, we will vacate the order of dismissal
and remand the case for fact-finding on the intent of the
compact’s drafters.
I.      BACKGROUND FACTS2




       2
          The background facts are drawn from the parties’
jointly-submitted appendices, Wayne’s complaint, and any
documents necessarily relied upon in that complaint.
Additionally, some of the facts were derived from the District
Court’s evidentiary hearing. The jointly-submitted appendices
include the interstate compact, which we cite extensively.
Otherwise the joint appendices are only relied upon here to
provide context.




                              4
       A.     The Delaware River Basin, the Interstate
              Compact, and the Delaware River Basin
              Commission

       The Delaware River Basin (the “Basin”) is an area of
land surrounding and draining into the Delaware River that
extends through parts of Delaware, New Jersey, New York,
and Pennsylvania (the “Basin States”). In 1961, the Basin
States and the United States entered into the Delaware River
Basin Compact (the “Compact”), which is an interstate
agreement aimed at ensuring a unified approach to the
conservation, utilization, development, management, and
control of the water and related resources of the Basin.

       The Compact created the Delaware River Basin
Commission, comprising the Governors of the Basin States, as
well as a commissioner appointed by the President of the
United States. By its terms, it gives the Commission a broad
range of powers to protect water quantity and quality within
the Basin. Most relevant to this case are the Commission’s
general powers and duties, which are detailed in Article 3 of
the Compact. Article 3 charges the Commission with creating
“[a] comprehensive plan … for the immediate and long range
development and uses of the water resources of the [B]asin[.]”
(Joint App. at 366, § 3.2(a).) That plan must “include all public
and private projects and facilities which are required, in the
judgment of the [C]ommission, for the optimum planning,
development, conservation, utilization, management and
control of the water resources of the [B]asin to meet present
and future needs[.]” (Joint App. at 386, § 13.1.)

      Consistent with that planning responsibility, Article 3
gives the Commission the authority to review “projects”




                               5
undertaken in the Basin if they will have “a substantial effect
on the water resources of the [B]asin[.]” (Joint App. at 370,
§ 3.8.) The Commission has the power to promulgate rules
“for the procedure of submission, review and consideration of
projects[.]” (Joint App. at 370, § 3.8.) More fully, the
Compact states the criteria for that review process as follows:

       No project having a substantial effect on the
       water resources of the [B]asin shall hereafter be
       undertaken by any person, corporation or
       governmental authority unless it shall have been
       first submitted to and approved by the
       [C]ommission, subject to the provisions of
       Sections 3.3 and 3.5. The [C]ommission shall
       approve a project whenever it finds and
       determines that such project would not
       substantially impair or conflict with the
       comprehensive plan and may modify and
       approve as modified, or may disapprove any
       such project whenever it finds and determines
       that the project would substantially impair or
       conflict with such plan.

(Joint App. at 370, § 3.8.)

      The Compact defines many of its key terms, including
the word “project,” which is said to be

       any work, service or activity which is separately
       planned, financed, or identified by the
       [C]ommission, or any separate facility
       undertaken or to be undertaken within a specified
       area, for the conservation, utilization, control,




                              6
      development or management of water resources
      which can be established and utilized
      independently or as an addition to an existing
      facility, and can be considered as a separate
      entity for purposes of evaluation[.]

(Joint App. at 363, § 1.2(g).) The Compact then defines “water
resources” to include:

      water and related natural resources in, on, under,
      or above the ground, including related uses of
      land, which are subject to beneficial use,
      ownership or control.

(Joint App. at 363, § 1.2(i).) Finally, in sweeping language,
the Compact defines “facility” as:

      any real or personal property, within or without
      the [B]asin, and improvements thereof or
      thereon, and any and all rights of way, water,
      water rights, plants, structures, machinery and
      equipment, acquired, constructed, operated or
      maintained for the beneficial use of water
      resources or related land uses including, without
      limiting the generality of the foregoing, any and
      all things and appurtenances necessary, useful or
      convenient for the control, collection, storage,
      withdrawal, diversion, release, treatment,
      transmission, sale or exchange of water; or for
      navigation thereon, or the development and use
      of hydroelectric energy and power, and public
      recreational facilities; or the propagation of fish
      and wildlife; or to conserve and protect the water




                              7
       resources of the [B]asin or any existing or future
       water supply source, or to facilitate any other
       uses of any of them[.]

(Joint App. at 363, § 1.2(e).)

       The Compact also gives the Commission power to
address pollution within the Basin. Under Article 5 of the
Compact, “[t]he [C]ommission may undertake investigations
and surveys, and acquire, construct, operate and maintain
projects and facilities to control potential pollution and abate
or dilute existing pollution of the water resources of the
[B]asin.” (Joint App. at 372, § 5.1.) Article 5 provides the
following:

       The [C]ommission may assume jurisdiction to
       control future pollution and abate existing
       pollution in the waters of the [B]asin, whenever
       it determines after investigation and public
       hearing upon due notice that the effectuation of
       the comprehensive plan so requires.            The
       standard of such control shall be that pollution by
       sewage or industrial or other waste originating
       within a signatory state shall not injuriously
       affect waters of the [B]asin as contemplated by
       the comprehensive plan. The [C]ommission,
       after such public hearing may classify the waters
       of the [B]asin and establish standards of
       treatment of sewage, industrial or other waste,
       according to such classes including allowance
       for the variable factors of surface and ground
       waters, such as size of the stream, flow,
       movement, location, character, self-purification,




                                 8
       and usage of the waters affected. After such
       investigation, notice and hearing the
       [C]ommission may adopt and from time to time
       amend and repeal rules, regulations and
       standards to control such future pollution and
       abate existing pollution, and to require such
       treatment of sewage, industrial or other waste
       within a time reasonable for the construction of
       the necessary works, as may be required to
       protect the public health or to preserve the waters
       of the [B]asin for uses in accordance with the
       comprehensive plan.

(Joint App. at 372, § 5.2.)

        It is plain that the Commission has broad rulemaking
and enforcement powers. Under Article 14 of the Compact,
the Commission may “[m]ake and enforce reasonable rules and
regulations for the effectuation, application and enforcement
of this [C]ompact[.]” (Joint App. at 389, § 14.2(a).)

       B.     Natural Gas Fracking and the Moratorium

        Natural gas reserves underlie at least some of the land
within the Basin. To extract natural gas from shale rock
formations, energy companies use a combination of horizontal
drilling and hydraulic fracturing. From an area on the ground
called a well pad, companies employ fracking technology to
inject a fluid composed of water and various chemicals into the
ground to force the release of trapped gas. It is estimated that
the fracking process may require up to five million gallons of
water per well. Some of the water in the fracking fluid is
consumed and will remain underground, while the rest will




                               9
flow back to the surface where it is recovered and either
disposed of or recycled.

       The extraction and sale of natural gas may be profitable
for those involved, and it certainly provides benefits to energy
consumers, but fracking is not without controversy – in
particular, concerns that it may adversely affect the quality and
quantity of water resources. As a result, the Commission has
asserted authority over fracking-related activities in the Basin.

       In 2009, the then-Executive Director of the
Commission, Carol Collier, issued a moratorium banning most
natural gas fracking projects located “within the drainage area
of Special Protection Waters,” unless there was prior
Commission approval. 3 (Joint App. at 98.) Collier began by
explaining that fracking had grown in the Basin due to
technological advances, and that those natural gas projects
involved a number of activities that, “if not properly
performed[,] may cause adverse environmental effects,
including effects on water resources.” 4 (Joint App. at 97.)

       3
         The “Special Protection Waters,” which are subject to
a regulatory program created by the Commission, are defined
as the non-tidal part of the Basin, which is all of the Basin north
of Trenton, New Jersey.
       4
           Some of the activities cited include:

       construction of a well pad and associated
       roadways …, the drilling of a well bore …, the
       withdrawal and transport of surface or ground
       water, the injection of the water and chemical
       fracturing mixtures into the wells to release the




                                 10
        The initial 2009 moratorium covered projects that
included a “drilling pad upon which a well intended for
eventual production is located, all appurtenant facilities and
activities related thereto and all locations of water withdrawals
used or to be used to supply water to the project.” (Joint App.
at 98.) But, at that time, “[w]ells intended solely for
exploratory purposes” were not covered by the moratorium.
(Joint App. at 98.)

       Collier expanded that moratorium in 2010 in a
supplemental notice letter. She withdrew the exclusion for
exploratory wells and stated that “all natural gas well project
sponsors, including the sponsors of natural gas well projects
intended solely for exploratory purposes, … may not
commence any natural gas well project for the production from
or exploration of shale formations within the drainage area of
Special Protection Waters without first” obtaining the approval
of the Commission. (Joint App. at 113 (emphasis omitted).)
Collier said that the inclusion of exploratory wells in the
moratorium would “support the Commission’s goal that
exploratory wells do not serve as a source of degradation of the
Commission’s Special Protection Waters,” by “remov[ing] any
regulatory incentive” to engage in purportedly “exploratory”


       trapped gas, the recovery and storage of
       recovered fracturing fluid, water and associated
       leached constituents extracted with the gas, the
       storage and potentially the reuse of the recovered
       wastewater and chemicals and the eventual
       disposal of the water and chemicals.

(Joint App. at 97.)




                               11
drilling before the Commission could implement final natural
gas regulations. (Joint App. at 113.)

       Since then, the Commission has not issued any final
regulations with respect to the procedures and rules governing
the review of fracking projects. 5

      5
             The Commission released proposed fracking
regulations at the end of 2010, received about 69,000
comments on those proposed regulations, and released revised
draft regulations in 2011. But the Commission never made a
final decision with respect to those draft regulations. The
Commission adopted a resolution in September 2017
instructing its Executive Director to publish new proposed
natural gas fracking regulations by November 30, 2017, which
were published on that final day. See Proposed New 18 C.F.R.
Part 440, Hydraulic Fracturing in Shale and Other Formations,
http://www.state.nj.us/drbc/library/documents/HydraulicFract
uring/18CFR440_HydraulicFracturing_draft-for-
comment_113017.pdf. The public comment period closed on
March 30, 2018, and if the final regulations track the proposed
regulations without change, “[h]igh volume hydraulic
fracturing in hydrocarbon bearing rock formations [will be]
prohibited within the Delaware River Basin.” Administrative
Manual and Special Regulations Regarding Natural Gas
Development Activities; Additional Clarifying Amendments,
83 Fed. Reg. 1586, 1595 (proposed Jan. 12, 2018) (to be
codified at 18 C.F.R. pt. 440).
        Nevertheless, the parties in this case agree that those
proposed regulations do not prevent us from deciding Wayne’s
claim. Wayne contends that, unless the Commission is
prepared to no longer assert project review authority over
fracking projects within the Basin under § 3.8 of the Compact,




                              12
       C.     Wayne

       Wayne Land and Mineral Group, LLC is a Pennsylvania
company that alleges it has been particularly harmed by the
Commission’s moratorium on fracking. It owns about 180
acres of land in Wayne County, Pennsylvania, and roughly 75
acres of that land are located within the Basin. That is the
portion of Wayne’s property that contains shale formations
with natural gas reserves. Wayne wants to build a natural gas
well pad and related infrastructure on its property, drill an
exploratory well targeting the recoverable natural gas in the
shale, and if viable, drill a horizontal well and use fracking to
extract gas for sale. Wayne contends that the Commission’s
moratorium is wrongly impeding its investment-backed
expectations.

II.    PROCEDURAL HISTORY



the proposed regulations have “no bearing on [Wayne’s]
narrowly-tailored claim.” (Wayne’s Fed. R. App. P. 28(j)
Letter, dated Oct. 18, 2017, at 4.) The Commission contends
that the proposed regulations have “no direct effect on the
issues raised in this appeal” because the Commission has “not
purport[ed] to make a final decision on any issues” and its
“authority to issue regulations under the Compact is not
dependent on its Section 3.8 (project review) authority[.]”
(Commission’s Fed. R. App. P. 28(j) Letter, dated Oct. 18,
2017, at 2.) The Delaware Riverkeeper Network also stated
that the Commission’s “initiation of rulemaking does not affect
the issues presented in this appeal.” (Delaware Riverkeeper
Network’s Fed. R. App. P. 28(j) Letter, dated Oct. 18, 2017, at
2.)




                               13
   A.     The Complaint, the Motion to Dismiss, and the
          Motions for Intervention

        Wayne filed suit against the Commission in the United
States District Court for the Middle District of Pennsylvania.
In its complaint, it said that the Commission lacks the authority
under the Compact “to review and approve a natural gas well
pad, a gas well and related facilities and associated activities
on [Wayne’s] property” within the Basin. (Joint App. at 62.)
More particularly, Wayne alleged that the Commission
overstepped its bounds by interpreting its power to review
“projects” to include essentially “any activity, development or
other human undertaking in the Basin that uses water[.]” (Joint
App. at 63-64.) Wayne sought a declaratory judgment from
the District Court that the Commission’s jurisdiction extends
only to matters fitting the Compact’s definition of “project”
and that the activities proposed by Wayne do “not constitute a
‘project’ under Section 3.8 of the Compact.” (Joint App. at 77-
78.) By Wayne’s reckoning, then, whether its activities “may
have a substantial effect on water resources in the Basin” is
irrelevant because those activities are not a “project” subject to
the Commission’s authority. (Joint App. at 77.)

       The Commission responded by filing a motion to
dismiss Wayne’s complaint. It asserted that the District Court
lacked subject matter jurisdiction under Rule 12(b)(1) because
Wayne’s claim was not ripe and Wayne lacked standing. It
also said, in the alternative, that the District Court should
dismiss the complaint under Rule 12(b)(6) for failure to state a
claim upon which relief may be granted because there was no
final agency action and Wayne did not exhaust available
administrative remedies. The Commission did not, however,
make arguments countering Wayne’s reading of the Compact’s




                               14
text, including Wayne’s assertion about the scope of the term
“project.”

       The Delaware Riverkeeper Network and an individual
named Maya K. van Rossum, who identifies herself as “the
Delaware Riverkeeper,” were granted permission by the
District Court to intervene as defendants. The Court denied
motions to intervene from Pennsylvania State Senators Joseph
B. Scarnati, Lisa Baker, and Gene Yaw, as well as from
Damascus Citizens for Sustainability, Inc. The Delaware
Riverkeeper Network and Ms. van Rossum submitted a brief
in support of the Commission’s motion to dismiss Wayne’s
complaint, focusing largely on the terms of the Compact and
the Commission’s authority to review fracking activities as
“projects” under that Compact.

       B.     The District Court’s Hearing

        At Wayne’s request, the District Court held an
evidentiary hearing and heard oral argument on the
Commission’s motion to dismiss. The new Executive Director
of the Commission, Steven Tambini, appeared and testified
that the Commission had not yet adopted final rules regarding
fracking activities in the Basin but that the Commission would
be willing to make “a jurisdictional determination … with
respect to natural gas activity” if one were sought. (Joint App.
at 180.) Tambini confirmed that, because the Commission had
not made a jurisdictional statement, there was no “final
decision” as to whether Wayne’s “activities may have a
substantial effect on the water resources of the [B]asin[.]”
(Joint App. at 181.) Until it made such a statement, Tambini
claimed, the Commission could not be said to have made any
“final determination” about whether it has “authority over




                              15
natural gas exploration and … production activities at a well
pad site” under § 3.8 of the Compact. (Joint App. at 180-81.)
According to Tambini, such a jurisdictional determination
would typically include an assessment of whether the
applicant’s activities are a project and, if so, whether that
project will have a substantial effect on the water resources in
the Basin. He further testified that Wayne had not filed a
request for a jurisdictional determination, and that Wayne had
“not asked to come in to visit with us, did not ask professionals
to visit with us, [and] did not ask the commissioners” whether
it had to submit its proposed fracking plans to the Commission
for project review. (Joint App. at 155.) But Tambini also
admitted that no one has ever sought a jurisdictional
determination from the Commission regarding natural gas
extraction.

       Tambini’s testimony made plain the legal risks the
Commission can impose on energy companies. He said that a
company could be fined “not less than $90,000” if it failed to
submit an application to the Commission before drilling a
natural gas fracking well. (Joint App. at 212, 215-16.) And he
agreed that, “if you were going to drill a well, construct a well
pad, you had to file with the [C]ommission.” (Joint App. at
216.) That was his understanding of the intent behind the 2009
and 2010 moratoriums.

       His testimony also showed that the process for
obtaining a jurisdictional determination, or even discovering
the existence of that option, was hardly transparent. He said:

       If you went to the website, I will be the first to
       admit there’s no application for jurisdictional
       determination. But if you[’d] like to have a




                               16
       meeting, have a conference, write a letter, write
       me an e-mail, whatever you want to do to get this
       started on jurisdictional determination, the
       [C]ommission has indicated that we will make a
       jurisdictional determination.

(Joint App. at 227.) Tambini stated that if the Commission has
“information on the activities, the full scope of the [proposed
drilling] activities, then the commissioners can make a
jurisdictional determination.” (Joint App. at 228.) He
indicated that, at a minimum, an applicant must show “where
the water is coming from, how much water is being used, how
many wells, how many wells by when[,] … how much [water]
will stay in the formation, how much will be returned, when it
does return, what is the water quality, how is it being stored,
potentially how it’s being treated, [and] where it’s discharged,”
among other things. (Joint App. at 228.)

       C.     The Dismissal of the Complaint

        The District Court denied the Commission’s motion to
dismiss Wayne’s complaint for lack of subject matter
jurisdiction. Specifically, it determined that Wayne had
standing because it adequately alleged that the Commission’s
assertion of jurisdiction over fracking activities within the
Basin had caused it economic injury. Furthermore, the Court
concluded that Wayne’s claim was ripe because it sought a
declaratory judgment and, in the absence of relief, Wayne
faced a serious threat of fines for noncompliance.

       The District Court also rejected the Commission’s
arguments in support of its motion to dismiss for failure to state
a claim. The Court was unpersuaded that the supposed lack of




                               17
final agency action was a problem, given that Wayne was
seeking a declaratory judgment rather than judicial review of
any specific action by the Commission.            As for the
Commission’s argument that Wayne failed to exhaust
administrative remedies, the District Court noted that
declaratory judgments are available even when a plaintiff has
other remedies. Nevertheless, the Court decided sua sponte to
dismiss the complaint for failure to state a claim because, on
the merits, the Court determined the Compact’s definition of
“project” plainly and unambiguously included Wayne’s
proposed fracking activities.

        The Court gave two primary reasons for that conclusion.
First, it stated that Wayne’s complaint alleged that Wayne
would use water to carry out natural gas drilling activities on
its property located within the Basin. Second, the Court said
that reading the definition of “project” in light of the
Compact’s definition of “water resources” conclusively
resolved the matter because the definition of “water resources”
includes any “related uses of land,” which the Court believed
clearly encompassed Wayne’s proposed fracking activities.

       D.     Appeal

       Wayne timely appealed, and the parties have thoroughly
briefed their positions. 6 Reflecting the substantial public

       6
             The Commission, the Delaware Riverkeeper
Network, and Ms. van Rossum are the respondents, and they
assert that we should affirm the District Court’s judgment.
Although Wayne contends that the Delaware Riverkeeper
Network and the Delaware Riverkeeper cannot participate in
this appeal, courts have held that “[w]hen a party intervenes, it




                               18
interest in this case, amicus briefs have been submitted by four
Pennsylvania senators and thirty Pennsylvania representatives,
as well as by Damascus Citizens for Sustainability, Inc. The
state senators and representatives argue that the District
Court’s determination that the word “project” in the Compact
encompasses fracking-related activities permits the
Commission to usurp the legislative authority that the
Pennsylvania Constitution vests exclusively in the
Pennsylvania General Assembly. 7 Damascus Citizens for
Sustainability, Inc. argues in its brief that the Commission’s
jurisdiction over fracking and the moratorium it placed on
fracking are the only things preventing the negative effects
allegedly associated with fracking activity. 8

III.   DISCUSSION

       Wayne argues that we must vacate the order dismissing
its complaint because the District Court improperly ruled sua
sponte on the merits, without providing Wayne notice and an
opportunity to be heard, and because the Compact’s text
unambiguously does not cover fracking-related activities. The
Commission, the Delaware Riverkeeper Network, and Ms. van


becomes a full participant in the lawsuit and is treated just as if
it were an original party.”          Schneider v. Dumbarton
Developers, Inc., 767 F.2d 1007, 1017 (D.C. Cir. 1985).
       7
          We denied a request from the Pennsylvania senators
and representatives to intervene as appellants, but we granted
their request to participate in oral argument.
       8
          We are grateful for the additional insights and
concerns expressed by the amici.




                                19
Rossum collectively counter that we should affirm the order of
dismissal either because we lack jurisdiction to hear Wayne’s
claim, because Wayne has not stated a claim to relief, or
because we should agree with the District Court’s
interpretation of the Compact’s text as covering Wayne’s
proposed activities. Because we conclude that the District
Court rightly decided it had jurisdiction but wrongly decided
that the Compact’s text unambiguously covers Wayne’s
proposed activities, we will vacate the order dismissing
Wayne’s complaint and remand the case for additional fact-
finding on the intent of the Compact’s drafters.

       A.     Jurisdiction, Finality, and Exhaustion

        Wayne cites 28 U.S.C. § 1331 and the terms of the
Compact as the basis of the District Court’s jurisdiction, and
28 U.S.C. § 1291 as our jurisdictional basis. The Commission,
however, contends that we do not have jurisdiction to entertain
Wayne’s claim because it is not ripe and Wayne lacks standing.
The District Court rejected those same arguments and asserted
jurisdiction over the case. 9 “We review de novo the District



       9
          The Commission did not file a cross-appeal, but “[w]e
have previously said that an appellee may, without taking a
cross-appeal, support the judgment as entered through any
matter appearing in the record[.]” In re Christopher Columbus,
LLC, 872 F.3d 130, 133 n.5 (3d Cir. 2017) (internal quotation
marks and citation omitted). Additionally, subject matter
jurisdiction may be contested at any time. Henderson ex rel.
Henderson v. Shinseki, 562 U.S. 428, 434 (2011). Moreover,
federal courts have an independent obligation to assure
themselves of their own jurisdiction. In re Klaas, 858 F.3d




                              20
Court’s determination of jurisdiction[.]” Marathon Petroleum
Corp. v. Sec’y of Fin. for Del., 876 F.3d 481, 488 n.9 (3d Cir.
2017).

              1.     Ripeness

       Our jurisdiction extends only to claims that are ripe for
resolution. Peachlum v. City of York, 333 F.3d 429, 433 (3d
Cir. 2003). The Commission argues that Wayne’s claim is not
ripe because Wayne has not requested a jurisdictional
determination from the Commission and there is thus no
legally cognizable harm. In the Commission’s view, Wayne
has chosen not to proceed with its fracking project, instead of
asking the Commission whether that project requires
Commission approval. Wayne counters that the burden of
obtaining a jurisdictional determination is itself a harm that
Wayne can contest by seeking declaratory relief.

         “The function of the ripeness doctrine is to determine
whether a party has brought an action prematurely, and
counsels abstention until such time as a dispute is sufficiently
concrete to satisfy the constitutional and prudential
requirements of the doctrine.” Id. (citation omitted). The
Supreme Court has stated that a claim is ripe for review if it is
fit for judicial decision and withholding court consideration of
the issue would constitute a hardship to the parties. Id. at 434
(citing Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967),
abrogated on other grounds by Califano v. Sanders, 430 U.S.
99, 105 (1977)).



820, 825 (3d Cir. 2017). Thus, we can and must address the
Commission’s jurisdictional arguments.




                                21
       “The contours of the ripeness doctrine are particularly
difficult to define with precision when a party seeks a
declaratory judgment.” Marathon Petroleum Corp., 876 F.3d
at 496 (alteration, internal quotation marks, and citation
omitted). Yet we have stated that we are guided by three main
considerations: the adversity of the parties’ interests, the
conclusiveness of the judgment, and the practical utility of that
judgment. Id. Applying those factors here, we agree with the
District Court that Wayne’s claim is ripe.

        First, there is an adversity of legal interests. Adversity
is assessed by asking “[w]hether the claim involves uncertain
and contingent events, or presents a real and substantial threat
of harm.” Surrick v. Killion, 449 F.3d 520, 527 (3d Cir. 2006)
(citation omitted). “It is not necessary for the party seeking
review to have suffered a completed harm in order to establish
adversity of interest so long as there is a substantial threat of
real harm that remains throughout the course of the litigation.”
Id. Here, Wayne faces a real and substantial threat of harm. If
Wayne must seek a jurisdictional determination or submit
materials for project review – a process that, as Tambini
testified, at a minimum requires showing “where the water is
coming from, how much water is being used, how many wells,
how many wells by when[,] … how much [water] will stay in
the formation, how much will be returned, when it does return,
what is the water quality, how is it being stored, potentially
how it’s being treated, [and] where it’s discharged,” among
other things, (Joint App. at 228) – it will necessarily incur
significant expenses and legal risk in attempting to meet that
burden. But if Wayne forgoes submitting anything to the
Commission, it may well face substantial fines. The
Commission previously fined another company $90,000 for




                               22
commencing natural gas drilling activities in the Basin without
the Commission’s prior review and approval.

        Second, Wayne’s claim presents sufficiently concrete
facts to allow for a conclusive legal judgment. A claim is fit
for adjudication if a “declaratory judgment would in fact
determine the parties’ rights, as distinguished from an advisory
opinion based on a hypothetical set of facts.” Surrick, 449 F.3d
at 528. “Cases presenting predominately legal questions are
particularly amenable to a conclusive determination in a
preenforcement context, and generally require less factual
development.” Id. (internal quotation marks and citation
omitted). Here, Wayne’s complaint presents an important
legal question, which is whether constructing a well pad,
drilling an exploratory well, and commencing fracking
constitutes a “project” subject to the Commission’s project
review authority under the Compact. Wayne’s claim turns on
the proper interpretation of the Compact’s terms. There does
need to be some factual development in this case, as we explain
in more detail herein, but granting or denying Wayne’s
requested declaratory relief will conclusively determine
whether Wayne can forego the expense of applying to the
Commission, either for a jurisdictional determination or for
approval of its project.

        The Commission cites an opinion by the United States
Court of Appeals for the District of Columbia Circuit for the
contention that a declaratory judgment here would not be
conclusive but instead would lead to piecemeal litigation. In
Reliable Automatic Sprinkler Co. v. Consumer Product Safety
Commission, the plaintiff challenged an investigating agency’s
tentative assertion that automatic sprinkler heads manufactured
by the plaintiff were “consumer products” within the meaning




                              23
of a federal statute and thus subject to the agency’s regulatory
jurisdiction. 324 F.3d 726, 729-30 (D.C. Cir. 2003). The
plaintiff sought a declaratory judgment to that effect. Id. at
730. It argued that its declaratory judgment claim was
sufficiently ripe for decision because it was challenging “the
agency’s statutory authority to regulate, rather than … the
substance” of the agency’s letter determination. Id. at 731.
The D.C. Circuit rejected that argument and held that the
agency’s actions were not yet subject to review because the
agency had not taken any final action. Id. at 731-32. The court
reasoned that “the agency has not yet made any determination
or issued any order imposing any obligation on [the plaintiff],
denying any right of [the plaintiff], or fixing any legal
relationship.” Id. at 732. According to the court, the plaintiff
still had the opportunity to convince the agency that the term
“consumer product” did not include its automatic sprinkler
heads, which would strip the agency of jurisdiction. Id. at 732-
33. As the court saw it, allowing the plaintiff’s claim to move
forward at that time would have produced piecemeal litigation
over the agency’s jurisdiction and other points of appeal. Id.
at 733.

       That decision is distinguishable. Whereas the agency in
Reliable had not yet made a final decision about its regulatory
jurisdiction, the Commission here has taken a definitive
position that it has authority to review “well pads, exploratory
wells, hydraulic fracturing and related activities” under the
Compact. (Joint App. at 37 n.14.) That the Commission has
thus asserted its jurisdiction is a finding of fact by the District
Court based on the clear language of Collier’s 2009 and 2010
executive letters, and the finding is well founded.
Furthermore, unlike the agency in Reliable, which merely
requested voluntary compliance from the plaintiff without




                                24
threatening sanctions, Tambini’s testimony indicates that the
Commission has taken the position that anyone planning
construction of facilities associated with fracking must submit
an application to the Commission or face the threat of
substantial fines. And while it is generally preferable to
resolve a case all at once, the possibility that the Commission
may be upheld in asserting jurisdiction and that this case may
have a second phase does not outweigh Wayne’s competing
interest in a declaration of its rights. On the issue before us,
Wayne’s claim allows for a conclusive legal judgment.

        Third and finally, a ruling on Wayne’s request for
declaratory relief would have particular utility. A judgment
“will affect the parties’ plans of actions by alleviating legal
uncertainty.” Surrick, 449 F.3d at 529. In the context of the
Declaratory Judgment Act, utility exists when the judgment
would “materially affect the parties and serve … [to] clarify[]
legal relationships so that plaintiffs … [can] make responsible
decisions about the future.” Id. (last ellipses and last alteration
in original) (internal quotation marks and citation omitted).
Here, a grant or denial of the relief Wayne requests would
clarify the legal relationship between Wayne (and other
similarly situated natural gas companies) and the Commission
so that fracking firms can operate with a better understanding
of their legal constraints.

      Based on those considerations of adversity,
conclusiveness, and utility, Wayne’s claim is ripe for judicial
review.

              2.      Standing




                                 25
        In addition to having a ripe claim, a plaintiff must also
have standing to invoke the jurisdiction of the federal courts
under Article III of the United States Constitution. Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560 (1992). As with ripeness,
the test for standing has three elements. Id. First, the plaintiff
must have suffered an injury in fact. Id. That requires “an
invasion of a legally protected interest” which is “concrete and
particularized” and “actual or imminent,” rather than
“conjectural or hypothetical.” Id. (internal quotation marks
and citations omitted). Second, there must be a causal link
between the injury and the allegedly improper conduct. Id.
“[T]he injury has to be ‘fairly … trace[able] to the challenged
action of the defendant, and not … th[e] result [of] the
independent action of some third party not before the court.”
Id. (all alterations but the first in original). Third, it must be
likely that the injury will be redressed by a favorable decision.
Id. at 561. “The party invoking federal jurisdiction bears the
burden of establishing [those three] elements.” Id.

        Here, Wayne has met that burden. It has shown
concrete and particularized injury because the Commission’s
assertion of jurisdiction over well pad construction,
exploratory well drilling, and fracking activities has prevented
Wayne from realizing the market value of natural resources on
its property, has caused Wayne to face a threat of sanctions,
and has confronted Wayne with an extensive and expensive
application process.       The Commission’s assertion of
jurisdiction over and imposition of a moratorium on Wayne’s
activities is the cause of those injuries because it prevents
Wayne from fracking on its property. And a decision in
Wayne’s favor would redress the alleged injury by removing,
at least as to Wayne, the moratorium on fracking in the Basin.
For those reasons, we are satisfied that Wayne has standing.




                               26
              3.     Final Agency Action and Exhaustion of
                     Administrative Remedies

       There is a strong presumption that judicial review of an
agency action is only available after that action becomes final,
Bell v. New Jersey, 461 U.S. 773, 778 (1983), and the
Commission thus contends that this suit should be dismissed
because it has not made a final decision about Wayne’s
proposed activities. 10 Most of the decisions bearing on the
reviewability of agency actions are, unsurprisingly, from cases
in which the Administrative Procedure Act (“APA”) was the
controlling law. See, e.g., Bennett v. Spear, 520 U.S. 154, 177-
78 (1997) (stating two requirements for concluding that an
agency action is final, including that “the action must mark the
‘consummation’ of the agency’s decisionmaking process,”
which means “it must not be of a merely tentative or
interlocutory nature[,]” and “the action must be one by which
‘rights or obligations have been determined,’ or from which
‘legal consequences will flow …’” (citation omitted)). By its
terms, however, the Compact is not subject to the APA. (See
Joint App. at 400, § 15.1(m) (stating that the Commission is

       10
           Sometimes the “final agency action” requirement has
been couched in terms of jurisdiction. See, e.g., Minard Run
Oil Co. v. U.S. Forest Serv., 670 F.3d 236, 247 (3d Cir. 2011).
But we have noted that that is “too loose a use of that term.”
Chehazeh v. Att’y Gen., 666 F.3d 118, 125 n.11 (2012). The
federal question statute, 28 U.S.C. § 1331, provides federal
courts with jurisdiction to review agency actions. Id. The
“final agency action” requirement, instead, goes to whether
there is a cause of action under the statute that provides for
judicial review of a given agency determination. Id.




                              27
not a federal agency for purposes of the APA)). How to
approach the issue of final agency action without relying on
legal precedents developed under the APA is an interesting
question but, fortunately, one we do not need to address,
because the question Wayne poses is not really one of
administrative law at all.

        Wayne is not asking for a review of an agency’s action.
Wayne’s complaint does not seek to invalidate Collier’s letters
placing a moratorium on fracking activities in the Basin.
Instead, Wayne seeks “a declaratory judgment that its proposed
activities do not constitute a ‘project’ subject to [the
Commission’s] project review under Section 3.8 of the
Compact.” (Joint App. at 40.) Even though the APA, which
requires final agency action to invoke judicial review, see
5 U.S.C. § 704, does not apply, the Commission would have us
invoke the final agency action requirement because § 3.8 says
that “[a]ny determination of the [C]ommission [under § 3.8]
shall be subject to judicial review in any court of competent
jurisdiction.” (Joint App. at 370.) The Commission reads that
to mean that until it has made a determination, there is no
judicial review available. Of course, that language can also be
read as meaning simply that courts can review determinations
about projects, not that they can review only such
determinations. Other kinds of disputes are possible, and this
is one. Our jurisdiction is an extension of the District Court’s
and is derived from § 15.1(p) of the Compact, which states that
“[t]he United States district courts shall have original
jurisdiction of all cases or controversies arising under the
Compact[.]” (Joint App. at 401.) Wayne’s claim presents a
case or controversy arising under the Compact, for the reasons
already stated. As more fully discussed herein, we are dealing
with what is, in essence, contract interpretation. Thus, we




                              28
conclude that the “final agency action” requirement of
administrative law is not applicable and does not determine our
ability to review this case.

       The Commission also invokes the doctrine of
exhaustion of administrative remedies in its effort to block this
suit. While related to the finality requirement, exhaustion is
conceptually distinct. Darby v. Cisneros, 509 U.S. 137, 144
(1993). As just noted, however, we are dealing with
interpretation of the Compact itself, not a question of
administrative law, so exhaustion, like finality, is not an
operative principle. 11 For those reasons, we agree with the

       11
            Even if we were to consider administrative law
principles, we do not think an adequate process existed to
which an exhaustion requirement might attach.              The
Commission contends that Wayne failed to seek a
jurisdictional determination before bringing this lawsuit.
Tambini testified, however, that no one has ever sought a
jurisdictional determination from the Commission, that there
are no published or established procedures for obtaining a
jurisdictional determination, and that the only way to obtain
one is by submitting something – what that might be is wholly
unclear – in writing to the Executive Director of the
Commission. We would be hard-pressed to demand that
regulated parties exhaust administrative procedures that are
either unknown or so vague as to be unknowable. Just because
the Commission now declares that it “is committed to making
a jurisdictional determination within ninety days of [Wayne’s]
submission of a request with supporting details of its planned
activities and facilities” does not mean Wayne has suddenly
failed to exhaust available administrative remedies.
(Answering Br. at 31.) There are no established remedies, and




                               29
District Court’s refusal to dismiss Wayne’s claim based on an
alleged failure to exhaust administrative remedies. Seeing no
impediment to our responsibility to exercise jurisdiction, we
proceed to the merits.

       B.     The Merits

        Wayne argues that the District Court erred by
dismissing its complaint for failure to state a claim. 12 We
review that decision de novo under Federal Rule of Civil
Procedure 12(b)(6). Marathon Petroleum Corp., 876 F.3d at
488 n.9. “When considering a Rule 12(b)(6) motion, we
‘accept all factual allegations as true, construe the complaint in
the light most favorable to the plaintiff, and determine whether,
under any reasonable reading of the complaint, the plaintiff
may be entitled to relief.’” Blanyar v. Genova Prods. Inc., 861
F.3d 426, 431 (3d Cir. 2017) (citation omitted). We may
consider “only the complaint, exhibits attached to the
complaint, matters of public record, as well as undisputedly
authentic documents if the complainant’s claims are based
upon [those] documents.” Hartig Drug Co. Inc. v. Senju


we are not interrupting any “administrative process” by
hearing Wayne’s claim now.
       12
          Wayne also argues that the District Court erred by
deciding sua sponte to reach the merits of its claim because the
District Court did not provide Wayne notice or an opportunity
to be heard before dismissing its complaint on those grounds.
We do not need to decide that issue because, following full
merits briefing on appeal and plenary review of the matter
decided below, we will vacate the District Court’s judgment
and remand for further proceedings on the merits.




                               30
Pharm. Co. Ltd., 836 F.3d 261, 268 (3d Cir. 2016) (quoting
Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010)).

        The District Court concluded that it was apparent from
the face of Wayne’s complaint that its proposed activities
constituted a “project” subject to the Commission’s project
review authority under § 3.8 of the Compact. The Court
determined that the text of the Compact, especially its
definitions of “project,” “facility,” and “water resources,” can
be read only one way and plainly encompass Wayne’s
proposed activities. Wayne argues that the District Court erred
because the Compact plainly excludes its proposed fracking-
related activities from the scope of the Commission’s project
review authority, or at the very least, because the Compact is
ambiguous on that point. The Commission counters that “the
District Court correctly dismissed [Wayne’s complaint]
because the well pad and high volume hydraulic fracturing as
customarily performed in the oil and gas industry clearly
comprise a project.” (Answering Br. at 32.) We conclude that
the text of the Compact is ambiguous and, consequently, that a
decision on the merits was premature.

              1.     Principles of Interpretation for Interstate
                     Compacts

       The United States Constitution requires that interstate
compacts be approved by Congress. U.S. Const. art. I, § 10,
cl. 3. Such approval transforms compacts into federal law.
Tarrant Reg’l Water Dist. v. Herrmann, 569 U.S. 614, 620
(2013). Nonetheless, “[i]nterstate compacts are construed as
contracts under the principles of contract law.” Id. at 628. As
with any contract, the analysis begins with “the express terms
of the Compact as the best indication of the intent of the




                              31
parties[.]” Id. But, if the text of the Compact is ambiguous,
we must then “turn to other interpretive tools to shed light on
the intent of the Compact’s drafters.” Id. at 631. One of those
interpretative tools is the background notion “that States do not
easily cede their sovereign powers, including their control over
waters within their own territories[.]” Id. Other guideposts
include the treatment of similar issues in other interstate water
compacts, the parties’ course of performance under the
Compact, and the negotiation and legislative history of the
Compact. Id.; Oklahoma v. New Mexico, 501 U.S. 221, 235
n.5 (1991).

              2.     Standard of Review for the District
                     Court’s Merits Determination

        Since we construe the Compact using traditional
contract principles, that must also inform the standard of
review we apply to the District Court’s reading of the Compact.
Typically, our review of a lower court’s understanding of
congressional legislation is plenary because it is a matter of
statutory interpretation. Susinno v. Work Out World Inc., 862
F.3d 346, 348 (3d Cir. 2017). That includes both an analysis
of the statute’s plain meaning and sometimes, to the extent the
statute is ambiguous, a review of extrinsic evidence of
Congressional intent. United States v. Williams, 675 F.3d 275,
277-78 (3d Cir. 2012). But the Supreme Court has made clear
that we are not conducting statutory interpretation when
analyzing the terms of a compact – again, such “compacts are
construed as contracts under the principles of contract law.”
Tarrant, 569 U.S. at 628. Contract principles suggest that our
standard of review is different than that applicable to statutory
interpretation.




                               32
        Under our case law, contract interpretation is a question
of fact reviewed for clear error and contract construction is a
question of law reviewed de novo. 13 Tracinda Corp. v.
DaimlerChrysler AG, 502 F.3d 212, 229 (3d Cir. 2007). We
have explained that, for purposes of contract interpretation,
“[i]f the contract as a whole is susceptible to more than one

       13
             “The distinction between interpretation and
construction is not always easy.” John F. Harkins Co., Inc. v.
Waldinger Corp., 796 F.2d 657, 659 (3d Cir. 1986). We have
previously turned to Professor Corbin for guidance on how to
describe the distinction:

       By “interpretation of language” we determine
       what ideas that language induces in other
       persons. By “construction of the contract,” as
       that term will be used here, we determine its legal
       operation—its effect upon the action of courts
       and administrative officials. If we make this
       distinction, then the construction of a contract
       starts with the interpretation of its language but
       does not end with it; while the process of
       interpretation stops wholly short of a
       determination of the legal relations of the parties.
       When a court gives a construction to the contract
       as that is affected by events subsequent to its
       making and not foreseen by the parties, it is
       departing very far from mere interpretation of
       their symbols of expression, although even then
       it may claim somewhat erroneously to be giving
       effect to the “intention” of the parties.

Id. (quoting 3 Corbin, Corbin on Contracts § 534 (1960)).




                               33
reading, the fact finder resolves the matter, but if it is
unambiguous and can be interpreted only one way, the court
interprets the contract as a matter of law.” Allied Erecting &
Dismantling, Co., Inc. v. USX Corp., 249 F.3d 191, 201 (3d
Cir. 2001) (internal quotation marks and citation omitted).

        Thus, our analysis proceeds in the alternative. To begin,
we review de novo the text of the Compact to determine
whether we agree with the District Court that it is
unambiguous. Next, if we agree that the text is unambiguous,
then we also review de novo whether Wayne’s proposed
activities on the face of the complaint fall within the scope of
the Compact’s text. If, on the other hand, our review of the
text of the Compact leads us to conclude that it is ambiguous,
then we review for clear error the District Court’s findings
regarding the intent of the parties in crafting that text.

       We turn to that analysis using the contract principles
and interpretive tools endorsed by the Supreme Court.

              3.     Whether the Compact is Ambiguous

       In interpreting the terms of the Compact, the first step is
to clearly define the issue in dispute. Wayne asked in its
complaint for a declaration “that the Commission does not
have jurisdiction over, or the authority to review and approve,
or to require [Wayne] to seek prior approval from the
Commission for, or to otherwise preclude the development of,
[Wayne’s] proposed well pad, appurtenant facilities or the
related activities to be carried out on the [p]roperty.” 14 (Joint

       14
          Wayne’s complaint defines “Well Pads” as “natural
gas well pads, all appurtenant facilities, and related activities




                               34
App. at 79.) In other words, Wayne framed the issue as
whether the Compact’s definition of “project” encompasses its
proposed well pad and related activities. We interpret the
Compact with respect to only the facts stated on the face of the
complaint.

        The Compact itself tells us that its provisions are to be
“reasonably and liberally construed.” (Joint App. at 396,
§ 14.21.) In keeping with that, we’ve said “[t]he signatory
governments [of the Compact] granted broad powers to the
Commission, thereby offering the agency ‘a realistic
opportunity to effectuate a comprehensive plan that concerned
itself with water quality as well as water supply, hydroelectric
power, recreational areas, wildlife conservation, and flood
protection.” Del. River Basin Comm’n v. Bucks Cty. Water &
Sewer Auth., 641 F.2d 1087, 1089 n.3 (3d Cir. 1981) (citation
omitted). But breadth does not equal clarity, at least not with
respect to the issue here.

        Interpreting the Compact according to its language and
in light of Wayne’s proposed activities, the term “project” is
ambiguous for three reasons. First, the District Court’s
interpretation of the term “project” may read the word “for”
out of the Compact and may give the Commission more power
than the drafters intended. Second, although combining the
definitions of “project” and “water resources” as the District
Court did may not be unreasonable, it does not resolve the
ambiguity. Finally, interpreting “project” in light of the
Compact as a whole, the broad reading adopted by the District



carried out in connection with gas wells targeting shale
formations in the Basin[.]” (Joint App. at 68.)




                               35
Court may be at odds with the use of that term in other
provisions. We discuss each of those reasons in turn.

                    i.      The Compact’s        Definition   of
                            “Project”

       Reasonable arguments can be and have been made both
in support of and against the District Court’s conclusion that
the word “project” includes Wayne’s proposed activities. 15
That suggests that the word “project,” as used in the Compact,
is ambiguous. The dispute over the Compact’s definition of
“project” centers primarily on the word “for.” As a reminder,
the Compact defines a “project” as:

       any work, service or activity which is separately
       planned, financed, or identified by the
       [C]ommission, or any separate facility
       undertaken or to be undertaken within a specified
       area, for the conservation, utilization, control,
       development or management of water resources
       which can be established and utilized
       independently or as an addition to an existing
       facility, and can be considered as a separate
       entity for purposes of evaluation[.]


       15
          Throughout the remainder of this opinion, when we
use the word “reasonable” to describe a given interpretation,
we mean “potentially reasonable” or “conceivably correct.”
As discussed further herein, additional information regarding
the intent of the Compact’s drafters may alter one’s view of
whether a particular interpretation is truly one that the Compact
can bear.




                               36
(Joint App. at 363, § 1.2(g) (emphasis added).) The word “for”
is commonly “used as a function word to indicate purpose” or
“an intended goal.” For, Merriam-Webster’s Collegiate
Dictionary (10th ed. 2002).

        Wayne argues that its fracking-related activities are not
“for the … utilization … of water resources” and, if considered
to be “facilities,” as defined in the Compact, are not facilities
“undertaken … for the … utilization … of water resources[.]”
(Joint App. at 363, § 1.2(g) (emphasis added).) Wayne asserts
that it does not propose to frack for the purpose or intended
goal of using water, but rather for the purpose and goal of
capturing natural gas. Water just happens to be used in that
process. From Wayne’s perspective, the Commission’s and
the District Court’s interpretation of “project” reads the word
“for” out of the definition and replaces it with the phrase “that
involves.” Essentially, Wayne frames the Commission’s and
the District Court’s interpretation as extending “project” to
cover “any … activity … identified by the [C]ommission, or
any separate facility undertaken …, [that involves] water
resources[.]” (Joint App. at 363, § 1.2(g).) 16

       16
           The focus of our analysis is on the word “utilization”
because that appears to be most directly connected to Wayne’s
activities, but the Commission points out that “management”
of water resources could also cover fracking because fracking
involves management of wastewater and storage of needed
water and chemicals before their use. While that is likely true,
it runs into the same issues Wayne identifies with respect to
“utilization” of water resources, namely that we cannot ignore
that fracking is not for the purpose of managing water
resources. Thus, that distinction does not alter our analysis or
conclusion.




                               37
       That has some persuasive force. No matter how
“reasonably and liberally” we construe The Compact’s terms
(Joint App. at 396, § 14.21), we cannot ignore that the word
“for” must have some purposive meaning and limiting
function. Doing so would sweep nearly any activity that
happens to use Basin water into the Compact’s definition of
“project,” which could potentially include the construction of
a new skyscraper in New York City or a small housing
development in rural Pennsylvania. Even ignoring the word
“for,” however, there appears to be a boundary on the
Commission’s authority to review development in the Basin,
since § 3.8 only allows the Commission to review projects
“having a substantial effect on the water resources of the
[B]asin[.]” (Joint App. at 370, § 3.8.) Furthermore, we
question the assertion that fracking clearly constitutes a project
subject to the Commission’s authority, because it is not at all
clear on this record how the five million gallons of water used
in fracking a well compares with the quantity of water used to
perform other activities that few if any people would say the
Commission was intended to control. 17




       17
          We emphasize that we are presented with a question
about the Commission’s authority to review and approve
“projects” under § 3.8 of the Compact. We are not considering
the Commission’s authority under any other provisions, such
as §§ 5.1-5.5, which address pollution control. We take no
position on whether Article 5 provides the Commission an
alternative jurisdictional basis to require advance approval of
fracking activity.




                               38
       The Commission counters that, even if it were true that
an activity or facility had to be undertaken for the purpose of
using water resources for the Commission to have power to
review it as a “project,” fracking activities satisfy that
requirement.       First, says the Commission, fracking
purposefully uses water because it consumes it, leaving much
of the fracking mixture buried and useless (or worse) in the
ground. Deliberate, repetitive use of water is an essential part
of fracking, and the Commission contends that is enough to
conclude that the purpose of fracking is to utilize water
resources. Second, the Commission says that, even if one well
only uses a relatively minor amount of water, the collective
quantity of water used by all the fracking wells that could be
drilled in the Basin is so large that it cannot be allowed to
escape the Commission’s reach. Both of those are serious
arguments and deserve careful attention, but they do not
foreclose the possibility that Wayne’s interpretation of the term
“project” is correct.

        The Commission also argues that adopting Wayne’s
understanding of the term “project” is too narrow and would
improperly constrain the Commission’s authority over other
activities in the Basin. Specifically, the Commission contends
that Wayne’s interpretation of “project” would prevent the
Commission from being able to regulate industrial wastewater
discharges or hydroelectric power generation facilities because
they have purposes other than the mere utilization or
management of water.          That response, however, only
highlights the tension between Wayne’s reading and the
Commission’s reading.         It does not prove that the
Commission’s view of its own powers reflects a better
understanding of what the Compact’s drafters meant,
particularly since that broader interpretation has its own flaws.




                               39
As already noted, it has the troubling potential to sweep into
the definition of “project” any activity or facility that uses
water. Moreover, the Commission seems to be overstating
Wayne’s argument. Wayne has not said that hydroelectric
power plants are not water resource development projects, and
it would be foolish to make that argument since the Compact’s
preamble expressly contemplates a comprehensive plan that
provides for the “development of hydroelectric power
potentialities[.]” (Joint App. at 360.) Indeed, wholly apart
from Article 3 and the Commission’s project review authority,
Article 9 explicitly grants the Commission authority with
respect to hydroelectric power facilities. As for industrial
wastewater discharges, they are regulated separately as
pollutants under Article 5. Thus, the Commission’s arguments
do not resolve and perhaps only emphasize the ambiguity of
the term “project,” as used in § 3.8 of the Compact and as the
Commission has applied it to fracking.

                   ii.      “Project” in Conjunction with
                            “Water Resources”

       We next consider the District Court’s use of the defined
term “water resources” to interpret the term “project.” The
Compact defines “water resources” as “water and related
natural resources in, on, under, or above the ground, including
related uses of land, which are subject to beneficial use,
ownership or control.” 18 (Joint App. at 363, § 1.2(i).) The

       18
         The Compact does not define what it means for “water
and related natural resources” to be “subject to beneficial use,
ownership or control.” (Joint App. at 363, § 1.2(g).) It does
not explain whom or what is using, owning, or controlling the
water resources. And although that wording suggests that




                              40
District Court said that reading “project” in conjunction with
“water resources” demonstrates that fracking is “a facility
undertaken for the utilization of ‘water resources’” because
“the well pad and related [fracking activities] admittedly
involve … water ‘in, on, under or above the ground’ and
‘related uses of land.’” 19 (Joint App. at 46 (citation omitted).)
The Commission argues in favor of that line of reasoning, but
we are not persuaded that combining “project” and “water
resources” resolves the ambiguity in the definition of “project.”

        Although the District Court’s approach cannot be
dismissed out of hand, the resulting interpretation is not the
only reasonable one and is in fact subject to non-frivolous
criticism.    Wayne contends that the District Court’s
interpretation equates to saying a project is any activity for the


water and related natural resources may exist in the Basin that
are not subject to beneficial use, ownership, or control, it is
unclear what may constitute such water resources.
       19
            When the definitions of “project” and “water
resources” are combined, the following definition is produced:

       [A project is] any … activity which is separately
       … identified by the [C]ommission, or any
       separate facility undertaken …, for the …
       utilization … or management of water and
       related natural resources in, on, under, or above
       the ground, including related uses of land, which
       are subject to beneficial use, ownership or
       control.

(Joint App. at 363, § 1.2(g), (i).)




                                41
use of “‘land and related natural resources … including related
uses of water’ in the Basin,” rather than the other way around.
(Opening Br. at 34.) Read one way, the District Court’s
approach has merit. Activities and facilities undertaken with
some goal that uses the land in a way related to the
management or utilization of water could indeed be projects.
However, read as Wayne suggests, the District Court’s
approach arguably inverts the most natural reading of the text.
Even if Wayne’s interpretation is not ultimately the correct
one, at the very least, it casts doubt upon the District Court’s
interpretation.

                   iii.      “Project” in Light of Other
                             Compact Provisions

        Looking at the Compact as a whole, the use of the word
“project” throughout the instrument exacerbates the ambiguity.
Provisions in a compact should be interpreted in light of the
document as a whole. Idaho v. Coeur d’Alene Tribe, 794 F.3d
1039, 1045 (9th Cir. 2015); see also Restatement (Second) of
Contracts § 202(2) (1981) (“A writing is interpreted as a
whole[.]”). Wayne argues that the term “project,” read in the
context of the entire Compact, demonstrates that it covers only
water resource projects, or projects undertaken with the
specific purpose of conserving, using, or managing water
resources. The Commission, the Delaware Riverkeeper
Network, and Ms. van Rossum counter that the Compact, read
as a whole, shows that any activity or facility with major effects
on water quantity or quality can be a “project.” Once again,
neither party plainly has the better of the argument concerning
the meaning of “project” in § 3.8 and we are left to conclude
that the term is ambiguous.




                               42
        There are other provisions in the Compact that suggest
that the drafters did not intend to define “project” as broadly as
the Commission contends. For example, rules of contract
interpretation advise us to interpret the meaning of a word by
considering the words associated with it. See Post v. St. Paul
Travelers Ins. Co., 691 F.3d 500, 520 (3d Cir. 2012) (observing
that “[t]he ancient maxim ‘noscitur a sociis’ summarizes the
rule that the meaning of words may be indicated or controlled
by those words with which they are associated. Words are
known by the company they keep” (citation omitted)). Broadly
defining “project” to include Wayne’s proposed fracking-
related activities would sweep in undertakings that could
appear out of place among the (admittedly non-exhaustive) list
of projects and facilities expressly set forth in the description
of the Commission’s general powers. That list includes:

       water and waste treatment plants, stream and
       lake recreational facilities, trunk mains for water
       distribution, local flood protection works, small
       watershed management programs, and ground
       water recharging operations[.]

(Joint App. at 369, § 3.6(b).) Those are arguably different in
purpose and in kind than fracking operations. 20

       20
          Other provisions may also highlight potential issues
or inconsistencies associated with broadly defining the term
“project.” (See, e.g., Joint App. at 353-409, §§ 1.5 (preserving
the role of existing federal and state agencies), 3.3 (defining
the Commission’s power to allocate water within the Basin),
3.5 (limiting the powers of the Commission), 11.1-.2
(discussing the Commission’s jurisdiction relative to other
federal, state, and local agencies), 11.4 (requiring the




                               43
       Nevertheless, there are provisions in the Compact that
indicate a broad definition of “project” may well have been
intended. For example, § 1.3(e) states that the purposes of the
Compact include, among other things:

       encourag[ing] and provid[ing] for the planning,
       conservation,         utilization, development,
       management and control of the water resources
       of the [B]asin … and … apply[ing] the principle
       of equal and uniform treatment to all water users
       who are similarly situated and to all users of
       related facilities[.]

(Joint App. at 364, § 1.3(e).) The Commission makes a
forceful argument that exempting fracking activities from the
scope of the term “project” would give natural gas producers
preference over other industrial water users that are regulated.
Furthermore, § 3.6 broadly states that the Commission has any
powers “necessary or convenient to carry out its express




Commission to establish project cost and evaluation
standards), 12.2 (contemplating capital funding and expenses
associated with project and facility construction), 12.8
(discussing tax exemptions for bonds issued by the
Commission), 13.1-.2 (calling for the development of a
comprehensive plan and water resources program), 15.1
(reserving rights and powers belonging to the United States
Congress).)




                              44
powers or which may be reasonably implied therefrom.” 21
(Joint App. at 370, § 3.6(h).)

       In sum, interpreting the term “project” in light of the
provisions in the whole Compact does not remove the
ambiguity.

              4.     The Need for Further Fact-Finding

        The parties have identified conflicting reasonable
interpretations of the term “project,” which counsels us to
conclude that the District Court erred when it decided that the
Commission’s project review authority under the terms of the
Compact unambiguously includes Wayne’s proposed
activities. To be clear, at this stage, we are not adopting or
endorsing either Wayne’s interpretation or the Commission’s,
or anyone else’s. We are simply noting that the parties have
posited potentially reasonable interpretations that bear their
own strengths and weaknesses. On one side, Wayne’s
interpretation fails to explain how, at the very least, its
proposed water storage tanks are not subject to the
Commission’s project review authority given that it agrees that
“there can be components of an undertaking that can be a
project.” (Oral Arg. Tr., Nov. 7, 2017, at 8:23-24.) Wayne is

       21
           The Delaware Riverkeeper Network and Ms. van
Rossum also contend that the Compact contemplated the
Commission’s jurisdiction to include both “water and related
resources” because that term is used in numerous places
throughout the Compact. (Intervenor Br. at 12.) But despite
its efforts to tie “related resources” to fracking, those parties
have not shown how “related resources” extends beyond
“water resources” as the Compact broadly defines that term.




                               45
bound by the allegations in its complaint, and those allegations
include that water “will be managed and delivered to the [w]ell
[p]ad” site and presumably stored until used, but, oddly, that
none of “the appurtenant facilities to be constructed” will be
for the “control … or management of water resources.” (Joint
App. at 70-71.) 22 On the other side, the interpretation advanced
by the Commission, the Delaware Riverkeeper Network, and
Ms. van Rossum can be seen as unduly broad to the extent it
could permit the Commission to exercise authority to review
and control nearly all productive land use within the Basin.
Furthermore, their interpretation does not effectively address

       22
          We note as well that in its briefing before us, Wayne
characterizes the issue on appeal as “whether land cleared to
accommodate a natural gas well, known as a ‘well pad,’ and
the natural gas well drilled on the pad, separately, or considered
together, constitute a ‘project’ subject to review by the
Commission under Section 3.8 of the Compact.” (Opening Br.
at 14.) An argument can be made that that restatement of the
issue is narrower than the language in the complaint and that
Wayne is essentially trying to characterize what it seeks as a
less-aggressive limiting of the scope of the Commission’s
“project” review authority. Nothing in our opinion should be
interpreted on remand as limiting the broad language of the
complaint – which defines the dispute before the Court – or the
District Court’s discretion to manage the process of presenting
and deciding any narrower questions which may prove
particularly important to bringing this case to a final resolution
(and perhaps to crafting a final remedy). Of course, that
process of clarifying the issues to be litigated may include
appropriate alterations to Wayne’s complaint, which may be
amended in the Court’s discretion. See Fed. R. Civ. P.
15(a)(2).




                               46
the legislative amici’s argument that the Compact contains no
clear indication that Pennsylvania intended to cede its
sovereign power so extensively to the Commission.

        Because we interpret the Compact as a contract and we
have determined that it is ambiguous as to whether Wayne’s
proposed activities are subject to the Commission’s project
review authority under § 3.8, we are left to use “other
interpretive tools to shed light on the intent of the Compact’s
drafters.” Tarrant, 569 U.S. at 631. The problem, however, is
that those interpretive tools require factual determinations to
be made about the Compact drafters’ intent. See Sumitomo
Machinery Corp. of Am., Inc. v. AlliedSignal, Inc., 81 F.3d 328,
335 (3d Cir. 1996) (remanding a contractual dispute to the
district court for further fact-finding because, “[w]hen a
contract is ambiguous, the ‘fact-finder must attempt to discover
what the contracting parties … intended [the disputed
provisions] to mean’” (alterations in original) (citation
omitted)). The District Court must have the opportunity to
evaluate in the first instance how other interstate compacts, the
parties’ course of performance, and the negotiation and
legislative history of the Compact, among other evidence, bear
on the question of intent. The interpretation that should prevail
is the one that aligns best with the drafters’ intent. 23

       23
           The Commission contends that its interpretation of
the term “project” is entitled to deference under Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984). But, as we noted earlier, the Supreme Court
has clearly instructed that “compacts are construed as contracts
under the principles of contract law.” Tarrant, 569 U.S. at 628.
Because the Compact is not to be interpreted as a statute,
Chevron deference has no place here.




                               47
IV.   CONCLUSION

       For the foregoing reasons, we will vacate the order of
dismissal and remand the case for further proceedings
consistent with this opinion.




                             48
Wayne Land and Mineral Group, LLC v. Delaware River Basin
Commission, et al. No. 17-1800

SCIRICA, Circuit Judge, concurring

        I agree with my colleagues that the term “project,” as
used in Section 3.8 of the Delaware River Basin Compact, is
ambiguous, and that the matter should be remanded to the
District Court for fact-finding respecting the Compact drafters’
intent.    But I have a considerable concern—involving my
colleagues’ characterization and evaluation of some of the
parties’ arguments on the central issue in this case—that
precludes me from joining in full their well crafted Opinion.

       My colleagues have provided an assessment of the
strengths and weaknesses of some of the parties’ arguments.
In light of our decision to remand, however, I see no need to
characterize or evaluate the merits of the parties’ contentions.
I fully agree that, “[t]o be clear, at this stage, we are not
adopting or endorsing either Wayne’s interpretation or the
Commission’s, or anyone else’s.” Maj. Op. at 46. The parties
have raised key arguments the District Court must evaluate in
the first instance on remand, without consideration of our
analysis of the strengths and weaknesses of the case.

     Because I would not discuss the merits of the parties’
arguments, I concur.




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