Current Developments Regarding Hydraulic Fracturing Impacts and Regulations

Current Developments Regarding Hydraulic Fracturing Impacts and Regulations

WASHINGTON, D.C. – July 1, 2015 – (RealEstateRama) — On June 4, the U.S. Environmental Protection Agency (EPA) released for public comment and peer review a draft of its highly anticipated assessment of the potential impacts of hydraulic fracturing (or fracking) on drinking water, Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources (Draft Assessment). EPA did find instances where hydraulic fracturing activities have the potential to impact drinking water resources, but it also found that such cases were relatively rare, and not “widespread” or “systemic.”

Read the executive summary and the full draft assessment (link is external). Information on how to submit public comment can be found in the Federal Register notice (link is external).

In 2010, Congress directed EPA to perform a study to evaluate the relationship, if any, between fracking and drinking water quality. EPA evaluated more than 3,500 studies and data sources previously published on the subject. The agency “did not find evidence that these mechanisms have led to widespread, systemic impacts on drinking water resources in the United States,” per the Draft Assessment at ES-6. The assessment also includes the results and findings from EPA’s own hydraulic fracturing research (link is external), which produced more than 20 peer-reviewed research products (link is external).

EPA did identify potential vulnerabilities to drinking water from hydraulic fracturing operations, including withdrawing water for hydraulic fracturing fluids during times of, or in locations with, low water availability; spilling hydraulic fracturing fluids and produced water; fracturing directly into underground drinking water resources; belowground migration of liquids and gases; and inadequate treatment and discharge of wastewater. Although EPA declined to state conclusively that the public’s drinking water supplies are not being adversely affected by hydraulic fracturing activities, the Draft Assessment concludes: “The number of identified cases” where drinking water was impacted “was small compared to the number of hydraulically fractured wells.”

EPA noted in a Fact Sheet (link is external) that the assessment provides a tool for states and industry to adopt changes as needed.

EPA is currently accepting public comments on the Draft Assessment (Docket ID No. EPA-HQ-OA-2015-0245) for consideration by the Science Advisory Board (SAB). This fall, SAB will hold public teleconferences and meetings to review of the Draft Assessment. The final edition of the study is due out in 2016.

Hydraulic fracturing is a stimulation technique used to increase oil and gas production from underground rock formations. Between 25,000 to 30,000 new wells were drilled and hydraulically fractured from 2011 to 2014 alone.

Watch EPA’s latest webinar (link is external) on the draft assessment. For more information, see EPA’s website at http://www2.epa.gov/hydraulicfracturing (link is external).

Regulatory Developments

As the practice of fracking has increased, disputes over how and whether to regulate it have broken out across the country. There are many exemptions for hydraulic fracturing under United States federal law: the oil and gas industries are exempt or excluded from certain sections of a number of the major federal environmental laws including the Clean Water Act, Safe Drinking Water Act, the Comprehensive Environmental Response, Compensation and Liability Act, and the Resource Conservation and Recovery Act. (Many of the exemptions for the above listed statutes stem from or were strengthened by the Energy Policy Act of 2005.)

In March 2015, the U.S. Interior Department’s Bureau of Land Management (BLM) released a final rule (link is external) regulating hydraulic fracturing activities on Federal and Indian lands. The rule did not take effect last week (June 24) as originally planned, due to a legal challenge led by the State of Wyoming. A district court has temporarily stayed the effective date of the new rule and that hold may remain in effect until the resolution of this lawsuit. The case is State of Wyoming v. United States Department of the Interior Secretary, No. 2:15-cv-00043 (D. Wy.).

Back in April 2015, EPA published a proposed rule (link is external) that would require oil and gas companies engaged in the “extraction of oil and natural gas from low permeability, low porosity geologic formations” (referred to in the regulation as unconventional oil and gas resources and including fracking operators) to pretreat wastewater from operations before such wastewater can be sent to publicly owned treatment works.

In the absence of federal regulation, state and local authorities continue to evolve an increasingly complex patchwork of regulatory requirements and limitations, including complete or partial bans or moratoriums. States play a primary role in regulating most natural gas and oil development. For example, New York recently banned fracking in part because of fears of risks to groundwater.

For more information, contact Leah Pilconis at (link sends e-mail).

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