Water

Hydro-Fracking and Water

Water is a key component of fracing operations. Policies that address water extraction, contamination, or waste water treatment all may pertain to and have regulatory relevance to hydro-fracing operations.

There are three primary levels of government that hold legislation relevant to the regulation of Pennsylvania's waters. The Environmental Protection Agency regulates the Federal Safe Drinking Water Act. The Pennsylvania State Department of Environmental Protection regulates Title 25 of PA code "Environmental Protection" as well as the "Oil and Gas Act (58 P. S. § 601 et. seq.)", the "Clean Streams Law (35 P. S. § 691 et. seq.), the Pennsylvania Safe Drinking Water Act "Pennsylvania Safe Drinking Water Act (35 P. S. § 721 et. seq." and other pertinent state laws. And lastly, the Delaware River Basin Commission, an interstate commission who enforce their "Compact," regulating all activity involving the waters in the multi-state Delaware River Basin, and similarly the Susquehanna River Basin Commission another interstate organization that regulate water-related activity in a given water system, not political boundary.

While regulation over PA's waters are distributed amongst various organizations, their regulatory activity is not equal. Due to the "Halliburton Loophole" which exempts hydraulic fracturing operations from the regulations of the federal SDWA, the EPA has very little role, despite its applicability, in monitoring water contamination that may result from hydro fracing. The DEP and especially the DRBC on the other hand are quite active in their regulation. The two organizations, however, seem to operate with slightly different ultimate agendas. Much of the DEP's policies are protecting of the environment, but economically and industrially oriented, whereas the DRBC seems to be more concerned with conservation and environmental preservation. Consider for example the language from the Clean Streams Law'sDeclaration of Policy: "Clean, unpolluted streams are absolutely essential if Pennsylvania is to attract new manufacturing industries and to develop Pennsylvania's full share of the tourist industry" (35 P. S. § 691.4.1). This is, nonetheless an important policy which imposes maximum contamination levels upon and requires reporting on any injections into Pennsylvania water-ways. The problem with fracing and this type of regulation is that often contamination happens indirectly or accidentally. Similarly to agricultural run-off, much of the water contamination from hydro-fracing happens in a non-point-source manner, for example when pools overflow during heavy rains. This type of pollution is harder to regulate from a water-quality angle because the companies are not actively dumping into streams, and cannot report or even control contaminant levels. For this effect, legislation would be required that preemptively prevents contamination based on locality and layout of an operation, rather than just regulating quantities of certain chemicals in deliberate disposal. The DRBC on the other hand is extremely protective of its waters from the encroachment of industry. For example the DRBC recently instated a determination requiring all fracing operation with in a certain area to apply for review, regardless of whether or not their would operations require permitting under former DRBC policy. Similarly the SRBC altered their extraction threshold regulation for waters to be used in hydro-fracing operations so that all such extractions must be approved by the commission regardless of quantity.

The DRBC and SRBC have final authority over any project to be undertaken within their boundaries, whether perpetrated by individual, corporation or government authority. They are essentially governed only by constitutionality and protects against potentially environmental catastrophic corporate-interest legislation, even at the federal level, such as the "Halliburton Loophole." Unfortunately the DRBC's jurisdiction is limited and much of the gas extractions in PA fall outside of its territories and are more easily permitted. The two basins, however, do overlay a substantial amount of the Pennsylvanian Marcellus Shale. Additionally, their regulations can effect gas extraction even where the basins do not overlay shale. The DRBC's regulations, for example, ensure that the Delaware River will not become an accessible depository for produced waters, even if the operations themselves are from beyond the river basin. Once the presiding commission approves a project (or for projects that lie outside of these highly regulated areas) the remaining proceedings are overseen by the DEP.

The DEP handles (permit and regulate) the water related, (and generally environmentally threatening) portions of the project as well as allegations against drillers whose operations may have damaged water sources. The Department outlines specific well casings that must be used in order to prevent infiltration of chemicals into the groundwater. They also prescribe that no well can be placed within 100 feet of a water source, though this restriction may be lifted according to the DEP's discretion in extenuating circumstances. If any water source owner of purveyor believes damage to have been done to their water, they are to make a claim to the department. The department must investigate within 10 days and make a determination with 45. The department is also supposed to presume that the damage was caused by any well operation within 1000 feet if the damages were reported within six months after the completion of drilling or alteration of a well, unless that operator proves one of five defenses (58 P.S. § 601.208(b,c,d)). If the well operator is found responsible he or she must replace/restore all damaged water to its original condition. A prevalent problem with this regulatory structure is that there is a fair amount of administrative discretion in the determination of whether or not a water source was truly damaged. If there is no pre-drilling water sample, the DEP representative can easily disregard the "perceived" damages as natural, or insignificant--nullifying the entire case.

It is extremely important to take water samples and get them tested by a lab for any water that may be affected by a drilling operation. Without preliminary tests, legal action to recover damages is nearly impossible.

The other water related connection to hydraulic fracturing is the massive amount of freshwater that is required for this method of gas extraction. 4-7 million gallons are typically required over a 2-5 day period according to the SRBC's information sheet. Acquisition of these waters is subject to policies that regulate water extraction, which generally vary greatly from water source to water source and depend on what institutions have jurisdiction over those waters and what their particular polices are. In the Delaware River Basin for example, water extraction is highly regulated. According to their Rules of Practice and Procedure: "a project sponsor may not commence any withdrawal of ground or surface water from the basin, drill any well, construct any impoundment or other associated appurtenances, discharge to the ground waters or surface waters of the basin or otherwise undertake the project until the sponsor has applied for and received approval from the commission." The SRBC regulates this stage of the operation very closely as well; reviewing every extraction request is a powerful way to regulate hydraulic fracturing as a whole because the process is so dependent on large quantities of readily available freshwater.

Because the hydro-fracing procedure is so water involved regulating the local water systems, even where they may not geographically occupy the same space as the shale, serves as a powerful mechanism for regulating this potentially environmentally dangerous operation--extending the reach of a relatively industry friendly political/regulatory system at the state and federal levels. These two commissions fill in the large gap left open by the federal and state agencies. A commission with a clear and focused goal--to protect a water system--is an invaluable piece of this political puzzle where the other governing bodies must negotiate a larger spread of interests and cannot focus solely on long-term environmental quality.

Important Regulations

State Laws

The state holds the right to demand such information as the kind, characteristics and rate of flow, for any industrial waste being discharged into the waters of the Commonwealth. (35 P. S. § 691.303)

Wells may not be drilled within 100 feet of any stream, spring or body of water. This restriction, however, may likewise be waived by the department if the necessary measures are employed to protect the Commonwealth's waters. (58 P.S. § 601.205(b))

Oil or Gas well operators found to have caused detriment to a water supply must restore or replace the affected supply. (25 § 78.51.a)

Unless rebutted by one of the five defenses established in subsection (d), it shall be presumed that a well operator is responsible for the pollution of a water supply that is within 1,000 feet of the oil or gas well, where the pollution occurred within six months after the completion of drilling or alteration of such well. (58 P. S. § 601.208.c)

River Basin Commissions

"No project having a substantial effect on the water resources of the basin shall hereafter be undertaken by any person, corporation or governmental authority unless it shall have been first submitted to and approved by the commission...The commission 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." (compact 3.8)

The Executive Director therefore specially directs by this notice to natural gas extraction project sponsors that they may not commence any natural gas extraction project located in shale formations within the drainage area of Special Protection Waters without first applying for and obtaining Commission approval. For this purpose a project encompasses the 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. (May 19th, 2009 Determination)

Any natural gas well development project in the basin targeting the Marcellus or Utica shale formations, or any other formation identified in a de-termination issued by the Executive Director pursuant to § 806.5, for explo-ration or production of natural gas in-volving a withdrawal, diversion or con-sumptive use, regardless of the quan-tity. (18 CFR § 806.4.8)