HYDRAULIC FRACTURING: LAWS AND LEGAL MANEUVERS

By Jennifer B. Springfield

What is hydraulic fracturing, aka fracking, or high-pressure well stimulation? A simple definition is the extraction of natural gas and oil deposits (difficult to access because they are trapped within tight pores of rocks deep underground) by injecting water, sand and chemicals into drilled holes or wells which serves to fracture the rock and allow these resources to be recovered. A more technical definition is all stages of a well intervention performed by injecting more than 100,000 gallons total of fluid into a rock formation at high pressure that exceeds the fracture gradient of the rock formation in order to propagate fractures in such formation to increase production at an oil or gas well by improving the flow of hydrocarbons from the formation into the wellbore.(1) The rock/resources from which oil and natural gas are recovered using fracking technology are referred to as coalbed methane, shale gas and oil, and tight sandstones or tight gas and oil.
Why is this technology controversial in the U.S.? In the U.S., the use of hydraulic fracturing contributes to energy independence and provides many jobs. It also poses a number of environmental risks, such contamination of ground and surface water from leaking wells or surface spills, air pollution from the escape of methane gas, use of limited water supplies, and increased seismic activity (rare).
Is hydraulic fracturing being used in Florida to recover oil and gas? Historically, it has rarely been used, but there exists within the industry an interest in exploring the greater use of hydraulic fracturing in two areas of the state where oil and gas deposits have already been removed using conventional methods. One is an area located in the western panhandle known as the Jay Trend and the other is an area in southwest Florida known as the Sunniland Trend, where standard production peaked in the 1970’s.(2)
How are state and local governments in the U.S. addressing the use of high-pressure well stimulation to extract oil and gas resources from the ground? At least one state, New York, has banned hydraulic fracturing.(3) In other places where its use is fairly widespread, both state and local government regulations are common, but there are several states that have preempted its regulation to their executive branch.(4) Under current law in Florida,(5) an “operator” using hydraulic fracturing must notify the Department of Environmental Protection (FDEP) before beginning any “workover” on an oil or gas well, but no permit and, therefore, no inspection is required. Several local governments have also gone on record as being opposed to hydraulic fracturing (6) but none have attempted to regulate the activity.
Several bills were filed during the 2015 Legislative Session to either ban (7) hydraulic fracturing or regulate it.(8) The House and Senate bills proposing to ban hydraulic fracturing were each filed, referred to a committee and introduced in committee, but no action was taken. The House bill proposing greater regulation of hydraulic fracturing, which also contained a local government preemption clause, became engrossed and was headed to a final vote by the full chamber. The Senate, which substituted the House’s third committee substitute for its version, was read a second time and debated on the Senate floor. If passed, the changes made to existing law would have included the following (9):
• A permit from FDEP would be required prior to performing high-pressure well stimulation to increase production at an oil or gas well.
• Past violations could be considered by FDEP and used as a basis for denial of the application or the imposition of additional, special conditions.
• Inspections by FDEP would be required.
• The national chemical registry known as FracFocus would be designated as the state’s registry for recording and tracking chemicals used.
• Permit holders would be required to report the chemicals used.
• FDEP would be required to conduct a study on the potential effects of hydraulic fracturing.
• Local governments would be prohibited from adopting or establishing programs to issue permits for any activity related to oil and gas drilling, exploration or production.
Hydraulic fracturing will continue to be controversial in Florida and elected officials will be required to address its use or nonuse in the near time. Those persons living nearby these sites who fear the effects are likely to continue to demand that regulators and well operators comply with any applicable laws in effect.
Footnotes
1.CS/CS/CS/HB 1205, Engrossed 1, Florida House of Representatives 2015 Legislative Session.
2.Industry Perspectives on Laws and Regulations Governing Oil and Natural Gas Production in Florida, Timothy Riley, UF PIEC , February 13, 2015.
3.Role of State and Local Regulation: Local Government/Environmental Perspective, Ralf Brooks, UF PIEC, February 13, 2015.
4.An Introduction to Unconventional Oil and Gas Technologies, Risks and Regulations, Hannah Wiseman, UF PIEC, February 13, 2015
5.Chapter 377, Part I, Florida Statutes and rule chapters 62C-25 through 62C-30, Florida Administrative Code.
6.These include Alachua County, Miami-Dade County, Hallandale Beach, Coconut Creek, and the Leon Soil and Water Conservation District.
7.Senate Bill 166 and House Bill 169.
8.Senate Bill 1468 and House Bill 1205.
9.House of Representatives Staff Analysis dated April 15, 2015.

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