Construction Law: Tighter Regulations Amid the Fracking Fray

, The Connecticut Law Tribune

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The BLM's new wellbore-integrity rules duplicate the Safe Drinking Water Act's requirement, administered by states, that usable water-bearing zones should be isolated from the wellbore with casing and cement. In addition to casing and pressure-testing requirements, the new rule mandates significant reporting related to cementing the well casing. Pressure-testing would be required on all wells, while cement-evaluation logs would be required on "type wells," allowing proper cementing of all wells in a basin or field with similar characteristics that penetrate the same usable water zones to be demonstrated on a single well that is typical of the field.

The BLM proposes that operators seeking approval of wells that will be fractured submit details of the fracture design, including topographic maps showing the expected fracture direction and propagation, or length, and the estimated vertical distance to the nearest usable water aquifer above the fracture zone. Although the bureau will accept cementing data for a group of wells using data from a type well, it has not applied the same procedure to reporting of chemicals used in fracking. The reproposed rules require submitting chemical data for each well to FracFocus.

The BLM's concession to complaints about overlapping regulation is to provide "variances" applicable to all lands within a field, basin or jurisdiction where it has been shown that a state or tribal regulation will meet or exceed the effectiveness of the federal rule. The bureau has sole authority to approve a variance, and its denial of a variance is not subject to review. The BLM notes in its new preamble that Indian tribes can apply to the U.S. Environmental Protection Agency for "treatment as state" status for water-quality regulation. Since the bureau has determined that it is also necessary to duplicate state regulation, this "treatment as state" opportunity seems a hollow gesture.

Similarly, the BLM gave little consideration to tribal concerns that the public interest in fracking's effects, which justifies the bureau's rulemaking on public land, was insufficient reason to impose regulations on Indian reservations where the general public enjoyed no right of access. Ignoring tribal assertions of sovereignty, the bureau asserted that it was implementing the rules in Indian Country in its role as trustee, in furtherance of the "public" interests of tribal members to control the effects of fracking. This position is a remarkable repudiation of the principles of self-determination that would have Indian tribes determine which regulations were in their members' interests.

Only time will tell whether the critics are correct, and new hydraulic fracturing rules will further slow an already lumbering federal approval process for new oil and gas wells. The BLM's public comment period ended on Aug. 23. It will consider the comments received and either issue the rules substantially as published, or publish a further revision for additional comment.•

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