Local Government Agencies with Authority Over Fracking Sites May Be Impacted
The U.S. Department of the Interior’s Bureau of Land Management recently released a final rule to provide new oversight over hydraulic fracturing (commonly referred to as “fracking”) on federal and tribal lands. Existing federal regulations, which include a permit requirement for fracking activities, will remain in place. The final rule (found at 43 CFR Part 3160) will supplement existing regulations by focusing on:
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Well Safety: Requires the design and implementation of a casing and cementing program that meets performance standards for all wells, monitoring of cementing operations during well construction, remedial action in response to indications of inadequate cementing and performance of successful integrity test prior to fracking operation.
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Disclosure of Chemicals: Requires public disclosure of chemicals used in hydraulic fracturing fluids (with limited exceptions for trade secrets) to the BLM within 30 days of completing fracturing operations.
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Variance for State/Local Tribes: Allows states and tribes to request variances from provisions for which they have an equal or more protective regulation in place.
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Wastewater Disposal: Requires storage of recovered fluids used in hydraulic fracturing operations in enclosed above-ground tanks with limited exception for lined pits.
Opposition to the final rule has already surfaced. Industry groups and the State of Wyoming filed separate lawsuits challenging the final rule arguing, among other claims, that the rulemaking is procedurally deficient and the rule exceeds the statutory jurisdiction of the DOI. Legislation was also introduced in the U.S. Senate seeking to remove federal oversight over hydraulic fracturing practices.
Cities and counties with land use authority over fracking sites may view the BLM regulations imposed on federal lands as a benchmark for activities within their own jurisdictions. Use of the BLM regulations as a benchmark may have implications for compliance with the National Environmental Policy Act and other similar environmental statutes.
