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New Hydraulic Fracturing Requirements Take Effect on June 22


"Marge, what's wrong?  Are you hungry?  Sleepy?  Gassy?  Gassy?  Is it gas?  It's gas, isn't it?" - Homer Simpson

On June 22, 2011, the Supervisor of Wells will enforce new regulations requiring reporting and monitoring of the effects of hydraulic fracturing on water resources.  Hydraulic fracturing, or "fracking," is the process by which water mixed with sand and industrial liquids are introduced to trapped underground reserves of natural gas to release the natural gas so that it can be collected.  While the practice is more than 60 years old, this practice has become more common as the price of energy makes it more economical to undertake fracking to get at natural gas reserves.


Under the new regulations, large water withdrawals related to use of the water for the purposes of fracking need to be evaluated to determine if surface waters and wells will be negatively impacted by those withdrawals.  The proponents of the use of groundwater must provide information concerning the proposed total amount of water to be used, the number of wells to be dug, the type of aquifer from which the water will be collected, the depth of the water wells, and the pumping rate and frequency.  If there are one or more freshwater wells within 1,320 feet of fresh water wells, then the driller must install a monitoring well between its well and the other fresh water wells, record the water levels in the monitoring well on a weekly basis and report the water levels on a weekly basis to the appropriate District Office of the Office of Geological Survey.


The new regulations will also focus on what is being injected.  The driller needs to provide information concerning the additives used, the additives' Material Safety Data Sheets, and the volumes of additives used.  The driller has to keep records of fracturing volumes, pressures, and rates.  It must also report the volume of flowback water.


The practice of fracking has created some significant controversy, especially with respect to what potential effects it may have to water supplies.  A movie about fracking and its potentially harmful effects, "Gasland," was nominated for an Academy Award, but roundly criticized by the natural gas industry.  Fracking has also attracted interest from federal regulators and those from other states as some have complained that fracking has polluted water resources.  Most regulators have no idea what substances are used in the fracking process, as drillers have claimed trade secrets with respect to those fluids.  But states, like Texas (and now Michigan with this regulation), are now requiring disclosure.  New York's Attorney General will file suit against the federal government for failing to do a complete environmental review of natural gas recovery, including fracking.  In addition to environmental concerns, some have linked the fracking process to earthquakes.


As the pressure to identify and exploit as many domestic energy resources as possible increases, so will the scrutiny on efforts to harvest those resources.  Whether it is fracking or offshore drilling, regulators will attempt to balance the need for these resources with the need to protect other resources that may be negatively impacted by extraction methods.  In the event the regulators fail to develop common sense approaches to balancing these interests, it is likely that private parties and environmental groups may sue to have the courts mediate these disputes. 


The author, Saulius Mikalonis, is an environmental attorney with over 25 years of experience in the Bloomfield Hills offices of Plunkett Cooney.  He is also the author of The Green Blawg, in which he writes about environmental law issues for the non-lawyer.  In addition to practicing law, Mr. Mikalonis is an adjunct professor at the Thomas M. Cooley Law School, Auburn Hills Campus, at which he teaches a course entitled "Sustainable Development Law & Policy" and a Board Member of the Detroit Regional Chapter of the United States Green Building Council (USGBC).
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