01 November 2016

Sidley Shale and Hydraulic Fracturing Report

Vol. 5, No. 44

Topics discussed in this week’s Report include:

  • Pennsylvania court ruled natural gas driller did not cause well water pollution.
  • Tenth Circuit federal appeals court allowed Chaco Canyon oil and gas permitting to proceed.
  • Fish and Wildlife Service must reconsider protection of shale-area wildflowers.
  • Environmental group urged review of the use of oil field wastewater to irrigate crops.

State

Pennsylvania court rules natural gas driller did not cause well water pollution. The Pennsylvania Commonwealth Court ruled in favor of a natural gas driller to end a lengthy investigation and litigation over the cause of contamination in a Washington County resident’s water well. The case began in 2011 when a resident discovered contaminated water in a local water well. The State Department of Environmental Protection confirmed contamination of the well, but did not tie the contamination to natural gas development in the area. Pennsylvania’s Environmental Hearing Board reviewed the decision and held a trial to resolve the issue, finding the drilling site was not hydrogeologically connected to the well. The court decision affirms the state agency’s conclusion, but rebuked the driller, stating its activities negatively impacted the local environment. The well owner has announced plans to appeal the decision to the Pennsylvania Supreme Court.

Federal

Tenth Circuit federal appeals court allows Chaco Canyon oil and gas permitting to proceed. The U.S. Court of Appeals for the Tenth Circuit rejected environmental groups’ request for a preliminary injunction to halt oil and gas permitting in New Mexico’s Chaco Canyon region. The groups argued that increased drilling in the area threatens tribal artifacts and communities and should be postponed to allow an updated resource management plan (RMP) to be prepared; an earlier RMP was prepared in 2003. The court held that the groups did not meet the legal standard for a preliminary injunction. In particular, the court found they had not demonstrated likelihood of success on the merits because only a small number of the wells planned in the area were drilled between 2003 and 2015. Additionally, the court rejected the groups’ argument that the Bureau of Land Management could not rely on the 2003 RMP to allow drilling while preparing the updated plan.

Fish and Wildlife Service must reconsider protection of shale-area wildflowers. A federal court vacated a decision of the U.S. Fish and Wildlife Service (FWS) not to list two wildflowers as threatened under the Endangered Species Act (ESA). The flowers, the White River beardtongue and Graham’s beardtongue, are found only in the Utah and Colorado shale regions. FWS decided not to list the flowers based on a long-term agreement between the agency and state and local governments to implement restrictions to protect the flowers. The court rejected this basis because an agreement to implement future restrictions was not sufficient to meet the ESA’s “existing regulatory mechanisms” criterion. The court also questioned how the flowers would be protected after the expiration of the agreement’s 15-year term. The court ordered the parties to meet and confer to try to reach a resolution.

Studies

Environmental group urges review of the use oil field wastewater to irrigate crops. A report released by the Environmental Working Group (EWG) last week details how farmers in California have used oil field wastewater to irrigate almost 100,000 acres of crops in the Central Valley. The Central Valley Regional Water Quality Control Board encourages the recycling and sale of wastewater from oil field operations to irrigation districts. The EWG is calling for independent scientific studies to examine whether irrigation of food crops with wastewater is a safe practice and for a moratorium on new permits and projects until the studies are completed.

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