Ambiguities Persist in Regulating Water Withdrawals for Fracking


Photo by Tamir Kalifa/Texas Tribune

Texas’ water code was written well before the spread of fracking. As a result, some groundwater authorities require companies using water for fracking to obtain a permit, while others do not.

From the Texas Tribune: 

In Karnes County, at the heart of the Eagle Ford Shale, oil and gas drillers seeking to use water for hydraulic fracturing must get a permit from the local groundwater authority. They can pump only a certain amount of water, and they must report how much they use.

In Dimmit County, another Eagle Ford Shale drilling hotbed, drillers can pump as much water as they want — and no permit is required.

This tale of two counties reflects the ambiguity in state rules regarding groundwater for fracking. Texas’ water code was written well before the spread of fracking, which involves sending millions of gallons of water (along with sand and chemicals) down a well to rupture hard rock that contains oil or gas. As a result, some groundwater authorities require companies using water for fracking to obtain a permit, while others do not.

The groundwater groups want legislators to clarify the regulations so that they can understand the amount of water being pumped from aquifers in their area for fracking, and potentially put limits on the volumes being pumped.

Interpretation of the law “depends on which lawyer you talk to,” said Slate Williams, general manager of the Crockett County Groundwater Conservation District in West Texas. His district does not require a permit for water wells used for fracking. It does ask drillers to report the amount of water they withdraw monthly.

“They don’t always do that, but it’s something we ask,” Williams said.

The confusion among groundwater districts stems from a provision in the Texas water code that states that a groundwater district cannot require a permit if the well is drilled to supply water for a rig doing “drilling or exploration operations” for an oil or gas well.

Traditionally, “drilling or exploration” has meant processes like mixing water with clay and other materials to make mud that makes it easier to drill. But the question that groundwater districts are struggling with is this: Is fracking considered “drilling or exploration”? Or does fracking count as oil and gas “production,” in which case the groundwater districts can require a permit?

Groundwater permits can stipulate limits on the amount of water pumped, and limits on the time frame within which a water well may be used. Large farmers and cities must get permits to use groundwater. The use of water for petroleum drilling and exploration is one of three explicit exemptions to the permitting requirement. (The other two are surface mining, and homesteads of more than 10 acres that need a modest amount of water for home use and livestock.)

Several bills filed in the Legislature this session seek to resolve the confusion, which has become more pressing as water use for fracking has soared. It more than doubled between 2008 and 2011. In 2011, fracking still accounted for less than 1 percent of the state’s overall water usage, a widely cited study says. But in some rural areas like Dimmit County, the percentage of water going to fracking has reached the double digits

Senate Bill 873, by state Sen. Glenn Hegar, R-Katy, would prevent groundwater districts from exempting from the permitting process water wells that are used for fracking. Under the bill, Texas’ 97 groundwater conservation districts would have to issue permits for water withdrawals related to fracking operations.

House Bill 3317, filed Friday by state Rep. James Keffer, R-Eastland, chairman of the House Energy Resources Committee, takes another route. It would exempt fracking-related water wells from permitting. However, it would require those water well operators to comply with other requirements established by the groundwater district, such as limits on how much water can be pumped. It would also require the well operators to report how much water is being used. SB 1749, by state Sen. Carlos Uresti, D-San Antonio, mirrors Keffer’s bill.

Deb Hastings, executive vice president of the Texas Oil and Gas Association, said that in her view, water wells are exempt from groundwater districts’ permitting requirements, and that any legislative changes should not result in closing the exemption. TXOGA supports Keffer’s bill, she said in a statement, but it does not support Hegar’s bill.

Stacey Steinbach, executive director of the Texas Alliance of Groundwater Districts, said in an email that her group’s legislative committee “supports Hegar’s bill and has not yet discussed the other bills.”

Meanwhile, confusion continues over fracking-related water policies among different groundwater districts. Some counties require permits, and others require information but not permits. McMullen County, for example, does not require a permit for water-related fracking, but it does require registering the water well and reporting on the amount of water used, according to Lonnie Stewart, manager of the McMullen County Groundwater Conservation District. The district is in the Eagle Ford Shale.

The Evergreen Underground Water Conservation District, which covers Atascosa, Frio, Wilson and Karnes counties in the Eagle Ford Shale area, has an especially strict permitting program, water experts say. The district allows companies to pump a finite amount — two acre-feet of water per acre of land per year, said Russell Labus, a field technician with the district. It also requires them to provide monthly pumping reports.

Other districts have proceeded more cautiously when it comes to regulation. “We’ve been under the impression that the [water for fracking] is exempt” from permitting, said Bay Laxon, secretary of the Wintergarden Groundwater Conservation District, a South Texas district that includes Dimmit County. The district requires companies to register fracking water wells, which tells the district the location of the wells. The district does not require them to report their water use, Laxon said, though some companies, including Anadarko Petroleum Corp, do anyway.

Like some other districts, Wintergarden is evaluating whether it can tighten its permitting rules, as the amount of water used for fracking continues to increase. Danny Krienke, a board member of the North Plains Groundwater Conservation District in the Panhandle, said in an interview last month that his district was also considering tightening rules for fracking-related water use.

Even if legislators give them more explicit authority over water wells used for fracking, groundwater districts will still be powerless when it comes to a different type of fracking-related water well — disposal wells. These wells are where water left over from the fracking process gets dumped, along with chemicals and minerals in the water. Disposal wells get drilled thousands of feet in the earth. They are regulated by the Texas Railroad Commission, which oversees the drilling industry.

Disposal wells are among the most controversial aspects of the fracking process, because many people living near them dislike the heavy traffic from water trucks, and they fear that contaminated water will spread. Williams, of the Crockett County Groundwater Conservation District, said that salty water injected into a disposal well has on occasion spurted back up out of a decades-old abandoned well nearby.

This is the second article in an occasional series on water and fracking. The first covered water-supply concerns. More articles in this series, which is a collaboration with StateImpact Texas, will run in the coming weeks at stateimpacttexas.org and texastribune.org.

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This article originally appeared in The Texas Tribune at http://www.texastribune.org/2013/03/13/fracking-groundwater-rules-reflect-legal-ambiguiti/.

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