Hydro-fracking news roundup
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Eastern residents object to fracing for natural gas
Industry touts job creation
BINGHAMTON, N.Y. - Rep. Maurice Hinchey told a federal hearing Monday that
the Environmental Protection Agency must regulate hydraulic fracturing,
the natural-gas extraction process that he said has contaminated water
near drilling sites around the country.
"There are numerous reports of water contamination related to hydraulic
fracturing in states across the country," said Hinchey, D-N.Y. "Despite
the fact that EPA is, in many ways, precluded from taking regulatory
action in response to these reports, I believe EPA must investigate to
understand what is being done - to keep water supplies safe and secure."
The process, also known as fracing, blasts millions of gallons of water
mixed with sand and chemicals, some of them carcinogens, deep into the
Earth to free gas from dense shale deposits. As a gas rush sweeps parts of
the vast and lucrative Marcellus Shale region that underlies New York,
Pennsylvania, Ohio and West Virginia, environmentalists are concerned for
the watershed that provides drinking water for 17 million people from
Philadelphia to New York City.
Environmentalists fear the process, which leaves as much as 90 percent of
the post-fracing water known as "produced water" deep underground, will
irreversibly taint aquifers.
No water supplies have been poisoned by fracing, the petroleum industry
says, and the process - which promises lucrative industry profits and
thousands of jobs in economically depressed areas - is safe.
"Billions of dollars in economic impact on New York and its citizens is at
stake here," said Brad Gill of the Independent Oil and Gas Association,
with drilling promising more than 60,000 jobs in New York alone. "The
positive impact is staggering but it doesn't come at the expense of
environmental protection."
John Harmon of the New York-New Jersey African American Chamber of
Commerce said full development of the Marcellus Shale would create 280,000
jobs during the next 10 years, jobs sorely needed in the black community
"This is not the time to further limit energy job opportunities for those
in need," Harmon said
Congress has ordered EPA to conduct a new fracing study and EPA is
considering how broadly to construct it, since the agency's 2004 study
that declared the technology safe was widely criticized as flawed. The
earlier study had enabled passage of 2005 energy legislation exempting
fracing from federal regulation under the Safe Drinking Water Act, leaving
regulation to individual states.
"The EPA must do all it can to ensure that its scientists and researchers
are not influenced by industry or by politics as they were influenced back
in 2004," Hinchey said, "so that the public can be assured that this study
is being carried out in the public interest."
Hinchey is one of the authors of the so-called FRAC Act in Congress, which
would put fracing under EPA regulation.
The petroleum industry is strongly opposed to federal regulation - which
it says would be more costly than complying with adequate state rules.
Gill said "strict state regulations" for decades have governed fracing and
the industry has "a stellar environmental record" to show for it.
In New York, he said, there are about 14,000 producing natural-gas wells,
thousands of which were begun by the fracing process. New York has not
seen one case of groundwater contamination by fracing fluids, he said.
"A Hollywood actor holding a glass of cloudy water proves nothing except
that fear-mongering and emotion will always trump science and logic," he
said, taking aim at the recent critical TV documentary "Gasland," by Josh
Fox.
The Marcellus rush is barely two years old in Pennsylvania and West
Virginia, where thousands of wells have been fraced. Some geologists
estimate the Marcellus contains more than 500 trillion cubic feet of
natural gas, of which fracing could recover 50 trillion cubic feet -
enough to supply the entire East Coast for 50 years. The proximity of the
gas stores to the large East Coast energy market makes it particularly
valuable.
Hundreds of people on both sides gathered for the last of four public
hearings on a pending EPA study of fracing. The Binghamton hearings, twice
postponed because of anticipated large crowds, are split into double
sessions on Monday and again on Wednesday.
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EPA to hold New York hearing, last of four, about gas drilling
ALBANY, N.Y. - Gas and oil drillers are urging the Environmental
Protection Agency to keep a narrow focus in its study of how a drilling
technique that involves blasting chemical-laced water into the ground may
affect drinking water - while environmental groups want the study to cover
everything from road-building to waste disposal.
The issues will be aired Monday in 2-minute speaking slots at an EPA
hearing twice postponed last month because of security concerns about
rallies and crowds anticipated in the thousands.
The hearing, the last of four around the country, will be held in two
sessions Monday and two more Wednesday at The Forum in Binghamton, 115
miles southwest of Albany. The EPA is taking comment on how broadly to
construct its study of hydraulic fracturing, or fracing, a technique for
releasing natural gas from rock formations thousands of feet underground
by injecting at high pressure millions of gallons of water mixed with
chemicals and sand.
Congress directed the EPA to take a new look at fracing as gas drillers
swarm to the lucrative Marcellus Shale region beneath Pennsylvania, New
York, West Virginia and Ohio and other shale reserves around the country.
Concerns that the process can poison private wells and water aquifers have
driven opposition, while the industry insists there's no evidence linking
fracing to any contaminated water sources.
In Wyoming, which also has large shale reserves, the EPA has told
residents in Pavillion, a farming and ranching area, not to drink water
from about 40 nearby wells. Residents speculate their water supplies have
been polluted by fracing, but EPA tests have been inconclusive.
Just last week, the EPA asked nine major gas drilling companies, including
Halliburton Co., Key Energy Services Inc. and Schlumberger Ltd., to
voluntarily disclose the chemicals used in fracing.
Drilling companies, calling their chemical formulas proprietary, have
largely sought to avoid that disclosure. Others that received information
requests from the EPA include BJ Services Co., Complete Production
Services Inc., Patterson-UTI Energy Inc., RPC Inc., Superior Well Services
Inc. and Weatherford International Ltd.
Fracing is specifically excluded from regulation under the federal Safe
Drinking Water Act, in part because of a widely quoted 2004 EPA study that
concluded the process posed no threat to drinking water sources. That
study was widely criticized for, among other things, its narrow focus on
coal-bed methane deposits and its lack of independent field studies.
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http://durangoherald.com/sections/News/2010/08/31/Lawsuits_keep_water_fight_alive/
Lawsuits keep water fight alive
Case stalled until high court ruling upheld
It was a Monday morning in April 2009 when four ranchers from Southwest
Colorado finally got the state Legislature's attention.
They already had won a case in Durango water court that - if the state
Supreme Court upheld it - could force every gas and oil well in Colorado
to get a water permit.
A few lawmakers, like former Sen. Jim Isgar, D-Hesperus, saw that the case
could overwhelm the state engineer's office, which issues well permits.
They introduced a bill to give the state engineer and gas companies a few
years to get their permits and rights in order, but the bill seemed to be
stalled.
Then the Supreme Court ruling came in, just as legislators were preparing
to start their week. It upheld the Durango court's ruling and sent both
water regulators and the gas industry into a frenzy. Suddenly, the bill
started moving quickly.
The case, Vance v. Wolfe, earned plaintiffs Bill and Elizabeth Vance a
spot in the history of Colorado water law. The fellow plaintiffs, Jim and
Theresa Fitzgerald, of Bayfield, celebrated the ruling as a protection of
their water rights and the springs they worked for decades to restore to
health.
But the Legislature's bill led to a chain of events that has everyone back
in court this summer to fight out three new lawsuits.
Special deals alleged
The Legislature did two things: It gave the engineer's office until Aug. 1
this year to process the permits, and it allowed State Engineer Dick Wolfe
to make rules that exclude gas wells drilled into deep formations from the
need to obtain water permits.
Wolfe held hearings last year and early this year and eventually decided
that many wells in the San Juan Basin don't need permits. In general, the
wells farther north, closest to where the coal formations climb to the
surface, still need water permits.
Sarah Klahn, a water lawyer for the Vance and Fitzgerald families, said
the rules threaten to undo the significant victory of the Vance case.
Klahn and fellow lawyer Alan Curtis filed two new lawsuits against Wolfe
for adopting the rules. The first one will be heard in Greeley this year.
It claims the state engineer illegally adopted the rules without notifying
landowners that their water might be at risk.
"The real people who stand to be injured on the ground because of this
stuff did not get notice," Curtis said.
Their first legal notification that something was up was the huge
water-rights application to state Water Court by gas companies that
landowners got in the mail this year, he said.
They are not alone in the fight this time. Other plaintiffs include
heavyweights like the Denver Board of Water Commissioners, the cities of
Boulder, Centennial and Sterling, and several other water users.
The second lawsuit, filed in Durango, challenges the map that Wolfe used
to decide which wells to regulate. Gas companies paid for the expert who
drew the map, and it leaves out wells that should face scrutiny from water
regulators, Klahn and Curtis say.
A third lawsuit takes the fight to all of Southwest Colorado.
In February, the state engineer amended the rules to include other
geological formations, including the shales found in Montezuma, Dolores
and western La Plata counties. The rules determined that groundwater in
the Paradox formation - which covers a wide swath of Southwest Colorado -
is nontributary, meaning gas companies will not have to prepare expensive
plans to replace the water they use in their wells.
The area has not been drilled for gas yet, but the rocks hold a
potentially large amount of shale gas, so it could become an important
drilling area in the future.
Durango water lawyer Amy Huff filed a separate lawsuit on behalf of
several local landowners to challenge the rules over the Paradox formation
and other geologic layers. Huff said the state engineer has not done
enough to prove that gas companies can take water out of the rock
formations without harming surface streams.
"To me, it mirrors a lot of what happened in the Gulf, with everyone
trusting industry," Huff said.
No geologic connection
Wolfe's deputy, Kevin Rein, said the rulemaking was very successful.
Without it, the office would have had a tough time dealing with thousands
of permit applications from the gas industry.
The groundwater model that the industry presented left little doubt that
in most cases, water from the layers of rock that hold methane doesn't
interact with shallower water that feeds drinking water wells.
"I believe most of the geologists are confident there's not a connection
in most cases," Rein said.
Legislators once feared the Vance ruling could bring the whole gas and oil
industry to a halt. But it hasn't turned out to be such a large threat,
said Christi Zeller, executive director of the La Plata Energy Council.
The water-rights issue, however, has been an expensive inconvenience.
"The cost of getting natural gas out of the ground in the San Juan Basin
has to be going up," Zeller said. "It requires personnel. It requires a
lot of brain-power."
And while jobs in the industry are not at risk because of the issue,
higher costs will be passed on to consumers, Zeller said.
The San Juan Basin remains of one the country's premiere gas fields, even
though its production has been declining since 2003. Gas and oil property
taxes support La Plata County. They made up nearly 60 percent of the
county's assessed value in 2009, according to the county assessor.
Grant funds legal opposition
The industry isn't alone in sinking money into the cases. The Fitzgeralds
and their allies are willing to stay in the fight, too.
An Aspen group, Public Counsel of the Rockies, paid the plaintiffs' legal
fees in the Vance-Fitzgerald lawsuit. In March, the William and Flora
Hewlett Foundation made a $300,000 grant to Public Counsel of the Rockies
to continue the coal-bed methane work, according to the Hewlett
Foundation.
Public Counsel of the Rockies' tax forms describe the Vance lawsuit as a
test case to bring water regulation to gas wells. The group is pursuing
another test case in Wyoming.
Fitzgerald said the group was crucial to winning the case at the Supreme
Court against a well-funded industry led by BP.
"They're really tough to beat, and they will fight you down to the most
minute details," Jim Fitzgerald said. "I can't tell you how many people
told us nobody beats BP in court."
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http://durangoherald.com/sections/News/2010/08/30/Off_range_into_the_courtroom/
Off range, into the courtroom
Brine water in gas wells has new significance
Hundreds of water-rights owners in Southwest Colorado had a surprise in
their mailboxes early this year - a lengthy application for water rights
by the area's natural-gas companies.
The companies filed for the rights - in nine separate court cases in
Durango - in response to a state Supreme Court victory for two area
ranching families, the Vances and the Fitzgeralds.
The court decision declared for the first time that gas and oil wells that
extract water have to apply for water rights and well permits, the same
way as wells for drinking water and irrigation. Colorado law requires
water rights for anyone who puts water to a beneficial use.
Although the companies are following the law, the Fitzgeralds and their
lawyers call the industry's petition for rights a massive water grab. They
worry that related actions by state water regulators could undo two
families' victory at the Supreme Court.
The city of Durango, the Forest Service and other area landowners also
oppose water rights for the companies, saying the proposed rights could
take water away from people who own it already.
At stake is control over large underground water resources throughout
Colorado.
Landowners argue that state law gives them ownership of all the water
under their land. Gas companies say the water is so deep - and often so
salty - that it is useless. The ownership question never has been settled
because until now, no one has challenged the gas companies' extraction of
the deep, salty water.
"It's a waste product, and we don't need it, and nobody else needs it,"
said Christi Zeller, executive director of the La Plata Energy Council,
the local trade group for the gas industry.
Most geologists say there is no connection, in most cases, between water
used by gas wells and the water used for drinking and irrigation, said
Deputy State Engineer Kevin Rein.
Waste product or not, this water question has spurred at least three new
lawsuits and other legal proceedings that could stretch out for a number
of years.
To visualize the San Juan Basin - which contains the coal beds that vast
amounts of methane have been extracted from - imagine a plate stacked on
top of a bowl. In the middle, they don't touch, but on the edges, they do.
Water wells get drilled into the shallow section (the plate). Gas wells
are drilled into the deep section (the bowl). On the edges, everything
comes together.
Jim and Theresa Fitzgerald live near the edge, and they are worried that
gas wells could draw water out of the springs that feed their ranch.
That's not likely, Zeller said. Gas drillers usually deal with water far
underground, and when it comes up, it is too salty to do anyone much good.
"It's coming from that deep formation and not something that somebody
could drink," Zeller said.
In coal-bed methane formations, water holds the gas in place. By pumping
out water, drillers can draw methane up the well to the surface.
Jim Fitzgerald doesn't want to relinquish the water, regardless. He has
studied the history of his land, and he learned the HD Cattle Company's
well in the 1880s was only 12 feet deep. But a century of settlement has
drawn down the water table, and a well recently drilled in the same area
had to go down 400 feet before it reached water, he said.
The Supreme Court ruling did not come to any conclusions about whether
coal-bed methane wells actually might deplete the Fitzgeralds' or Vances'
water rights. It simply said that coal-bed methane wells have to play by
the same rules as other water users.
Legally, two different types of water are in play: surface water and
ground water. Farmers and ranchers own surface water rights.
There are two legal types of groundwater, too: tributary and nontributary.
Tributary water feeds into the streams where other people own water
rights.
Under Colorado law, tributary water, just like surface water, can't be
used until a water court grants rights to use it. Nontributary water
belongs to whomever owns the land above it. Theoretically, landowners own
the nontributary water under their land all the way down to the center of
the earth.
But another state law gives gas companies the right to remove water from
coal formations to get at the methane, said Rein. For decades, companies
have removed groundwater during gas drilling, no matter what the overlying
landowner thought about it.
The gas industry applications for water rights brought opposition from
many quarters, including the city of Durango. Veronica Sperling, a lawyer
for the city, expressed concern that Durango's water rights could suffer
if the gas companies get water rights.
"Durango owns water rights on the Florida River which may be adversely
affected if the application is granted without the necessary protective
terms and conditions," Sperling wrote in a statement of opposition.
She also said the companies should not be able to claim rights to
groundwater if that water belongs to the surface landowners.
Forest Service lawyers said the same thing in their statement of
opposition to the water rights claims. The people of the United States own
the water underneath public lands, and gas companies cannot claim
permanent rights to it, the Forest Service lawyers said.
"The United States has not consented to permanent use of the water for
extraction of natural gas, nor has the United States consented to
withdrawal of water for other beneficial uses," according to the
opposition letter from Assistant U.S. Attorney Arthur Kleven.
The industry isn't trying to pull off a water grab, Zeller said. The
companies plan to inject the water back underground, like they always
have, she said.
"We would rather not have the water. We would rather have plain old gas
coming out of the ground," Zeller said.
Sarah Klahn, lead attorney for the Vances and Fitzgeralds, said that if
gas companies want to use groundwater they don't own - no matter how deep
or salty it is - they should have to cut a deal with the landowners who
have rights to the water.
It will be up to District Judge Gregory Lyman to decide whether the
companies should get water rights. Lyman was the judge who first ruled
that gas wells have to be covered by the water permit system. The Supreme
Court upheld his ruling.
The Supreme Court ruling also forced the companies to make plans to
replace the water that their wells might suck out of streams. They
recently got temporary approval for their Substitute Water Supply Plans.
(See sidebar.)
But the fight over water rights is only half the story. Separate legal
battles are being launched over a move by the state engineer that exempted
many gas wells from regulation.
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http://durangoherald.com/sections/News/2010/08/29/Ghosts_oil_and_water/
Ghosts, oil and water
A rancher's worry about his water changes law, riles drillers
BAYFIELD - On a warm May day, Jenny the dog is chasing a deflated
volleyball around the yard, oblivious to the ghosts around her.
But her owner, Jim Fitzgerald, sees the ghosts in the ancient water
channels that filter down his land from the slopes of the HD Mountains. He
sees the spirits of past people in 1,200 year-old pit houses, or a
century-old arroyo cut by the first cattle ranchers in the region.
Jim and his wife, Theresa, live off the grid on the slopes of the
mountains southeast of Bayfield. On their 380-acre ranch, they harvest
their food and own four cows, a steer, a bull, a few horses, a flock of
chickens, a herd of sheep and two dogs, Luke and Jenny.
But the ranch also is a haunted place - haunted by the past and by the
specter of its water being sucked dry.
This ranch is one of two in the area that has thrown the gas and oil
industry into turmoil and forced state leaders to face a looming problem
with Colorado's water law system.
The Fitzgeralds and a nearby ranching family, Bill and Elizabeth Vance,
sued the state in 2005, claiming that coal-bed methane drilling, which
sucks up massive amounts of deep underground water, might be depleting
their springs. They won at the state Supreme Court, but the case kicked
off a legal scramble for water in gas basins around Colorado that is still
being played out.
The Fitzgeralds themselves have a relatively tiny amount of water at
stake. State records show they own rights to store less than 70 acre-feet.
"It ain't a lot of water, but if I came down some day and the spring had
stopped running because BP's punching holes all over the place, our place
would be almost worthless," Jim Fitzgerald said.
For years, Colorado officials took the stance that from a legal
standpoint, oil and water don't mix: Gas and oil regulators watched over
the energy industry, and water regulators took care of water wells. They
didn't get into each other's business because regulators assumed the deep
coal-bed methane wells did not affect shallow water wells.
The Vance case changed all that.
With BP and other companies preparing to drill in the HD Mountains, whose
runoff water feeds the springs, the Vances and Fitzgeralds went to court
to force state water officials to regulate gas and oil wells.
To understand why such a small amount of water is so important to the
Fitzgerald family, you have to talk to the ghosts.
"There are a lot of ghosts on this place. What can they tell you?" asked
Jim Fitzgerald, a former sociology professor at Fort Lewis College.
These ghosts aren't the kind that make for a good horror movie. They speak
through the water, which trickles down from the HD Mountains and bubbles
up in springs.
They are easiest to see on the eastern edge of the property, near the
fallen-down homestead house of a man named Parks, who lived here at the
turn of the 19th century.
Mr. Parks lived a few yards away from two ancestral Puebloan pit houses,
which were abandoned around 800 A.D. This area was heavily populated and
abandoned by the ancient people centuries before the cliffside cities of
Mesa Verde were built. Their pit houses are easy to identify today by the
circular depressions in the ground and the broken metate stones that still
litter the surface.
The water used to flow down the mountain through a swale, or a wide
channel, just below the pit houses. The Fitzgerald's daughter was married
in that swale.
But the Parks house also overlooks the work of the HD Cattle Co., which
Jim Fitzgerald said ran up to 25,000 head of cattle up the hill sometime
around 1886. In just one season, all those cattle managed to cut an arroyo
that became 40 feet deep.
When the Fitzgeralds bought the ranch 40 years ago, the water rushed down
the arroyo all at once in the spring, leaving the ground good for nothing
but sagebrush. They could barely scratch out enough crops to keep a horse
alive.
But, with the help of the government agency now known at the Natural
Resources Conservation Service, they built a pond. It was originally 19
feet deep. Now it has silted up and is full of willows. The roots suck up
water and raise the water table.
Over the years, they have built 15 ponds, slowly repairing the arroyo and
raising the water table to the point that water bubbles out of the ground
in springs.
"Right now, these springs - they're just wonderful springs. And they get
better every year," Jim Fitzgerald said. "Little by little, if we could
live another 100 years, it'd be paradise."
A tangle of green and black garden hoses leads from one of the springs to
three large gardens. Solar-powered pumps lift water when the sun is
shining and shut off when it's cloudy.
Fitzgerald is proud of his homemade system. The ranch is nearly
self-sufficient, with electricity from solar panels, including some that
have been working since 1977, and enough surplus food to sell at the
Bayfield farmers market. Sometimes they pull the food to market in a
horse-drawn buggy.
But he said he doesn't like appearing in the media because it makes people
to think he's a know-it-all. In truth, he has messed up a lot when trying
to fix the land, he said. His latest earthen dam washed away half a dozen
times before he finally got the pond to hold water.
He's confident, though, that he has the right idea in the long-term.
"The world needs more farmers. There is too much to take care of in a
place like this. You make too many mistakes," he said.
He worries that all his work could be ruined if gas companies starting
drilling in the HD Mountains, uphill from his springs.
So five years ago, the farmers got involved with the lawyers. The
Fitzgeralds and Vances sued the state and sparked a legal battle that is
playing out this year at the state Legislature and in courtrooms from
Durango to Greeley.
