EPA Assesses Potential for Hydraulic Fracturing to Impact Drinking Water Sourcesi

The Environmental Protection Agency ("EPA") recently released a draft assessment analyzing the potential impacts of hydraulic fracturing ("fracking") on drinking water resources1 (both on quality and quantity) for public comment and peer review.2 The draft assessment finds that fracking causes no widespread, systematic impacts on drinking water.3 The draft assessment notes that the findings do not mean that water contamination cannot happen, and clarifies that contamination was reported in a small portion of cases the EPA reviewed.4 The assessment indicates that the potential for contamination needs to be determined on a local level and not on a national level because the probability for contamination is regionally specific.5

Barring accidents, the assessment maintains that competition for water over time is a concern that should be considered at a local level.6 EPA notes that "[h]igh fracturing water use or consumption alone does not necessarily result in impacts to drinking water resources. Rather, impacts most often result from the combination of water use and water availability at a given withdrawal point."7 The assessment finds that "[t]he potential for impacts to drinking water resources from hydraulic fracturing water withdrawals is highest in areas with relatively high fracturing water use and low water availability."8 The assessment goes on to state that "[g]round water withdrawals exceeding natural recharge rates decrease water storage in aquifers, potentially mobilizing contaminants or allowing the infiltration of lower quality water from the land surface or adjacent formations," which could affect drinking water quality.9 In New Mexico, Oklahoma and Kansas "[this] potential for water quantity and quality impacts from hydraulic fracturing water withdrawals . . . appears to be low at present."10 11 In western and southern Texas the potential impact is much higher.12 EPA found it important to note that water scarcity is a concern that plagues many industries and is not unique to the oil and gas industry.13

Other concerns over hydraulic fracturing come in the form of accidents and inadequate procedures,14 including "spills of hydraulic fracturing fluids and produced water; fracturing directly into underground drinking water resources; below ground migration of liquids and gases; and inadequate treatment and discharge of wastewater."15 EPA notes that other problems can occur due to inadequate design or construction of casing or cement, which can allow fluid movement and a potential for contamination of drinking water.16 "Frac hits" have been reported, but the assessment notes that there are potential solutions even when accounting for the escape of fluids in general.17 "[V]ertical separation between the production zone and drinking water resources" can help protect drinking water from these kinds of accidents.18 The chemical makeup of the fluids also largely affects the impact of a potential spill.19 In summary, the draft assessment finds that drinking water generally has not been contaminated by fracking, acknowledging that there are exceptions and areas that have yet to be explored.20 This lack of conclusory findings has allowed organizations to summarize the report differently. It has allowed those who oppose fracking to report that there are still valid concerns regarding drinking water and fracking, and has allowed many others to report that fracking is harmless to drinking water resources. 

What is certain is that the EPA's draft assessment is unable to directly cite hydraulic fracturing as having widespread effects on drinking water. The EPA concludes its report by stating that it hopes that "the identification of limitations and uncertainties will promote greater attention to these areas through pre- and post-hydraulic fracturing monitoring programs" and research. EPA hopes that the report "advances the scientific basis for decisions by federal, state, tribal, and local officials; industry; and the public, on how best to protect drinking water resources now and in the future."21

i This summary was prepared by Robin James, a 2015 summer associate now in her third year of law school at the University of New Mexico. Ms. James will join Modrall Sperling in 2016.