Water-related issues continue to take center stage in the ongoing fracking debate. EPA’s Science Advisory Board’s initial review of EPA’s proposed water-focused study, however, makes clear that there is currently not a good understanding of the potential risks posed by the myriad water issues triggered by drilling for natural gas in unconventional resources. For example, one of the SAB’s major concerns is the need to clarify some of the confusion surrounding how water is used in various stages of a natural gas drilling operation—including clearly defining “produced” and “flowback” water so that regulatory decisions may be made based on clear terms and a common understanding of the process.

Unfortunately, finding clarity in the ongoing public dialogue regarding fracking and its impacts is increasingly difficult—particularly in the water-related context. For example, last week, researchers at Duke University released a study titled Methane Contamination of drinking water accompanying gas-well drilling and hydraulic fracturing. The title of the study would lead one to believe that this study, for the first time, connected drinking water contamination to fracking. Yet, as the report states “[b]ased on our data, we found no evidence for contamination of the shallow wells near active drilling sites from deep brines and/or fracturing fluids.” Indeed, the study appears more remarkable for what it did not find—“the geochemical and isotopic features for water we measured in the shallow wells from both active and nonactive areas are consistent with historical data and inconsistent with contamination from mixing Marcellus Shale formation water or saline fracturing fluids.” The researchers also “ruled out” the likelihood that fracking would result in the physical migration of methane from deep target formations into shallow aquifers.

And while environmental groups and mainstream publications continue to sensationalize claims about widespread water-related contamination associated with fracking, the actual evidence is tending to paint a different picture. This week one of Pennsylvania’s largest drinking water utilities—Pennsylvania American Water—reported that after having conducted repeated tests its water has “not been impacted by radioactive materials” from Marcellus Shale development and that it is safe to drink. These reports parallel recent findings of no elevated levels of radioactivity at Pennsylvania wastewater treatment plants handling shale gas flowback water.

This is not to say that continued investigation and testing to understand potential risks is not important or warranted. The Duke researchers did find that “[m]ethane migration [through thick geological formations] is less likely as a mechanism for methane contamination than leaky well casings . . . .”, and appropriately state that the results “suggest important environmental risks accompanying shale-gas exploration world wide.” The broader point is that many publications use studies like the Duke study to publish misleading headlines (see here and here for examples), which diminishes the ability to have a reasoned, fact-based discussion.

How the public debate is framed is important because it will impact how EPA responds to citizen pressure to regulate fracking. To that end, an EPA official said this week that EPA is considering two water regulations pertinent to shale gas extraction: (1) technology-based effluent limitations guidelines applicable to the oil and natural gas exploration and production process; and (2) risk-based criteria for chloride.

EPA also released guidance to national water division directors—focused mostly on states in the Marcellus shale region—regarding the management of fracking flowback water. The guidance provides insight into EPA’s thinking. The FAQs address how the Agency views the current state of regulation, and how current laws and regulations relate to fracking under the National Pollution Discharge Elimination System (NPDES) and pretreatment standards related to Publicly Owned Treatment Works (POTW).

With respect to NPDES permits, EPA notes that the applicable ELGs, which must be applied in all NPDES permits for oil and gas operations, state that “there shall be no discharge of wastewater pollutants into navigable waters from any sources associated with production, field exploration, drilling, well completion, or well treatment (i.e., produced water, drilling muds, drill cuttings, and produced sand).” Thus, no NPDES permit may authorize on-site discharge of flowback drilling water to a water of the United States. Rather, existing effluent guidelines establish Best Practicable Control Technologies (BPT), including underground injection and the use of evaporative ponds. One direction the Agency might head, in light of the prohibition of direct on-site discharge, is to increase the stringency of the BPTs—particularly in the Marcellus region where re-injection is prohibited by the local geology. Such measures could include actual technology-based control requirements with effluent concentration-based discharge limits.

As for pretreatment standards, the guidance notes that total dissolved solids (TDS) in flowback water have been found at excessively high levels. The guidance also echoes recent concerns over potentially high levels of bromide in shale gas wastewater being sent to POTWs. It is likely that EPA will be developing specific pretreatment standards applicable to shale-gas wastewater introduced to POTWs, focusing on developing numerical standards for constituents like bromide, chloride, and certain metals.

While the entire industry should be aware of ongoing water-related developments—including private studies that will undoubtedly influence the debate—it is becoming increasingly clear that companies operating in the Marcellus shale, and Pennsylvania in particular, will be the primary targets (or test cases). In advance of likely new regulations, there are several steps these operators should take now to minimize any potential future risk, including continuing to increase wastewater recycling in their operations, and monitoring and testing the constituents in any flowback water that must be managed on-site or sent to a POTW.