Fracking and Federal Clean Water Legislation (US)

Information on US federal regulation of water impacts is found here.

Per the USEPA – water is an integral component of the hydraulic fracturing process and the USEPA Office of Water regulates waste disposal of flowback and sometimes the injection of fracturing fluids as authorized by the Safe Drinking Water Act and Clean Water Act.

The USEPA’s central authority to protect drinking water is drawn from the federal Safe Drinking Water Act (SDWA).

The protection of underground sources of drinking water (USDWs) is focused in the EPS’s Underground Injection Control (UIC) program, which regulates the subsurface emplacement of fluid.

However, the UIC authority (SDWA § 1421(d)) is altered by the Energy Policy Act of 2005:

“The term ‘underground injection’ –

(A) means the subsurface emplacement of fluids by well injection; and
(B) excludes –
(i) the underground injection of natural gas for purposes of storage; and
(ii) the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities.”

While the SDWA specifically excludes hydraulic fracturing from UIC regulation under SDWA § 1421 (d)(1), the use of diesel fuel during hydraulic fracturing is still regulated by the UIC program.

Per the USEPA – Any service company that performs hydraulic fracturing using diesel fuel must receive prior authorization through the applicable UIC program.

Information on how the UIC regulations apply to hydraulic fracturing using diesel fuels is found in EPA’s draft Guidance issued 2012 for public comment. The UIC regulations can be found in Title 40 of the Code of Federal Regulations Parts 144-148.

Disposal of produced water flowback into surface waters of the United States is regulated by the National Pollutant Discharge Elimination System (NPDES) permit program. The Clean Water Act authorizes the NPDES program.

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