Michigan Oil & Gas Industry Is Not Exempt from Water Withdrawal Laws
The assertion that the water used in hydraulic fracturing will deplete local aquifers and other sources of drinking water has been repeatedly shown to be inaccurate. In fact, a recent MLive.com article discussed the potential effects of water withdrawal used in hydraulic fracturing on the water levels in Lakes Michigan and Huron. After some basic math (what a concept!), it was determined that the water used in hydraulic fracturing “can in no way affect the lake levels of Lake Michigan and Lake Huron.”
However, certain groups, such as the Sierra Club, continue to claim that the oil and gas industry is somehow ‘exempt’ from Michigan’s water withdrawal laws and that such an exemption endangers the State’s water supply. As the Sierra Club puts it:
“Michigan’s water withdrawal law currently exempts oil and gas drillers from complying with rules designed to protect waterways and groundwater sources from depletion.”
This assertion is just not true, and it goes to show the lengths that some will go to confuse the public. Just take a look at what the Michigan Department of Environmental Quality (DEQ) has to say about hydraulic fracturing, specifically about the applicability of Michigan’s water withdrawal laws on the oil and gas industry:
“Oil and gas companies are subject to the same requirements as other users of large volumes of water—they must first evaluate the potential effects of the withdrawal using a computer program Michigan regulators designed to track and measure water use and protect local aquifers. If it appears that proposed local uses put dangerous stress on local water supplies, the proposed withdrawal request is denied.”
In fact, the water withdrawal regulations apply to all users: whether to the oil and gas industry’s use or the much larger volumes of water used in industries such as agriculture and thermoelectric power generation.
In Michigan, if it is anticipated that a water withdrawal will exceed 100,000 gallons per day, one must apply for a permit with the DEQ and use the Water Withdrawal Assessment Tool. This tool is used to estimate the potential effect that large amounts of water withdrawal will have on nearby water levels. If the assessment indicates that there will be an adverse resource impact, the withdrawal is not permitted, as DEQ has confirmed.
While some claim that the tool is not sufficient to accurately predict the potential impacts of water withdrawal on local water supplies, it is worth noting that the tool took years to develop. In fact, the Michigan Legislature did not proceed with any water withdrawal laws until after the Groundwater Conservation Advisory Council (GWCAC) developed a process to assess certain water withdrawals. This process was completed after reviewing scientific data and input from all stakeholders. The amount of analysis that went into the State’s program is conveniently left out of most discussion regarding its use, especially by those who want you to think up is down, left is right, and that hydraulic fracturing is less than adequately regulated.
While many groups would like the public to believe the oil and gas industry is exempt from water withdrawal requirements or that the amount of water used in hydraulic fracturing will soon deplete the State of its most precious resource, those assertions are simply not based in fact.
Nancy Shiffler
Posted at 12:43h, 08 OctoberThe DEQ currently requires oil and gas drillers to use the Water Withdrawal Assessment Tool (WWAT) in their permit applications. However, the exemption remains in state law. Here are a few quotes from the recent UM Graham Institute Environment/Ecology Technical Report on hydraulic fracturing:
“The hydraulic fracturing withdrawals are kept in a separate database and included in later assessments on a case-by-case basis. After the WWAT analysis is conducted and approved for a hydraulic fracturing operation permit, the withdrawals are no longer considered in relation to other applications or operations in the area.”
…
“The WWAT estimates surface water flows across the state from fewer than 150 USGS river and stream gauges, which tend to be located on medium and large sized streams. Sensitive headwaters are rarely monitored; therefore the WWAT model has high associated uncertainties.”
…
“The WWAT has never been updated and remains as Version 1. There is a critical need to update the model to better account for wetlands, shallow streams, and high volume water withdrawals.”
Because of the exemption in the law (which was passed prior to the usage of high volume hydraulic fracturing) oil and gas drilling withdrawals were not considered when the WWAT was developed. Given the concerns expressed in the above referenced report, it just might be worthwhile taking a closer look at the effectiveness of the tool.
Rita
Posted at 13:58h, 08 OctoberHowdy, John, good to hear from you. I know this is tricky to understand, and you didn’t believe me, so I found a citation for you on the Michigan Legislative Website: http://legislature.mi.gov/doc.aspx?mcl-324-32727
FYI, to help you understand, Part 327 governs water withdrawals, and Part 615, that is referenced below in Section 32727(1)(a), provides our state oil and natural gas regulations. In short, this shows that the oil and gas industry is exempt from Part 327. Supervisor of Wells Hal Fitch, of the MDEQ Office of Oil Gas and Minerals, has made it a permit requirement for oil and natural gas drilling companies to also use the water withdrawal assessment tool so that they would avoid having an adverse resource impact. A permit requirement is not a law. It is a regulation. We want to change the law to codify this regulation, so that it will be less likely to be changed in the future.
Thanks for this chance to help clear this up.
NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION ACT (EXCERPT)
Act 451 of 1994
324.32727 Exemptions; compilation and sharing of certain data.
Sec. 32727.
(1) The following withdrawals are exempt from the requirements of this part unless they result in a diversion:
(a) A withdrawal undertaken as part of an activity authorized by the department under part 111, 115, 201, 213, or 615.
John Simaz
Posted at 17:36h, 17 OctoberHi Rita,
Part 327 of Section 324 of the Natural Resources and Environmental Protection Act (“NREPA”) (Act 451 of 1994) establishes the use of the Water Withdrawal Assessment Tool (“WWAT”) for large water withdrawals as a way to prevent an “adverse resource impact” on water levels in Michigan. The focus on water level is directly related to the overall goal of preventing the diversion of water out of the Great Lakes basin.
The oil and gas industry is not exempt from the laws regarding water withdrawal. The exemption you refer to in section 32727 only applies if there isn’t a diversion of water out of the basin, otherwise the oil and gas industry is regulated by the Supervisor of Wells (“SOW”) under Parts 615, 616, 617, a number of regulations, and SOW instructions.
Also, keep in mind that it was in response to the relatively recent use of larger amounts of water by the oil and gas industry, which was not an issue when section 32727 was last amended in 2008, that the SOW issued Instruction 1-2011 regarding High Volume Fracturing Well Completions. In that instruction, the SOW specifically required the oil and gas industry to use the WWAT and specifically referenced the definitions used in Part 327.
Therefore, when the Sierra Club asserts that “Michigan’s water withdrawal law currently exempts oil and gas drillers from complying with rules designed to protect waterways and groundwater sources from depletion,” that statement is misleading and inaccurate.
However, I realize that you believe that “[a] permit requirement is not a law. It is a regulation.” So I must ask, are you really suggesting that regulations are somehow not the law? That someone who violates a regulation or instruction would not be held accountable under the law? In this case, are you saying that the oil and gas industry’s use of the WWAT is optional? As I’m sure you are aware, regulations and instructions have the force of “law” and in fact government agencies would not function if it were not for their use and one’s subsequent reliance on them.
Thanks for your comment and for reading the blog.
John
Mike Berkowitz
Posted at 14:16h, 08 OctoberTechnically, Oil and Gas are legally exempt from Michigan’s Water Withdrawal Law in statute. It is only under the DEQ’s administrative rules (which are not in statute) that Oil and Gas are required to use the Water Withdrawal Assessment tool. So the industry still has a legal exemption that needs to be changed in statute.
Steve Krause
Posted at 16:39h, 23 OctoberI would be curious to know if the MDEQ has ever DENIED a water withdrawal request from an oil or gas company? My hunch is that they have not. In fact, MDEQ records show that some fracking wells in northern Michigan used up to 35 MILLION gallons of water — for a SINGLE well! So, if 35-million gallons is acceptable, what in heaven’s name is the cut off point? I don’t trust the DEQ at all. They appear to bend over backwards for oil companies at the expense of the environment. Folks, we can always find more oil, but we cannot replace our environment.
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Posted at 14:55h, 05 October[…] a more local level, Michigan anti-fracking activists commonly claim that the oil and gas industry is “exempt” from Michigan’s water withdrawal laws. As the […]