EPA's Final Assessment Regarding the Impact of Hydraulic Fracturing on Drinking Water Resources

In December 2016, the Environmental Protection Agency ("EPA") released its final assessment analyzing the potential impacts of hydraulic fracturing ("fracking") on drinking water resources.1  The draft assessment, issued in June of 2015, was summarized in our Fall 2015 issue.2 Overall, this final report does not differ much in substance from the prior draft.  The final assessment's takeaway is essentially the same:  EPA cannot point to any widespread, systemic impacts on drinking water resources caused by fracking.  Yet, EPA removed its statement to that effect from the final assessment, which has allowed many to report that EPA has backtracked on its prior conclusion.3 However, closely scrutinized, the report reaches the same basic conclusion as before – when reviewing all activities within the hydraulic fracturing water cycle – which include everything from acquiring the water, mixing the water with chemicals, injecting the fluids to the production well, collecting the wastewater, and managing the wastewater through disposal or reuse – "EPA found scientific evidence that hydraulic fracturing activities can impact drinking water resources under some circumstances."4 These circumstances are less about fracturing rock hydraulically than they are about overall practices in some way associated with fracking, such as water withdrawals where there is low water availability, surface spills during handling of fluids, injection into wells that lack mechanical integrity or adequate cementing, injection of fracturing fluids directly into groundwater resources, discharges of improperly treated wastewater to surface waters, and the use of unlined pits in the disposal or storage of wastewater.  In other words: poor fracking-related practices. 

Neither the final report, nor the draft report, point to any direct data indicating that fracking practices cause widespread, systemic impacts on drinking water resources – nor do either conclude that proper fracking practices, except in areas of low water availability, have any impact on drinking water resources.  Although EPA stated that its reason for eliminating the prior statement was that no scientific evidence could be found to quantitatively support it,5 this explanation obviously should not be interpreted to mean that scientific evidence exists to support the opposite proposition.

Overall, the final report indicates that while there are many data gaps and uncertainties, and that improper fracking-related practices may impact drinking water resources, EPA is still unable to directly cite hydraulic fracturing as having widespread impacts, despite the removal of this statement.

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1 See United States Environmental Protection Agency, Hydraulic Fracturing for Oil and Gas: Impacts from the Hydraulic Fracturing Water Cycle on Drinking Water Resources in the United States (Final Report) (2016), available here.

2 See Stuart Butzier, EPA Assesses Potential for Hydraulic Fracturing to Impact Drinking Water Sources, Energy & Resources Notes, Fall 2015, at 7-8, available here.

3 See, e.g., Coral Davenport, Reversing Course, E.P.A. Says Fracking Can Contaminate Drinking Water, The N.Y. Times, Dec. 13, 2016, available here.

4 Final Report, supra note 1 (emphasis added).

5 See Juan Carlos Rodriguez, EPA Can't Prove Fracking Doesn't Affect Drinking Water, LAW360 (Dec. 13, 2016, 3:36 PM).

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