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Hydraulic Fracturing and Water Supply Protection--Federal Regulatory Developments

Rebecca W. Watson, Nora R. Pincus, Water-Energy Nexus: Acquisition, Use, and Disposal of Water for Energy and Mineral Development

Regulation of the technical aspects of oil and gas operations has historically been left largely to the states.1 However, with recent technological advances allowing the development of significant new reserves of shale oil, including the Bakken formation in Montana and North Dakota, and of shale gas in Texas, West Virginia, New York, and Pennsylvania, regulation of oil and gas production activities, and specifically hydraulic fracturing, has become a hot button issue for a number of federal agencies. Thirty-three states are home to major shale plays.2 The recent boom in shale gas, particularly in the major population centers of Pennsylvania and New York, has resulted in significant media attention being paid to the hydraulic fracturing process and concerns that the process negatively impacts water quality.3 In response, the federal government is showing an increased will to enact regulations aimed at regulating oil and gas exploration and production activities, with a focus on hydraulic fracturing, or “fracing.”4 This has led to a groundswell of new and proposed federal statutory and administrative enactments from a number of different, and in many cases surprising, sources. Not surprisingly, the oil and gas industry and states are objecting loudly to this regulatory power grab.

Some thirty years ago, a similar heated debate about the proper role for state