Over the past several years, hydraulic fracturing (or “fracking”) has become a very divisive environmental and political issue in many areas of the country. As our society’s desire for cleaner energy has become more of a priority, lawmakers and agencies at federal, state, and local levels have been confronted with determining whether and to what extent the use of hydraulic fracturing methods should be regulated, and whether such activities pose a potential threat to our drinking water sources.

What is Fracking?

Developed in the 1940’s, hydraulic fracturing is a method to extract conventional oil and gas resources found in permeable sandstone and carbonate reservoirs by drilling vertically into rock formations and injecting fluids under high pressures.

Today, well stimulation methods have also been developed to increase the profitable extraction of unconventional resources, such as shale and tight sands highly dispersed through “tight” impermeable rock formations, by shifting from vertical drilling to horizontal or directional drilling techniques.

Through a combination of hydraulic fracturing methods and horizontal or directional drilling techniques, the U.S. has become the world’s largest producer of petroleum and natural gas hydrocarbons.

Recent Federal Study & Policies Impacting Fracking

In a December 2016 final assessment by the Environmental Protection Agency (EPA), which was initially commissioned by Congress in 2010 to analyze the relationship between hydraulic fracturing for oil and gas and drinking water, the EPA concluded that hydraulic fracturing does impact natural drinking water under certain conditions. In contrast to a draft assessment released in June 2015, the EPA’s final assessment omitted a rather contentious headline which previously stated fracking would not result in widespread, systemic impacts on drinking water sources.

Given the EPA’s final assessment lacked specific policy recommendations and acknowledged gaps in data, it is difficult to forecast whether its conclusions would influence federal policymaking under the President Trump administration and the newly appointed EPA Administrator.

Florida Legislation

Last year, legislation which proposed a preemption of local governmental regulation and a moratorium on Florida Department of Environmental Protection (DEP) permitting, ultimately died in a Florida Senate Committee.

This year, two new bills (SB 442 and its companion HB 451) have been introduced during the 2017 session boasting bi-cameral and bi-partisan support. If enacted, SB 442 and HB 451 would prohibit the performance of “advanced well stimulation treatments” (defined to include three of the most common well stimulation techniques—matrix acidizing, acid fracturing, and hydraulic fracturing).

Local Governmental Regulation

Traditionally, because oil and gas permitting programs have been operated by DEP, Florida’s local governments are limited to regulating oil and gas activities through their local development regulations and zoning ordinances. In light of recent environmental concerns, however, approximately 90 Florida local governments have enacted legislation placing moratoriums and various prohibitions on fracking.

In sum, while fracking is certainly a hot button issue for policymakers, it is less clear whether we can expect a consensus in the near future regarding whether its benefits outweigh its potential for adverse environmental impacts. If you have any questions regarding fracking, please contact me at austin.turner@henlaw.com or by phone at 239-344-1178.