A memorandum of understanding (MOU) negotiated between state and federal regulators could end the stalemate over the contentious issues surrounding hydraulic fracturing (fracking), a Texas official told a House panel last Wednesday.

“Why do you think that the federal government is not reaching out to the states for MOUs on fracking?” Rep. Doc Hastings (R-WA), chairman of the House Natural Resources Committee, asked Texas Land Commissioner Jerry Patterson at a hearing addressing state regulation of the oil and natural gas industry.

“Unfortunately, issues [like fracking] take on a life of their own,” which is not necessarily related to how important they are, Patterson said. Fracking has become a “polarizing issue similar to the Keystone Pipeline,” and is seen by some as a pariah. Fracking is not new to the Lone Star state. It has been practiced for 50 years, he noted.

“Our concern in Texas is not so much the fracking itself, but the water [used]. Currently 1.6% of the water in Texas is used in oil and gas operations,” Patterson told the House panel.

In response to another question from Hastings, Patterson said he saw no reason why the states and the federal government couldn’t have an MOU to resolve their differing views on the regulation of fracking.

MOUs between states and the federal government have been done before. In late 2009, Interior Secretary Ken Salazar and California Gov. Arnold Schwarzenegger signed an MOU to establish a fast track program primarily aimed at large-scale solar, wind and geothermal development on federal lands. In that same year, the Bureau of Land Management (BLM) and Oregon’s Department of Energy signed an MOU to create a “harmonious relationship” to facilitate the siting of future wind energy projects.

Both Patterson and Richard Simmers, chief of the Ohio Department of Natural Resources’ (ODNR) Division of Oil and Gas Resources Management, invited federal regulators to come to their states to see how they oversee fracking. “We know how to do it,” and would be “pleased to share our expertise with the federal government,” Patterson said. “I welcome you to come to Ohio and we’ll show you how we regulate,” Simmers said, adding that the “states are doing it properly; we’re just doing it differently.”

There are some things that states do better than the federal government, Simmers said. He noted that his office in January received an anonymous tip that oilfield waste was being illegally discharged into a storm sewer in the Youngstown, OH, area. He said he immediately had two inspectors on the scene who were able to witness the illegal action and shut it down.

“If it was not for the on-the-ground efforts of ODNR’s oil and gas inspectors, this criminal and environmentally threatening illegal activity of dumping oilfield waste directly into the Mahoning River could still be occurring.”

Texas has had no contamination in its waters as a result of fracking, Patterson said. Utah Lieutenant Gov. Gregory Bell said the same was true in his state. “In Utah there has not been a single recorded instance of hydraulic fracturing fluids polluting Utah’s waters.” Nevertheless, the state and industry are faced with “unnecessary uncertainty regarding looming federal actions.”

The Interior Department’s BLM is drafting a final rule to regulate fracking at the federal level, which would take fracking regulation out of the hands of states, like Utah (see NGI, Jan. 28). Utah has been regulating fracking, a practice for stimulating oil and gas wells, since 1955.

“It appears to us that the BLM is responding to a political demand for action in the form of an unnecessary and duplicative regulation of hydraulic fracturing operations,” Bell said.

He conceded, however, that while federal regulation of fracking may not be necessary for Utah, it may be required in other states. “While new federal rules could potentially add value for states new to oil and gas development, given Utah’s history of proactive and successful state regulation, it is clear that new federal rules will not improve the program and could very well slow processes and add unnecessary costs.”

But fracking is not the only problem that Utah is facing. “The Fish and Wildlife Service has almost broken our hearts with the potential listing of the sage grouse” as an endangered species, he said. Moreover, “we view the diversion of our oil royalty payments from federal ground through the sequester process as illegal,” Bell said. “This is not an appropriation. This is our money…and we’d appreciate a check.”

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