New rules to address fracking on Indian lands

By Alysa Landry
Special to the Times

WASHINGTON, May 23, 2013

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H Hydraulic fracturing on Indian land may become more difficult under new rules proposed by the Department of the Interior and the Bureau of Land Management.

The Interior Department on May 16 issued new draft rules for hydraulic fracturing on public and Indian lands.

Fracturing, or "fracking," is the process of drilling and injecting a mixture of water, sand and chemicals into the ground at high pressure to crack shale formations and unlock oil and gas.

The process is controversial because fracking releases methane gas and other toxic chemicals, which can contaminate nearby groundwater. This can be especially dangerous on the 56 million acres of Indian land in the country. On the more isolated reservations like the Navajo Nation, people and livestock depend on well water for drinking, cooking and washing.

Approximately 500,000 oil and gas wells are active in the United States. That includes 92,000 on public and tribal land, where about 13 percent of the nation's natural gas and 5 percent of its oil are produced, according to statistics from the Interior Department.

Ninety percent of wells drilled on federal and Indian lands use fracking. Yet the BLM's current regulations governing fracking on public and tribal lands are more than 30 years old and were not designed to address modern fracking technology. The revised rules would modernize management of the industry and help establish baseline safeguards to help protect the environment and reduce the human risk.

"We are proposing some common-sense updates that increase safety while also providing flexibility and facilitating coordination with states and tribes," said Interior Secretary Sally Jewell. "As we continue to offer millions of acres of America's public lands for oil and gas development, it is important that the public has full confidence that the right safety and environmental protections are in place."

The new draft rules come after an initial proposal last fall. The Interior Department received more than 177,000 public comments on those rules. The updated draft proposal will be subject to a new 30-day public comment period.

The updated draft keeps the main components of the initial proposal, which requires operators to disclose the chemicals they use in fracking on public or tribal land, verify that fluids are not contaminating groundwater and confirm that management plans are in place for handling fluids that flow back to the surface.

Yet the draft already has drawn criticism from both environmentalists and industry leaders.

Industry officials object to what they call redundant regulation, while environmentalists say the standards do not adequately safeguard drinking water.

Tribal leaders also have spoken out about the rules. During an April 2012 hearing about fracking hosted by the House Subcommittee on Indian and Alaska Native Affairs, tribes were invited to testify about energy development and stewardship of the land.

Wilson Groen, president and CEO of the Navajo Nation Oil and Gas Company, said the rules would create "additional and unnecessary regulatory burdens on energy producers in Indian Country."

"It is critical to the continued growth of the Navajo Nation's economy to continue oil and gas resource development on Navajo lands," he said. "These activities contribute not only to the Nation's self-sufficiency, but also to the energy security of the United States."

There are no fracking operations on the Navajo Nation, but the tribe is active in oil and gas exploration. It owns and operates an 87-mile crude oil pipeline and is a retail and wholesale distributor of refined petroleum products.

The tribe has rights to 150,000 acres of land on the reservation, where it plans to develop coal bed methane, oil and conventional gas resources. It also is exploring the feasibility of developing helium resources.

Groen joined other tribes in opposing federal fracking regulations on Indian land.

"The expressed justification for the rule is to protect the larger public's interest in the public domain, and as Indian lands cannot remotely be considered public lands, the rule should not apply to Indian lands in the first instance," he said. "The BLM's proposed regulation will place additional burdens on an already overregulated industry and will harm Indian tribes, their members and surrounding communities, many of which depend on energy production to drive the regional economies."

The proposal addresses the BLM's oversight of fracking on Indian land, stating the rule should apply to Indian lands, "so that these lands and communities receive the same level of protection provided on public lands."

The rule "seeks to create a consistent oversight and disclosure model that will apply across all public and Indian lands that are available for oil and gas development," the proposal states. It "aims to streamline and minimize the efforts required to comply with any new requirements, while also protecting federal and tribal interests and resources."

The rule also contains specific language that requires the industry to certify that operations on Indian land comply with tribal laws.

The BLM expects to issue a final rule that ensures that the industry apply cost-effective environmental protection processes when fracking on public and Indian lands. Nearly 36 million acres of federal land in 24 states are under lease for potential oil and gas development.

"We know from experience that hydraulic fracturing and horizontal drilling methods can be used safely and effectively," BLM Principal Deputy Director Neil Kornze said. "Our thorough review of all the comments convinced us that we could maintain a strong level of protection of health, safety and the environment while allowing for increased flexibility and reduced regulatory duplication."

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