DOGGR Delays Release of Draft Fracking Rules Pending Possible Instruction from Lawmakers

Stoel Rives LLP

At a conference in Los Angeles at the end of July, the chair of the State Water Resources Control Board (SWRCB), Felicia Marcus, noted that the Department of Conservation’s Division of Oil, Gas, and Geothermal Resources (DOGGR) is delaying the release of its draft regulations of hydraulic fracturing until after the state’s legislative session.  Marcus indicated that DOGGR is waiting to see whether the legislature will pass the remaining bill to regulate fracking, Senator Pavley’s SB 4.  The current version of SB 4 is more stringent than the “discussion draft” regulations that DOGGR released at the end of last year (see December 19, 2012, post) and was recently amended to require the regulation of acid well stimulation as well as fracking (see June 20, 2013, post).  Acid well stimulation is not regulated under DOGGR’s discussion draft.

Marcus also indicated at the conference that DOGGR has revised the rules since the release of its discussion draft to increase engagement with the regional water quality boards.  This would bring DOGGR’s rules in closer alignment with SB 4, which calls for DOGGR to develop fracking regulations in consultation with SWRCB and regional water quality control boards and to enter agreements more clearly defining agency authority.  Although DOGGR and SWRCB have an existing memorandum of agreement (MOA) relating to oil and gas discharge reporting and permitting procedures, the MOA called for in SB 4 would relate specifically to agency responsibilities with regard to the regulation of fracking activities.

DOGGR and Governor Brown’s administrative officials have asked Senator Pavley to remove acid well stimulation from SB 4 and make other changes to reduce the bill’s more stringent requirements.  Meanwhile, Senator Pavley has criticized DOGGR’s inability to define the range of well stimulation techniques used in the state or provide a full list of chemicals used in these processes in response to a set of questions posed to the agency by lawmakers.  DOGGR indicated that the information was not readily available because it had not developed a database based the “thousands of documents” relating to well stimulation that would require review.

It remains to be seen whether Senator Pavley will amend SB 4 in response to DOGGR’s and the Governor’s requests.  Given the increasing debate, it is becoming less likely that the bill would avoid a veto without amendment.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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