Idaho's Oil and Gas Conservation Commission approves temporary rule on fracturing

Some of us discovered that Idaho has an Oil and Gas Conservation Commission during an information hearing on natural gas drilling in Payette County before the Idaho House Environment, Energy & Technology Committee during the legislative session.

Idaho Land Board members, including the Governor, Secretary of State, Attorney General, State Controller and Superintendent of Public Instruction also serve as the State Oil and Gas Conservation Commission. On April 19th they met first as the latter body to discuss issues related to drilling for natural gas in Payette County.

The duties of the Oil and Gas Commission are to prevent waste of natural gas, regulate drilling and review requests for directional drilling. If there are concerns about air quality, dusty roads or sage grouse, those are handled by other agencies such as the Office of Species Conservation, Department of Environmental Quality or the Idaho Public Utilities Commission. At this meeting, the Governor acting as Chairman of the Commission asked those who wished to testify to limit their remarks to the issues which can properly come before the commission, not roads, air quality or sage grouse.

The first order of business was the number of wells per acre that should be permitted. Bridge Energy had requested the spacing be based on one well per 160 acres instead of one well per 640 acres in order to properly capture all the natural gas being sought. After a contested case which required a public hearing, the hearing officer recommended approval of one well per 160 acres.

While there was no opposition stated during the contested case, Melinda Harper, a source water protection specialist with the Idaho Rural Water Association testified that there was no physical printout presented at the original hearing and no technical information for the March 31st meeting was available. She raised concern about the impact on drinking water and asked that the variance not be applied unless more information is presented to those who have concerns.

The Commission adopted the amended rule as recommended by the hearing officer.

The next topic on the agenda was consideration of temporary rules for hydraulic fracturing to establish consistent standards. The Idaho Department of Lands (IDL) modified draft rules to address concerns that had been raised about the process of fracturing or “fracing” as it is known in the industry. The hydraulic fracturing that is being proposed in Payette County is a common process that is generally considered safe. Problems that have been publicized have to do with fracing in large shale and coal methane drilling.

IDL believes this proposed temporary rule meets the state’s needs and that it goes beyond what other states currently have for this type of drilling and fracing. A request for a negotiated rulemaking will be presented at the May commission meeting.

Justin Hayes with Idaho Conservation League participated in the public meeting in Payette County and has visited with concerned members in the New Plymouth area. He presented friendly amendments to protect groundwater quality saying that the temporary rule needs to capture the need to protect ground water quality.

The amendments would prohibit the use of known carcinogens as well as the use of toxic substances that inhibit the human embryo growth and cause fetal mutations. A second amendment would prohibit fracturing that is more than 150 feet. Hayes suggested that we close the door on these items so that they can be discussed during negotiated rulemaking.

He also wanted to amend the temporary rule to require sufficient bonding. ICL wants bonding for each well, bonds for surface disturbances, and bonds for mitigation of ground water contamination. The attorney general questioned the timing of these proposals. ICL did submit proposals which were received and reviewed by IDL

IDL testified that it can use the permitting process to be vigilant until more formal rules are negotiated. How much bonding to require is limited by Idaho Code. Hayes pointed out the IDL is directed by statute to have reasonable performance bonds. Bonding for fracturing and well treatments is included in the bond required by IDL for drilling the wells (either per well or by a blanket bond). IDL responded that a statutory change would be needed to get authority for more bonding.

Diesel fuel is not allowed in fracturing and Bridge will continue to make all the compounds available to the public. Idaho does not allow use of any BTEX or volatile organic compounds

Steve West and Kim Parsons spoke for Bridge Energy. Parsons pointed out that definitions of carcinogenic and other such compounds are unclear. She mentioned that the temporary rule is one of the most restrictive there is at this time. With current rules, Bridge is required to make full disclosure of material used in fracing and the materials must be approved by IDL.

Parsons said Bridge uses the highest quality protection of ground water with liners and berms. The aquifer is protected by two to three layers of cement. The fracing is taking place 1000 fee below the aquifer. Bridge has invited the rest of the industry to come up to the levels of groundwater protection that its uses. Materials used are evaluated under Idaho’s groundwater rules and Bridge uses a number of safety measures and engineering redundancies.

IDL pointed out that the temporary rule was previously amended to answer the concerns of New Plymouth residents.

David Hawk who represents a competitor of Bridge is in favor of the draft temporary rule. From an operation and experience point of view, Bridge is very protective of groundwater. He urged the committee to support the temporary rule and not block the potential for other drilling that is currently held up by the BLM.

Melinda Harper testified again asking that the ingredients used in the fracing be food grade quality on the small chance that something not food grade enters the aquifer.

Justin Hayes said that ICL wants to create sideboards to protect groundwater and ensure that Bridge does what it needs to do to protect it as well.

“We can’t clean an aquifer once it is fouled,” he said.

After further questions of Bride Energy, the commission voted to adopt the temporary rule as recommended by IDL.

2011 Legislative Wrap Up

Idaho’s legislators called it quits Thursday with a couple of startling results.After killing a wind farm moratorium bill in committee and negotiating a compromise on the extension of the sales tax rebate for alternative energy in the final days, the House passed two bills on April 5 in favor of wind projects.

H347 would extend the rebate for those projects already in the works to December 31st. H348 would give the Idaho Public Utilities Commission jurisdiction over the avoided cost rates paid to PURPA solar and wind qualifying facilities. Only wind and solar projects producing 100 kW or less would continue to receive the standard avoided costs under PURPA but bigger projects would negotiate a purchase price.

When H347 failed by one vote in the Senate yesterday, the companion bill, H348, was returned to the State Affairs Committee at the request of Sen. Curt McKenzie.

An anti-degradation rule was negotiated this summer and fall. As with all rules it had to go by the legislature. In a rare move, the legislature chose to reject portions of the rule and replace them with H153. In doing so, legislators were acquiescing to a request by the industries involved and supported by the Department of Environmental Quality. They assured the legislators that this action will meet with EPA’s approval. Opponents may still proceed with a lawsuit to challenge the new rule and the statutory changes.

Under NOT SO STARTLING BUT IMPORTANT news: an amendment to Idaho’s current Right to Farm statute was challenged in committee hearings by several people whose concerns centered on dairies and confined animal feeding operations (CAFO). The amended law protects agricultural practices from nuisance lawsuits by adding an extensive list of standard agricultural practices. It does not add protection for negligent practices or change the current regulation of dairies or CAFOs. It also does not interfere with local planning and zoning authority. It passed the House and Senate and was signed by the Governor on April 6th.

Other Legislation That Made It:

H40: PROPANE FLAMING - There was a successful negotiated rulemaking to streamline the process for propane flaming of fields which is necessary for crops like mint but should not be regulated under the regular crop residue burning program. This bill changes the current law so that fees shall not apply to this practice.

H137a: ALTERATION OF CHANNELS OF STREAMS – This amends existing law relating to the alteration of channels of streams to provide that in specified situations, no permit shall be required by the state or any agency or political subdivision thereof from a water user or his agent.

H206: POULTRY – This adds to and amends existing law relating to poultry to provide for the Poultry Environmental Act; to provide for permits and registration of existing facilities; permits for expansions of operations; to provide for the design and construction of certain new and modified wastewater storage and containment facilities; to provide that the review and approval of plans by the Idaho Department of Agriculture shall supersede that of the Idaho Department of Environmental Quality.

H270: AGRICULTURE DEPARTMENT - RULEMAKING – This requires the director of the Idaho State Department of Agriculture to notify the public and the legislature in the event rules of the director are more stringent than federal law or regulations, or propose to regulate an activity not regulated by the federal government. It requires the director to use the best available science and apply well established risk assessment methods (The Idaho Department of Environmental Quality already has similar requirements).

H328: PUBLIC RECORDS – This amends existing law relating to public records to provide that public agencies may charge fees for the cost of filling requests for public records. This legislation was the result of records requests that were more like fishing expeditions and required a large commitment of staff time and copying thousands of pages.

HJR 2: NO MORE WILDERNESS - Idaho shall not support any wilderness designations without having used the public process, which includes the citizens of the state of Idaho, and urging our elected officials to defend this position whenever necessary with the full support of the citizens of the state.

S1001aa: SPECIALTY OFF-HIGHWAY VEHICLES – This amends existing law relating to all-terrain vehicles, utility type vehicles, specialty off-highway vehicles or motorbikes to revise provisions relating to certain operators of all-terrain vehicles, utility type vehicles, specialty off-highway vehicles or motorbikes on certain roads, to provide that certain unlicensed operators on national forest roads must have completed a safety course, to provide that a certificate or proof of completion shall be in the possession of the unlicensed operator and shall be provided for inspection upon request. This came about as a result of Forest Service action to close roads to ATV use because of concern for the safety of children under the age of 16 operating ATVs.

SCR105: WILD LANDS – This urges the Secretary of Interior to abandon the "Wild Lands" wilderness re-inventory and request the United States Congress to honor the longstanding commitment to multiple use management of public lands in Idaho and the western United States....

And some legislation that did not:

H242aa: EMINENT DOMAIN – This would have amended existing law to provide that eminent domain shall not be used for trails, bike paths, walking paths, greenways, or other alternate or limited use transportation corridors, except where bike lanes, bike paths, sidewalks, walking paths, greenways or other alternate or limited use corridors are adjoining or adjacent to highways, roads, streets, permitted bridges, toll roads, byroads, plank and turnpike roads. This passed the House but was held in the Senate Local Government Committee.

H268: EMINENT DOMAIN – This would have amended existing law relating to eminent domain to provide that certain entities exercising the right of eminent domain in behalf of certain public uses shall demonstrate that such use materially serves the interests of the citizens of Idaho. This bill would have applied to a private company trying to use eminent domain to build a merchant power transmission line that did not serve the interests of Idaho citizens. It was also held in the Senate State Affairs Committee after passing the House.

Federal agency has some 'splaining to do, lawmaker says

The 2011 state legislative session, in which almost every conversation was dominated by the subject of budget shortfalls, wrapped up today. 43 other states and the District of Columbia face similar difficulties, for a combined shortfall of $112 billion.

The federal budget for the fiscal year starting October 1, 2011 includes a $1.5 trillion deficit. Congress has not even finished the budget for this fiscal year. While all the wrangling is going on in Washington, D.C., agencies are presenting their budget requests for the next fiscal year. In light of the economy and the state of the national debt, it is surprising that not all of these agencies are setting their sights on making do with less. For example, the National Oceanic and Atmospheric Agency (NOAA) has submitted a budget that includes an increase of 15.8% ($700 million) over last year.

Rep. Doc Hastings (4th District of Washington), Chairman of the House Natural Resources Committee issued a statement to the oversight hearing on NOAA’s budget request. “This hearing is very important for my constituents in central Washington—as well as for Americans nationwide. As NOAA comes to testify in support of a sizable budget increase over current funding levels, many of the millions of people that live on the land and coastal areas NOAA regulates are struggling economically.”

He points out that for the past 20 years NOAA has expanded its management responsibilities over listed salmon to include 28 separate populations. NOAA has only finalized a handful of salmon recovery plans while increased lawsuits have taken a “huge bit out of our nation’s economy.”

NOAA has spent more than $150 million since 2001 studying the Steller sea lion which eats endangered salmon. It is suggesting new restriction on fishing in the western Aleutian Islands because of three tagged animals. The impact of these restrictions on the fishing economy of the islands would total up to $61 million per year.

With the 15.8% increase, NOAA will add expensive new satellite programs while cutting funds for existing fishery research vessels that provide data to guide fishery regulations. It also wants to create a new bureaucracy called the NOAA Climate Service which includes plans for a “customer engagement and education division.”

Maybe the federal bureaucracy has “some ‘splaining to do.”

Chairman Hastings' entire statement is below.

STATEMENT BY THE HONORABLE DOC HASTING
CHAIRMAN
HOUSE NATURAL RESOURCES COMMITTEE
WILDLIFE, OCEANS, AND INSULAR AFFAIRS
OVERSIGHT HEARING ON
THE FY2012 BUDGET REQUEST OF THE NATIONAL OCEANIC
AND ATMOSPHERIC ADMINISTRATION (NOAA)
MARCH 31, 2011

This hearing is very important for my constituents in central Washington—as well as for Americans nationwide. As NOAA comes to testify in support of a sizable budget increase over current funding levels, many of the millions of people that live on the land and coastal areas NOAA regulates are struggling economically.

For the past 20 years, NOAA has expanded its management responsibilities over Endangered Species Act-listed salmon to include 28 separate populations, resulting in severe economic impacts on vast portions of Washington, Oregon, Idaho and California.

These listings have resulted in policies that require federal approval of literally every human activity involving water and salmon. Over the past decade, increased lawsuits against agriculture, irrigation, forestry, transportation, operators of clean hydropower-producing dams, and other development, have taken a huge bite out of our nation’s economy. These lawsuits have even blocked efforts to stop sea lions from eating more and more endangered salmon.

Despite several recent years of record and near-record salmon returns, not one population of salmon has been removed from the ESA list. NOAA has finalized only a handful of salmon recovery plans. NOAA has even suggested in a recent decision that more ESA-listed salmon species will be needed to feed another listed species under its jurisdiction—the orca whale.

President Obama, in his State of the Union address, referred to the duplicative federal endangered salmon management in the ocean and in rivers as an example of how the government needs to be more efficient and competent. I agree the federal government can and must be more efficient in these areas. Unfortunately, this latest NOAA budget request falls far short.

This budget request represents an increase of more than $700 million over current funding levels—a 15.8% increase—largely for expensive new satellite programs and to create a whole new bureaucracy—the NOAA Climate Service, including plans for a “customer engagement and education division.”

In exchange for that huge increase, NOAA seeks to ramp up law enforcement against fishermen in the midst of recent media reports that NOAA officials shredded documents, imposed unjustified fines and shut down fisheries.

NOAA also seeks a $37 million increase for a “national catch share program” –in the process moving money out of a more productive cooperative research program. While I understand the need to fund existing catch share programs, I am concerned that the Administration seems intent on imposing catch shares in fisheries where they are not wanted.

I am concerned with adequacy of NOAA’s data collection activities. This budget request significantly cuts ship time from fishery research vessels and heightens concerns about whether NOAA will have reliable science to guide its fishery regulations.

This data concern is particularly apparent in the science used by the agency to regulate activities—like ocean-based fishing—that might affect listed species.

Even though NOAA has spent more than $150 million since 2001 for Steller sea lion research, significant questions remain unanswered. This is especially true in the western Aleutian Islands where NOAA-imposed restrictions could result in up to $61 million in losses per year based on the actions of only three tagged animals. Such decisions made without adequate scientific information are unacceptable.

NOAA also seeks new funds to implement the controversial Coastal and Marine Spatial Planning initiative and National Ocean Council activities, which is constructed to lead to sweeping new regulations on coastal and inland waterway across the nation. I am troubled that these executive branch actions are moving forward without Congressional or statutory approval.

In the coming months, I look forward to a robust oversight of NOAA’s programs and activities to ensure that species, coastal area—and American jobs—are protected for generations to come, and that NOAA decisions are based on sound science and only move forward under proper statutory authority.