Comments on the DEQ’s Proposed Fracking Rules

DEQ —  COMMENTS ON THE PROPOSED FRACKING RULES — ORR 2013-101 EQ

July 15, 2014
Submitted by Phil Bellfy (Article32.org)
5759 S. Ridge Rd., Sault Ste. Marie, MI  49783

Based on the Great Lakes—St. Lawrence River Basin Sustainable Water Resources Agreement (“Agreement”), the State of Michigan is obligated to develop rules that “will avoid or minimize the waste of Water” (Article 203(5)).  The fracking of wells in Michigan requires the use of 5-30 million gallons of water per “frack.”  Every gallon of that groundwater is “wasted,” according to the standards laid out in the Agreement; that is, it cannot be safely returned to the watershed, a practice that is clearly in violation of the Agreement.

Has the DEQ incorporated the required provisions of the Agreement into these proposed “fracking” rules?

Relevant excerpts from the Agreement are copied below (full text available here <http://tinyurl.com/ofkbusa&gt;):

GREAT LAKES—ST. LAWRENCE RIVER BASIN SUSTAINABLE WATER RESOURCES AGREEMENT

“Cumulative Impacts” mean the impact on the Great Lakes—St. Lawrence River Basin Ecosystem that results from incremental effects of all aspects of a Withdrawal, Diversion or Consumptive Use in addition to other past, present, and reasonably foreseeable future Withdrawals, Diversions and Consumptive Uses regardless of who undertakes the other Withdrawals, Diversions and Consumptive Uses. Cumulative Impacts can result from individually minor but collectively significant Withdrawals, Diversions and Consumptive Uses taking place over a period of time.

“Withdrawal” means the taking of water from surface water or groundwater.

CHAPTER 1 — GENERAL PROVISIONS  — ARTICLE 100  — OBJECTIVES

1. The objectives of this Agreement are:
a. To act together to protect, conserve and restore the Waters of the Great Lakes—St. Lawrence River Basin because current lack of scientific certainty should not be used as a reason for postponing measures to protect the Basin Ecosystem; …
c. To promote co-operation among the Parties by providing common and regional mechanisms to evaluate Proposals to Withdraw Water; …
g. To prevent significant adverse impacts of Withdrawals and losses on the Basin Ecosystem and its watersheds; …
2. The Parties shall interpret and apply the provisions of this Agreement to achieve these objectives.

CHAPTER 2 — PROHIBITION OF DIVERSIONS, EXCEPTIONS AND MANAGEMENT AND REGULATION OF WITHDRAWALS

ARTICLE 200 — PROHIBITION OF DIVERSIONS AND
MANAGEMENT AND REGULATION OF WITHDRAWALS

1. The Parties shall adopt and implement Measures to prohibit New or Increased Diversions, except as provided for in this Agreement.
2. The Parties shall adopt and implement Measures to manage and regulate Exceptions in accordance with this Agreement.
3. The Parties shall adopt and implement Measures to manage and regulate Withdrawals and Consumptive Uses in accordance with this Agreement.

ARTICLE 201 — EXCEPTIONS TO THE PROHIBITION OF DIVERSIONS

Exception Standard
4. The following criteria constitute the Exception Standard:
a. The need for all or part of the Exception cannot be reasonably avoided through the efficient use and conservation of existing water supplies;
b. The Exception shall be limited to quantities that are considered reasonable for the purposes for which it is proposed;
c. All Water Withdrawn shall be returned, either naturally or after use, to the Source Watershed less an allowance for Consumptive Use …
e. The Exception shall be implemented so as to incorporate Environmentally Sound and Economically Feasible Water Conservation Measures to minimize Water Withdrawals or Consumptive Use;

ARTICLE 202 — IMPLEMENTATION OF THE STANDARD AND THE EXCEPTION STANDARD

1. The Parties shall seek to adopt and implement Measures establishing the Exception Standard under Article 201 and the Decision-Making Standard for management and regulation of Withdrawals and Consumptive Uses under Article 203. The Standards are one of the means by which the Parties shall together protect, conserve, restore, improve and manage the Waters of the Basin.
2. The Standard and the Exception Standards are minimum standards. The Parties may implement Measures that are more restrictive than the requirements of this Agreement. Although a Proposal may meet the Standard or the Exception Standard, it may not be approved under the laws of the Originating Party if that Party has implemented more restrictive Measures.
3. When fully implemented, this Agreement shall lead to Water Withdrawal management systems that are consistent in their fundamentals within the Basin.

ARTICLE 203 –THE DECISION-MAKING STANDARD FOR — MANAGEMENT OF WITHDRAWALS AND CONSUMPTIVE USES

The following criteria constitute the Decision-Making Standard for management of new or increased Withdrawals and Consumptive Uses:
1. All Water Withdrawn shall be returned, either naturally or after use, to the Source Watershed less an allowance for Consumptive Use;
5. The proposed use is reasonable, based upon a consideration of the following factors:
a. Whether the proposed Withdrawal or Consumptive Use is planned in a fashion that provides for efficient use of the Water, and will avoid or minimize the waste of Water;