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[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]

         THE FUTURE OF HYDRAULIC FRACTURING ON FEDERALLY MANAGED LANDS

=======================================================================

                           OVERSIGHT HEARING

                               BEFORE THE

                       SUBCOMMITTEE ON ENERGY AND
                           MINERAL RESOURCES

                                 OF THE

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

                        Wednesday, July 15, 2015

                               __________

                           Serial No. 114-15

                               __________

       Printed for the use of the Committee on Natural Resources

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                     COMMITTEE ON NATURAL RESOURCES

                        ROB BISHOP, UT, Chairman
            RAUL M. GRIJALVA, AZ, Ranking Democratic Member

Don Young, AK                        Grace F. Napolitano, CA
Louie Gohmert, TX                    Madeleine Z. Bordallo, GU
Doug Lamborn, CO                     Jim Costa, CA
Robert J. Wittman, VA                Gregorio Kilili Camacho Sablan, 
John Fleming, LA                         CNMI
Tom McClintock, CA                   Niki Tsongas, MA
Glenn Thompson, PA                   Pedro R. Pierluisi, PR
Cynthia M. Lummis, WY                Jared Huffman, CA
Dan Benishek, MI                     Raul Ruiz, CA
Jeff Duncan, SC                      Alan S. Lowenthal, CA
Paul A. Gosar, AZ                    Matt Cartwright, PA
Raul R. Labrador, ID                 Donald S. Beyer, Jr., VA
Doug LaMalfa, CA                     Norma J. Torres, CA
Jeff Denham, CA                      Debbie Dingell, MI
Paul Cook, CA                        Ruben Gallego, AZ
Bruce Westerman, AR                  Lois Capps, CA
Garret Graves, LA                    Jared Polis, CO
Dan Newhouse, WA                     Vacancy
Ryan K. Zinke, MT
Jody B. Hice, GA
Aumua Amata Coleman Radewagen, AS
Thomas MacArthur, NJ
Alexander X. Mooney, WV
Cresent Hardy, NV
Vacancy

                       Jason Knox, Chief of Staff
                      Lisa Pittman, Chief Counsel
                David Watkins, Democratic Staff Director
             Sarah Parker, Democratic Deputy Chief Counsel
                                 ------                                

              SUBCOMMITTEE ON ENERGY AND MINERAL RESOURCES

                       DOUG LAMBORN, CO, Chairman
            ALAN S. LOWENTHAL, CA, Ranking Democratic Member

Louie Gohmert, TX                    Jim Costa, CA
Robert J. Wittman, VA                Niki Tsongas, MA
John Fleming, LA                     Matt Cartwright, PA
Glenn Thompson, PA                   Donald S. Beyer, Jr., VA
Cynthia M. Lummis, WY                Ruben Gallego, AZ
Dan Benishek, MI                     Lois Capps, CA
Jeff Duncan, SC                      Jared Polis, CO
Paul A. Gosar, AZ                    Vacancy
Raul R. Labrador, ID                 Vacancy
Paul Cook, CA                        Vacancy
Garret Graves, LA                    Vacancy
Ryan K. Zinke, MT                    Vacancy
Jody B. Hice, GA                     Vacancy
Alexander X. Mooney, WV              Raul M. Grijalva, AZ, ex officio
Cresent Hardy, NV
Rob Bishop, UT, ex officio
                                ------                                

                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Wednesday, July 15, 2015.........................     1

Statement of Members:

    Fleming, Hon. John, a Representative in Congress from the 
      State of Louisiana.........................................     1
    Grijalva, Hon. Raul M., a Representative in Congress from the 
      State of Arizona...........................................     6
    Lamborn, Hon. Doug, a Representative in Congress from the 
      State of Colorado, Prepared statement of...................     3
    Lowenthal, Hon. Alan S., a Representative in Congress from 
      the State of California....................................     4
        Prepared statement of....................................     5

Statement of Witnesses:

    Fitzsimmons, Tom, Commissioner, Wyoming Oil and Gas 
      Conservation Commission, Cody, Wyoming, Prepared statement 
      of.........................................................     7
    Hetrick, Lloyd, Operations Engineering Advisor, Newfield 
      Exploration Company, The Woodlands, Texas..................    20
        Prepared statement of....................................    21
    Kornze, Neil, Director, Bureau of Land Management, U.S. 
      Department of the Interior, Washington, DC.................     9
        Prepared statement of....................................    11
    Olguin, James M. ``Mike'', Council Member, Southern Ute 
      Indian Tribe, Ignacio, Colorado............................    15
        Prepared statement of....................................    16
    Wiseman, Hannah, Attorneys' Title Professor, Florida State 
      University College of Law, Tallahassee, Florida............    24
        Prepared statement of....................................    26

Additional Materials Submitted for the Record:

    Cartwright, Hon. Matt, a Representative in Congress from the 
      State of Pennsylvania, Prepared statement of...............    57
    List of documents submitted for the record retained in the 
      Committee's official files.................................    58
                                     

 
 OVERSIGHT HEARING ON THE FUTURE OF HYDRAULIC FRACTURING ON FEDERALLY 
                             MANAGED LANDS

                              ----------                              

                        Wednesday, July 15, 2015

                     U.S. House of Representatives

              Subcommittee on Energy and Mineral Resources

                     Committee on Natural Resources

                             Washington, DC

                              ----------                              

    The subcommittee met, pursuant to notice, at 10:43 a.m., in 
room 1324, Longworth House Office Building, Hon. Doug Lamborn 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Lamborn, Gohmert, Fleming, Lummis, 
Benishek, Gosar, Labrador, Cook, Zinke, Mooney, Hardy, Bishop; 
Lowenthal, Costa, Tsongas, Cartwright, Beyer, Gallego, Capps, 
Polis, and Grijalva.
    Dr. Fleming [presiding]. The Subcommittee on Energy and 
Mineral Resources will come to order. I am not Chairman 
Lamborn.
    [Laughter.]
    Dr. Fleming. I am Fleming, but I am standing in for--or 
sitting in for Lamborn, for the moment. He is held up in 
another Committee activity.
    The subcommittee is meeting today to hear testimony on the 
future of hydraulic fracturing on federally managed lands.
    Under Committee Rule 4(f), any oral opening statements at 
hearings are limited to the Chairman and the Ranking Member, 
and the Vice Chairman and a designee of the Ranking Member. 
This will allow us to hear from our witnesses sooner, and help 
Members keep to their schedules. Therefore, I ask unanimous 
consent that all other Members' opening statements be made part 
of the hearing record, if they are submitted to the 
Subcommittee clerk by 5:00 p.m. today.
    [No response.]
    Dr. Fleming. Hearing no objection, so ordered.
    I now recognize myself for an opening statement.

    STATEMENT OF THE HON. JOHN FLEMING, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF LOUISIANA

    Dr. Fleming. For decades the states have been regulating 
hydraulic fracturing on Federal lands managed by the BLM 
without incident. And now, the BLM arrogantly seeks to second 
guess state regulations with a one-size-fits-all final rule on 
hydraulic fracturing.
    This subcommittee has warned about the adverse effects the 
BLM's poorly planned hydraulic fracturing regulations would 
have on tribes and states with Federal lands, and now we have 
the words of a Federal judge echoing our warnings. He stated, 
and I quote, ``There is a showing of a credible threat of 
irreparable harm: in cost of compliance, as well as the loss of 
revenue,'' to the states and industry.
    Now, why do states need to suffer this irreparable harm? 
The BLM tells us it is necessary because there are ``concerns 
about whether fracturing can lead to or cause the contamination 
of underground water sources,'' and that only half of the 
states with oil and gas leases on the Federal lands have modern 
hydraulic fracturing regulations.
    Well, let's look at the facts. When the final rule was 
released, the BLM acknowledged that 99.3 percent of all well 
completions on Federal or tribal land occurred in states with 
hydraulic fracturing regulations. What is more telling is how 
the BLM has never identified a single jurisdiction that lacks 
sufficient regulatory protections in which hydraulic fracturing 
occurs on Federal lands.
    Furthermore, the EPA's recent study finding that there had 
been no ``widespread, systemic impacts on drinking water 
resources in the United States,'' clearly demonstrates that 
states have been successful in regulating hydraulic fracturing 
and ensuring the protection of drinking water resources.
    These facts highlight that states were proactive in 
regulating the process of hydraulic fracturing, and that they 
have been successful in doing so. I would say that the BLM's 
final rule on hydraulic fracturing is nothing more than a 
frivolous regulatory exercise, if not for the severe and 
unfortunate consequences the rule carries.
    In an attempt to address concerns from states and tribes 
about possible duplicative efforts, the BLM established a 
variance provision. This subsection permits states or tribes to 
seek the application of their rules on Federal land if those 
rules ``are demonstrated to be equal to or more protective'' 
than the BLM's.
    Let me be clear about what this variance provision is. It 
is merely a means by which the BLM may interpret state or 
tribal regulations on Federal lands. So when the final rule 
states, ``variances may be granted to states and tribes,'' 
there is actually no grant. Neither the states nor the tribes 
receive any cognizable right or exercisable claim to continue 
implementing their hydraulic fracturing regulations on Federal 
lands, as has been the practice for decades.
    As such, the variance provision only permits the BLM the 
opportunity to avoid its own regulations. How this redundant 
exercise will avoid duplicative efforts is beyond me. 
Inherently, it appears to encourage duplicative efforts, and 
will only lead to further confusion within the BLM state 
offices.
    What is further troubling is the approach of the BLM toward 
those states who, in good faith, have attempted to obtain a 
variance. Like the rest of the rule, the BLM failed to provide 
any nationwide or baseline guidance that would have informed 
the state offices on how to proceed in the variance 
discussions. As such, not a single variance agreement has been 
entered into.
    After examining the BLM's attempted roll out of this rule 
over the past few months, I must say, that if any group should 
be thrilled the judge postponed the effective date of the rule, 
it should be the BLM. Without this stay, the implementation of 
the rule would have been a national embarrassment, and would 
have effectively paused hydraulic fracturing on Federal and 
tribal lands for the foreseeable future.
    Maybe if this had been an emergency rulemaking in which the 
BLM had a limited time frame to address a severe issue, these 
major oversights and lack of preparedness would be excusable. 
However, that is not the case. It is simply inexcusable that 
after 3 years, numerous stakeholder meetings, and over a 
million comments, that BLM can't even provide standardized 
guidance to its state offices.
    Unfortunately, it is too late for the BLM to withdraw this 
rule. And so, the Nation is left with an uncertain future for 
hydraulic fracturing on Federal lands.
    These are Mr. Lamborn's words, but I agree with every 
single one of them.
    [The prepared statement of Mr. Lamborn follows:]
Prepared Statement of the Hon. Doug Lamborn, Chairman, Subcommittee on 
                      Energy and Mineral Resources
    For decades, the states have been regulating hydraulic fracturing 
on Federal lands managed by the BLM without incident. And now, the BLM 
arrogantly seeks to second guess state regulations with a one-size-
fits-all final rule on hydraulic fracturing.
    This subcommittee has warned about the adverse effects the BLM's 
poorly planned hydraulic fracturing regulations would have on tribes 
and states with Federal lands. And now, we have the words of a Federal 
judge echoing our warnings. He stated, and I quote, ``there is a 
showing of a credible threat of irreparable harm: [in] cost of 
compliance, as well as the loss of revenue,'' to the states and 
industry.
    Now, why do the states need to suffer this irreparable harm? The 
BLM tells us it is necessary because there are ``concerns about whether 
[hydraulic] fracturing can lead to or cause the contamination of 
underground water sources,'' and that only half of the states with oil 
and gas leases on Federal lands have modern hydraulic fracturing 
regulations.
    Well, let's look at the facts. When the final rule was released, 
the BLM acknowledged that 99.3 percent of all well completions on 
Federal or tribal land occurred in states with hydraulic fracturing 
regulations. What is more telling, is how the BLM has never identified 
a single jurisdiction that lacks sufficient regulatory protections in 
which hydraulic fracturing occurs on Federal lands.
    Furthermore, the EPA's recent study finding that there had been no 
``widespread, systemic impacts on drinking water resources in the 
United States,'' clearly demonstrates that states have been successful 
in regulating hydraulic fracturing and ensuring the protection of 
drinking water resources.
    These facts highlight that states were proactive in regulating the 
process of hydraulic fracturing, and that they have been successful in 
doing so. I would say that the BLM's final rule on hydraulic fracturing 
is nothing more than a frivolous regulatory exercise, if not for the 
severe and unfortunate consequences the rule carries.
    In an attempt to ``address concerns from states and tribes about 
possible duplicative efforts,'' the BLM established a variance 
provision. This subsection permits states or tribes to seek the 
application of their rules on Federal land if those rules ``are 
demonstrated to be equal to or more protective'' than the BLM's.
    Let me be clear about what this variance provision is: it is merely 
a means by which the BLM may interpret state or tribal regulations on 
Federal lands. So when the final rule states, ``variances may be 
granted to states and tribes''--there is actually no grant. Neither the 
states, nor the tribes receive any cognizable right or exercisable 
claim to continue implementing their hydraulic fracturing regulations 
on Federal lands, as has been the practice for decades.
    As such, the ``variance provision'' only permits the BLM the 
opportunity to avoid its own regulations. How this redundant exercise 
will avoid duplicative efforts is beyond me. Inherently, it appears to 
encourage duplicative efforts, and will only lead to further confusion 
within the BLM state offices.
    What is further troubling is the approach of the BLM toward those 
states who in good faith have attempted to obtain a variance. Like the 
rest of the rule, the BLM failed to provide any nationwide, or baseline 
guidance that would have informed the state offices on how to proceed 
in the variance discussions. As such, not a single variance agreement 
has been entered into.
    After examining the BLM's attempted roll out of this rule over the 
past few months, I must say, that if any group should be thrilled the 
judge postponed the effective date of the rule, it should be the BLM. 
Without this stay, the implementation of the rule would have been a 
national embarrassment, and would have effectively paused hydraulic 
fracturing on Federal and tribal lands for the foreseeable future.
    Maybe if this had been an emergency rulemaking in which the BLM had 
a limited time frame to address a severe issue, these major oversights 
and lack of preparedness would be excusable. However, that is not the 
case. It is simply inexcusable that after 3 years, numerous stakeholder 
meetings, and over a million comments, the BLM can't even provide 
standardized guidance to its state offices.
    Unfortunately, it is too late for the BLM to withdraw this rule--
and so, the Nation is left with an uncertain future for hydraulic 
fracturing on Federal lands.

                                 ______
                                 

    Dr. Fleming. With that, I will yield to the Ranking Member 
for his opening remarks.

 STATEMENT OF THE HON. ALAN S. LOWENTHAL, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Lowenthal. Thank you, Chairman Fleming, and thank you 
to the witnesses for being here, particularly Director Kornze, 
who has faced a considerable amount of grilling from both sides 
of the aisle over this rule in the past few months. And each 
time you have defended it and your agency in a forthright and 
highly commendable manner. Mr. Director, it is good to see you 
again.
    I have heard a lot of complaints from the oil and gas 
industry and my colleagues on the other side of the aisle about 
what they see as overblown concerns about fracking. To them, 
fracking is perfectly safe, and anyone who questions that is 
needlessly scaring people. But when it comes to overblown 
hysteria, nothing matches the industry's reaction to the Bureau 
of Land Management's fracking rule.
    If you listen to them, you would think that this rule was a 
royal edict, completely changing the rules of the game on 
Federal lands, and that the BLM has never regulated oil and gas 
before. But you would be wrong. Because this rule is nothing 
but a modest modernization of long-standing BLM regulations to 
take into account how the industry currently operates.
    One point there appears to be a lot of confusion over is 
how this rule would affect the states. Let me make this clear. 
And this is not my opinion. On Federal lands, the BLM sets the 
floor. Let me say that again: On Federal lands, the BLM sets 
the floor. The states are free to put the ceiling wherever they 
want. And, yes, even on Federal lands, companies must meet 
those state standards. That is how things worked yesterday, 
that is how they work today, and that is how they will work the 
day after the fracking rule takes effect.
    Forget about the state's variance provision. I am not 
talking about that, because it is really unnecessary. States 
will be able to set their rules, and companies on Federal lands 
will have to follow them, variance or no variance.
    I am sorry that Mr. Fitzsimmons is not here from Wyoming, 
because it is great that Wyoming has strong fracking 
regulations. I am pleased to hear that. Wyoming would be free 
to enforce these regulations when this rule goes into effect, 
just as they are right now, because of their stronger drilling 
regulations. But let's also be clear that not all states have 
regulations as good as Wyoming's. And when it comes to 
protecting public lands and public resources in all 50 states, 
we have given the BLM a statutory mandate, and it would be 
irresponsible, if not illegal, for them to simply ignore that.
    And that authority goes way back. It may surprise people to 
know that regulations covering all forms of well stimulation, 
including fracking, were first issued in 1942, even though 
fracking barely existed at the time. Those were issued by the 
U.S. Geological Survey, who was in charge of this issue before 
the BLM.
    Those regulations were in place when the Safe Drinking 
Water Act was passed in 1974, and the House report on the Safe 
Drinking Water Act says very clearly, and I quote, ``The 
committee does not intend any of the provisions of this bill to 
repeal or to limit any authority that the USGS may have under 
other legislation.'' That is about as clear-cut and dry as you 
can get.
    Now times have changed, and these regulations were last 
updated in the 1980s to exempt routine fracturing jobs. But 
times changed again, and now fracking is significantly 
different than it was 30 years ago. It is long past time for 
the BLM to modernize these out-of-date regulations and to 
provide to the industry and to the states proper baseline 
protections for public lands from coast to coast.
    Now, I would like to say that despite my bewilderment at 
the complaints from the industry and the states, I am also very 
sympathetic to the concerns of our tribes. As we saw from a 
Government Accountability Office report last month, there are 
serious problems with the way that energy development on tribal 
lands is managed, problems that go back for decades.
    While we have to consider carefully this rule's impact on 
the tribes, their overall concern with energy development is 
real--they are real, they are serious, and they deserve a more 
thorough investigation by this committee.
    But for companies operating on public lands, this rule is 
nothing more than a small step to bring BLM's outdated 
regulations, which they have operated under for decades, into 
the 21st century.
    Thank you, Mr. Chair, and I yield back.
    [The prepared statement of Mr. Lowenthal follows:]
   Prepared Statement of the Hon. Alan S. Lowenthal, Ranking Member, 
              Subcommittee on Energy and Mineral Resources
    Thank you Mr. Chairman, and thank you to the witnesses for being 
here, particularly Director Kornze, who has faced a considerable amount 
of grilling from both sides of the aisle over this rule in the past few 
months, and each time he has defended it and his agency in a forthright 
and highly commendable manner. Mr. Director, it is good to see you 
again.
    I have heard a lot of complaints from the oil and gas industry and 
my colleagues on the other side about what they see as overblown 
concerns about fracking. To them, fracking is perfectly safe, and 
anyone who questions that is needlessly scaring people.
    But when it comes to real overblown hysteria, nothing matches the 
industry's reaction to the Bureau of Land Management's fracking rule. 
If you listened to them, you would think this rule was a royal edict 
completely changing the rules of the game on Federal lands, and that 
the BLM has never regulated oil and gas before.
    But you would be wrong. Because this rule is nothing but a modest 
modernization of long-standing BLM regulations to take into account how 
the industry currently operates.
    One point that there appears to be a lot of confusion over is how 
this rule would affect states. Let me make this clear. And this is not 
my opinion, this is fact: this rule does not affect a state's ability 
to set its own regulations. On Federal lands, BLM sets the floor. The 
states are free to put the ceiling wherever they want. And, yes, even 
on Federal lands companies must meet those state standards.
    That's how things worked yesterday, that's how they work today, and 
that's how they will work on the day the fracking rule takes effect.
    Forget about the state variance provision. I'm not talking about 
that. Because it's unnecessary. States will be able to set their rules, 
and companies on Federal lands will have to follow them, variance or no 
variance.
    I think it's great that Wyoming has strong fracking regulations. 
I'm pleased to hear that. You would be free to enforce those 
regulations just as you are right now for your stronger drilling 
regulations.
    But not all states have regulations as good as Wyoming's. And when 
it comes to protecting public land and public resources in all 50 
states, we have given the BLM a statutory mandate, and it would be 
irresponsible, if not illegal, for them simply to ignore that.
    And that authority goes back quite a way. It may surprise people to 
know that regulations covering all forms of well stimulation, including 
fracking, were issued in 1942, even though fracking barely existed at 
the time. Those were issued by the U.S. Geological Survey, who was in 
charge of this issue before the BLM.
    Those regulations were in place when the Safe Drinking Water Act 
was passed in 1974. And the House report on the Safe Drinking Water Act 
says very clearly, ``The committee does not intend any of the 
provisions of this bill to repeal or limit any authority the USGS may 
have under any other legislation.''

    That is about as cut and dry as you can get.

    Now, times changed, and those regulations were updated in the 1980s 
to exempt routine fracturing jobs. But times changed again, and now 
fracking is significantly different than it was 30 years ago. It is 
long past time for BLM to modernize these out-of-date regulations and 
provide proper baseline protections for public lands from coast to 
coast.
    Now, I would like to say that despite my bewilderment at the 
complaints from the industry and the states, I am very sympathetic to 
the concerns of our tribes. As we saw from a Government Accountability 
Office report last month, there are serious problems with the way that 
energy development on tribal lands is managed, problems that go back 
decades.
    While we have to consider carefully this rule's impacts on the 
tribes, their overall concerns with energy development are real, they 
are serious, and they deserve a more thorough investigation by this 
committee.
    But for companies operating on public lands, this rule is nothing 
more than a small step to bring BLM's outdated regulations, which they 
have operated under for decades, toward the 21st century.

    Thank you, Mr. Chairman, and I yield back.

                                 ______
                                 

    Dr. Fleming. The gentleman yields. The Chair now recognizes 
Mr. Grijalva for an opening statement.

  STATEMENT OF THE HON. RAUL M. GRIJALVA, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF ARIZONA

    Mr. Grijalva. Thank you very much, Mr. Chairman, for your 
courtesy, and also the Ranking Member, as well. Of course, 
thanking the witnesses for being here, and the Director, for 
his professionalism and on occasion his endurance, as well. As 
the Ranking Member indicated, criticism has come from all sides 
of the committee regarding the rule, and through that all, your 
professionalism is very much appreciated. Thank you.
    As I said before, I believe that the Bureau of Land 
Management's rule for fracking is much too weak. I am pleased 
to discover that several western states completely agree with 
me. Throughout their court arguments, the states point out that 
they have much stronger regulations than BLM, which means that 
companies in those states can keep going on with their business 
as usual, regardless of risks they might be posing to our air, 
to our water, to our health, and to the economic equity of 
homeowners throughout many of those lands.
    That is a problem. The Federal Government should be raising 
the bar, not settling for the lowest common denominator. The 
rule is necessary, and will have some benefits, particularly in 
states that don't have robust rules. But we should be doing 
more. Yet for some reason, the states and industry are not 
thanking BLM for issuing a rule that will have very little 
impact in the field, and cost almost nothing. They aren't 
thanking Congress for leaving in place the loopholes that 
exempt them from a number of our fundamental environmental 
laws. No. Instead, they are complaining that the rule is too 
confusing, too redundant, too expensive.
    This has to be a reflex. If a regulation comes out, it must 
be bad, so they have to challenge it. Never mind that the rule 
allows states to continue to regulate as they wish. Never mind 
that it actually simplifies requirements for companies in some 
cases. Never mind that the BLM has been very accommodating and 
bending over backwards to try to meet the concerns of the 
states and industry.
    The industry creates confusion. It invents unrealistic 
costs. Then their allies on the Hill rush to their defense. 
This rule does not do as much as it should, but it also doesn't 
do half of what the Republicans claim. The rule does not do as 
much as I would like it to, but it is much better than nothing. 
And that is what the Majority would precisely have us do: 
nothing. Nothing keeps our land, our water, our air, and our 
health at risk, and that would be irresponsible.
    I appreciate the time, and I yield back.
    Dr. Fleming. The gentleman yields back, so I think we are 
ready for our testimony to begin.
    Before I begin with the witness introductions, I would like 
to mention that one of today's witnesses, Mr. Tom Fitzsimmons 
of the Wyoming Oil and Gas Conservation Commission, was not 
able to join us here today, due to weather-related travel 
issues. Though he is not able to testify, he will still be able 
to answer any questions submitted for the record.
    I also would like to enter his testimony into the hearing 
record.
    [No response.]
    Dr. Fleming. And, hearing no objection, so ordered.
    [The prepared statement of Mr. Fitzsimmons follows:]
 Prepared Statement of Tom Fitzsimmons, PE, Commissioner, Wyoming Oil 
             and Gas Conservation Commission, Cody, Wyoming
    Chairman Lamborn, Ranking Member Lowenthal and members of the 
committee, thank you for the opportunity to appear before you today.
    I serve as a commissioner on the Wyoming Oil and Gas Conservation 
Commission as well as chairman of the Wyoming Enhanced Oil Recovery 
Commission. When not serving in these roles, I provide expert witness 
testimony in business and technical matters concerning the oil and gas 
industry. Prior to my involvement in the state commissions, I was 
actively involved in fracturing several hundreds of oil and gas wells 
as a producer and service provider. I have over 32 years in the oil and 
gas industry in Wyoming, Montana, and across the West.
    The state of Wyoming, through the Wyoming Oil and Gas Conservation 
Commission (hereinafter WOGCC), has in place a comprehensive and time-
tested hydraulic fracturing regulatory program. Implemented in 2010, 
Wyoming's Hydraulic Fracturing rule has been modeled by other state 
regulatory agencies and has been referred to by the Secretary of the 
Interior as a ``standard'' for other states to follow. The Bureau of 
Land Management (BLM) hydraulic fracturing rule that was set to become 
effective last month is unnecessary and is a threat to our state's 
economy.
     state agencies are best suited to manage hydraulic fracturing
    Successful regulatory oversight hinges upon a focused approach. As 
mentioned, Wyoming's rule on hydraulic fracturing is comprehensive. 
From the rule's inception, it was designed to be robust. It requires 
disclosure and covers many aspects of well stimulation including, but 
not limited to, groundwater protection through downhole design and 
testing and baseline groundwater testing for chemical additives. In 
addition, the WOGCC governs the recovery of resources so that oil and 
gas is optimally developed with the guiding principle and legislative 
mandate to avoid waste.
    Wyoming's cohesive team of industry experts reside in a single 
office overseen by the Commissioners, located in the center of Wyoming. 
The team, led by Oil and Gas Supervisor Mark Watson, is experienced and 
efficient. The Wyoming team understands the regional oil and gas 
potential made possible through technologies such as enhanced oil 
recovery while balancing the needs of the environment and responsible 
development. In contrast, the BLM has 10 field offices located across 
many miles in Wyoming--each staffed to serve a wide variety of needs--
but not focused to regulate hydraulic fracturing. This is not a 
condemnation of BLM staff, but rather an insight of the value in 
allowing the states to apply a focused, local approach to regulation as 
opposed to a disjointed Federal agency lead by Washington, DC that 
promotes a ``one-size-fits-all approach.''
    BLM's draft resource management plan for the Big Horn Basin 
contained, in my opinion, two critical flaws when it was released. The 
flaws were: (1) the pipeline corridor infrastructure was not tied to 
adjoining basin pipeline corridors; and (2) the BLM failed to recognize 
almost 2.0 billion barrels of reserve potential through enhanced oil 
recovery. These flaws were errors of omission due to lack of focus, 
time and industry expertise in the agency at every level.
    The lack of focus and expertise within the BLM results in long 
delays in the permitting process. Although the cost of permitting for a 
Federal APD is 190 times higher than the cost of a state permit, it 
still takes two to five times longer to approve a Federal APD. With the 
addition of the BLM's Hydraulic Fracturing rule, we can only expect 
permitting delays to increase even more. Further, the lack of 
regulatory focus has many operators shifting their investment to fee 
and state managed minerals. As mentioned above the legislative mandate 
of the WOGCC is to minimize waste. Sparse development on Federal 
minerals will result in waste. Promoting waste through developing more 
unnecessary bureaucratic ``red tape'' through unnecessary rules is not 
the way to best develop America's abundance of oil and natural gas or 
maximize revenue for the Federal Government for the benefit of all 
American citizens.
   confusion in regulatory authority results in avoidance of mineral 
                              development
    Michael Madrid (BLM Deputy State Director for Minerals) testified 
before the Legislature's Select Committee on Federal Natural Resource 
Management on July 9, 2015 in Cheyenne, Wyoming. Mr. Madrid conceded 
that it would be very difficult to manage Hydraulic Fracturing rules by 
two agencies on the same well. We should listen to the people who are 
on the front line of this issue. Overlapping rules complicates 
development when the permitting and the reporting process are doubled. 
Other challenges that create confusion include:
    The possibility exists for the BLM to disapprove a hydraulic 
fracture stimulation already approved by the WOGCC simply because 
portions of the Wyoming approved procedure may differ from the BLM rule 
even though certain portions of the Wyoming rule exceeded BLM 
requirements.
    When it comes to chemical disclosure and trademark protection, 
Wyoming has a well thought-out approach that allows service companies 
to prequalify their trade secret products before being used on a 
fracture treatment. Wyoming's single application process is efficient 
for both the state and the industry. In contrast, the BLM process 
presents a risk to service companies that their proprietary information 
may be compromised if the trade secret status is rejected after the 
fact, leaving no recourse other than litigation to protect proprietary 
information.
    Further, the BLM rules will require that the operator submit a new 
and complete trade secret request for each hydraulic-fracture-
treatment, in which a trade secret protected product is used, even if 
they have previously submitted numerous trade secret requests for that 
same product. This requirement places an unnecessary data management 
burden on all involved with no additional benefit. The objective of 
this requirement could be managed more efficiently. All of this 
uncertainty results in fewer companies willing to risk their investment 
on development of Federal minerals. The economic impacts to the state 
of Wyoming and its cities, towns, and counties will be profoundly 
negative and can be avoided.
                      prevention of waste is vital
    The Wyoming Oil and Gas Conservation Commission is well known for 
its transparency of lease, production and well data presented on an 
easy to use Web platform. This platform allows oil and gas operators to 
evaluate other offset wells and thus improve their practices. For 
example, this transparency enables an engineer to learn from 
competitors and improve well performance which results in higher 
ultimate recovery from future wells. The BLM's hydraulic fracturing 
rule fails to consider the need for combining fracture treatment data 
with production performance. This oversight will make it nearly 
impossible to analyze the large volumes of data associated with 
production and well construction.
                 hf regulation should be at state level
    For all these reasons, the members of the Wyoming Oil and Gas 
Conservation Commission believe it has effective hydraulic fracturing 
regulations in place that are carried out by highly skilled 
professionals who solely focus on these important matters as public 
servants. Wyoming's state regulations aim to protect our environment, 
maximize recovery of resources and promote responsible development. In 
addition, our baseline water testing requirements and chemical additive 
disclosure regulations help ensure public safety. The BLM rule is 
unnecessary, lacks focus, and fails to adequately promote responsible 
development. Wyoming has been a leader in the regulation of Hydraulic 
Fracturing. Wyoming's state rules were developed by industry, 
government, conservationists as well as other stakeholders working side 
by side to find the right balance. It is critical that the Federal 
Government defers jurisdiction to states with rules similar to 
Wyoming's to ensure timely development with reduced waste and 
confusion.
    Thank you for the opportunity to appear before you today and I look 
forward to your questions.

                                 ______
                                 

    Dr. Fleming. Testifying today we have Mr. Neil Kornze, 
Director, Bureau of Land Management, U.S. Department of the 
Interior; Mr. Mike Olguin, Council Member, Southern Ute Indian 
Tribe; Mr. Lloyd Hetrick, Operations Engineering Advisor, 
Newfield Exploration Company; and Ms. Hannah Wiseman, 
Attorneys' Title Professor of Florida State University College 
of Law.
    Let me remind the witnesses that, under our Committee 
Rules, they must limit their oral statements to 5 minutes. But 
the entire statement will appear in the record.
    We work on a light system here. You have 5 minutes. You 
will be under a green light for the first 4 minutes, then 
yellow. When it turns red, if you haven't finished, go ahead 
and finish. Trust me, your entire testimony, as written, will 
appear in the record.
    The Chair now recognizes Director Kornze to testify for 5 
minutes.

STATEMENT OF NEIL KORNZE, DIRECTOR, BUREAU OF LAND MANAGEMENT, 
        U.S. DEPARTMENT OF THE INTERIOR, WASHINGTON, DC

    Mr. Kornze. Thank you, Mr. Chairman, Ranking Member, 
members of the committee. It is great to be here with you 
today.
    The BLM manages roughly 10 percent of the Nation's surface, 
and nearly a third of its minerals and soils. We manage these 
lands on behalf of the American people, under the framework of 
multiple use and sustained yield. Today the Bureau's work is 
more complex than ever, but we work very hard to make sure that 
the public's voice is heard in the actions that we take.
    The BLM works diligently to fulfill its role in America's 
energy economy, by supporting the responsible development of 
oil and gas resources on public and Indian lands. During this 
Administration, oil production from those lands has increased 
81 percent, tracking or exceeding comparable statewide trends. 
Some may contend that production on BLM-managed lands has not 
kept pace with national trends; the numbers, however, tell a 
very different story.
    And, even though we oversee more than 100,000 wells across 
the country, we continue to make lands available for leasing 
far in excess of industry demand. Right now, industry holds 34 
million acres of land for oil and gas development, but is only 
producing on a third of that. It is worth noting that last year 
the BLM made nearly 6 million acres of land available, but 
industry bid on only about 20 percent of that acreage.
    It is also important to highlight that the BLM has issued 
roughly 6,000 drilling permits that are available, approved, 
and ready to go today, that are not being used by industry. 
This represents about 2 years' worth of work by the oil and gas 
industry on public and Indian lands, and we would like to see 
these permits put to work creating American energy and American 
jobs.
    In supporting this development, our oil and gas program's 
highest priority is ensuring that the operations that it 
authorizes are safe and environmentally responsible. The 
hydraulic fracturing rule is critical to meeting that 
responsibility, because it establishes standards that are 
essential to protecting our shared environment, while also 
facilitating robust development.
    Of the wells currently being drilled that BLM oversees, 
over 90 percent employ modern hydraulic fracturing techniques 
that are significantly more complex than those used in the near 
past. They are often much deeper, and also often coupled with 
horizontal drilling techniques. While these technological 
advances and the tremendous increase in their use has 
facilitated greater access to oil and gas, it has also 
necessitated that the BLM revisit its rules on hydraulic 
fracturing, which were last updated roughly 30 years ago.
    The BLM's rule builds upon the existing regulatory 
framework and establishes reasonable common-sense baseline 
standards, as has been discussed here. It requires operators to 
construct sound wells, to disclose the chemicals they use, and 
to safely recover and handle waste fluids. Our rule was 
informed by our engineers, technical expertise, as well as that 
of state and tribal regulators, industry, and many other 
experts.
    The BLM has a long history of regulating oil and gas 
activities on public lands, as you know. It also has an 
established track record of working closely with operators, 
tribes, and states to avoid duplication and delay. The ultimate 
implementation of the hydraulic fracturing rule will be no 
different.
    We have been actively working with states and tribes that 
have hydraulic fracturing standards to evaluate the potential 
for variances. Unfortunately, those discussions had to be 
temporarily put on hold in response to the Wyoming District 
Court's order. We intend to continue this important work, once 
the litigation has been addressed.
    Now, before closing, I would like to briefly mention the 
two pending legal challenges against the BLM's hydraulic 
fracturing rule. While I am very confident that the rule is 
consistent with the BLM statutory authorities, because of where 
we are in the process of defending our rule, the ongoing 
litigation could impact much of our discussion here today.
    I am happy to discuss the requirements of the rule. 
However, in light of the litigation, there will likely be areas 
of inquiry that I won't be at liberty to explore in today's 
hearing. For example, I will be quite limited in what I can say 
regarding potential positive or negative impacts of the rule, 
or regarding arguments related to the BLM's authority to issue 
and enforce the rule. I appreciate your understanding on this 
point. I have been here twice in front of the House Natural 
Resources Committee to discuss this rule, and know that I share 
your desire to have a robust conversation on these issues.
    Thank you for the opportunity to be with you today; I look 
forward to your questions.
    [The prepared statement of Mr. Kornze follows:]
Prepared Statement of Neil Kornze, Director, Bureau of Land Management, 
                    U.S. Department of the Interior
    Chairman Lamborn, Ranking Member Lowenthal, and members of the 
subcommittee, thank you for the opportunity to discuss the Bureau of 
Land Management's (BLM) final hydraulic fracturing regulations and 
their application to Federal, tribal, and Indian trust mineral 
resources. The BLM oil and gas program's highest priority is ensuring 
that the operations it authorizes on public and tribal lands are safe 
and environmentally responsible. This rule is critical to meeting that 
responsibility as we continue to offer millions of acres of public land 
for minerals development each year.
    The BLM's rule establishes a consistent set of requirements 
designed to prevent problems in these complex hydraulic fracturing 
operations before they occur. It also will provide as much information 
as possible to the public about these operations that affect their 
public lands. The goals of the rule--safe and environmentally 
responsible operation and resource protection--are goals that we know 
the BLM shares with industry, states, tribes, and the American public. 
The expertise brought to these issues by those who participated in the 
rulemaking process was essential to producing a rule that will achieve 
these goals, and we are very appreciative of the time and skill 
invested by all concerned.
                               background
    The BLM is responsible for protecting the resources and managing 
the uses of our Nation's public lands, which are located primarily in 
12 western states, including Alaska. The BLM administers more land--
over 245 million surface acres--than any other Federal agency. The BLM 
also manages approximately 700 million acres of onshore Federal mineral 
estate throughout the Nation, including the subsurface estate overlain 
by properties managed by other Federal agencies such as the Department 
of Defense and the U.S. Forest Service. In addition, the BLM, together 
with the Bureau of Indian Affairs (BIA), provides permitting and 
oversight services under the Indian Mineral Leasing Act of 1938 to 
approximately 56 million acres of land held in trust by the Federal 
Government on behalf of tribes and individual Indian owners. The BLM 
works closely with surface management agencies, including the BIA and 
tribal governments, in the management of these subsurface resources. We 
are also mindful of our agency's responsibility for stewardship of 
public land resources and Indian trust assets that generate substantial 
revenue for the U.S. Treasury, the states, tribal governments, and 
individual Indian owners.
    In support of President Obama's balanced approach to energy, the 
BLM is committed to promoting safe, responsible, and environmentally 
sustainable domestic oil and gas production in a manner that will 
protect consumers, human health, and the environment, and reduce our 
dependence on foreign oil.
    In Fiscal Year (FY) 2014, onshore Federal oil and gas royalties 
exceeded $3 billion, approximately half of which were paid directly to 
the states in which the development occurred. In Fiscal Year 2014, 
tribal oil and gas royalties exceeded $1 billion with all of those 
revenues paid to the tribes or individual Indian owners of the land on 
which the development occurred.
    The BLM works diligently to fulfill its role in securing America's 
energy future, coordinating closely with partners across the country to 
ensure that development of oil and gas resources occurs in the right 
places and that those projects are managed safely and responsibly. In 
recent years, the BLM has overseen a significant increase in oil 
production from public lands, while also supporting continued natural 
gas production. Oil production from Federal and Indian lands in 2014 
rose 12 percent from the previous year and is now up 81 percent since 
2008--113 million barrels per year in 2008 to 205 million barrels per 
year in 2014. For comparison, nationwide oil production over the same 
period increased 73 percent. The BLM continues to make public lands 
available for oil and gas development in excess of industry demand. 
Additionally, today the BLM has responsibility for more than 100,000 
existing oil and gas wells.
                    hydraulic fracturing technology
    Hydraulic fracturing involves the injection of fluid under high 
pressure to create or enlarge fractures in the rocks containing oil and 
gas so that the fluids can flow more freely into the wellbore and thus 
increase production. The number of wells on BLM-managed public lands 
and on Indian lands that are stimulated by hydraulic fracturing 
techniques has increased steadily in recent years. Of wells currently 
being drilled, over 90 percent use modern hydraulic fracturing 
techniques for well completion.
    These new well completions are typically significantly more complex 
than the wells drilled in the past. Modern hydraulic fracturing 
operations are often considerably deeper and coupled with relatively 
new horizontal drilling techniques to create greater wellbore volume in 
the reservoir, unlike those that occurred in the past which were used 
on a relatively small scale, to complete or to re-complete wells. The 
increasingly common combination of long lateral wellbores with the 
types of hydraulic fracturing used today has facilitated larger-scale 
operations that allow greater access to oil and gas resources in shale, 
tight gas, coalbed methane and conventional reservoirs across the 
country, sometimes in areas that have not previously or only recently 
experienced significant oil and gas development.
             hydraulic fracturing rulemaking considerations
    The Mineral Leasing Act of 1920 (MLA), as amended, directs the 
Secretary of the Interior to lease Federal oil and gas resources, and 
authorizes her to regulate the resulting oil and gas operations on 
those leases. The BLM has used this authority to develop regulations 
governing all aspects of oil and gas operations, including requirements 
related to surface-disturbing activities, production measurement, and 
well construction. The Indian Mineral Leasing Act extends this 
regulatory authority and the resultant rules to Indian oil and gas 
leases on trust lands (except those lands specifically excluded by 
statute). Finally, the Federal Land Policy and Management Act of 1976 
(FLPMA) directs the BLM to manage the public lands using the principles 
of multiple use and sustained yield and to take any action necessary to 
prevent unnecessary or undue degradation. In fulfilling these 
objectives, FLPMA requires the BLM to manage public lands in a manner 
that protects the quality of their resources, including ecological, 
environmental, and water resources. On net, this statutory regime 
requires the BLM to balance responsible development with protection of 
the environment and public safety. The BLM works hard to ensure the 
appropriate balance is struck and that the applicable regulations and 
requirements are applied and enforced fairly and consistently across 
all the lands where the BLM has oversight responsibilities.
    Prior to the issuance of the hydraulic fracturing rule, the BLM 
rules applicable to hydraulic fracturing were last updated over 30 
years ago, and had not kept pace with the significant technological 
advances in hydraulic fracturing techniques and the tremendous increase 
in its use. The new rule is the culmination of 4 years of work by the 
BLM that began in November 2010 when it held its first public forum on 
this topic. Since that time, the BLM has published two proposed rules 
and held numerous meetings with the public and state officials, as well 
as many tribal consultations and meetings. The public comment period 
was open for a cumulative period of more than 210 days, during which 
time the BLM received and analyzed comments from more than 1.5 million 
individuals and groups. During this period, the BLM also studied state 
and tribal regulations, and consulted with state and tribal agencies, 
industry, and the public, including communities affected by oil and gas 
operations.
                 hydraulic fracturing rule requirements
    Informed by the experience of its experts and the technical 
expertise and concerns of state regulators, tribes, industry, and the 
public, the BLM's hydraulic fracturing rule strengthens its existing 
oversight procedures and provides all stakeholders with additional 
assurance that operations are being carried out safely and responsibly.
    Key components of the rule include provisions for ensuring the 
protection of groundwater supplies through requirements related to 
wellbore integrity. These include the placement of competent cement 
barriers between the wellbore and any potentially usable water zones 
through which the wellbore passes, which protects groundwater both from 
hydraulic fracturing fluids during drilling and from hydrocarbon 
contamination during production. The rule requires the interim storage 
of recovered waste fluids from the hydraulic fracturing operation in 
tanks, unless, under certain restrictive circumstances, specific 
approval for the use of pits has been granted to the operator, in order 
to minimize the potential for produced water spills that puts soil, 
water, and wildlife at risk. Additional measures requiring companies to 
submit more detailed information on the geology, depth, and location of 
pre-existing wells prior to drilling will lower the risk of cross-well 
contamination, which has become more prevalent as the use of horizontal 
drilling has significantly increased. To increase transparency, as much 
of this information as possible will be made available to the public. 
Finally, the rule requires companies to publicly disclose information 
about the chemicals used in their hydraulic fracturing processes on 
public lands within 30 days of completing the operations, subject to 
exceptions for information demonstrated to be a trade secret. Any 
information claimed to be a trade secret can be obtained by BLM for 
review of that claim.
    These requirements were developed based on BLM's experience and 
technical expertise and work done by states, tribal authorities, and 
industry. During the 4 years the BLM spent preparing the rule, it 
benefited from the expertise of state and tribal regulators, and many 
provisions of the final rule reflect existing state standards. None of 
these requirements impose undue delays, costs, or procedures on 
operators.
                      work with states and tribes
    The BLM has established and maintained regulations governing oil 
and gas operations on public lands for decades, and has worked 
successfully with operators, tribes and state governments to avoid 
duplication and delay in the enforcement and monitoring of these 
regulations. The ultimate implementation of the hydraulic fracturing 
rule will continue this long-standing practice while also ensuring the 
BLM satisfies its obligations to ensure Federal standards are met. As 
explained above, the rule builds upon and updates the BLM's existing 
regulations to address an evolving technology, in order to provide 
consistent parameters for the conduct of hydraulic fracturing 
operations on BLM-managed public lands nationwide and Indian trust 
lands.
    Of the 32 states with the potential for oil and gas development on 
federally managed mineral resources, slightly more than half have rules 
in place that address hydraulic fracturing, and those rules vary widely 
from state to state. Recognizing the expertise and experience that 
state and tribal authorities possess and consistent with its standard 
practice of ensuring the efficient implementation of its rules, the BLM 
had been working with states and tribes that have standards in place 
for hydraulic fracturing that meet or exceed those set by the BLM's 
rule to establish variances from those aspects of the BLM rule. That 
work has temporarily paused as a result of the litigation explained 
below. Following BLM approval of a variance, the BLM will enforce the 
specific state or tribal standard as part of its hydraulic fracturing 
regulatory program. In addition, the BLM will continue its coordination 
with states and tribes to establish or review and strengthen existing 
agreements related to oil and gas regulation and operations.
    The BLM's overall intent for these coordination efforts is to 
minimize duplication and maximize efficiency, while also ensuring the 
applicable Federal standards are met. As this rule is implemented, the 
BLM will continuously work with states, tribes, and operators to 
maximize coordination and efficiency.
                         implementing the rule
    The rule is expected to cost industry about $11,400 per hydraulic 
fracturing operation on average, which equates to no more than one-
quarter of 1 percent of the cost of drilling a well. This is a modest 
cost considering the typical hydraulically fractured well costs between 
$5-$10 million to develop, the public interest in ensuring that these 
operations are conducted in an environmentally sound and safe manner, 
and in light of the high cost of remediating contaminated aquifers. The 
BLM is aware that industry, states, tribes, and the public share the 
same goal of safeguarding local communities, water quality, wildlife, 
and other resources from potential harm. For this reason, the BLM rule 
not only incorporates requirements from existing state and tribal 
rules, but industry best practices as well. In many cases, operators 
have voluntarily undertaken the best practices reflected in the BLM's 
rule. The rule ensures that those practices are maintained and adopted 
by all. As a result, the rule achieves a cost-effective path toward 
consistent permitting requirements and disclosure protocols for 
hydraulic fracturing operations.
    The BLM has been taking a number of steps both internally and 
externally to prepare for the implementation of the rule in advance of 
its scheduled effective date. Internally, recognizing the central role 
wellbore integrity plays in maintaining safe operations, the BLM 
partnered with the Society of Petroleum Engineers to add more technical 
training for the BLM's engineers that emphasizes cementing and other 
critical aspects of hydraulic fracturing operations. The BLM will 
continue to offer, develop, and refine these technical training 
modules.
    Externally, the BLM has undertaken outreach efforts to states, 
operators, trade associations, and other interested stakeholders. The 
BLM state offices have been meeting with their state counterparts, 
undertaking state-by-state comparisons of regulatory requirements in 
order to identify opportunities for variances, and to establish 
Memorandums of Understanding (MOUs) that will realize efficiencies and 
allow for successful implementation of the rule. To date, the BLM has 
had discussions with: the North Dakota Industrial Commission; the 
Wyoming Oil and Gas Commission; and the states of Alaska, California, 
Colorado, New Mexico, Nevada, and Utah. The BLM also gave a 
presentation on the rule this past May at the Interstate Oil and Gas 
Compact Commission's meeting. As discussed above, some activities that 
would actually implement the rule have been temporarily paused as a 
result of litigation, but BLM intends to resume them at the appropriate 
time.
    Similarly, communication with industry has also been ongoing, but 
has been paused to the extent consistent with the Court's order. Our 
offices have reached out to local or regional industry organizations 
and local operators to address their questions related to the 
implementation process. On April 7, 2015, BLM Washington hosted a 
nationwide industry outreach session that over 200 people participated 
in to explain the rule and answer questions about its implementation. 
Since that time, similar sessions have been held or set up at the local 
level. BLM state and field offices have coordinated and held training 
opportunities with associations representing producers in Wyoming, 
Utah, Colorado, Montana, and North Dakota. Finally, we are also working 
closely with the Ground Water Protection Council (GWPC) to finalize a 
MOU that will ensure that the chemical disclosures provided by industry 
can be easily searched and downloaded from the GWPC's publicly 
available hydraulic fracturing database, FracFocus.
                      legal challenges to the rule
    As you know, two industry associations (Independent Petroleum 
Association of America and the Western Energy Alliance) and a number of 
the states (Wyoming, Colorado, North Dakota, and Utah), and the Ute 
Tribe of the Uintah and Ouray Reservation have challenged the rule in 
the U.S. District Court in Wyoming. The Sierra Club and five other 
environmental organizations have intervened in that litigation to 
defend the rule. A separate suit was filed by the Southern Ute Indian 
Tribe in the U.S. District Court in Colorado. These suits are still in 
the early phases, and we are vigorously defending the rule and strongly 
believe it is clearly and fully consistent with the applicable legal 
authorities and consistent with the BLM's statutory obligations.
    In the Wyoming litigation, the court held a hearing on June 23, 
2015, on the motions of several of petitioners for a preliminary 
injunction. At the end of 6\1/2\ hours of testimony and argument, the 
court did not issue a preliminary injunction against the rule. The 
court did, however, postpone the effective date of the rule until the 
administrative record is filed by the BLM, the parties annotate their 
briefs with citations to the record, and the court has time to render a 
decision on the preliminary injunction motions. In the Colorado 
litigation, the court has denied the Southern Ute tribe's motion for a 
temporary restraining order, and has set a schedule for litigation 
going forward.
    The BLM has been working diligently with other offices of the 
Department and with a contractor to prepare and file the administrative 
record with the Wyoming and Colorado courts, which is currently due to 
be filed on July 22, 2015, and August 24, 2015, respectively. In the 
meantime, the rule remains on hold consistent with the Wyoming Court's 
order until record is filed.
                               conclusion
    The BLM's hydraulic fracturing rule provides a much-needed update 
to the BLM's existing regulations. It establishes common-sense 
standards governing modern hydraulic fracturing operations that reflect 
the technological advancement of the process over time. It also 
provides opportunities for the BLM to coordinate standards and 
processes with states and tribes to reduce administrative costs and 
improve efficiency. These new regulations are essential to our efforts 
to protect the environment and local communities, while also ensuring 
the continued conscientious development of our Federal oil and gas 
resources. Thank you for the opportunity to present this testimony. I 
will be pleased to answer any questions you may have.

                                 ______
                                 

    Dr. Fleming. Thank you, Mr. Kornze.
    The Chair now recognizes Mr. Olguin for 5 minutes, sir.

STATEMENT OF JAMES M. ``MIKE'' OLGUIN, COUNCIL MEMBER, SOUTHERN 
              UTE INDIAN TRIBE, IGNACIO, COLORADO

    Mr. Olguin. Good morning, Chairman Fleming, Ranking Member 
Lowenthal, and members of the subcommittee. My name is Mike 
Olguin. I am a member of the Southern Ute Indian Tribal 
Council, and on behalf of the Southern Ute Indian Tribe, I am 
honored to be here. With me today are my fellow tribal council 
member Tyson Thompson; our tribe's legal counsel, Tom Shipps; 
and the operating director of the Tribe's growth fund, Bob 
Zahradnik, who is also an experienced petroleum engineer. I may 
need to call upon them later for help in answering some of your 
questions.
    At this time, Mr. Chairman, I would like to mention a few 
key items from my written statement, and then, with the 
possible assistance of my colleagues, I would like to answer 
questions that you and members of the subcommittee may have.
    First, I believe it is important for you to know something 
about our reservation. The Southern Ute Indian Reservation is 
located in southwestern Colorado. It is a checkerboard 
reservation. That is, there are multiple types of landownership 
within the reservation, including tribal land and non-Indian 
land. Our reservation is blessed with substantial natural gas 
resources, and we have relied upon natural gas revenues for 
more than 50 years to fund our government, care for our 
members, and preserve our cultural identity.
    In 1974, our chairman, Leonard C. Burch, imposed a 
moratorium on the tribe's oil and gas leasing, because he did 
not trust the Department of the Interior's oversight. For 
almost 10 years, that moratorium remained in place. During that 
time, the tribe established its own energy department, and 
assembled detailed information about its resources. Only after 
the tribe felt confident that it could prudently monitor the 
development of its resources, did leasing recommence.
    While Federal laws and regulations continue to require BIA 
and BLM approval of many oil and gas activities on the Tribe's 
lands, our own departments have far outstripped the capacity of 
those Federal agencies to oversee those activities. Over the 
course of the last 50 years, oil and gas on our reservation has 
involved the drilling and hydraulic fracturing of thousands of 
wells. Throughout that period, there has never been an instance 
in which hydraulic fracturing has resulted in contamination of 
usable water resources.
    Second, my testimony summarizes our efforts to consult with 
the BLM with respect to the proposed hydraulic fracturing 
regulation. Frankly, when the rule was initially considered, 
the BLM did not take its effect on tribes as a serious issue. 
By the time the BLM proposed a revised rule in 2013, the BLM 
recognized that energy-producing tribes had serious concerns 
with what was being proposed, and it went through the motions 
of tribal consultation.
    Our comments throughout the 4-year process reflected our 
concern that every extra regulatory step, every extra required 
report, and every extra approval imposed by the BLM and 
operators in Indian Country increases the cost of operating on 
Indian lands, and decreases the ability to attract energy 
development dollars to our lands.
    Simply put, tribal lands are different from public lands. 
Congress has recognized tribal rights of self-governance over 
tribal lands. We repeatedly called upon the BLM to separate its 
regulation of public lands from tribal lands to address those 
important distinctions. However, the BLM ignored our repeated 
requests and, in doing so, has embarked on a policy that sets 
back concepts of tribal sovereignty and self-governance for 
years.
    Third, notwithstanding BLM's refusal to grant tribes an 
opt-out mechanism, the Southern Ute Tribal Council has adopted 
its own hydraulic fracturing rule. Under existing Bureau of 
Indian Affairs regulations, we maintain that the Southern Ute 
rule supersedes the BLM final rule as to lands within the 
tribe's jurisdiction. Frankly, our rule is a better rule. It 
eliminate BLM's pre-approval delays and interpretive exercises, 
but imposes more demanding cementing requirements on operators. 
It provides certainty.
    Fourth, my testimony informs the subcommittee that our 
tribe has commenced a lawsuit in Federal court in Denver, 
challenging the lawfulness of the BLM final rule as it applies 
to our lands. We believe the BLM's failure to recognize tribal 
sovereignty in its regulation violates the letter and the 
spirit of the Indian Reorganization Act of 1934, and Congress' 
tribal mineral leasing statutes.
    In conclusion, Mr. Chairman, the Southern Ute Indian Tribe 
has consistently been a leader in energy development and 
environmental protection. The BLM's effort to lump tribal lands 
and public lands into a one-size-fits-all basket is poor 
policy. Our sovereign rights to manage and protect our own 
lands are simply too important to turn over to the BLM, and we 
do not intend to do so. Thank you.
    [The prepared statement of Mr. Olguin follows:]
   Prepared Statement of Hon. James M. ``Mike'' Olguin, Southern Ute 
        Indian Tribal Council Member, Southern Ute Indian Tribe
                            i. introduction
    Chairman Lamborn, Ranking Member Lowenthal and members of the 
subcommittee, I am Mike Olguin, an elected member of the Southern Ute 
Indian Tribal Council, which is the governing body of the Southern Ute 
Indian Tribe. I am honored to appear before you to provide testimony 
regarding the future of hydraulic fracturing regulation on federally 
managed lands, including Indian lands. For approximately 4 years, our 
tribe has actively opposed the Bureau of Land Management's attempt to 
lump Indian lands and public lands into a ``one-size-fits-all'' basket 
for purposes of approving and regulating hydraulic fracturing. To the 
unnecessary detriment of our tribal government, which relies upon 
energy related revenue, we believe the BLM's approval requirements are 
poorly conceived. In order to nullify the BLM's regulatory efforts on 
our tribe's lands, we have exercised our sovereign rights by enacting 
our own hydraulic fracturing regulation. The Southern Ute regulation 
ensures prudent, environmentally sound practices in a much more 
reasonable and efficient manner than the BLM's rule. Our tribal leaders 
hope that your intervention in the hydraulic fracturing debate will 
lead to respectful recognition of Indian tribal sovereignty in 
regulating activities on their own lands, regardless of executive or 
legislative policy decisions applicable to Federal public lands.
                             ii. background
    The Southern Ute Indian Reservation consists of approximately 
700,000 acres of land located in southwestern Colorado in the Four 
Corners Region of the United States. Our Reservation is part of the 
northern San Juan Basin, an area that has seen widespread oil and gas 
development over a period of almost 70 years. The revenues we receive 
from natural gas development of tribal lands on our Reservation are the 
tribe's economic lifeblood. For decades, we have worked with industry 
and with Federal agencies to ensure that oil and gas development occurs 
in an environmentally responsible manner on our lands.
    The landownership pattern within our Reservation is complex and 
includes parcels of tribal trust lands, parcels of allotted lands owned 
by individual Indians, parcels owned by non-Indians, Federal lands and 
state lands. In many situations, non-Indian mineral estates are 
adjacent to tribal mineral estates. This landownership pattern is 
significant and magnifies the impact of differences between Federal 
regulation of Indian lands and state regulation of neighboring non-
Indian lands. The burden of unnecessary Federal regulation provides a 
direct incentive for operators to lease and drill on offsetting non-
Indian lands and to avoid development of tribal energy resources. The 
disincentive to develop tribal resources includes ever-increasing fees 
for processing Applications for Permits to Drill (``APDs'') and permit 
delays. The burden of Federal regulation results in lost revenue to our 
tribe, as well as potential drainage of tribal minerals.
    Hydraulic fracturing involves the underground injection of fluid 
and proppants under high pressure in order to propagate and maintain 
fractures and enhance the movement and recovery of oil and gas. 
Hydraulic fracturing is necessary for the continued development of 
energy resources from sandstones, shales and coal formations on our 
lands. Thousands of wells on our Reservation have been stimulated 
through hydraulic fracturing of sandstones and coalbeds. Preliminary 
studies also indicate that there are significant recoverable reserves 
associated with shale formations underlying our Reservation that will 
require hydraulic fracturing in order to be produced.
    Over the course of the extensive history of hydraulic fracturing on 
our Reservation, there have been no documented cases of adverse 
environmental impacts resulting from such well stimulation. It should 
be noted that the hydrocarbon bearing zones on our Reservation are 
generally located at depths much greater (2,500 to 8,000 feet below 
surface) than usable water aquifers (typically 100 to 300 feet below 
surface). Further, the hydrocarbon bearing zones are separated from 
usable aquifers by thick strata with low permeability. Even with those 
natural safeguards in place, our tribe has led the effort to ensure 
that oil and gas development activities do not adversely affect surface 
or groundwater resources. Significantly, in the course of reviewing 
APDs on our lands, we have insisted upon regular Bradenhead testing of 
well integrity and have required cementing of well casings to surface.
    In recent years, oil and gas companies have been able to recover 
oil and gas resources throughout the country from shales and tight 
formations previously considered unproductive. Technological advances 
in horizontal drilling and hydraulic fracturing stimulation spurred 
these resource recovery opportunities. The significant expansion of 
this activity into geographic areas not previously subject to oil and 
gas development has fostered debate regarding the environmental effects 
of hydraulic fracturing. These concerns have, in turn, led the 
Department of the Interior and the BLM to develop a response intended 
to ensure the public that, through government oversight and regulation, 
hydraulic fracturing occurring on Federal and Indian leased lands will 
be undertaken in an environmentally safe and prudent manner. While this 
goal may appear reasonable, the process employed by the BLM in 
developing the regulations applicable to Indian lands was flawed and 
the ultimate set of regulations is objectionable.
   iii. the process of consultation with affected indian tribes was 
                               inadequate
A. The Initial Proposed Rule

    In mid-December of 2011, BLM's Assistant Director for Minerals and 
Realty Management Michael D. Nedd, sent a letter inviting our tribe and 
other tribes to engage in government-to-government consultation 
regarding BLM's intent to develop regulations governing hydraulic 
fracturing on Federal and Indian lands. We welcomed this initial 
invitation for early consultation. On January 19, 2012, a substantial 
contingent of our tribe's staff, including representatives from our 
Energy Department, Natural Resources Department, and Environmental 
Programs Division, attended a BLM information session in Farmington, 
New Mexico, where representatives from the BLM provided basic 
information about hydraulic fracturing and asked for tribal input 
regarding the shape that any such regulations might take. We 
congratulated BLM on this seemingly fresh approach to visiting with 
tribes at the formative stages of regulation development. We also 
delivered at that time written comments from our now deceased Chairman, 
the late Jimmy R. Newton, Jr., that addressed three principal matters: 
(1) suggestions for process; (2) a summary of the importance of 
hydraulic fracturing to the tribe; and (3) a summary of potential 
environmental concerns and protection measures associated with 
hydraulic fracturing.
    In commenting on process, Chairman Newton's letter specifically 
urged that ``the consultation process include not only an opportunity 
to comment on proposed BLM regulations but consultation on the 
formulation of proposed regulations.'' Chairman Newton further 
suggested that ``BLM circulate discussion drafts of possible 
regulations for review and comment before any proposed regulations are 
issued.'' Only later did we learn that our concept of meaningful tribal 
consultation had been shortchanged from the outset by the BLM. 
Notwithstanding our requests and suggestions, BLM proceeded to develop 
draft proposed regulations in isolation and, without disclosing its 
activities to tribes, submitted those draft regulations to the Office 
of Management and Budget for publication approval in the Federal 
Register. This process truly was an example of the Federal trustee's 
train having left the station before Indian Country had a chance to 
know that the train was even moving. Within a month following BLM's 
publication of the proposed regulation, we submitted written comments 
to the BLM on June 11, 2012, and expressed our deep concerns with many 
of the substantive proposals contained in those draft regulations. Our 
comments at that time reflected our ongoing concern that every extra 
regulatory step, every extra required report, and every extra approval 
imposed by the Federal Government on operators in Indian Country 
increases the costs of operating in Indian Country and decreases the 
ability of tribes to attract energy development dollars to our lands.
B. The Revised Proposed Rule

    In response to over 177,000 comments, the BLM issued a revised 
proposed rule on May 24, 2013. Again, our tribe weighed into the 
discussion, not just by submitting written comments, but by meeting 
with key officials within the Department of the Interior, the BLM, the 
Bureau of Indian Affairs (``BIA''), and the White House. Among our 
substantive comments to the revised proposed rule, we questioned the 
cost effectiveness of the BLM's approval requirements; its capacity to 
interpret cement evaluation logs and cement bond logs; its approach to 
isolation of geologic zones containing unusable groundwater; and the 
vague--but broad--discretion retained by the BLM to impose potentially 
unlimited conditions on hydraulic fracturing activities without any 
established time frames for issuing approval. Most significantly, we 
urged the BLM to separate its rulemaking on public lands from Indian 
lands. In calling for that separation, we emphasized the dramatic 
differences in Federal law and policy underpinning Federal public lands 
and Indian lands, which had spawned separate regulatory regimes for 
Indian mineral leasing, royalty valuation and collection, and pooling 
and unitization of subsurface resources, as well as empowerment of 
tribes in implementing key environmental laws. Further, we specifically 
reminded the BLM that, under long-established regulations governing 
Indian mineral leasing, tribes organized under the Indian 
Reorganization Act of 1934 (``IRA''), like the Southern Ute Indian 
Tribe, retained the authority to supersede the BIA's mineral leasing 
regulations, including incorporated BLM regulations made applicable to 
tribal lands. See 25 C.F.R. Sec. 211.29. In its explanation of the 
revised proposed rule, however, the BLM stated that Congress had tied 
its hands and that it lacked the authority to separate tribal lands and 
public lands in developing the proposed rule. In response, we stated as 
follows:

        For the BLM to suggest that it lacks the power to consider 
        tribal lands and public land distinctly defies decades of 
        statutory and regulatory treatment and is, frankly, insulting. 
        Rather, the proper question is whether there is any reason to 
        treat such lands differently, and, if reasonable grounds are 
        provided for such different treatment, then the BLM should 
        strive to do so.

See Comment Letter from Chairman Jimmy R. Newton, Jr. to BLM at 4 (Aug. 
20, 2013).

    As the subcommittee is fully aware, on March 26, 2015, the 
Assistant Secretary for Land and Minerals Management, Janice M. 
Schneider, approved the BLM's final rule regulating hydraulic 
fracturing on Federal and Indian lands. 80 Fed. Reg. 16128.
            iv. the tribe's hydraulic fracturing regulation
    On June 16, 2015, the Southern Ute Indian Tribal Council adopted 
Resolution No. 2015-98, which approved the tribe's regulation of 
hydraulic fracturing and chemical disclosure on lands within the 
jurisdiction of the tribe. As authorized by 25 C.F.R. Sec. 211.29, the 
tribe's regulation expressly states that it supersedes the BLM's 
regulation. I will briefly summarize the key differences between the 
Southern Ute rule and the BLM rule. Under the Southern Ute rule, an 
operator must provide the Southern Ute Department of Energy 48 hours 
advance written notice of its intent to conduct hydraulic fracturing 
operations. The Tribe's Department of Energy may review operator 
information related to the proposed activity and may monitor that 
activity. Following the completion of hydraulic fracturing, the 
operator must provide the tribe with a detailed report describing the 
activities. In order to ensure that hydraulic fracturing occurs in an 
environmentally sound manner, an operator is required to cement all 
surface and intermediate casing with a continuous column from the 
bottom of that casing to the surface, and all production casing must be 
cemented from the bottom of the vertical portion of the production 
casing to at least 50 feet above the bottom of the intermediate casing. 
In that regard, the Southern Ute rule is more restrictive than the BLM 
rule or the state of Colorado's cementing requirements. The Southern 
Ute rule provides a better safeguard to water quality and greater 
certainty to operators, while also eliminating the delays inherent in 
pre-approval. Like the BLM rule, however, the tribe's rule also 
requires storage of wastewater in tanks and the public disclosure of 
the chemical composition hydraulic fracturing fluids.
    In contrast, under the BLM rule an operator must obtain BLM pre-
approval before the operator may proceed with hydraulic fracturing 
activities. There is no time period following submission of such an 
application within which BLM must issue its approval or disapproval. In 
granting approval, the BLM has the discretion to impose a wide variety 
of conditions, including the imposition of discretionary conditions 
that exceed those explicitly required in the rule. Critically, unlike 
the tribe's straight forward cementing requirement, the BLM rule's 
cementing requirement is based upon on the isolation of zones that 
contain usable water, which requires an interpretive water quality 
analysis. In addition to the inherent delay associated with securing 
discretionary agency approval, the act of approval for each well 
arguably triggers the need for a separate analysis under the National 
Environmental Policy Act (``NEPA''), which invites additional delays 
through third-party challenges and potential litigation by those 
opposed to oil and gas development.
    In sum, we strongly believe that the Southern Ute rule provides a 
simpler and more effective way to regulate hydraulic fracturing 
activity on the tribe's lands than the BLM rule.
       v. southern ute indian tribe v. department of the interior
    On June 18, 2015, several days before the BLM rule was to become 
effective, the Southern Ute Indian Tribe filed a lawsuit in the U.S. 
District Court for the District of Colorado. Southern Ute Indian Tribe 
v. United States Department of the Interior, et al., Civil Action No. 
1:15-cv-01303-MSK (D. Colo). In that case, the tribe has challenged the 
lawfulness of the rule, including its failure to recognize an IRA 
tribe's unconditional right to supersede the BLM final rule. We have 
also asserted that the rule should be vacated as arbitrary and 
unreasonable in its treatment of Indian tribes, whose powers of self-
governance under statutes and policies have been repeatedly emphasized 
over the last 40 years. The tribe's opening brief on the lawfulness 
challenge is due on July 23, 2015, and oral argument is scheduled for 
October 14, 2015.
                               conclusion
    In conclusion, I am honored to appear before you today on behalf of 
the Southern Ute Indian Tribe. We recognize that your work involves 
broad oversight of BLM's role in energy development on public lands, 
and that energy development on Indian lands is not a matter on which 
you typically focus. To the extent you can do so, however, we hope that 
you will assist us in preserving our sovereign rights to regulate 
activities on our lands. We also hope that the common-sense approach 
that we have taken with respect to our lands will assist you and the 
BLM in fashioning a reasonable approach to hydraulic fracturing 
regulation on Federal public lands. We look forward to continuing our 
work with the subcommittee on this and other important matters.

    At this point, I would be happy to answer any questions you may 
have.

                                 ______
                                 

    Dr. Fleming. Thank you, Mr. Olguin.
    The Chair now recognizes Mr. Hetrick to testify for 5 
minutes.

  STATEMENT OF LLOYD HETRICK, OPERATIONS ENGINEERING ADVISOR, 
       NEWFIELD EXPLORATION COMPANY, THE WOODLANDS, TEXAS

    Mr. Hetrick. Congressman Fleming, Ranking Member Lowenthal, 
and distinguished members of this subcommittee, my name is 
Lloyd Hetrick. I am a professional engineer, and an operations 
engineering advisor for Newfield Exploration Company. Thank you 
for inviting me to testify today.
    The future of hydraulic fracturing and, therefore, oil and 
gas development on federally managed lands is uncertain. Every 
day, independent oil and gas companies like Newfield make key 
decisions on where to invest our drilling capital. We evaluate 
not only the potential quantity and quality of natural 
resources available, but also the regulatory uncertainties that 
may impede our ability to bring them to market economically.
    From new hydraulic fracturing regulations to additional 
air, water, and endangered species initiatives, Federal lands 
carry extra burdens when competing for our investment dollars. 
This should concern policymakers of every stripe, because the 
public's oil and gas resources are among the Nation's largest 
sources of non-tax revenue for the Federal Government.
    For every dollar the government spends administering the 
Federal onshore program, companies return over $83 in 
royalties, rents, bonuses, and other revenue to the taxpayer. 
Every barrel of crude and Mcf of natural gas produced here in 
America, and each dollar that flows to the U.S. Treasury from 
activity on federally managed lands, provides lawmakers with 
additional foreign policy and budget options.
    We live in an era of energy abundance, where the combined 
technologies of horizontal drilling and hydraulic fracturing 
have been unlocked, and oil and gas resources thought to be 
uneconomic for development less than a decade ago are now 
commercially developed. But such promise can be stifled by 
regulation run amuck. My testimony today details a few of these 
amucks created by the BLM's new hydraulic fracturing rule, 
including: it impacts non-Federal lands, most significantly in 
the western United States, the checkerboard pattern referenced 
earlier, and other parts of the United States also.
    It additionally creates inefficiencies not properly 
addressed in the BLM's economic analysis. It duplicates, in 
some cases contradicts, and increases confusion with respect to 
existing state regulations. And, finally, it uses the public as 
a secondary regulator. This will create new challenges for both 
the BLM and the operator, and add confusion to the public.
    If the committee intends to create more certainty with 
regard to the future of hydraulic fracturing and, therefore, 
oil and gas development on federally managed lands and those 
state and private lands that are also impacted by this rule 
should the courts allow the rule to move forward, then I 
respectfully request the committee help the BLM to improve it.
    Finally, I do want to recognize my peers in the BLM for 
reaching out to all stakeholders during this process since 
early 2012. They have listened to concerns from all sides, and 
attempted to find reasonable middle ground. My arguments 
presented today are not intended as an indictment of the 
agency, rather a reflection of the complexity of this 
rulemaking process.
    Thank you for this opportunity, and I look forward to your 
questions.
    [The prepared statement of Mr. Hetrick follows:]
  Prepared Statement of Lloyd H. Hetrick, Newfield Exploration Company
    Chairman Lamborn, Ranking Member Lowenthal and distinguished 
members of the committee, my name is Lloyd Hetrick. I am a registered 
professional engineer and the Operations Engineering Advisor for 
Newfield Exploration Company based in The Woodlands, Texas.
    I have more than 36 years of diverse experience spanning all phases 
of the exploration and production industry, including: drilling, 
completions, production, Health, Safety and Environmental (HSE), and 
mechanical integrity. I have served a leadership role in the standard 
setting process for hydraulic fracturing via multiple Federal agency 
advisory panels and industry trade association committees working to 
develop and implement appropriate governmental regulations and 
standards.

    Thank you for having me here today.

    Newfield is a Fortune 500 independent energy company engaged 
primarily in crude oil and natural gas exploration and production 
onshore here in the United States. We are focused on developing 
unconventional oil and gas reservoirs in the Anadarko and Arkoma Basins 
of Oklahoma, the Bakken formations of North Dakota and the Uinta Basin 
of Utah. Roughly 55 percent of our wells drilled domestically during 
2014 were administered by the Bureau of Land Management (BLM).
    Newfield is the largest oil producer in Utah with more than 225,000 
mineral acres in the Uinta Basin including Federal, state, tribal and 
private leases. Our Uinta Basin operations include one of the largest 
Federal secondary recovery units in the continental United States. We 
maintain a field office near Roosevelt, Utah, with more than 400 
employees. Approximately 85 percent of our wells drilled in Utah during 
2014 were administered by BLM.
    All of our Utah development activities--regardless if conducted on 
Federal, state, tribal or private leases--will ultimately be affected 
by BLM's new hydraulic fracturing rule. As I'll discuss further, there 
is no practical scenario in which Newfield can hold its state or 
private leases to a different standard than its Federal or tribal 
leases and coherently manage a compliance program in its Utah 
operations.
    Therefore, this rule impacts everything we do in Utah and adds 
significant uncertainty and cost to an already low-margin resource play 
to further complicate the future of hydraulic fracturing on federally 
managed lands.
    The recent downturn in global crude oil prices has resulted in a 
reduction of Newfield's investment and workforce in the Uinta Basin and 
has impacted peer companies similarly--significantly impacting the 
employment of local contractors and related commerce. At this same time 
last year, there were 28 rigs running in Utah; today, there are 7. The 
economic realities of production in Utah are further undermined by the 
BLM rule.
    This reduction in drilling and production has and will continue to 
adversely affect employment, wages, Federal royalties, taxes and all of 
the related socioeconomic benefits enjoyed during times of robust 
development.
    It is important to remember that every $1 million of upstream 
capital expenditure by independent oil and gas producers results in 
$1.1 million in total taxes, $5.1 million in overall contribution to 
U.S. GDP and 6 direct and 33 total upstream jobs. When midstream and 
downstream factors are considered, America's oil and gas industry 
supports 9.2 million U.S. jobs and 7.7 percent of the Nation's GDP 
according to the American Petroleum Institute. The industry pays almost 
$86 million in Federal rents, royalties, bonus payments and income tax 
payments daily.
    Revenue in the form of royalties, rents, bonuses and other payments 
to American Indian tribes nationwide for the production of oil and gas 
in FY2014 was reported by the Office of Natural Resource Revenue (ONRR) 
to be more than $1.1 billion.
    America's oil and gas resources are among the Nation's largest 
sources of non-tax revenue to the Federal Government. For every dollar 
the government spends administering the Federal onshore program, 
companies return $83.69 in royalties and leasing revenue to the 
American taxpayer.
    From Utah's Federal onshore lands for Fiscal Year 2014, the ONRR 
reported oil and natural gas revenue in the form of royalties, rents, 
bonuses, and other payments to the U.S. Treasury in excess of $302 
million.
    Unfortunately, the decline Utah activity has already occurred and 
may continue to negatively impact Utah and especially the Uinta Basin 
for the foreseeable future.
    In addition to the negative economic effects caused by the downturn 
in crude oil prices, significant regulatory uncertainty already existed 
for Newfield and other Uinta Basin operators due to the lack of 
predictability associated with agency reviews mandated by the National 
Environmental Policy Act (NEPA). While outside the scope of this 
hearing, it is worth mentioning as an example that Newfield is now in 
its seventh year of agency review for an infill development 
Environmental Impact Statement (EIS).
    BLM's hydraulic fracturing regulation creates an additional layer 
of regulatory uncertainty that will materially undermine the ability of 
the Uinta Basin to compete on an economic basis with other plays in the 
Nation. When any operator is faced with such uncertainty, capital and 
resources will be redirected to areas where the regulatory process is 
more certain. This was not anticipated in the rulemaking process and is 
discussed further below.
    I will not dwell on often-recited and legitimate arguments by 
industry that this new rule is unnecessary because of sufficient and 
continually improving state regulations and lacks appropriate data to 
justify these new rules. I would however, like to remind the committee 
of the EPA's finding of ``no widespread, systematic impacts'' from 
hydraulic fracturing in their recently released ``Assessment of the 
Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking 
Water Resources.''
    I respectfully offer the committee three categories of concerns and 
include Newfield-specific examples to support my assertion that if this 
new BLM regulation is to be implemented, it still needs more work.
    I want to recognize my peers at BLM for reaching out to all 
stakeholders during the rulemaking process. Since 2012, BLM has 
listened to concerns from all sides and--to a large extent--attempted 
to find reasonable middle ground. The following arguments are not an 
indictment of the agency nor of those who have worked to craft the rule 
in response to direction from more senior political leadership, rather 
they reflect the complexity of this process.

    The BLM rule, in many cases, impacts non-Federal minerals, causes 
delays and creates inefficiencies that were not properly addressed in 
the BLM's economic analysis:

     For operations located in certain BLM regions like North 
            Dakota and Montana operators with state or private leases 
            that are combined within a drilling and spacing unit also 
            including Federal minerals, the entire unit becomes subject 
            to the new rule. Other BLM regions such as Utah and 
            Oklahoma limit the extent of the new rule to apply only 
            when the Federal tract is penetrated by the wellbore within 
            the drilling and spacing unit.

     With most unconventional oil and gas plays in which 
            horizontal extended reach wells are utilized to properly 
            develop the lands, drilling and spacing units tend to be 
            larger than the conventional vertical units and encompass 
            more lands within the development drilling and spacing 
            unit. Therefore, previously non-applicable minerals are 
            more likely to fall under this new BLM rule. This 
            particular scenario is most clearly demonstrated with the 
            ``checkerboard'' Federal mineral ownership pattern common 
            across the western United States. Although only 50 percent 
            of the checkerboard has Federal minerals, 100 percent of 
            the checkerboard becomes subject to the new rule. A 
            similar, but more dramatic scenario exists in Newfield's 
            Oklahoma operations where a small amount of Federal 
            minerals causes a much larger area to become Federal 
            jurisdiction. Roughly 1 percent of our Anadarko position is 
            Federal minerals, yet even with this small subset of 
            Federal minerals, the new rule will apply to more than 10 
            times that amount. Neither the Federal checkerboard nor the 
            Oklahoma example was contemplated in BLM's new rule.

     In some instances, inadequate cementing records or some 
            potential technical disagreement on Cement Evaluation Log 
            (CEL) interpretation--not a shortfall in well integrity--
            may result in a new well that cannot be hydraulically 
            fractured or an existing well than cannot be refractured. 
            The cost of such a problem ranges from a few hours of lost 
            operational downtime up to the cost of a $10 million well.

     Specific to the downtime referenced above, every hydraulic 
            fracturing job requires at least a 48-hour notice to obtain 
            BLM approval of cement-related assurances. However, BLM is 
            barely staffed to provide support during a normal 40-hour 
            work week, certainly not 24/7/365 support.

     Finally, the Office of the Inspector General has 
            recognized that inefficiencies in the Department of 
            Interior's permit review process impede productivity and 
            that neither BLM nor the operator can predict when permits 
            will be approved. Since site-specific operational plans 
            cannot often be finalized months in advance, operators may 
            be forced to submit applications that include multiple 
            scenarios to ensure operational flexibility. Although some 
            of the proposed operational scenarios may never be 
            implemented, an already overburdened BLM staff will be 
            required to review all components of the new applications.

    This rule has portions that duplicate, contradict or increase 
confusion with respect to existing state regulations, or in some cases, 
presents perplexing requirements:

     Duplication--Surface casing cementing rules are 
            essentially the same in the new BLM rule as are required in 
            all oil and gas producing states.

     Contradiction--The new BLM rule requires pressure 
            measurement on all casing strings during hydraulic 
            fracturing, but the North Dakota Industrial Commission 
            requires the surface annulus to be kept open to protect the 
            surface casing and provide pressure relief, in case a leak 
            occurs.

     Deferral with Uncertainty--The BLM rule says all usable 
            water must be protected and further defers the 
            identification of what ``usable water'' must be protected 
            to states and tribes. This deferral is unambiguous as long 
            as states and tribes use a threshold of 10,000 mg/l TDS, 
            but not all states use this threshold, nor do all states 
            protect all usable water. Please remember that ``usable'' 
            does not necessarily mean ``useful'' to plants, wildlife or 
            humans.

     Deferral with Uncertainty--BLM recognizes the use of 
            FracFocus for chemical disclosure, but adds additional 
            onerous steps which limit a company's ability to protect 
            trade secrets and inhibits innovation in this technology-
            driven part of our business.

     Perplexing--The BLM rule requires that operators make 
            seven illogical affirmations in order to claim trade secret 
            protection when providing public disclosure for proprietary 
            chemicals used during hydraulic fracturing.

     Perplexing--The BLM rule requires a certification that 
            attests to a company's compliance with all Federal, state 
            and local laws, rules and regulations. However, with 
            increased local challenges and initiatives, this 
            certification might be impossible to achieve without a time 
            and date stamp.

    The BLM's strategy to use public review as a secondary regulator 
will create foreseeable challenges for BLM and the operator and 
confusion for the public:

     BLM's stated incremental processing time for each new well 
            application is only 4 hours, so there cannot be much 
            technical analysis planned for the significant amount of 
            new information submitted.

     Considering BLM statements that public access to this 
            information will be facilitated, it appears BLM is 
            promoting several predictable outcomes:

          --  The public will be reviewing substantial technical and 
        specialized industry information, of which many will not be 
        familiar. Confusion about the technologies or the processes 
        required to effectively achieve desired environmental and 
        safety outcomes will result in further questions of, and 
        petitions to, BLM and operators.

          --  The predictable outcome will be a further-inundated 
        regulator while the operator is faced with the ongoing task of 
        educating the public that hydraulic fracturing has been, and 
        will continue to be a safe well completion technique for almost 
        seven decades.

          --  In short, the rule will have failed to provide the public 
        with assurances about the safety of hydraulic fracturing 
        technology while adding delays, costs, and uncertainty for 
        industry and consumers.

    In conclusion, if this final BLM rule is to be applied, additional 
actions need to be taken to provide an economic analysis, operational 
clarifications and a fundamental clarification on the role of the BLM 
as the primary regulator for Federal and tribal minerals.

    Finally, Newfield wishes to associate itself with any written 
testimony submitted to the committee on this topic by the Independent 
Petroleum Association of America, the Western Energy Alliance, or the 
American Exploration & Production Council.

                                 ______
                                 

    Dr. Fleming. Thank you, Mr. Hetrick.
    The Chair now recognizes Ms. Wiseman to testify for 5 
minutes.

   STATEMENT OF HANNAH WISEMAN, ATTORNEYS' TITLE PROFESSOR, 
 FLORIDA STATE UNIVERSITY COLLEGE OF LAW, TALLAHASSEE, FLORIDA

    Ms. Wiseman. Acting Chairman Fleming, Ranking Member 
Lowenthal, and members of the committee, I thank you for the 
opportunity to appear before you today. I speak for myself 
alone. But solely by way of background, I have taught several 
environmental law and oil and gas law classes at the University 
of Texas School of Law, University of Tulsa School of Law, and 
I am currently at the Florida State University College of Law.
    I will speak today about the authority of the Bureau of 
Land Management to issue the final rule, entitled, ``Oil and 
Gas: Hydraulic Fracturing on Federal and Indian Lands.'' I will 
also describe how this rule is not precluded by other Federal 
statutes, how it addresses known risks, and how it beneficially 
complements existing state and tribal programs.
    In 1920, the Secretary of the Interior regulated the casing 
of oil and gas wells on Federal lands under the Mineral Leasing 
Act. In 1942, the U.S. Geological Survey, the BLM's predecessor 
in regulating wells on Federal lands, promulgated regulations 
allowing requirements for well casing programs and well 
stimulation plans to be submitted prior to the injection of 
water, acid, or other substances. The BLM has since issued a 
variety of regulations for oil and gas development.
    The HF rule provides a needed update to BLM rules, in light 
of the relatively new combination technique of slick water 
fracturing and horizontal drilling. The BLM has ample authority 
under either the Federal Land Policy and Management Act or the 
Mineral Leasing Act, in addition to the Indian Mineral Leasing 
Act and other acts, to issue this rule.
    It is the policy of the Federal Land Policy and Management 
Act to protect environmental, ecological, and ``water 
resource'' values, and to promote multiple-use development of 
lands. Beyond this baseline requirement, the MLA, the Mineral 
Leasing Act, prohibits the waste of oil and gas, and directs 
the BLM to conserve surface resources. It authorizes the BLM to 
do any and all things necessary to carry out the Act's 
purposes.
    The BLM rule also addresses known risks. Some 
unconventional wells have had deficient casing, as indicated by 
state inspectors' reports. Methane has leaked to the surface in 
some cases. Fracturing fluid and flowback stored on well sites 
has leaked and run off sites, as described on pages 6-7 of my 
testimony. Other Federal environmental statutes do not preclude 
or displace BLM regulation of fracturing and associated well 
activities.
    When several Federal statutes potentially apply to an 
activity, the question is whether Congress indicated an intent 
for one statute to preclude the others. The Safe Drinking Water 
Act, which exempts hydraulic fracturing with the exception of 
diesel fuel, indicates no intent to preclude regulation of 
fracturing, casing, or cementing on Federal lands. The 
exemption is only for purposes of this part. The legislative 
history of the Act also states that Congress did not intend to 
limit the authority of BLM's predecessor to protect 
groundwater.
    Further, Federal environmental acts like the Safe Drinking 
Water Act, do not comprehensively address the unique 
responsibilities of Federal agencies to protect public natural 
resources. Those responsibilities are addressed under acts like 
the Federal Land Policy and Management Act and the Mineral 
Leasing Act.
    Finally, with respect to the interaction of state, tribal, 
and Federal regulations on BLM lands, the BLM's rule is more 
stringent than some state regulations and less stringent than 
others. Where the BLM rule is less stringent than state 
regulations, the rule will simply act as a floor above which 
states are free to regulate more stringently, without any BLM 
review, as has always been the case. A variance will be 
unnecessary, although it is an option. Where the rule is more 
stringent, it will provide a consistent standard for wells 
drilled on Federal lands.
    Wells of the BLM must administer in the public interest. 
Many of the standards in the HF rule are not one-size-fits-all, 
and anticipate well-specific determinations. Adding BLM 
enforcement resources to existing state resources will also be 
beneficial, providing more feet on the ground for inspections 
and enforcement. States have done an admirable job of 
inspecting more sites as development has boomed, as have the 
tribes. But budget constraints and outdated fee structures at 
the state level have hindered certain state enforcement 
efforts.
    In summary, the HF rule has strong statutory authorization, 
is not precluded by other Federal statutes, addresses known 
risks, and usually complements but in no way displaces state 
regulation. Thank you.

    [The prepared statement of Ms. Wiseman follows:]
Prepared Statement of Hannah J. Wiseman,\1\ Attorneys' Title Professor, 
                Florida State University College of Law
---------------------------------------------------------------------------
    \1\ The author thanks Elizabeth Farrell, Mary McCormick, and other 
Florida State University College of Law Research Center Directors and 
Librarians, Shi-Ling Hsu, David Markell, Bruce Pendery, and Erin Ryan 
for suggested edits and sources.
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                              introduction
    This testimony addresses the Bureau of Land Management Final Rule 
entitled ``Oil and Gas; Hydraulic Fracturing on Federal and Indian 
Lands'' (described here as the ``HF Rule'') issued on March 26, 
2015.\2\ After summarizing key provisions of the HF Rule, this 
testimony will describe the authority of the BLM to promulgate the 
rule, the lack of conflict between the HF Rule and other Federal 
statutes, the environmental risks that the rule helps to address, and 
the ways in which the HF Rule and Federal enforcement resources 
complement and improve upon state regulation of oil and gas 
development.
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    \2\ Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands, 
80 Fed. Reg. 16,128 (Mar. 26, 2015) (to be codified at 43 C.F.R. pt. 
3160).
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 i. rule summary: the hf rule addresses certain aspects of the casing 
    and cementing of hydraulically fractured wells, the storage of 
     fracturing wastes, and the disclosure of fracturing chemicals
    The HF Rule primarily contains requirements for information 
collection and disclosure, mandating that well operators proposing to 
hydraulically fracture a well on Federal or Indian lands submit data on 
the geology in the proposed area of the well; \3\ existing conditions 
such as old wells, natural faults and fractures, and usable water in 
the area; \4\ and proposed hydraulic fracturing design, water 
acquisition, waste management, and disposal practices.\5\ After 
fracturing, operators--entities that drill and hydraulically fracture 
wells--must disclose data on well depth and fractures; actual water 
acquisition, waste management, and disposal practices; and the 
chemicals used in fracturing.\6\ Operators can avoid public disclosure 
of certain chemicals used in the fracturing process by submitting an 
affidavit to the BLM with information indicating, inter alia, the 
importance of keeping the information confidential.\7\ Operators also 
must collect data on the quality of cementing operations to show that 
the protective casing and cementing of wells is adequate, and they must 
monitor the pressure in wells during hydraulic fracturing to ensure 
that pressures do not compromise the structure (``integrity'') of the 
well and its casing and cement.\8\ Substantive requirements include, 
inter alia, that operators take remedial action if it appears that well 
cementing was inadequate or that fracturing compromised well integrity 
\9\ and that operators use tanks to store flowback water from 
fracturing, with certain exceptions.\10\ Where state or tribal 
requirements achieve or exceed the goals of the HF Rule, the BLM may 
grant a regulation-specific variance from the BLM rule for all wells in 
the relevant jurisdiction or for individual wells; \11\ as discussed 
below, however, these variances may be unnecessary because BLM rules 
are a floor, not a ceiling.
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    \3\ Id. at 16,218.
    \4\ Id.
    \5\ Id. at 16,218-16,219.
    \6\ Id. at 16,220-16,221.
    \7\ Id.
    \8\ Id. at 16,219-16,220.
    \9\ Id.
    \10\ Id. at 16,220.
    \11\ Id. at 16,221.
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  ii. the blm has clear statutory authority to regulate hydraulically 
              fractured oil and gas wells on federal lands
    The BLM permits and oversees the use of Federal lands for a variety 
of purposes, including grazing, recreation, and oil and gas 
development, among other purposes. In leasing federally-owned oil and 
gas, the BLM--just like private owners of land and minerals--must 
protect the public's interest in the minerals and land and ensure that 
fluid mineral development will not unduly interfere with other uses of 
land. Indeed, many private landowners include conditions in mineral 
leases in order to protect their property and natural resources.\12\ 
However, in leasing Federal oil and gas resources, the BLM represents 
broader public interests that diverge from those of most private 
mineral owners. Resources administered by the BLM are, by law, not 
managed solely, or even primarily, for pecuniary gain. The BLM's core 
statutory mandate, contained within the Federal Land Policy and 
Management Act (FLPMA), is to manage public lands and resources in a 
manner that allows for multi-use development of lands, including ``a 
combination of balanced and diverse resource uses,'' \13\ by current 
and future generations of people.\14\ Congress has made clear that in 
managing public resources the BLM must give consideration to ``the 
relative values of the resources and not necessarily to the combination 
of uses that will give the greatest economic return or the greatest 
unit output.'' \15\ The BLM therefore must regulate oil and gas 
development at the surface and belowground to protect its mineral 
interests and the many other interests that the agency represents on 
Federal lands, such as grazing and recreational interests. Notably, it 
is also the express policy of Congress to protect ``water resource . . 
. values'' on Federal lands.\16\
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    \12\ See, e.g., Oil and Gas Lease Between James J. Franko & Nancy 
L. Franko and Rex Energy I, LLC, Apr. 22, 2008, available at http://
www.nytimes.com/interactive/2011/12/02/us/oil-and-gas-
leases.html?_r=0#document/221308-rex20080422fra (requiring testing of 
water supplies prior to drilling and replacement of water supplies if 
supplies are impacted and requiring the payment of damages for impacts 
to crops and timber). Many other leases in the New York Times database 
contain identical language.
    \13\ 43 U.S.C. Sec. 1702(c) (2012).
    \14\ See 43 U.S.C. Sec. 1732(a) (2012) (requiring BLM management of 
public lands ``under principles of multiple use and sustained yield''); 
43 U.S.C. Sec. 1702(c) (2012) (defining ``multiple use'' as ``the 
management of the public lands and their various resource values so 
that they are utilized in the combination that will best meet the 
present and future needs of the American people'').
    \15\ 43 U.S.C. Sec. 1702(c) (2012).
    \16\ 43 U.S.C. Sec. 1701(a)(8) (2012).
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    FLPMA responsibilities for managing public lands are baseline 
responsibilities that apply when the BLM leases minerals on public 
lands. Beyond this baseline law, the BLM must follow the specific 
directives of the Mineral Leasing Act (MLA), as amended, when it allows 
mineral development on public lands. This Act provides, inter alia, 
that the Secretary of Interior (whose responsibilities the BLM carries 
out) must regulate surface-disturbing activities from oil and gas 
development and ensure ``restoration of any lands or surface waters 
adversely affected by lease operations'' by the operator.\17\ It also 
provides that the Secretary of the Interior shall regulate surface 
disturbing activities and determine reclamation and other actions 
required ``in the interest of conservation of surface resources.'' \18\ 
Under this Act, the BLM may suspend leases where oil and gas operators 
have failed to protect the environment.\19\ In addition to the BLM's 
authority under FLPMA, the HF Rule falls clearly within the discretion 
granted to the BLM by the MLA.\20\ Casing and cementing rules prevent 
oil and gas waste and protect surface (as well as underground) 
resources, as do rules for the use of flowback tanks.
---------------------------------------------------------------------------
    \17\ 30 U.S.C. Sec. 226(g) (2012).
    \18\ Id.
    \19\ See Getty Oil v. Clark, 614 F.Supp. 904, 916 (D. Wyo. 1985) 
(noting that the Secretary of the DOI may suspend a lease or condition 
a suspension as is ``necessary to protect the environmental values of 
the leased property'').
    \20\ See 30 U.S.C. Sec. 189 (2012) (authorizing the BLM ``to do any 
and all things necessary to carry out and accomplish the purposes of 
this chapter'').
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    Federal agencies have long regulated the casing and cementing of 
wells and other well development activities on public lands. On June 4, 
1920, the Secretary of the Interior acting under MLA authority issued 
operating regulations for oil and gas wells requiring, inter alia, 
notification prior to well drilling, plugging, and abandonment; keeping 
of records relating to ``kinds, length, and sizes of casings used in 
drilling the wells''; and operator correction of conditions causing 
damage to water-bearing or other formations or ``dangerous to life or 
property.'' \21\ The U.S. Geological Survey (USGS)--one of the BLM's 
predecessors in managing wells on public lands--provided in a 1942 
regulation that the Supervisor could require the submittal of a well 
casing program and that drilling, well stimulation, and other well 
development activities could not occur ``without first notifying the 
supervisor'' of a plan.\22\
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    \21\ See Forbes v. United States, 125 F.2d 404, 409 (9th Cir. 1942) 
(describing and quoting the regulations).
    \22\ 30 C.F.R. Sec. 221.21 (1942); Regulations Applicable to Lands 
of the United States and All Restricted Tribal and Allotted Indian 
Lands (Except Osage Indian Reservation), 7 Fed. Reg. 4132, 4134-4135 
(June 2, 1942).
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    Many of the BLM's rules for managing mineral resources on Federal 
lands are more than two decades old, \23\ and these rules, like the 
older USGS rules, have long regulated the casing and cementing of oil 
and gas wells.\24\ Yet oil and gas development has changed dramatically 
in the past decade. U.S. companies have used hydraulic fracturing for 
more than 60 years, \25\ but the type of fracturing used on many wells 
changed in the late 1990s and early 2000s.\26\ During this time George 
Mitchell perfected a technique called ``slickwater'' (also called slick 
water or slick-water) fracturing in Texas' ``tight'' gas formations, 
which are densely packed formations, and combined this technique with 
the horizontal drilling of wells.\27\ Several years later, slickwater 
fracturing and similar unconventional fracturing combined with 
horizontal drilling rapidly spread around the country to other tight 
sandstone and shale formations, \28\ enabling the development of 
thousands of new wells drilled into these formations--wells that, 
without unconventional fracturing and horizontal drilling, would not 
have been productive and would not have been drilled.\29\ Although some 
oil and gas operators also continue to use conventional fracturing 
techniques, unconventional fracturing combined with horizontal drilling 
is very common and has triggered much of the recent boom in U.S. oil 
and gas development.\30\
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    \23\ See Molly Feiden, Madeline Gottlieb, Alan Krupnick & Nathan 
Richardson, Hydraulic Fracturing on Federal and Indian Lands: An 
Analysis of the Bureau of Land Management's Revised Proposed Rule, 29 
J. Land Use & Envtl. L. 337, 339 (2013-2014) (noting that most of the 
BLM's onshore oil and gas operations regulations ``were last revised in 
the 1980s or early 1990s'').
    \24\ Prior to 2007, the BLM administered an eight-point rule for 
the casing and cementing of wells on BLM lands. It replaced this with a 
nine-point rule in 2007. Onshore Oil and Gas Operations; Federal and 
Indian Oil and Gas Leases; Onshore Oil and Gas Order No. 1, Approval of 
Operations, 72 Fed. Reg. 10,308, 10,310 (Mar. 7, 2007) (codified at 43 
C.F.R. pt. 3160).
    \25\ See John M. Golden & Hannah J. Wiseman, The Fracking 
Revolution: Shale Gas as a Case Study in Innovation Policy, 64 Emory 
L.J. 955, 968 (2015) (comparing sources that describe the first 
fracturing of wells as occurring in the late 1940s).
    \26\ See Hong Sun et al., A Nondamaging Friction Reducer for 
Slickwater Frac Applications, Soc'y of Petroleum Engineers, Conference 
Paper no. 139480 at 1 (2011).
    \27\ See id. at 975 (describing Mitchell's involvement in helping 
to perfect horizontal drilling and slickwater fracturing). Techniques 
similar to the slickwater technique, characterized by large quantities 
of water and fewer gels and other chemicals, had been used in earlier 
decades but had not been applied to shales and typically had not been 
combined with horizontal drilling. Experts typically describe 
slickwater fracturing as a new, recent technology. See, e.g., Terrence 
Palisch, Michael Vincent & Patrick Handren, Slickwater Fracturing: Food 
for Thought, 25 SPE Production and Operations 327, 327 (2010).
    \28\ See Golden & Wiseman, supra note 25, at 966 (``In the past 
decade and a half, growth in shale gas production has been more than 
exponential.'').
    \29\ See, e.g., Halliburton, U.S. Shale Gas: An Unconventional 
Resource. Unconventional Challenges at 1 (2008), available at http://
www.shaleenergyinsider.com/wp-content/uploads/sites/11/2014/01/
H063771.pdf (noting that the Barnett Shale, investigated ``as early as 
1981,'' produced ``gas at commercial rates'' only when certain 
fracturing technologies became available).
    \30\ See U.S. Dept. of Energy, Why Is Shale Gas Important?, http://
energy.gov/sites/prod/files/2013/04/f0/why_is_shale_gas_important.pdf 
(noting that ``U.S. shale gas production has increased 12-fold over the 
last decade'' and is projected to make up 49% of U.S. dry natural gas 
production by 2035). Experts estimated in 2004 that 30% of hydraulic 
fracturing jobs used slickwater fracturing. Palisch et al., supra note 
27, at 327.
---------------------------------------------------------------------------
    The HF Rule, issued after the BLM proposed a draft rule and a 
revised draft rule \31\ and received extensive public comments, 
addresses certain aspects of modern (unconventional) fracturing on land 
managed by the BLM, lands under which the BLM controls the minerals, 
and certain Indian lands.\32\ This HF Rule does not exceed the BLM's 
statutory authority; it has strong statutory support and helps the BLM 
to fulfill its statutory duties.\33\
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    \31\ Oil and Gas; Well Stimulation Including Hydraulic Fracturing, 
77 Fed. Reg. 27,691 (proposed May 11, 2012); Supplemental Notice of 
Proposed Rulemaking and Request for Comment, 78 Fed. Reg. 31,636 (May 
24, 2013).
    \32\ Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands, 
supra note 2.
    \33\ See infra notes 35-36, 37, and accompanying text.
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    FLPMA, the BLM's organic act, \34\ declares that it is ``the policy 
of the United States'' that ``public lands be managed in a manner that 
will protect the quality of scientific . . . ecological, environmental, 
air and atmospheric, water resource, and archeological values.'' \35\ 
It also provides that in administering the Act, the BLM (acting for the 
Secretary of the Interior, or ``Secretary'') must ``establish 
comprehensive rules and regulations after considering the views of the 
general public.'' \36\ Congress has set out a specific process for the 
BLM's leasing and management of Federal oil and gas resources on behalf 
of the public. Congress directs the Secretary to ``manage the public 
lands under principles of multiple use and sustained yield . . .,'' 
\37\ meaning managing resources ``so that they are utilized in the 
combination that will best meet the present and future needs of the 
American people'' and in a manner ``that takes into account the long-
term needs of future generations for renewable and nonrenewable 
resources, including, but not limited to, recreation, range, timber, 
minerals, watershed, wildlife and fish, and . . . scientific and 
historical value.'' \38\ The BLM must write comprehensive land use 
plans, also described as ``resource management plans,'' \39\ and its 
leasing of oil and gas resources must conform to these plans.\40\ If an 
operator obtains a lease, the operator may apply to the BLM to develop 
a specific well by submitting an application for a permit to drill 
(APD).\41\
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    \34\ See New Mexico ex rel. Richardson v. Bureau of Land 
Management, 565 F.3d 683, 688 n.1 (10th Cir. 2009).
    \35\ 43 U.S.C. Sec. 1701(a)(12) (2012).
    \36\ Id. at Sec. 1701(a)(5) (2012) (emphasis added).
    \37\ Id. at Sec. 1732(a) (2012).
    \38\ Id. at Sec. 1702(c) (2012).
    \39\ See Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 
59 (2004); Pennaco Energy, Inc. v. U.S. Dept. of the Interior, 377 F.3d 
1147, 1151 (10th Cir. 2004).
    \40\ 43 C.F.R. Sec. 1610.5-3(a) (2013).
    \41\ Id. at Sec. 3162.3-1(c) (2013).
---------------------------------------------------------------------------
    The BLM has specific regulations that guide its issuance or denial 
of permits to drill for oil and gas. FLPMA provides: ``The Secretary 
shall issue regulations necessary to implement the provisions of this 
Act with respect to the management, use, and protection of the public 
lands, including the property located thereon.'' \42\ Congress also 
requires that the Secretary ``by regulation or otherwise, take any 
action necessary to prevent unnecessary or undue degradation of the 
lands'' \43\ in managing public lands. It is the responsibility of the 
authorized BLM officer to regulate a host of issues associated with oil 
and gas drilling quite apart from the HF rule specifically. As provided 
by BLM regulations, these responsibilities and authorities include, 
inter alia, approving and monitoring operator proposals for drilling, 
development, or production and ensuring that operations are conducted 
in a manner that is environmentally responsible, that protects life and 
property, and that results in the maximum ultimate recovery of the 
resource with minimum waste.\44\ Drilling plans must include ``a 
description of the program, the surface and projected completion zone 
location, pertinent geologic data, expected hazards, and proposed 
mitigation measures to address such hazards.'' \45\
---------------------------------------------------------------------------
    \42\ 43 U.S.C. Sec. 1733 (2012).
    \43\ Id. at Sec. 1732(b) (2012)
    \44\ 43 C.F.R. Sec. 3161.2 (2013).
    \45\ Id. at Sec. 3162.3-1(e).
---------------------------------------------------------------------------
    As discussed further below, the HF Rule's requirements, which 
operate in addition to these other rules, will help to protect 
groundwater, surface waters, and soils on public lands, thus supporting 
other current and future uses of BLM lands such as grazing and 
recreation. By preventing leakage from wells, the requirements will 
also help to prevent the waste of oil and gas, for which the Federal 
Government and states receive royalties.\46\ Causing waste of oil and 
gas resources is prohibited by the MLA.\47\
---------------------------------------------------------------------------
    \46\ 30 U.S.C. Sec. 223 (2012); 30 U.S.C. Sec. 191 (2012).
    \47\ 30 U.S.C. Sec. 225 (2012).
---------------------------------------------------------------------------
iii. the hf rule addresses known risks, prevents the waste of valuable 
      federal oil and gas resources, and is not overly burdensome
    The HF Rule follows Congressional mandates by taking modest steps 
to address important environmental externalities of oil and gas 
development and hydraulic fracturing and preventing the waste of 
Federal mineral resources. Slickwater and other unconventional 
fracturing techniques that have become common in the past decade, thus 
necessitating updated BLM rules, use larger volumes of water \48\ and 
in some cases different types of chemicals \49\ than other fracturing 
techniques, and they introduce certain new environmental risks to the 
oil and gas development process. Beyond causing more wells to be 
drilled and fractured, sometimes in sensitive environments or more 
populous areas, \50\ slickwater fracturing produces large volumes of 
liquid ``flowback'' waste that must be stored on the well site surface 
and disposed of \51\ and requires large volumes of water to be trucked 
or piped to well sites.\52\
---------------------------------------------------------------------------
    \48\ See, e.g., Governor's Marcellus Shale Advisory Commission 
(Pennsylvania) Report at 73 (2011), http://www.marcellus.psu.edu/
resources/PDFs/MSACFinalReport.pdf (``While hydraulic fracturing is not 
new to the Commonwealth--it has been standard practice for decades--the 
size of the natural gas play and the quantity of water used to 
stimulate a Marcellus Shale or other unconventional natural gas well is 
new.'').
    \49\ See Hannah J. Wiseman, Risk and Response in Fracturing Policy, 
84 U. Colo. L. Rev. 729,744 n. 64 (2013).
    \50\ See, e.g., City of Fort Worth, Gas Well Drilling, 
Fortworthtexas.gov, http://fortworthtexas.gov/gaswells/ (last visited 
July 12, 2015) (showing 1,976 producing gas wells in the City of Fort 
Worth).
    \51\ Envtl. Protection Agency, Assessment of the Potential Impacts, 
supra note 55, at 6-3.
    \52\ Natl. Park Service, U.S. Dep't of the Interior, Potential 
Development of the Natural Gas Resources in the Marcellus Shale at 9 
(2008), http://www.nps.gov/frhi/learn/management/upload/GRD-M-Shale_12-
11-2008_high_res.pdf. Unconventional fracturing techniques can also 
reduce certain impacts compared to conventional oil and gas production 
because horizontal drilling makes surface locations more flexible. U.S. 
Dept. of Energy, Office of Fossil Energy, Environmental Benefits of 
Advances Oil and Gas Exploration and Production Technology at 5 (1999), 
http://www.netl.doe.gov/kmd/cds/disk25/oilandgas.pdf.
---------------------------------------------------------------------------
    The techniques of hydraulic fracturing (including slickwater 
fracturing) and horizontal drilling have produced very important 
economic benefits but also substantial costs--costs that could be 
reduced through careful management of the drilling and fracturing 
process. Hydraulic fracturing chemicals, and chemicals mixed with 
water, have spilled on well sites.\53\ Wells have blown out during 
hydraulic fracturing, causing fracturing fluids to be discharged into 
surface waters.\54\ In its draft assessment of the impacts of hydraulic 
fracturing on water quality, the Environmental Protection Agency 
observes that ``[s]pills of hydraulic fracturing fluids have occurred 
across the country and have affected the quality of drinking water 
resources,'' \55\ and it estimates that spill rates of chemicals and 
hydraulic fracturing fluid range from 0.4 and 12.2 spills for every 100 
wells.'' \56\ Flowback from wells has also leaked, polluting soil, 
surface water, and other resources, \57\ and, in one incident 
identified by the EPA, flowback and produced water have polluted 
groundwater.\58\ Some fractured wells also have deficient or defective 
underground casing and cement, \59\ and inspectors have detected 
methane coming out of these wells at the surface.\60\
---------------------------------------------------------------------------
    \53\ See, e.g., Dunn Cty., N.D., Well Name Fort Berthold 148-94-
22A-27-1H, Incident 20130430182213 (Apr. 30, 2013), http://
www.ndhealth.gov/EHS/FOIA/Spills/Summary_Reports/
20130430182213_Summary_Report.pdf (spill of 250 barrels of ``fracturing 
solids and liquids''; report indicates 250 barrels were recovered but 
``[a]dditional soil cleanup on and offsite to continue''); Billings 
Cty., N.D., Well Name State Hecker 1-2-11H-142-98, Incident 
20120614171333 (June 13, 2012), http://www.ndhealth.gov/EHS/FOIA/
Spills/Summary_Reports/20120614171333_Summary_Report.pdf (18 barrels of 
``[f]resh water with fracing chemicals'' spilled; 17 barrels cleaned up 
(recovered); potential environmental impacts to ``[s]urface soil 
only''); Dunn Cty., N.D., Well Name Fuller 1-2H, Incident 
20110810153048 (July 20, 2011), http: // www.ndhealth.gov / EHS / FOIA 
/ Spills / Summary_Reports / 20110810153048_Summary_ Report.pdf 
(release of 8 barrels of ``[f]rac water'' to a field; ``remedial 
activities'' conducted); Lea Cty., N.M., API Permit 30-025-41627, 
Incident nSAD1413436037 (Apr. 28, 2014), https: // 
www.apps.emnrd.state.nm.us / ocd / ocdpermitting / Data / Incidents / 
SpillSearchResultsExcel.aspx ?Api=30-025-41627 (describing a 7-gallon 
spill of ``hydraulic frac fluid,'' 6.75 barrels of which were 
recovered); Eddy Cty., N.M., API Permit 30-015-26415, Incident 
nMLB1403537703 (Jan. 30, 2014), https://www.apps.emnrd.state.nm.us/ocd/
ocdpermitting/Data/Incidents/SpillSearch ResultsExcel.aspx?Api=30-015-
26415 (``Reported release of 230 bbls fresh water w/2% KCL and gel (for 
slick water frac job) Released fluids ran down a draw (approx \1/4\ 
mile) and entered the Pecos River.''); Chaves Cty., N.M., API Permit 
30-005-29061, Incident nGRL1010539051 (Feb. 5, 2010), https://
www.apps.emnrd.state.nm.us/ocd/ocdpermitting/Data/Incidents/SpillSearch 
ResultsExcel.aspx?Api=30-005-29061 (noting 80 barrels of frac fluid 
spilled, five of which were recovered).
    \54\ See, e.g., Md. Att'y Gen., AG Gansler Secures Funding to 
Safeguard Susquehanna Water Quality (June 14, 2012), http: // 
www.oag.state.md.us / press / 2012 / 061412.html (last visited July 12, 
2015) (noting the release of fracturing fluids into Towanda Creek due 
to a well blowout); Governor's Marcellus Shale Advisory Commission, 
supra note 48, at 75 (noting that ``over 10,000 gallons of fracturing 
flowback fluid escaped the well pad and all containment'' in the 
Towanda Creek incident and describing another blowout that released 
fracturing fluids for 16 hours); McKenzie Cty., N.D., Well Name Cherry 
State 31-16H, Incident 20140214142744, (Feb. 13, 2014), http: // 
www.ndhealth.gov / EHS / FOIA / Spills / Summary_Reports/
20140214142744_ Summary_Report.pdf (describing a blowout at a North 
Dakota well and noting ``[r]egaining well control still in progress); 
Nicholas P. Cheremisinoff & Anton R. Davletshin, Hydraulic Fracturing 
Operations: Handbook of Environmental Management Practices 460 (2015) 
(indicating that the well in McKenzie County leaked fracturing fluid 
and oil).
    \55\ U.S. Envtl. Prot. Agency, External Review Draft, Assessment of 
the Potential Impacts of Hydraulic Fracturing for Oil and Gas on 
Drinking Water Resources at 5-42 (June 2015), available at http://
cfpub.epa.gov/ncea/hfstudy/recordisplay.cfm?deid=244651.
    \56\ Id. at 5-48.
    \57\ See, e.g., Williams Cty., N.D., Well Name Dave Arnson 8-5 1-H, 
Incident 20110613213356 (May 31, 2011), http://www.ndhealth.gov/EHS/
FOIA/Spills/Summary_Reports/20110613213356_ Summary_Report.pdf (``2 
bbls of flowback fluid ran off the edge of wellsite for approximately 
100 ft.''; berm constructed, contaminants vacuumed; potential 
environmental risk of soil contamination but no water body affected); 
Mountrail Cty., N.D., Well Name Crowfoot 35-3031H, Incident 
20110112143928 (Jan. 11, 2011), http://www.ndhealth.gov/EHS/FOIA/
Spills/Summary_Reports/20110112143928_Summary_Report.pdf (release of 
120 barrels of flowback from a truck to a well site; 50 barrels 
recovered); Greene Cty., Pa., API Permit 059-25160, Enforcement ID 
250351 (Sept. 23, 2009), http: // www.depreportingservices.state.pa.us 
/ ReportServer / Pages / Report Viewer.aspx?/Oil_Gas/OG_Compliance 
(flowback released into field from pit; haul trucks responded); San 
Juan Cty., N.M., API 30-045-29969, Incident nJK1217341013 (May 17, 
2000), https: // www.apps.emnrd.state.nm.us / ocd / ocdpermitting / 
Data / Incidents / SpillSearchResults Excel.aspx?Api=30-045-29969 
(noting 100 barrels of flowback that spilled; no barrels recovered).
    \58\ Envtl. Prot. Agency, Assessment of the Potential Impacts, 
supra note 55, at 7-36 to 7-37.
    \59\ See, e.g., Bradford Cty., Pa., API Permit 015-21704, Violation 
ID 645597 (Aug. 2, 2012), http: // www.depreportingservices.state.pa.us 
/ ReportServer / Pages / ReportViewer.aspx?/Oil_Gas/OG_Compliance 
(noting that ``[w]ell has been fraced'' and indicating a ``[f]ailure to 
report defective, insufficient, or improperly cemented casing'').
    \60\ All of the following examples of incidents are from 
Pennsylvania records of unconventional wells at which inspectors from 
the Commonwealth took enforcement action. See Pa. Dept. of Envtl. 
Prot., Oil and Gas Compliance Report, http: // 
www.depreportingservices.state.pa.us / ReportServer / Pages / 
ReportViewer.aspx?/Oil_Gas / OG_Compliance (select ``Inspections With 
Violations Only'' and ``Unconventional Only''). Unconventional wells 
are those that ``generally cannot be produced except by horizontal or 
vertical wellbores stimulated by hydraulic fracturing.'' Pa. Dept. of 
Envtl. Prot., Report Instructions for the Oil and Gas Compliance Report 
at 5, http: // files.dep.state.pa.us / OilGas / BOGM / BOGMPortalFiles 
/ OilGasReports / HelpDocs / OG_Compliance_Help.pdf. All violations are 
from http: // www.depreportingservices.state.pa.us / ReportServer / 
Pages / ReportViewer.aspx? / Oil_Gas / OG_Compliance. Lycoming Cty., 
Pa., API Permit 081-20238, Enforcement ID 268004, Feb. 18, 2011 (``02/
14/11 gas bubbling in the cellar found to be in the annular space of 
the 9 \5/8\  13 \3/8\ casing''); Bradford Cty., Pa., API Permit 015-
20932, Enforcement ID 288538, Sept. 11, 2012 (``initial complaint water 
well shows methane levels increased from non-detect to 82.7 mg/L''; 
``Chesapeake caused or allowed gas from lower formations to enter fresh 
groundwater''); Clearfield Cty., Pa., API Permit 033-26855, Enforcement 
ID 265809, Dec. 6, 2010 (``Methane migrated to surface through cement 
in 9 \5/8\" annulus.''). Peer-reviewed sources have estimated rates of 
well failure for all Marcellus wells to be 2.58%, 3.4%, or 6.2%. See 
Richard J. Davies, Sam Almond, Robert S. Ward, Robert B. Jackson, 
Charlotte Adams, Fred Worrall, Liam G. Herringshaw, Jon G. Gluyas & 
Mark A. Whitehead, Oil and Gas Wells and Their Integrity: Implications 
for Shale and Unconventional Resource Exploitation, 16 Marine and 
Petroleum Geology 239, 243 (2014) (comparing the estimates from peer-
reviewed publications).
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    The HF Rule addresses these and other externalities of oil and gas 
drilling and fracturing. By requiring data such as the geology where 
wells will be drilled and fractured, existing natural faults and 
fractures, old wellbores near the proposed well, nearby sources of 
usable water, and the proposed depth of the well and fractures, \61\ 
the BLM will better understand (and be able to manage) how the drilling 
and fracturing of a well could potentially cause the leakage of methane 
or other substances into nearby faults or old wells--leakage that could 
potentially allow substances to migrate to the surface and impact 
surface water and soil in addition to underground resources.\62\ By 
requiring monitoring of cementing operations, the preparation of cement 
evaluation logs where cement does not reach the surface of the well, 
and remedial action where it appears that cement is inadequate, \63\ 
the HF Rule helps to ensure that wells--which will be subjected to high 
pressures as a result of hydraulic fracturing--will not leak, again 
helping to prevent the possible contamination of underground and 
surface resources. The portions of the HF Rule addressing the casing 
and cementing of wells also help to ensure that gas and oil will not 
escape wells and that water will not mix with oil and gas, \64\ thus 
preventing the waste of valuable Federal resources and money earned 
from those resources. Further, by requiring the disclosure of chemicals 
used in fracturing, \65\ the BLM helps to inform the public, including 
other users of public lands, of the chemicals that are stored on site 
and contained in the flowback. And the BLM achieves multiple 
environmental goals, including operator compliance with the Migratory 
Bird Treaty Act, \66\ Bald and Golden Eagle Protection Act, \67\ Clean 
Water Act (CWA), \68\ and Resource Conservation and Recovery Act 
(RCRA), \69\ by requiring tank storage of flowback.\70\
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    \61\ Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands, 
supra note 2, at 16,218-16,219.
    \62\ See Davies, supra note 60, at 240.
    \63\ Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands, 
supra note 2, at 16,219-16,220.
    \64\ See Ground Water Protection Council, State Oil and Natural Gas 
Regulations Designed to Protect Water Resources at 12, 19 (2009), http: 
// www.gwpc.org / sites / default / files / state_oil_ 
and_gas_regulations_designed_to_protect_water_resources_0.pdf (prepared 
for the U.S. Dept. of Energy) (noting early state well casing 
regulations that prevented water incursion into the well).
    \65\ Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands, 
supra note 2, at 16,220-16,221.
    \66\ 16 U.S.C. Sec. Sec. 703, 707 (2012).
    \67\ Id. at Sec. 668.
    \68\ 40 C.F.R. Sec. Sec. 435.50, 435.52 (2013).
    \69\ 42 U.S.C. Sec. 6945 (2012).
    \70\ Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands, 
supra note 2, at 16,220.
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    Furthermore, in balancing the importance of oil and gas development 
with other values on Federal lands, including environmental protection, 
the rule is not overly onerous. As discussed in Part V, some states 
already require cementing tests that are more stringent than BLM rules. 
Further, many oil and gas operators already report a range of well data 
including fracturing chemicals used through FracFocus, \71\ and some 
oil and gas operators already use tanks. For example, Encana reports: 
``In most of our operations, we use closed-loop fluid handling systems. 
. . . Because drilling and fracturing fluids do not come into contact 
with the ground surface, there is less likelihood of groundwater 
contamination.'' \72\
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    \71\ FracFocus Chemical Disclosure Registry, http://fracfocus.org/ 
(showing 99,734 sites registered as of July 12, 2015); Keith B. Hall, 
Hydraulic Fracturing: Trade Secrets and the Mandatory Disclosure of 
Fracturing Water Composition, 49 Idaho L. Rev. 399 (2013) (describing 
state disclosure requirements).
    \72\ Encana', Fluid storage, disposal and reuse, https: 
// www.encana.com / sustainability / environment / water / fracturing / 
fluid-storage.html (last visited July 10, 2015).
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 iv. no federal environmental statutes preclude or displace the hf rule
    In addition to having strong support in FLPMA and the MLA, the HF 
Rule is not precluded or displaced by other Federal statutes that apply 
to, or exempt, some oil and gas activities from certain Federal 
environmental regulations. The BLM has long regulated the casing and 
cementing of wells on Federal lands,\73\ among other regulations, and 
other Federal statutes have not precluded these regulations--nor do 
these statutes now preclude the updated regulations. The relevant 
Federal environmental statutes that apply to certain aspects of oil and 
gas development and fracturing are, inter alia, the Safe Drinking Water 
Act (SDWA), RCRA, the CWA, and the Emergency Planning and Community 
Right-to-Know Act (EPCRA). The SDWA applies to certain entities that 
inject substances underground and requires those entities to obtain a 
permit that ensures that injection will not endanger underground 
sources of drinking water.\74\ The Act exempts from the definition of 
``injection'' any hydraulic fracturing that is done without the use of 
diesel.\75\ The EPA also exempts most oil and gas exploration and 
production (E&P) wastes from Subtitle C of RCRA--a subtitle that 
requires cradle-to-grave tracking of the generation, transport, and 
disposal of hazardous wastes and sets standards for transport and 
disposal.\76\ Under the CWA, the EPA prohibits certain discharges of 
oil and gas wastes into surface waters \77\ and has proposed to 
prohibit discharge of flowback from unconventional wells to certain 
wastewater treatment plants.\78\ Finally, the EPCRA requires hydraulic 
fracturing operators to keep records of hazardous substances that are 
stored on site \79\ but does not require these operators to annually 
report releases of these substances.\80\
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    \73\ See Onshore Oil and Gas Order No. 1, supra note 24, at 
Sec. III.D.3 (requiring, inter alia, drilling plans including plans for 
protecting usable water and minerals, blowout prevention plans, and 
cementing plans); id. at Sec. III.F.3 (showing that in approving APDs 
BLM must attach ``conditions of approval'' that reflect necessary 
mitigation, allowing mitigation measures to minimize adverse impacts, 
and allowing the BLM to require Best Management Practices).
    \74\ 42 U.S.C. Sec. 300h(b)(1) (2012).
    \75\ Id. at Sec. 300h(d)(1).
    \76\ Regulatory Determination for Oil and Gas and Geothermal 
Exploration, Development and Production Wastes, 53 Fed. Reg. 25,446-01 
(July 6, 1988).
    \77\ 40 C.F.R. Sec. Sec. 435.30. 435.32, 435.50, 435.52 (2013).
    \78\ Effluent Limitations Guidelines and Standards for the Oil and 
Gas Extraction Point Source Category, 80 Fed. Reg. 18557 (proposed Apr. 
7, 2015).
    \79\ 42 U.S.C. Sec. Sec. 11021-11022 (2012).
    \80\ 42 U.S.C. Sec. 11023(b) (2012); 40 C.F.R. Sec. 372.23 (2013).
---------------------------------------------------------------------------
    The HF Rule does not conflict with any of these Federal rules or 
exemptions. The rule is not precluded by other Federal statutes and 
exemptions for three reasons. First, Congress includes limited, 
individual oil and gas exemptions in statutes that address different 
types of pollution and that are administered by different agencies. In 
providing these exemptions, Congress has not indicated an intent to 
preclude regulation by different agencies under different statutes. 
Second, environmental statutes are commonly structured to include 
discrete exemptions: Congress often exempts an activity from a statute 
knowing that the activity is or might be regulated under a different 
statute. Third, the purpose of the environmental statutes in question 
is primarily to limit the environmental externalities of certain 
private entity and local government activities without unduly limiting 
the productive use of private property; it is not to limit a Federal 
agency's authority to manage federally-owned and federally-managed land 
in a manner consistent with its statutory mandate.
A. Existing Federal environmental statutes indicate no Congressional 
        intent to exempt hydraulic fracturing, casing and cementing, or 
        waste storage from BLM rules. Exemptions under various 
        generally applicable environmental statutes do not exempt 
        hydraulic fracturing activities from all Federal regulation of 
        federally-managed land
    The question of whether one Federal statute precludes the 
application of another (such as whether the SDWA precludes BLM 
regulation of oil and gas development and fracturing under FLPMA and 
the MLA) is one of congressional intent, \81\ to be ascertained through 
statutory interpretation.\82\ It is certainly within Congress's power 
to exempt hydraulic fracturing from all Federal regulation; to date, 
however, it has (wisely) not chosen to do so, \83\ and such a blanket 
exemption cannot be manufactured from the limited exemptions already in 
place. An exemption of an industrial activity from one Federal 
environmental statute does not immunize that activity from other 
Federal environmental statutes unless the statutory language clearly 
shows Congressional intent for such immunity.\84\ Indeed, an exemption 
or partial exemption from one statute may promote effective regulation 
under another statute, thus making the laws complements.\85\ The 
Federal laws that partially apply to the subject matter of the BLM 
hydraulic fracturing rules, or that exempt hydraulic fracturing from 
certain aspects of Federal law, do not show any intent to block Federal 
agencies like BLM from regulating to accomplish their specific 
statutory mission.
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    \81\ Felt v. Atchison, Topeka, and Santa Fe Railroad Co., 60 F.3d 
1416, 1419 (9th Cir. 1995).
    \82\ POM Wonderful LLC v. The Coca-Cola Company, 134 S.Ct. 2228, 
2236 (2014).
    \83\ In their briefs opposing the BLM rule, petitioners quote one 
of my statements out of context. See Motion for Preliminary Injunction 
(Wyoming and Colorado) at 10, Wyoming v. U.S. Dept. of the Interior, 
No. 15-CV-00043-SWS (D. Wyo. May 29, 2015); Hannah Wiseman, Untested 
Waters: The Rise of Hydraulic Fracturing in Oil and Gas Production and 
the Need to Revisit Regulation, 20 Fordham Envtl. L. Rev. 115, 145 
(2009)) (noting that ``the Act conclusively withdrew fracing from the 
realm of Federal regulation'' to indicate that Congress exempted 
hydraulic fracturing from the SDWA, but not to suggest that many other 
well development stages associated with fracturing, such as flowback 
disposal and discharge, are exempt from Federal laws). Notably, my 
article also does not address the separate authority of the BLM to 
regulate fracturing on Federal lands.
    \84\ Cf. POM Wonderful, 134 S.Ct. at 2236-2237 (in a case 
interpreting two Federal food labeling statutes, refusing to adopt 
either a test that would require that full effect be given to each 
statute and only bar the application of one statute if there is 
irreconcilable conflict, or a test that would ``reconcile'' the laws by 
finding that one law narrows the other, but finding that even under the 
``reconciliation'' test, the best result in the case was not to bar the 
application of a portion of one statute).
    \85\ Cf. POM Wonderful, 134 S.Ct at 2238 (``When two statutes 
complement each other, it would show disregard for the congressional 
design to hold that Congress nonetheless intended one Federal statute 
to preclude the operation of the other.'').
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    In exempting hydraulic fracturing from the definition of 
``injection'' under the SDWA, the Energy Policy Act of 2005 amends the 
SDWA to read as follows: ``For purposes of this part: (1) Underground 
injection . . . (B) excludes-- . . . (ii) the underground injection of 
fluids or propping agents (other than diesel fuels) pursuant to 
hydraulic fracturing operations related to oil, gas, or geothermal 
production activities.'' \86\ The Act simply makes clear that under the 
SDWA hydraulic fracturing is not an injection activity that must be 
permitted by the EPA or states. It does not address how fracturing may 
or should be regulated under other acts or by other agencies. 
Furthermore, the SDWA's legislative history shows that Congress did not 
``intend any of the provisions of this bill to repeal or limit any 
authority,'' of the U.S. Geological Survey (USGS), one of the BLM's 
predecessors in regulating Federal oil and gas wells.\87\
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    \86\ 42 U.S.C. Sec. 300h(d)(1) (2012) (emphasis added).
    \87\ H.R. Rep. No. 93-1185 at 32 (1974), as reprinted in 1974 
U.S.C.C.A.N. 6454, 6494.
---------------------------------------------------------------------------
    The SDWA is inapplicable to both drilling and fracturing of oil and 
gas production wells; it does not apply to the injection of substances 
like drilling muds and fluids and fracturing fluids underground, as 
these activities do not count as injection pursuant to the provision in 
the Energy Policy Act of 2005 and other provisions.\88\ But states and 
Federal agencies regulating oil and gas drilling and fracturing have 
other ways to ensure the safety of these practices. Therefore, many 
other acts, which I introduce above, address drilling, casing, and 
cementing of wells to ensure that substances do not leak underground 
and pollute surface and underground water. Many states regulate the 
casing and cementing of both fractured and conventional oil and gas 
wells--not under delegated SDWA authority, but rather under their 
independent regulatory authority to protect the public health, safety, 
and welfare.\89\ Similarly, the BLM may regulate the casing of 
fractured and conventional wells to fulfill its MLA and FLPMA 
responsibilities, and, as indicated above, it has long regulated the 
casing of conventional wells and well stimulation.\90\
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    \88\ States have argued that the SDWA is the only Act under which 
the injection of substances may be regulated based on one line from a 
Federal case. That case states, ``[I]t is clear that Congress dictated 
that all underground injection be regulated under the [SDWA].'' Legal 
Envtl. Assistance Found., Inc. v. U.S. Envtl. Protection Agency, 118 
F.3d 1467, 1474 (11th Cir. 1997). This statement does not indicate that 
only the SDWA may regulate underground injection. Rather, it indicates 
that all underground injection activities are subject to the SDWA. The 
case does not address whether underground injection activities might 
also be subject to other Federal acts, particularly when injection 
occurs on Federal lands.
    \89\ See Ground Water Protection Council, supra note 64; Wiseman, 
Risk and Response, supra note 49 (describing state casing and cementing 
regulations).
    \90\ See supra note 24.
---------------------------------------------------------------------------
    Additionally, the SDWA applies to the protection of drinking water 
and potentially usable water.\91\ The Act indicates no intent to 
regulate fracturing and the cementing and casing of oil and gas wells 
for the purpose of preventing oil and gas waste and protecting soil and 
other surface resources, or wildlife. The BLM's rules for the casing 
and cementing of wells help to achieve all of these results.
---------------------------------------------------------------------------
    \91\ See, e.g., H.R. Rep. No. 93-1185, supra note 87, at 1 (``The 
purpose of the legislation is to assure that water supply systems 
serving the public meet minimum national standards for protection of 
public health.'').
---------------------------------------------------------------------------
    Similarly, in exempting certain oil and gas E&P wastes from RCRA in 
1988, the EPA indicated no intent to preclude regulation of these 
wastes under other acts, such as BLM's requirement under the HF Rule 
that flowback be stored in tanks. Indeed, the EPA indicated that it 
would rely on other acts like the SDWA (which applies to the disposal 
of liquid wastes from oil and gas wells, including fractured wells), 
the CWA, and subtitle D of RCRA, to help improve waste management.\92\ 
Nor did the EPA in the RCRA exemption indicate an intent to prevent 
other entities from regulating these wastes under other Acts.\93\
---------------------------------------------------------------------------
    \92\ Regulatory Determination, supra note 76, at 25,456.
    \93\ The EPA indicated that it would help the states improve their 
oil and gas waste regulations. Regulatory Determination, supra note 76, 
at 25,456. As discussed in Part IV of this testimony, state oil and gas 
regulations still vary and might leave gaps.
---------------------------------------------------------------------------
    With respect to the CWA, the EPA regulates oil and gas waste rather 
than exempting it, and the HF Rule and other BLM rules help operators 
comply with CWA rules, such as limits on flowback and produced water 
discharges.\94\ Finally, with respect to chemical disclosure, the EPCRA 
already requires the maintenance of material safety data sheets for 
fracturing chemicals at oil and gas sites (with certain trade secret 
exemptions) \95\ and does not indicate an intent to preclude other 
disclosure regulations implemented by other Federal agencies.
---------------------------------------------------------------------------
    \94\ 40 C.F.R. Sec. Sec. 435.50, 435.52 (2013).
    \95\ 2 U.S.C. Sec. Sec. 11021-11022 (2012); 29 C.F.R. 
Sec. 1910.1200(i) (2013).
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B. Federal environmental statutes are structured in a manner that 
        anticipates that activities will be regulated under certain 
        statutes and exempted from others
    The argument that an exemption of an activity from one 
environmental statute exempts it from similar protections under other 
statutes administered by other agencies cuts against the very purpose 
of having varied Federal statutes that address discrete issues, as 
implemented by various agencies with various missions. For example, 
some discharges of waste do not count as ``solid waste'' under RCRA, 
which regulates the generation, transport, and disposal of waste, 
because these discharges are instead regulated under the CWA.\96\ 
Indeed, certain environmental statutes contain an explicit ``anti-
duplication'' provision; in one case a Federal district court noted 
that the ``the pollution discharges at issue in this case are exempted 
from the coverage of the Recovery Act because they are instead 
regulated by the Clean Water Act.'' \97\ In the oil and gas context, 
despite the RCRA subtitle C exemption for oil and gas E&P wastes, \98\ 
an oil and gas operator that causes contamination of land with certain 
oil and gas E&P wastes is liable for the costs of clean-up under the 
Comprehensive Environmental Response, Compensation, and Liability 
Act.\99\ And if the BLM is concerned that management of these wastes 
would contaminate these public lands and prevent their future 
productive use for grazing or other purposes (and generate CERCLA 
liability), it may regulate the management of these wastes under its 
FLPMA and MLA responsibilities.
---------------------------------------------------------------------------
    \96\ 42 U.S.C. Sec. 6903(27) (2012); see also Sheldon M. Novick & 
Donald W. Stever, Envtl. L. Inst., 2 Law of Environmental Protection 
Sec. 14:32 (2015) (discussing this exemption and noting that ``[t]he 
boundaries between RCRA and other statutes are marked by a series of 
exclusions from the definition of `hazardous waste.' '').
    \97\ Jones v. E.R. Snell Contractor, Inc., 333 F.Supp.2d 1344, 1350 
(N.D. Ga. 2004).
    \98\ Regulatory Determination, supra note 92.
    \99\ 42 U.S.C. Sec. 9607(a) (2012).
---------------------------------------------------------------------------
C. Federal environmental statutes aim primarily at private actors and 
        do not comprehensively address the unique responsibilities of 
        Federal agencies to protect public natural resources
    The CWA, SDWA, Clean Air Act, and other Federal environmental 
statutes primarily address the many corporations and other entities 
that engage in profitable activity while also producing externalities 
in the form of pollution. These acts were not designed with the primary 
intent of addressing additional responsibilities of Federal agencies 
managing activities that occur on public lands--lands that the agencies 
must manage for multiple uses for current and future generations. There 
are, as a result, numerous examples of activities that are exempt from 
at least one Federal environmental statute but are regulated by the 
BLM. For example, the CWA exempts soil runoff from certain agricultural 
and timber harvesting operations from certain CWA requirements 
administered by the Environmental Protection Agency and states.\100\ 
However, the BLM regulates soil runoff from farming, ranching, or 
certain timber harvesting to protect waters and federally-protected 
endangered species in those waters.\101\ Indeed, a failure of the BLM 
to regulate the environmental impacts of these activities might violate 
Congressional directives for the agency, which require, inter alia, 
regulation of land use to protect environmental resources.\102\ 
Similarly, a failure of the BLM to regulate the environmental impacts 
of oil and gas extraction on public lands, simply because certain 
aspects of oil and gas extraction are exempt from the SDWA, RCRA, and 
other Federal acts, would be an abdication of the BLM's statutorily 
defined responsibilities on public lands.
---------------------------------------------------------------------------
    \100\ See 33 U.S.C. Sec. 1342(l) (2012) (exempting from the Clean 
Water Act National Pollutant Discharge Elimination System permitting 
requirement ``silviculture activities,'' including ``harvesting 
operations,'' and ``agricultural return flows''); 33 U.S.C. 
Sec. 1362(14) (2012) (exempting from the definition of a ``point 
source'' of pollution ``agricultural stormwater discharges and return 
flows from irrigated agriculture''). These sources are regulated as 
nonpoint sources, particularly where a total maximum daily load has 
been established for a water into which the sources discharge.
    \101\ See, e.g., Bureau of Land Mgmt., U.S. Dep't. of the Interior, 
Draft Resource Management Plan/Environmental Impact Statement: Western 
Oregon at 3-908 (2015), available at, http: // www.blm.gov/or/plans/
rmpswesternoregon/files/draft/RMP_EIS_Volume3.pdf (in management 
directions for forested lands and timber harvesting, prohibiting 
mechanical treatments on ``steep slopes'' or ``sensitive soils'' to 
protect ``[p]erennial and fish-bearing streams'').
    \102\ See supra Part II of this testimony.
---------------------------------------------------------------------------
 v. the hf rule does not duplicate state regulations and will augment 
            state regulation and enforcement in useful ways
    In addition to providing important environmental protection and 
following statutorily defined duties to enable multi-use development of 
public lands, the HF Rule beneficially augments state regulation of oil 
and gas development, including fracturing. The rule provides an 
important overlay above various (and variable) state requirements. The 
portions of the HF Rule that are not more stringent than existing state 
and tribal regulations will likely not require variances \103\ because 
BLM rules already serve as a floor, not a ceiling, to state rules.\104\ 
And the HF Rule portions that are more stringent than state regulations 
protect important Federal values without imposing a one-size-fits-all 
approach. For example, if the BLM determines that well integrity was 
compromised during fracturing or that cement in the well was 
inadequate, a remediation strategy will be formed on a case-by-case 
basis.\105\
---------------------------------------------------------------------------
    \103\ Oil and Gas; Hydraulic Fracturing on Federal and Indian 
Lands, supra note 2, at 16,221.
    \104\ Second Declaration of Steven Wells para. 22, Wyoming v. U.S. 
Dept. of the Interior, No. 2:15-CV-43-SWS (D. Wyo. June 12, 2015).
    \105\ Oil and Gas; Hydraulic Fracturing on Federal and Indian 
Lands, supra note 2, at 16,219-16,220.
---------------------------------------------------------------------------
    Several portions of the BLM rule demonstrate how the rule is more 
stringent than certain state requirements and less stringent than 
others, thus revealing the variability of state regulations that 
currently apply to oil and gas operations. For example, Colorado 
requires operators to run a cement bond log--a specific type of cement 
evaluation log--when operators use certain types of casing,\106\ and 
New Mexico requires these logs in some counties.\107\ Other states do 
not require these logs.\108\ But in states where evaluation logs have 
been required, oil and gas development does not appear to have been 
inhibited.\109\ Thus, the HF Rule provides a consistent requirement for 
fracturing on Federal lands without imposing an unduly burdensome 
requirement.
---------------------------------------------------------------------------
    \106\ 2 Colo. Code Regs. Sec. 404-1:317(p) (2015).
    \107\ N.M. Admin. Code R, Sec. Sec. 19.15.39.8, 19.15.39.9 (2015).
    \108\ For example, Utah requires well completion or recompletion 
reports but does not appear to require a specific cement evaluation 
log. Utah Admin Code R. Sec. 649-3-21 (2015). It appears that Wyoming 
only requires a description of the cementing program. Wyo. Rules and 
Regs., Oil Gen. Ch. 3 Sec. 8(c)(8).
    \109\ For natural gas wells alone, in 2014 Colorado had 32,371 
producing gas wells, and New Mexico had 27,957 producing gas wells. 
Energy Info. Admin., Number of Producing Gas Wells, http://www.eia.gov/
dnav/ng/ng_prod_wells_s1_a.htm (last visited July 5, 2015).
---------------------------------------------------------------------------
    In another example of a portion of the HF Rule that is equally as 
stringent as certain state regulations and more stringent than others, 
the rule (as discussed above) generally requires the use of tanks for 
the storage of flowback, \110\ subject to certain exceptions. Colorado 
requires operators to use tanks for drilling and/or fracturing within a 
certain number of feet of a public water system, \111\ and New Mexico 
allows pits but requires operators using pits to obtain a permit and to 
follow specific siting, construction, and operational guidelines for 
pits or tanks.\112\ Although Utah does not appear to require tanks for 
flowback, the state requires oil and gas operators to ``[m]aintain 
[flowback] tanks in a workmanlike manner that will preclude leakage and 
provide for all applicable safety measures . . . .'' \113\
---------------------------------------------------------------------------
    \110\ Oil and Gas; Hydraulic Fracturing on Federal and Indian 
Lands, supra note 2, at 16,220.
    \111\ 2 Colo. Code Regs. Sec. 404-1:317B (2015).
    \112\ N.M Admin. Code R. Sec. 19.15.17.9 (2015).
    \113\ Utah Admin Code R. Sec. 649-3.1.2.4 (2015).
---------------------------------------------------------------------------
    To the extent that portions of the HF Rule duplicate state or 
tribal requirements, operators have several options. A variance may be 
granted (or may be unnecessary) if the state or tribal rule meets or 
exceeds the objectives of BLM regulation. Further, because most of the 
HF Rule requirements are informational--requiring information about 
geology, fracturing chemicals used, and cement evaluation logs 
prepared, for example--operators can meet any duplicative state 
requirements by submitting the same information to the BLM and to the 
state or tribe.\114\ Indeed, the HF Rule requires much of the 
information to be submitted through the Web site FracFocus, just as 
many states do. By inputting information into FracFocus, the operator 
will comply simultaneously with certain state, tribal, and Federal 
requirements.
---------------------------------------------------------------------------
    \114\ For example, Wyoming (like the BLM in its HF Rule) requires 
information on the geologic formation into which well stimulation 
fluids will be injected, well stimulation design including anticipated 
pressures, the base fluid for fracturing, and chemicals used in 
fracturing. Wyo. Rules and Regs., Oil Gen. Ch. 3 Sec. 45(c)-(e) (2015).
---------------------------------------------------------------------------
    Just as the HF Rule provides consistent requirements for drilling 
and fracturing on Federal lands above varied state requirements, the 
BLM's enforcement resources can help complement what are often limited 
state enforcement resources. In a number of states, inspectors have 
done an admirable job of visiting more well sites and noting potential 
violations of state laws at these sites in the midst of a drilling and 
fracturing boom. But state resources are limited, in part due to 
funding limitations. For example, in 2012 Colorado had approximately 36 
oil and gas inspectors and 49,062 active conventional and 
unconventional oil and gas wells, whereas New Mexico had approximately 
12 inspectors for 56,366 active conventional and unconventional 
wells.\115\ The most important inspections occur during the drilling, 
completion, and fracturing of the well, and a far smaller number of 
wells are drilled, fractured, and completed each day than the total 
number of active wells listed. But active, producing wells, too, can 
cause environmental problems, such as leaking oil, condensate, or 
produced water from tanks \116\ or from on-site equipment that does 
minimal processing.\117\ Thus, inspectors' time must be split between 
wells being drilled, completed, and fractured and those under 
production, and enforcement resources are often thin. States often fund 
oil and gas enforcement programs through permitting fees and other 
fees, and where these fees are statutorily prescribed, they have in 
some cases not been adjusted for inflation for many years.\118\ As a 
result of these and other state deficiencies, ``[e]nforcement rates for 
spills and other shale gas waste pollution incidents are low, and the 
punishment may not be deterring risky behavior.'' \119\
---------------------------------------------------------------------------
    \115\ Hannah Wiseman, Regulatory Risks in Tight Oil and Gas 
Development, 29 Nat. Gas & Electricity 6 (2012).
    \116\ Envtl. Protection Agency, Assessment of the Potential 
Impacts, supra note 55, at 7-31 through 7-36.
    \117\ See, e.g., Bradford Cty., Pa., API Permit 015-20425, 
Violation ID 600818, Dec. 2, 2010 (``Orange liquid seaping [sic] out 
from underneath seperator [sic] and heater treater.''); Washington 
Cty., Pa., API Permit 125-22688, Violation ID 619012, June 28, 2011 
(noting brine/condensate leak from separator).
    \118\ See Hannah J. Wiseman, The Capacity of States to Govern Shale 
Gas Development Risks, 48 Envtl. Sci. & Tech. 8376, 8384 (2014).
    \119\ Katherine E. Konschnick & Mark K. Boling, Shale Gas 
Development: A Smart Regulation Framework, 48 Envtl. Sci. & Tech. 8404, 
8409 (2014). See also Terrence J. Centner & Laura Kathryn O'Connell, 
Unfinished Business in the Regulation of Shale Gas Production in the 
United States, 476-477 Sci. Total Env't. 359, 364 (2014) (noting that 
``some governments are placed in an uncomfortable position of having 
laws and regulations to protect people but an inadequate infrastructure 
for the enforcement of the requirements'').
---------------------------------------------------------------------------
    While the BLM, too, has limited enforcement resources, \120\ 
combining the expertise and resources of the BLM with states can help 
to ensure that wells on Federal lands are regularly inspected and that 
violations--which can sometimes result from vandalism, weather, or 
other issues beyond the direct control of the operator--are quickly and 
effectively addressed. Between Fiscal Year 2007 and 2012, the BLM 
increased the number of environmental inspections of wells ``by 
approximately 63 percent'' and conducted a total of 17,866 
environmental inspections in Fiscal Year 2012.\121\
---------------------------------------------------------------------------
    \120\ U.S. Govt. Accountability Office, Oil and Gas Development, 
GAO-13-572, BLM Needs Better Data to Track Permit Processing Times and 
Prioritize Inspections (2013), available at http://www.gao.gov/assets/
660/657176.pdf.
    \121\ Id. at 30.
---------------------------------------------------------------------------
                               conclusion
    The BLM's HF Rule provides a needed update to Federal oil and gas 
rules that have not kept up with rapid changes in U.S. oil and gas 
development. The BLM has long regulated the casing and cementing of 
wells, storage of oil and gas wastes, and provision of data to Federal 
authorities to follow its statutory requirements--namely, to ensure 
that oil and gas development is compatible with other uses of Federal 
lands for current and future generations and to protect water and 
environmental resource values, among other values. The HF Rule further 
achieves these goals. Primarily through informational requirements, the 
rule informs BLM officials about potential problems with wells, such as 
wells drilled in areas with old wells--which could pose a risk if 
fracturing intercepted other wells--and wells that have inadequate 
cement to secure casing and prevent leakage of substances from and into 
the well. The rule augments rather than conflicts with other Federal 
requirements, fulfilling agency-specific mandates that are not 
contained within other Federal environmental statutes. The HF Rule also 
complements and improves upon state requirements and provides a 
variance provision in the event that duplicative informational rules--
which could simply require an operator to submit the same report to a 
state and Federal official--are deemed onerous and unnecessary.

                                 ______
                                 

    Dr. Fleming. Thank you, Ms. Wiseman. At this point we are 
going to move along to questions from the dais. We will be 
recognizing Members for 5 minutes, and I now recognize myself 
for 5 minutes.
    I would like to say in the opening here, that both 
Secretaries Jewell and Salazar of the Interior have testified 
that they are not aware of any harm from hydraulic fracturing 
over the 50 or 60 years of its history to human beings, or 
contamination of any water supply, which really begs the 
question in a period of an $18 trillion national debt, why we 
want to add another layer of regulations for fracturing and 
horizontal drilling. Mr. Lowenthal suggests that this is just a 
floor on regulations. But if the floor is all the way up to the 
ceiling, then that really doesn't give operators much room to 
move.
    My first question is to Director Kornze. As you know, the 
state of Louisiana has been effectively regulating hydraulic 
fracturing for some time. It has been claimed that the BLM will 
grant states a variance if their regulation meets or exceeds 
the Federal rule. Does that mean that you would delegate 
authority to the state to regulate on behalf of the Federal 
Government?
    Mr. Kornze. Chairman, I appreciate the question. We have 
authorities to regulate on public lands. Those are found in the 
Federal Land Policy and Management Act, in the Mineral Leasing 
Act, and the Indian Mineral Leasing statutes. We use those to 
set forth our standards, and we have a very long history of 
working with states in a cooperative manner to make sure that 
oil and gas regulation works on the ground. So we have that 
history in Louisiana, we have that history in all the states 
present here that----
    Dr. Fleming. But would you be delegating that authority to 
the state in that instance?
    Mr. Kornze. In my opening statement, I mentioned that there 
will be areas that are central to the litigation in question 
that I won't be able to go into. This is one of those central 
questions about authority delegation. So, I am going to have to 
politely decline to get into that question deeply, but I----
    Dr. Fleming. So you decline to answer. You are saying that 
BLM will duplicate the work of the state in requiring to see 
all the same documents, approve the same permits, and 
accomplish the same regulatory enforcement. In other words, we 
would have duplication of effort. You, or whoever is regulating 
this on the Federal level, would be essentially reviewing the 
same documents, the same process that the state would, 
simultaneously.
    Mr. Kornze. Well, I think it is important to clarify that 
we have a very long history, which I think the professor did an 
excellent job of laying out----
    Dr. Fleming. Well, before you go into all that detail, just 
give me a yes or a no on that, please.
    Mr. Kornze. Well, I think it is essential to talk about the 
fact that we have----
    Dr. Fleming. Let's start with a yes or no answer. Would you 
be duplicating efforts?
    Mr. Kornze. I don't believe there is duplication, because 
there is no fundamental change from this rule, in terms of how 
this relationship works. Since the Mineral Leasing Act in 1920, 
the Federal Government has stepped forward and had this rule 
that we have today----
    Dr. Fleming. Well, let's fast-forward to today. Have there 
been any variances granted to date?
    Mr. Kornze. We have not signed any formal documents related 
to variances, but we have had some very productive 
conversations with states, and have identified places where we 
do think that variances would be available.
    Dr. Fleming. So, no variance would be granted while the 
litigation is pending. Is that correct?
    Mr. Kornze. The judge has requested that we not implement 
the rule, that he has postponed the enforcement date. So, as 
part of that, we have stood down on the----
    Dr. Fleming. Even in the cases of the states that are not 
affected, you would not grant variances in those states either?
    Mr. Kornze. ``Not affected'' ? What does that mean?
    Dr. Fleming. Well, those states that aren't involved in the 
lawsuit, the litigation itself.
    Mr. Kornze. Yes, the judge's order, to my understanding, 
applies to the rule everywhere.
    Dr. Fleming. OK. Now, I would like to turn to how this rule 
directly affects my district in Louisiana. In my district there 
are certain areas of split estate ownership. I am running low 
on time, so I will try to abbreviate this a bit. Basically, we 
may have instances where drilling, particularly horizontal 
drilling, may interface with both multiple private property 
owners and the Federal Government.
    How does this rule--how do we deal with this, when we have 
a hodge-podge, if you will, of private owners, private mineral 
interests, as well as on private land, with Federal land? And 
in some cases it may be Federal land with private ownership of 
the minerals themselves.
    Mr. Kornze. So the way that it works, Chairman--and I 
appreciate the question--is that if your wellbore penetrates 
Federal minerals, then this rule applies.
    Dr. Fleming. All right, very good. Thank you. The Chair now 
recognizes the Ranking Member for 5 minutes.
    Mr. Lowenthal. Thank you.
    Ms. Wiseman, the states of Colorado and Wyoming use a line 
from one of your articles to support their argument that the 
Halliburton loophole in the 2005 Energy Policy Act was intended 
to keep the Federal Government out of fracking regulations 
entirely. Do you agree with that?
    Ms. Wiseman. I do not agree with that statement. With due 
respect to the states, I believe that they quote my article out 
of context. The article explores the history of the exemption 
of hydraulic fracturing from the Safe Drinking Water Act and 
the activities leading up to that exemption, and it focuses 
only on the Safe Drinking Water Act. The article concludes 
that, under the Safe Drinking Water Act, Congress clearly and 
expressly exempted the regulation of hydraulic fracturing, with 
the exception of diesel fuel, from the Safe Drinking Water Act.
    But the article goes on to discuss the other ways in which 
other Federal laws could potentially still apply to hydraulic 
fracturing, and have applied to hydraulic fracturing. The 
article also does not address the authority of Federal agencies 
to regulate hydraulic fracturing on Federal lands.
    Mr. Lowenthal. Thank you. I would also like to point out 
that these same states quote two Members of Congress from 2005 
to support their argument. Then it was Congressman Markey and 
Senator Feingold. We contacted now-Senator Markey--it was 
Congressman Markey at the time--we contacted Senator Markey 
about this, and he said, and I quote, ``Congress didn't write a 
get-out-of-any-regulation-forever-free card for fracking. Any 
attempt to extract any other reading out of the Congressional 
Record clearly fractures credulity.''
    Director Kornze and Professor Wiseman, the Chairman of this 
Full Committee said recently, and I quote, ``The DOE and the 
EPA have both found fracturing safe.'' Factcheck.org has 
already pointed out this is not what the EPA found. But could 
either of you clarify what the Department of Energy has said?
    Ms. Wiseman. The Department of Energy, in its Shale Gas 
Production Subcommittee report, notes a need to improve certain 
aspects of the regulation of fracturing, including concerns 
about hydraulic fracturing with diesel fuel, and concerns about 
the integrity of well casing.
    With respect to the Environmental Protection Agency, page 
6-15 of the Environmental Protection Agency Water Quality 
Study, in one example, points to an incident in Dunn County, 
North Dakota, when the production surface and conductor casing 
of a particular well ruptured, and sampling of two monitoring 
wells in the drinking water aquifer identified brine 
contamination and tert-Butyl alcohol that was potentially a 
product of the hydraulic fracturing fluid. That is just one 
example from the Environmental Protection Agency report.
    Mr. Lowenthal. Thank you. I am going to move on to Director 
Kornze. It seems to me that the Republican argument starts with 
the conclusion that this rule being astronomically expensive, 
it is going to impose crushing operational administrative 
burdens on oil and gas drillers. Your agency says that is not 
the case. I would like to know how you came up with your 
estimates, and I want you to answer, did you just make these 
estimates up to make the rule look more affordable?
    Mr. Kornze. Ranking Member, I appreciate the question. We 
have a team of very accomplished economists that look at 
publicly available information, that work with our engineers in 
the field, and use our knowledge from the ground, that look at 
publications from journals, that take information from the 
Energy Information Administration, that look at API documents. 
These are professional documents that are put together, with 
some significant effort and significant review, including at 
the Office of Management and Budget, where economists look at 
them over there. So we feel very good about the product that we 
have put forward.
    Mr. Lowenthal. Thank you. Again, Director Kornze, this is 
my last question for this--we have heard here, and my colleague 
from Wyoming is very proud of the strong fracking rules her 
state has implemented. There is concern that once the BLM rule 
goes into effect, these strong rules would be overturned. I 
could certainly understand her concern if that was the case.
    But let's say your rule went into effect tomorrow, the 
litigation was completed. Would a company drilling on Federal 
land in Wyoming need to stop doing those things that the state 
requires, in order to come into compliance with the BLM rule?
    Mr. Kornze. If the company is complying with the BLM rule 
and the Wyoming rule, they are good to go.
    Mr. Lowenthal. So it would be required to comply with the--
as long as it complied with the BLM, the floor, it would be 
required, in Wyoming, to also comply with the Wyoming rule. Is 
that not true?
    Mr. Kornze. As long as they are meeting the floor, they are 
good.
    Mr. Lowenthal. Thank you, and I yield back.
    Dr. Fleming. The gentleman yields back. Dr. Gosar is 
recognized for 5 minutes.
    Dr. Gosar. Thank you very much.
    Councilmember Olguin, you testify, and I quote, 
``Notwithstanding our requests and suggestions, BLM proceeded 
to develop draft proposed regulations in isolation and without 
disclosing its activities to the tribes.'' Do you believe that 
one of the main reasons BLM's final fracking rule is so flawed 
is because the agency didn't adequately consult with the tribes 
to involve them in this rulemaking?
    Mr. Olguin. Yes, I do. And the reason I say that, if I may, 
is being involved in the initial consultation, it was more of 
an invitation to come and listen to what the rulemaking was all 
about. However, it wasn't until later on that the actual true 
spirit of consultation really became evident, that tribes were 
being considered. So, yes.
    Dr. Gosar. Director Kornze, why did the BLM not adequately 
consult the tribes before putting out its over-reaching 
fracking rule?
    Mr. Kornze. Congressman, we undertook a major consultation 
effort with hundreds of tribes across the country. We held 
regional meetings, we held a great number of individual 
meetings. I personally went out to some of these meetings, 
including to North Dakota, where there is very heavy oil and 
gas development, to sit down with tribes. We are always 
striving to do better in the area of consultation. It is 
something that is very important to us.
    Dr. Gosar. So how do you address the Councilman right to 
your left? Are you calling him a liar?
    Mr. Kornze. I don't think we are anywhere near that. My 
point is that we have----
    Dr. Gosar. No, I am very aware of what the Federal 
Government does with tribes and what they consider 
consultation, and it is a far cry from applications that you 
are putting forth, whether it be from health care to now, with 
mineral rights. It is despicable.
    Councilmember Olguin, BLM proceeded to develop the draft 
proposal regulations in isolation without disclosing its 
activities to Tribes--let me skip forward. Then let me restate 
my question, Director Kornze. Why did the BLM not adequately 
consult the tribes before putting its over-reaching fracking 
rules forward?
    Mr. Kornze. So my answer remains the same, that we had a 
very significant consultation effort nationwide, and on an 
individual basis, and on a regional basis, and we are always in 
dialog with tribes. These are important relationships for us. 
We also made changes in the rule that is clarified in our final 
draft, in the rule that was promulgated, laying out where those 
ideas came from, and what changes we made in response to tribal 
concerns.
    Dr. Gosar. Director Kornze, as you know, the BLM proposed 
to consolidate its New Mexico and Arizona state offices. Last 
month, the House Appropriations Committee released the Fiscal 
Year 2016 Interior and Environmental Appropriations Bill, and 
included the strong language and accompanying reporting that is 
stating, and I quote, ``The committee directs the Bureau not to 
consolidate the Arizona and New Mexico state offices, and 
reminds the Bureau that the office consolidation proposals are 
subject to the committee's reprogram requirements.''
    Is your agency still planning to move forward with this 
proposal merger, or will you adhere to the House Appropriation 
Committee's direction?
    Mr. Kornze. Congressman, we are still looking at the 
matter. We are aware of the language. We have heard your 
concerns loudly, we have also heard concerns from the Ranking 
Member of the Full Committee. We are taking that all into 
account.
    As we have stated previously, we have a strong priority in 
pushing resources and positions to our field and district 
offices where that work takes place. In the last 5 years, we 
have lost 1,300 employees, positions in the Bureau of Land 
Management. So we have some large stresses in the organization, 
and I appreciate the work of this committee and your own 
commitment to work with us to find ways to strengthen the 
organization.
    So, all those things are being looked at right now, and we 
will be getting back to you in a formal manner, when the time 
is right, related to that question.
    Dr. Gosar. Councilmember Olguin, thank you again for being 
here. At the preliminary injunction hearing, the judge asked a 
government attorney if he knew what percentage of tribal trust 
lands would have been--which have no regulation of hydraulic 
fracturing. ``If this rule does not go into effect,'' the 
attorney responded, ``I don't know, and I don't know if we 
know.''
    The attorney further continued that, in order to know such 
a number, it would require knowledge of many different tribal 
codes, but that he didn't think that the specific information 
was gathered. When the judge heard this, he responded that, 
``You might want to consult with the Ute Tribe some more,'' to 
which the attorney responded, ``I understand some tribes are a 
little less happy than others.''
    Councilmember, do you have any comment on this exchange, 
particularly in respect of how the attorney stated that some 
tribes are a little less happy than others?
    Mr. Olguin. I am not sure I have the answer to that, not 
being present. If I may have a moment?
    Dr. Gosar. Sure.
    Mr. Olguin. It has been clarified for me. The tribe that 
was mentioned in that conversation was the Ute Indian Tribe, 
which is the tribe out of Utah. We, ourselves, as Southern Utes 
located in Colorado, we actually developed our own hydraulic 
fracturing rule, which, in essence, is--we don't agree with it.
    Dr. Gosar. So one last question. Does the variance 
provision do enough to address your concerns about the final 
rule? Why or why not?
    Mr. Olguin. The variance, we are not even going to seek it. 
And it is really for the reason that we are going to exercise 
our tribal sovereignty, which is the reason why we passed our 
own regulation.
    Dr. Gosar. So, if this rule goes into effect as written--
oh, I am sorry. I yield back the balance of my time.
    Mr. Lamborn [presiding]. Representative Polis.
    Mr. Polis. I thank the gentleman from Colorado, the great 
state of the Southern Utes, for the time. My question is to the 
Councilmember from the Southern Utes, Mr. Olguin.
    I want to thank you for being here. Of course, it is 
critical that Indian Country is a part of these discussions. 
Tribes, like communities, like counties and cities and states, 
should have authority to determine whether or not they want to 
use fracking as an element of their economic development 
strategy, how they want to use it. That is a discussion across 
Colorado. Counties and municipalities in my district and across 
our state are having these discussions, whether fracking is 
something they want to see on their lands and their 
jurisdiction, where and how they want to have it--which brings 
me to an issue that you have been very involved with, Mr. 
Olguin, the issue of sovereignty and local control.
    While my colleagues across the aisle seem to argue for 
those pillars of democracy at times, they continue to act in 
support of state preemption when it comes to the ability of a 
municipality or a county to restrict or ban fracking within its 
bounds.
    My question for you, since you are, of course, a champion 
of sovereignty for your people and the Southern Utes, I want to 
get your opinion on the matter. I think that we should allow 
tribes or states or counties to decide how to implement 
fracking, whether to have it or not, where to have it, and the 
rules under which it occurs. And I want to ask whether you 
agree with that premise, Councilmember, that it should be 
locally determined, as to how and when and if to implement 
fracking.
    Mr. Olguin. Well, as far as me being able to answer that, I 
can only speak for us, as the Southern Ute Tribe. And, yes, I 
honestly feel very truly and wholeheartedly that it is up to 
the Southern Ute Indian Tribal Council to determine what rules 
it will implement, and how those rules will be carried forward.
    Mr. Polis. So if your council didn't want fracking, you 
don't think that the Federal or state government should force 
fracking to occur on your lands. Is that correct?
    Mr. Olguin. Correct.
    Mr. Polis. And, of course, if you do want fracking, you 
want to make sure that it is done in the manner under the 
direction of your council, as opposed to by the Federal or 
state government. Is that correct?
    Mr. Olguin. Yes.
    Mr. Polis. OK. That is certainly consistent with my 
viewpoint. We have, as you know, a problem in Colorado--and 
different counties and cities have differing opinions. There 
are some counties that embrace fracking, like Weld County. It 
is an important part of their economic development strategy. We 
have other cities, like the city of Fort Collins, which I 
represent, which has banned fracking, but is being sued to 
force them to have it, even though they have chosen not to. I 
think that that would be a dangerous precedent, if that 
decision goes the wrong way.
    I think that for all of us to get along, we need to reflect 
the diversity of the country. Of course, on the tribal side 
there will be some tribes that want to embrace fracking, and 
even those tribes will probably limit the areas it occurs. I 
would imagine you might have areas that are ancestral holy 
areas, or burial grounds, where you may not want to have that 
kind of activity, and you will have other areas where you do. 
But that should certainly be left up to you, not entities in 
other areas of the government.
    I do want to go to Mr. Kornze, as well. I want to thank Mr. 
Kornze for being here. We have, of course, some fracking 
regulations. And many are arguing that fracking is safe. But, 
according to recently released data, there are health-based 
rules that are being violated every day with regard to 
fracking. Between 2011 and 2014, the top 20 offending fracking 
companies across the state committed an average of 1.5 
violations a day. That is just in Pennsylvania.
    So, I am not here to argue about whether fracking is safe 
or not, but I want to talk about a series of bills that 
Representative Cartwright, DeGette, Schakowsky, and I have 
introduced, the frack pack, to increase safeguards around 
fracking and, of course, in the belief that they should be 
implemented.
    Now, that kind of action needs to come from this body. But 
if you agree with the premise that fracking, to the extent it 
is done, should be done safely, I want to ask what you can do 
administratively, above and beyond the rules in question that 
are being litigated, to ensure that violating companies and 
decidedly unsafe practices are kept to a minimum.
    Mr. Kornze. Well, thank you, Congressman, for the 
question--we work closely with industry, state regulators, and 
many others, to make sure that, one, we have the best practices 
taking place in the field, and that we are working as a team. 
And also, that when we see violations, that we are addressing 
them. So that, in addition to the long history of Federal 
regulation of oil and gas development on public lands and 
Indian lands, it is a joint cooperative effort that we do to 
address the point you raised.
    Mr. Polis. Now, it is my understanding that inspections and 
compliance are insufficient. Is there anything you can do to 
beef up inspections to ensure compliance of existing rules?
    Mr. Kornze. At this point, we do have a great need that the 
Inspector General and the Government Accounting Office have 
both pointed out. BLM needs to do our job correctly for the 
100,000-plus wells that we have oversight responsibility for. 
We need about 220 inspectors.
    Mr. Polis. How many do you have?
    Mr. Kornze. Right now we have about 160. So we have 
repeatedly, through the years, put forward a proposal in our 
budget to get the funding that we need for that part of our 
program. And I do hope that this year the Congress will grant 
us that part of our program, so that we can do the job when it 
comes to oversight.
    Mr. Polis. Thank you. I yield back.
    Mr. Lamborn. OK, thank you. Before I start my questions, 
let me first say I apologize for not being here earlier. I was 
in another committee, where we had a critical markup on a piece 
of legislation that had to go to the Floor, so that is why I 
was late. But I am so glad that we are having this hearing 
today. Thank you, Director, for being here, and everyone who is 
here, including the gentleman from Colorado.
    And let me also say that we have had many hearings on this 
subject while the BLM was working on this proposed regulation. 
For years, for several Congresses now, we have had a number of 
hearings. We have had field hearings, like one in Denver at the 
State Capitol. And here in Washington, we have had a number of 
hearings. So it is so good that we can continue the scrutiny on 
this important subject.
    With that, I would like to ask Director Kornze a question. 
The rule that you are working on states that one of the goals 
of a final rule is to ``promote the development of more 
stringent standards by state and tribal governments.'' Can you 
tell the committee specifically which states and tribes do not 
have stringent-enough standards?
    Mr. Kornze. Mr. Chairman, good to see you. I had the chance 
to be in your great state a few weeks ago. Look forward to 
going back.
    Our rule--we actually had a similar discussion in the 
Senate when I testified on this matter. We did not take the 
approach to sort of give grades to the states and other 
regulators that are out there. What we looked at is what best 
management practices are. We took in 1.5 million public 
comments on this rule, and we had two draft versions for the 
world to work on with us.
    So, we took a holistic view about where has industry gone, 
where have best practices gone, and what should a basic floor 
be, in terms of standards for Federal lands.
    Mr. Lamborn. OK. With that in mind, then, you are not 
contending that a state like Colorado, for instance, which has 
a very active regulatory regime, has been insufficient in its 
regulations. You've never made a finding like that concerning 
Colorado, did you?
    Mr. Kornze. No, sir.
    Mr. Lamborn. OK, thank you. Then why is it that you feel 
Colorado has to have an additional layer of regulation, if you 
haven't found them to be lacking in some way?
    Mr. Kornze. When it comes to regulated oil and gas, the BLM 
has, for instance, we have updated more than 40 different 
regulations--well, excuse me, almost 40 different regulations 
since the 1980s for the oil and gas program. So, not only have 
we been regulating a complex oil and gas regime on public 
lands, on tribal lands, but we have continuously been updating 
that system.
    So, the concept that this update is any different than 
those before, I think, is difficult to get my arms around, in 
that this is a--as industry progresses, our regulation 
progresses, to make sure that we are matching robust 
development with responsible protection of the public lands.
    Mr. Lamborn. OK. Getting back to Colorado as an example, 
because I am most familiar with that. If they were already 
doing an adequate job--I mean you are not saying that they were 
dropping the ball in some tangible, specific way--then why were 
they not allowed to continue on doing their regulations, and 
you only stepping in to states that were not doing a good job?
    Mr. Kornze. Well, as we interact with the public on this 
issue, we received many, many requests--and folks like the 
Secretary of Energy's Advisory Board over at DOE and others, 
have pointed to the fact that there needs to be a serious 
upgrade in the regulations that the Federal Government has, 
when it comes to hydraulic fracturing, to address modern 
practices. The last time that our regulations on this issue, 
which I think the professor well pointed out, regulating on 
stimulation has stretched back to the 1940s, so there is 
nothing new about this.
    But in terms of the last regulatory upgrade on the BLM 
side, that was in the 1980s, and we have seen a huge change in 
the industry in the late 1990s and early 2000s related to the 
use of hydraulic fracturing and horizontal drilling. So we are 
excited about the energy development that comes with that, we 
are excited about the additional progress for western 
economies. But at the same time, we need to make sure that we 
have the rules of the road in place to make sure it is done 
safely. There have been a lot of concerns on the part of the 
public, and so we are working to balance that situation.
    Mr. Lamborn. Now, let me point out for the record that the 
1940's regulation you talked about was just a notice, a 
requirement of notice. It wasn't a full-blown regulation.
    So, if states like Colorado were acting in the presence of 
a vacuum, you might say, by BLM, and you don't allege that they 
were doing anything wrong, why did you not allow them or 
responsible tribes, like the Ute Indians, why were they not 
allowed to continue with responsible regulations, and you only 
regulate those states that did not have regulations in place, 
or had poor regulations in place? Why didn't you give them that 
right?
    Mr. Kornze. Well, the way it works with states like 
Colorado, is Colorado looks at modern practice, and they update 
their regulations on a regular basis, similar to us. We update 
our regulations as practices change. The tribe, I understand, 
in the last few weeks has updated their regulations. So this is 
a system that is ongoing, and it is a cooperative, broad 
relationship that has existed and will continue to exist.
    Mr. Lamborn. OK. Now, with everyone's indulgence, I am 
going to ask a 30-second question of Mr. Hetrick. And I have to 
be leaving, I won't be able to stay until the end of the 
hearing for the second round, so I apologize.
    But, Mr. Hetrick, what happens economically with drillers 
and producers when they have two layers of regulation to deal 
with, Federal and state, as opposed to just a responsible state 
like Colorado only?
    Mr. Hetrick. Well, in 2014, in the state of Utah, we 
submitted about 250 permits under BLM jurisdiction, and we got 
completeness letters for 248 of them. So for all but two we 
were complete within 10 days, and we received their 
acknowledgment for it. But the approval time was from 180 to 
270 days for those Federal permits, where on the state side we 
get the approval in weeks.
    So, because of the additional lead time to get approval for 
these permits, we have to request additional ones to cover 
operational options that may happen 6 or 9 months down the 
road.
    Mr. Lamborn. OK, thank you very much. The Chair now 
recognizes Representative Cartwright.
    Mr. Cartwright. Thank you, Mr. Chairman. I would like to 
yield for a moment to Mr. Polis of Colorado.
    Mr. Polis. I just wanted to clarify that the sentiments 
expressed by the Chair are far from universal in Colorado. I 
think the majority of Coloradans believe that we have, 
effectively, no regulations around fracking, because we don't. 
We have an outdated patchwork from the 1950s. No meaningful 
state safety regulations. We welcome any Federal floor. I have 
expressed the same to Secretary Jewell, because we are an 
example of a state that has, effectively, no regulations around 
fracking safety.
    And I will yield back to the gentleman from Pennsylvania.
    Mr. Cartwright. Thank you, Mr. Polis.
    Mr. Chairman, every time we have a hearing on this subject, 
the Majority gets somebody to say that there is no proven case 
of fracking contaminating a water supply. That is a semantics 
game, since there are plenty of cases of oil and gas drilling 
contaminating water supplies.
    EPA highlighted instances of casing or cementing failures 
that led to drinking water contamination in Ohio, North Dakota, 
and Colorado. It found that 600 wells drilled in 2009 and 2010 
did not have cement covering, supposedly protecting groundwater 
resources, leaving them at high risk for contamination.
    Now, I am from Pennsylvania. Pennsylvania groundwater 
contamination has been linked to leaky, failing, or improperly 
designed casings. And there are cementing casings or well 
construction violations at 3 percent of all shale gas wells.
    In 2013, there were nearly 600 documented cases of 
wastewater and chemical spills in Pennsylvania. The EPA 
estimates that there are as many as 12 chemical spills for 
every 100 oil and gas wells in Pennsylvania, of which there are 
almost 8,000 currently operating gas wells in the Commonwealth. 
While well construction problems, leaky pits, or surface spills 
undeniably cause water contamination, the Majority always falls 
back on the fact that no one could point to a case where 
contamination was due to the fracking part of the process 
itself.
    But just 2 months ago, a paper in the proceedings of the 
National Academy of Sciences studied a contaminated aquifer in 
Pennsylvania and found ``the most likely explanation is that 
stray natural gas and drilling, or hydraulic fracturing 
compounds, were driven 1 to 3 kilometers along shallow to 
intermediate-depth fractures to the aquifer used as a potable 
water source.''
    More importantly, it doesn't matter to the family whose 
water is undrinkable whether that is due to fracking, a poorly 
built well, or a spill. It is all related to the fracking 
activity.
    If we are going to move forward with fracking as part of 
the solution under the all-of-the-above energy strategy, we 
need to make sure that the process, the entire process, is 
safe, from start to finish.
    Professor Wiseman, could you tell us briefly about some of 
the problems that you are aware of that oil and gas activities 
surrounding fracking, in addition to the frack itself, pose to 
drinking water supplies?
    Ms. Wiseman. Thank you, Congressman Cartwright. In addition 
to the Environmental Protection Agency incident that I 
mentioned previously in North Dakota, in which the incident 
appears to have occurred during fracturing and appears to have 
potentially sent chemicals into groundwater, as you mentioned, 
there have been multiple instances of the casing of the wells 
having problems with integrity.
    I refer to those instances in my written testimony, several 
examples from the state of Pennsylvania noted by inspectors: 
December 2010, methane migrated to the surface through cement 
in the 9\5/8\-inch annulus; Bradford County, Pennsylvania, 
initial complaint water well shows methane levels increased 
from non-detectable to 82.7 milligrams per liter; Chesapeake 
caused or allowed gas from lower formations to enter fresh 
groundwater.
    You also mentioned spills. I believe there have been more 
incidents of spills noted than of well integrity problems, 
spills of flowback fluid, as well as hydraulic fracturing 
chemicals. In 2013, one paper estimates approximately 439 
flowback spills in Pennsylvania. Those are several examples 
from the literature.
    Mr. Cartwright. Well, thank you, Professor. I think this 
really emphasizes the need to have and enforce strong 
regulations at all levels. When you are dealing with public 
health and safety, you shouldn't have to wait for the Deepwater 
Horizon-like disaster to happen before implementing prudent 
precautionary regulations.
    We don't have a widespread systemic problem with plane 
crashes in this country, but we have strong aviation 
regulations designed to prevent that and protect public safety. 
I think drinking water is just as important. I yield back.
    Mr. Bishop [presiding]. Thank you.
    Mr. Gohmert.
    Mr. Gohmert. Thank you, Mr. Chairman. I think we have 
highlighted what are the problems that most Americans have with 
the Federal Government. Comments along the lines that it 
doesn't matter whether pollution is the result of fracking or 
casing or whatever; if it is polluted, it doesn't matter. See, 
that is a problem. Because for some of us who care deeply about 
the poorest in our country that cannot afford to pay their 
energy bills, and cannot afford to have a government over-reach 
and put regulations that raises the cost, that make them decide 
between gasoline and food, it does matter.
    And I thought when we got an EPA study back that said--and 
this was a multi-year, exhaustive study, and it was one that 
Secretary Salazar, sitting where you guys are, actually was 
commenting on in this room. I kept asking him, ``Is there any 
study that directly shows that hydraulic fracturing has 
polluted groundwater,'' and he kept beating around the bush 
several times. Finally he had to say, ``No, there is not, but 
the EPA is doing an exhaustive study and we don't have that 
back yet.''
    Well, we got it back. And it says that fracking has had no 
widespread systemic impacts on drinking water resources in the 
United States.
    Mr. Kornze, your testimony claims the rule ``establishes 
requirements designed to prevent problems with complex 
hydraulic fracturing regulations.'' Well, there is no problem 
that existed.
    Secretary Salazar said, ``We haven't found one yet, but 
hold on, the EPA is out there studying, and they will tell us. 
We think they will find something.'' Well, they didn't. Yet you 
come in with your regulations that are going to raise the cost 
of gasoline, of all kinds of things that the poorest in this 
Nation need just to get by, and you don't care, because it 
doesn't matter to you whether the pollution comes from fracking 
or casing or some other problem. Well, it matters to the 
poorest in this country, whether they are going to be able to 
buy food or gasoline.
    I know, apparently, it doesn't matter to you. So you come 
in here with these kinds of robust regulations, and you really 
are a solution in search of a problem, because the problem has 
been found not to exist with fracking. I would think that most 
Americans would say, ``Wow, this fracking that is allowing us, 
if we will pursue it, to be energy independent, is a gift for 
those who believe in nature's God. Wow, nature's God has given 
us a gift,'' probably the only country in the world that has 
all the different energy and minerals that we have. And then 
you come in, in search of a problem with your solution. And it 
is outrageous.
    When we look at the production from Federal lands and how 
it has dramatically dropped compared to the energy being 
produced from private lands, it is staggering what you have 
done.
    Did you not care that the EPA found there was no 
groundwater problems with fracking, Mr. Kornze?
    Mr. Kornze. Well, sir, I appreciate the opportunity to 
answer.
    Mr. Gohmert. Oh, I bet you do.
    [Laughter.]
    Mr. Kornze. Our goal is to make sure that we have robust 
energy development on public lands, and it is done safely.
    Mr. Gohmert. Wow. Then I wish you would have robust 
concerns about not having energy development, and maybe it 
would start going up instead of going down. Your concerns are 
about to destroy energy on public lands.
    Let me ask you, though. Isn't it true that the states 
control use of water--this is the old adage--and the Federal 
Government is supposed to control the quality of water? Isn't 
that right?
    Mr. Kornze. Well, sir, on the----
    Mr. Gohmert. Do you agree with that old adage?
    Mr. Kornze. On the production point, I think it is 
important to point out that during this Administration, oil 
production on public lands has gone up by roughly--on public 
and tribal lands, which you need a BLM permit for both--about 
80 percent. So we have gone up dramatically, so----
    Mr. Gohmert. Well, you are going to have to show me those 
numbers, because the numbers I have officially show that we are 
down. Let's see, the total Federal production percentage of 
U.S. total was at 36.4 percent in 2010. After your robust 
regulation, now it is down to 21.4. Quit helping the energy 
industry and it will do a lot better. I yield back.
    Mr. Bishop. Thank you. Mr. Grijalva, you are too far away 
down there for me to say sarcastic things to you. I am just 
going to have to do it by telepathy. But you are also 
recognized for 5 minutes.
    Mr. Grijalva. And with that telepathy, thank you, Mr. 
Chairman. You started way early.
    [Laughter.]
    Mr. Grijalva. I have been catching them for a while.
    Mr. Kornze, just a couple of questions. Yes or no, do you 
really care about poor people?
    [Laughter.]
    Mr. Grijalva. My question is the poorest in our Nation are 
also very concerned about the health and safety of themselves 
and their families.
    Mr. Kornze. Yes.
    Mr. Grijalva. And, as a Member here that felt you didn't go 
far enough in the rule, the fact remains that you set a floor 
here. And, in that floor, my question is--you hear constantly 
that industry, left to its own devices, will take care of 
everything and go forward, and they will expedite, they will be 
able to get more out, faster, lower cost, the consumer will 
benefit, and there will be no environmental problems, there 
will be no health and safety problems. It will never be 
anything that happens that we would consider to be a hazard to 
the health and safety of the American people.
    Now, the states say, ``We do a much better job.'' Do you 
believe the states have demonstrated that there is no need for 
any Federal rule here, or are there ways that this rule can 
actually help states improve what they are doing, in terms of 
how they are regulating?
    And, in terms of industry, should they be the only ones to 
be the sole arbitrators of what gets done and what doesn't get 
done, in terms of regulation? In other words, have none?
    Mr. Kornze. OK. Well, thank you, Ranking Member. So I think 
two points on that.
    One is that this body has given us responsibility to have 
oversight responsibility for oil and gas development on public 
and tribal lands. That is established in law. So, we are 
working on that, we are proud to carry that obligation, which 
has been given to us by Congress.
    Related to making sure that this is done appropriately, I 
think the EPA study has pointed out for us that there are many 
things that we can all be doing better. So, I think as more 
information comes forward, there is a lot for us to learn, and 
there has been a major transformation in the extractive 
approach to oil and gas in recent years, and we need to adjust 
with it to make sure that we can continue in that direction, 
and that we are making sure it is done safely and responsibly.
    Mr. Grijalva. Thank you. One last question, Mr. Chairman.
    Mr. Councilman, as the whole question of trust 
responsibility and sovereignty for native nations evolves in 
this country, both in law and in practice, the issue of 
sovereign governments, native nations being able to have both 
regulatory control over their resources and both--control over 
the resources, including this instance, regulation, I 
fundamentally don't have a problem with that concept, because I 
believe in it. I think sometimes Congress uses it 
situationally. In one area, and this one, sovereignty is good. 
In other areas, the issue of sovereignty becomes problematic to 
people, whether it is the protection of a sacred site and other 
things, that becomes a problem. In this instance, it is OK, and 
we agree on that.
    My question to you, as a representative of tribal 
government and your people, is that when the self-determination 
comes into a regulatory scheme, and you are regulating the 
fracking that is occurring on your own land, as a sovereign 
decision, do you see right now what the government is doing as 
an intrusion? I understand that. But, in terms of standards and 
levels of regulation for health and safety for your members, 
how do you see that as an exercise of sovereignty, in terms of 
what regulations you put down?
    Mr. Olguin. As a person sitting on tribal council, it is 
our sworn duty to protect our people, protect our land, and our 
resources. And with that, we do exercise sovereignty on a daily 
basis, just in the decisions we make. We have to ensure that we 
do that in a manner that is in perpetuity, as well.
    Mr. Grijalva. Got it.
    Mr. Olguin. We have to exercise these rights that were 
given to us, and we maintain those rights. It is a constant 
battle, dealing with whatever issue it is, because we as a 
governing body, we decide for our own people, and we emphasize 
that.
    Mr. Grijalva. You are self-determined--the regulatory 
scheme that you would use on tribal land, that would be 
transparent, public, members would know about it. It would be 
something that the council would, in their exercise of their 
role, make available to all the members----
    Mr. Olguin. Yes, we make all our rules and all our laws----
    Mr. Grijalva. Yield back, thank you.
    Mrs. Lummis [presiding]. The Chair now recognizes herself 
for 5 minutes. I want to start by saying, I am not an apologist 
for the oil and gas industry. I was raised next to a refinery, 
right next to a refinery. And I am glad that RCRA exists, 
because that law was necessary for us to enforce or stop the 
migration of hydrocarbons from that refinery onto our adjacent 
private land. And I am glad that regulations exist so surface 
owners who don't own their mineral rights can protect their 
surface estates, because I am in that situation, and had a bad 
experience with an oil company who signed a surface agreement 
and then violated it and damaged our surface.
    So, believe me, I am not an apologist for the oil and gas 
industry. But I am an advocate for my state. And the state of 
Wyoming has done a wonderful job creating a national model for 
fracking regulations.
    I am sorry that Tom Fitzsimmons, who is a Commissioner on 
the Wyoming Oil and Gas Conservation Commission, couldn't be 
here today. His plane was canceled, due to weather. But I used 
to be on the Oil and Gas Conservation Commission in Wyoming, so 
I will do my best to fill in.
    Mr. Kornze, the Wyoming Oil and Gas Conservation 
Commission, which has rules and regulations that Secretary 
Jewell and you have applauded and held up as good examples of 
fracking regulations, they sent you a letter on May 29, 2015. 
They had requested a variance from the Federal BLM rules, 
because of Wyoming's superior regime for regulating fracking. 
They haven't heard from you. When do you intend to respond to 
that letter?
    Mr. Kornze. So, Chairwoman, good to see you. Related to 
that specific letter, I mentioned in the opening that one of 
the things that has happened as a result of the postponement of 
the effective date of the rule is that we have had to put a 
pause on some activities like that one, related to giving any 
sort of official endorsement that would be part of carrying out 
the regulation.
    Mrs. Lummis. Well, let me point out that this May 29 letter 
to you includes a statement by the Wyoming Oil and Gas 
Conservation Commission Supervisor, and I quote, ``There have 
already been several cases of Federal minerals being excluded 
from drilling and spacing units, due to the length of time it 
takes BLM to approve an application for a permit to drill.''
    When you have an oil and gas unit, and they drill down, and 
then they drill horizontally, they are drilling under fee land, 
under state land, under Federal land. And they are also 
fracking under those lands. If there is no opportunity for the 
state of Wyoming to regulate that fracking, which covers 
multiple landowners, it causes serious problems.
    Now, considering the fact that Wyoming has a superior 
regulatory regime, can we expect you to give Wyoming a 
wholesale variance, so it can continue to regulate fracking in 
my state?
    Mr. Kornze. We look forward to continuing--when the 
postponement is lifted, when the stay is lifted, we look 
forward to continuing those conversations. Beyond that, today I 
am limited with what I can say on that matter.
    Mrs. Lummis. Let me ask, Mr. Kornze, are you engaged in 
discussions with other states about potential variances?
    Mr. Kornze. I would say there are background conversations 
taking place in some places. But in terms of formalizing any of 
those understandings, we are not in a position where we can 
formalize anything.
    Mrs. Lummis. Are some of those states that you are having 
background conversations with states that are involved in the 
pending litigation over the rule?
    Mr. Kornze. Well, there has been some discourse between 
your state and the Bureau of Land Management.
    Mrs. Lummis. What about other states that are involved in 
pending litigation over the rule?
    Mr. Kornze. I would have to check with my team.
    Mrs. Lummis. What about states that aren't involved in the 
litigation?
    Mr. Kornze. Again, if you wanted specifics, I would have to 
go back and visit with my team.
    Mrs. Lummis. Can you provide me with that information?
    Mr. Kornze. What is it, specifically, that you are looking 
for?
    Mrs. Lummis. I am interested in knowing whether you are in 
discussions with states, other states, states other than 
Wyoming, during the pending litigation over the rule. I am 
interested in knowing whether you are talking to both non-
litigants and litigant states about variances regarding the 
rule.
    Mr. Kornze. We can certainly check into that and follow up 
with you.
    Mrs. Lummis. Thank you kindly. And I would like to enter 
for the record this copy of the May 29 letter from the Wyoming 
Oil and Gas Commission to the Acting State Director of the 
Wyoming BLM.
    [No response.]
    Mrs. Lummis. Without objection, so ordered.
    I will now recognize the gentleman from Michigan, Mr. 
Benishek.
    Dr. Benishek. Thank you, Madam Chair.
    Well, thanks for being here this morning. I just have a few 
questions.
    Mr. Kornze, did the BLM give any consideration to the 
economic impact that would result from imposing these 
regulations?
    Mr. Kornze. Yes, we do have a regulatory impact analysis, 
which is designed to do exactly that.
    Dr. Benishek. So what was the impact?
    Mr. Kornze. In terms of the cost of fulfilling the 
regulation, the average came out to, per average operation, 
about--well, let me first put this in context. You know, each 
well that a major operator drills is usually going to cost 
between $5 million and $10 million. We came out that the 
average cost of implementation of this rule would be an 
additional about $11,000. So less than one-quarter of 1 percent 
of even the low estimate of the drilling cost.
    Dr. Benishek. Mr. Hetrick, do you agree with that?
    Mr. Hetrick. No, sir, I don't. No, sir. That wouldn't apply 
to my company, the amount of additional time on the front end 
to prepare the application would easily surpass that.
    There are operational uncertainties that have a much 
greater dollar value, anywhere from a few hours of operational 
downtime, which could be tens of thousands of dollars an hour, 
all the way up to the cost of a well that we drilled but were 
not allowed to complete, using hydraulic fracturing, because we 
couldn't provide either the cementing assurances, the records 
for the cementing assurances, or we had a disagreement on a 
cement evaluation log, the CEL, that our interpretation of the 
results of the log differed from theirs----
    Dr. Benishek. Let me ask you this, then, Mr. Hetrick. Did 
you or others that you may know of have any input to this 
economic analysis by the BLM?
    Mr. Hetrick. We had lots of opportunities to discuss this 
with Mr. Kornze and others. They were very generous with 
allowing us access to the fundamentals of the rule, the 
mechanics of the rule.
    I did not engage on the economics, this was a part that we 
submitted comments through trade associations and individually, 
but I don't recall specifically providing any information on 
the economics.
    Dr. Benishek. Mr. Kornze, can you give me the names of 
those people that told you that it cost $10,000 a well, and 
only less than 1 percent? Could you provide me with that 
information?
    Mr. Kornze. Well, the----
    Dr. Benishek. No, I am asking you to get me the names of--
--
    Mr. Kornze. I can tell you the key person is our Assistant 
Secretary that signs the regulation and all the company 
documents. That is----
    Dr. Benishek. But I am asking you--people like Mr. Hetrick 
here must have given you some input on this economic analysis 
that you have done, right? I am asking for the names of those 
people that gave you the information that it cost less than 1 
percent of the cost of a well to do this. Can you provide me 
with that information?
    Mr. Kornze. We will be happy to provide you with our 
analysis that lays all that out.
    Dr. Benishek. All right. Thank you very much.
    Mr. Olguin, I understand you are the Council Member for the 
Southern Ute Tribe. Could you maybe elaborate a bit about the 
BLM's imposition of regulations, and how you feel that has 
imposed on your tribe's sovereignty, if at all, or--tell me a 
little more about that, because I missed some of the testimony.
    Mr. Olguin. The regulations itself, which is why we had to 
develop our own, definitely creates delays in respect to the 
pre-approval process. And those delays--it creates uncertainty 
for producers. When we are looking at that, we want to ensure 
certainty so that people are actually producing oil and gas on 
our reservation, and certainty is a key component, when it 
comes to budgeting for these wells.
    And, depending on the BLM through the rules, there is no 
guarantee that a decision would be made in a timely manner. 
That is the reason that we went in with our regulations, to 
state that we will have a 48-hour notification, which in 
essence, they tell us what they are going to do, they do it, 
and then we get their final reports, which is one of the big 
differences. We are providing that certainty to them, as far as 
the operator.
    Of course, the cementing, as well, where we are requiring 
the cementing to be from the different casings to the surface, 
to get rid of this component of the usable water, as far as 
zoning those out.
    Dr. Benishek. Right. Thank you.
    Mr. Hetrick, one more question, while I have the time. Can 
you tell me about the impact this regulation has had on local 
and state government revenues from energy producers? Do you 
have any comment on that?
    Mr. Hetrick. I have been given information. I provide it in 
my written testimony. I would just have to read it from my 
written testimony, but I am aware of the state of Utah a year 
ago had some 26 rigs running, and now has 6 or 7. Certainly the 
revenues, the royalties, all of the economies that flow from 
that have stopped. So it is not a good impact.
    But I am not implying this is the result of the BLM rule. 
It is the global commodity price collapse. But where the BLM 
rule is coming in, it is making it more difficult, when prices 
do come up, to re-enter those low-margin basins because of the 
uncertainty. So we are not blaming BLM for the collapse, but 
the re-entry will be more difficult.
    Dr. Benishek. Thank you. My time is up.
    Mr. Bishop. Thank you. This committee will end shortly 
here, so you can be grateful. You also realize we are two 
chairman changes away from actually setting a record.
    [Laughter.]
    Mr. Bishop. That is just not going to work here, I 
apologize for that. I still have two more to go here.
    I appreciate all of you being here. I know, Director 
Kornze, that you would rather be elsewhere than here at this 
hearing, to which I would simply say, ``Quit making dippy 
rules, and you won't have to show up here at all, it is no 
problem.''
    I do have a couple of questions for you, if I could. In 
your prepared statement, you quoted that the BLM's overall 
intent for coordinated efforts with the state is to minimize 
duplication and maximize efficiency. And you also said that 
some activities have been--implementation of the rules have 
been temporarily paused as a result of litigation.
    Let's assume we can go back in time. It is June 23, before 
the judge has put on that stay for the rule. I know Colorado 
was still waiting for their variances. And, as I understand, no 
other state actually had variances in place on June 23, did 
they?
    Mr. Kornze. No. You are correct, sir.
    Mr. Bishop. OK. I understand from other testimony--North 
Dakota also said they needed 14 new hires to be able to 
successfully implement the law. They were not actually 
implemented or hired, were they?
    Mr. Kornze. Our rule identifies that we would need about 14 
additional FTEs.
    Mr. Bishop. Yes. They weren't there, though.
    Mr. Kornze. Well, we have a flexible system, and we move 
where we need to, like when we have to push additional bodies 
to high-volume offices.
    Mr. Bishop. The bottom line is still they weren't there.
    Mr. Kornze. [No response.]
    Mr. Bishop. OK. And----
    Mr. Kornze. We certainly need more support for our oil and 
gas program.
    Mr. Bishop. You certainly do. And instructional memoranda 
sent to state offices advising them of implementation rules, 
that did not exist on June 23, either, did it?
    Mr. Kornze. We have the rule itself, which is----
    Mr. Bishop. You didn't have the instructional memoranda 
with it, did you?
    Mr. Kornze. There were no----
    Mr. Bishop. OK.
    Mr. Kornze. No.
    Mr. Bishop. So, at the time just before its implementation, 
there were no variances that were out there, the number of 
people were inadequate. There was no clear guidance to the 
districts. And some states, like my state, which I think had 
been doing an excellent job in ensuring protection of the 
environment with hydraulic fracturing, basically felt insulted 
by that concept.
    Now, before this rule was actually proposed, prior to that, 
the states were regulating hydraulic fracturing on Federal 
lands, right?
    Mr. Kornze. As was BLM.
    Mr. Bishop. The law says the Federal agencies cannot 
delegate regulatory authority to states without a specific 
statutory approval. What do you claim is that specific 
statutory approval?
    Mr. Kornze. Could you restate the question?
    Mr. Bishop. You can't delegate regulatory authority. You 
can be involved in the process, but you can't delegate 
regulatory authority, without specific approval to do so. What 
do you claim is the specific statutory authority allowing BLM 
to delegate regulatory authority to states?
    Mr. Kornze. I am not sure I fully grasp the question, but 
our authorities are found in FLPMA and in the Mineral Leasing 
Act and in the Indian mineral leasing statutes.
    Mr. Bishop. Yes, and none of that does the delegation of 
regulatory authority, which I understand, because that 
authority simply does not exist. And there are some reasons why 
the states have been doing it, and it could relate to states' 
ownership of the groundwater, that has been proposed here 
before.
    But in any event, either the states have the right to 
regulate hydraulic fracturing before this rule, or because this 
rule does not give them that legal change. So either they have 
the right to regulate them before this rule, or BLM simply was 
negligent for decades in not doing its job in regulating the 
fracking by itself.
    Mr. Kornze. The BLM has had hydraulic fracturing 
regulations since the 1980s.
    Mr. Bishop. Regulatory regulations?
    Mr. Kornze. Yes.
    Mr. Bishop. And from which of those specific catalog of 
bills that you told me earlier gave you that right of 
regulatory fracking authority?
    Mr. Kornze. We can give you the reference after the 
hearing, but----
    Mr. Bishop. All right. I will look for that, too. Let me 
use my last minute of this hearing, actually, just to go and to 
follow up. I appreciate you meeting with me the other day. I 
asked you some questions about some of the correspondence we 
had. I want you to know it is my goal to try and work with the 
Department of the Interior to make sure that we can minimize 
the requests that we have. But, in addition, I've got to get 
something back.
    So I told you about the references. I didn't tell you the 
specifics. It was between DOI and the Border Patrol--their 
correspondence since January of 2014. You all sent us 3,600 
pages. Included in that was an ecological study going back to 
the Bicentennial. You sent us another one about how astronauts 
were trained in the Southwest between 1963 and 1972. You gave 
us a copy of a wilderness study EA from 1983 that came from the 
University of Minnesota library. You also gave me--the only one 
that actually did fit that time frame was celebratory, about 
regarding a party that was going to be established after the 
Oregon National Monument was identified.
    I am sorry, that stuff didn't get to us. I ask you if you 
would actually do that. It seems to us as if we are almost 
being inundated with things that are in-your-face saying, 
``Screw you, we are not going to give you the material that you 
want.'' If you guys will work with us in getting those 
materials, I want to try and work with you all, and try to 
limit the kind of requests that we have.
    The same thing happened with the request for data from the 
BLM, the Rawlins field office that dealt with bonding. The 
question was, ``Were those bond instruments always in BLM's 
possession, or were they replaced? '' The data that we got back 
from you simply said you've got them now, but it didn't go back 
to what the actual question was, did you actually have them or 
not.
    So, once again, I am going to ask the question. And this is 
not just for BLM, this goes for the entire Department. We are 
having a difficult time, when we request information, of 
getting accurate information. So I would request once again, 
especially from BLM. If we are going to ask you for that data, 
you know, I appreciate you helped astronauts in 1963, but that 
is not what we needed to know.
    With that, I would ask if there are any other questions, 
but I am the only one left here.
    [Laughter.]
    Mr. Bishop. Unless you want to ask a question of me, and 
no, you don't have the authority to do that, statutorily or 
not.
    With that, I want to express to the four witnesses my 
appreciation of you coming here, spending the time with us. It 
is very kind. I know that the Members, as you saw from those 
who came in, a whole lot came in to ask questions. It was a 
significant issue for them. I appreciate you spending the time 
doing that.
    And I need to say something just in ending, that you have 
10 days to do something. We may have other questions for you, 
as you well know. And the official words are--I already thanked 
you for your valuable testimony--members of the committee may 
have additional questions for witnesses, and we will ask you to 
respond to these in writing. Under Committee Rule 4(h), the 
hearing record will be open for 10 business days for these 
responses.
    So, if there is no further business, without objection, the 
committee will stand adjourned. Thank you.

    [Whereupon, at 12:25 p.m., the subcommittee was adjourned.]

            [ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]

  Prepared Statement of the Hon. Matt Cartwright, a Representative in 
                Congress from the State of Pennsylvania
    BLM is currently working toward implementation of a rule that would 
modernize horribly outdated oil and gas regulations on Federal land. We 
must allow the BLM to proceed with implementing this rule to provide a 
national baseline to protect our environment, our water, and our 
Federal land from hazardous contamination.
    Since the 1980s, the scale and impacts associated with the oil and 
gas industry have grown dramatically, but BLM's fracking regulations 
have not kept pace. In March 2015, the BLM finalized a modest, common-
sense rule to update its 30-year-old fracking regulations. With these 
updates, the BLM is taking responsible steps to improve well integrity, 
reduce the impact of toxic wastewater, and increase transparency around 
chemicals used in the fracking process. Importantly, the new 
regulations will not impact states with robust fracking regulations and 
will simply set a regulatory baseline for the states without fracking 
regulations. Notably, in 2013, there were still 19 states with 
operating fracking wells that had no hydraulic fracturing regulations 
in place.
    Presently, over 90 percent of the more than 2,500 oil and gas wells 
drilled each year on federally managed lands utilize hydraulic 
fracturing. And just this month, the EPA released a draft report that 
concludes that there are above and below ground mechanisms by which 
hazardous hydraulic fracturing chemicals have the potential to impact 
drinking water resources.
    Because of this, the Federal Government must take the necessary 
steps to ensure that toxic and carcinogenic fracking chemicals do not 
contaminate America's water supply, streams, rivers, and lakes.
    The fracking fluid injected into oil and gas wells contain 
thousands of chemicals, many of which can harm humans and the 
environment. If fact, the EPA identified over 1,000 different chemicals 
that have been used during hydraulic fracturing process, with an 
estimated 9,100 gallons of chemicals used for each well.
    Due in large part to fracking loopholes and outdated oil and gas 
regulations, fracking chemical spills and water contaminations have 
occurred. In my home state of Pennsylvania, there were nearly 600 
documented cases of wastewater and chemical spills in 2013 alone. In 
fact, the EPA estimates that there are as many as 12 chemical spills 
for every 100 oil and gas wells in the state of Pennsylvania.
    Chemical and wastewater spills associated with fracking operations 
harm the environment and have been found to contaminate surface water. 
The EPA's draft study found that 8 percent of studied wastewater spills 
polluted surface or groundwater.
    In addition to chemical spills, improper well construction can lead 
to harmful pollution. The EPA has highlighted instances of casing or 
cementing failures that led to drinking water contamination in Ohio, 
North Dakota, and Colorado. It found that 600 wells drilled in 2009 and 
2010 didn't have cement covering supposedly protected groundwater 
resources, leaving them at high risk to contamination. In Pennsylvania, 
groundwater contamination has been linked to ``leaky, failing, or 
improperly installed casings,'' and there are cementing, casing, or 
well construction violations at 3 percent of all shale gas wells.
    Thankfully, the BLM's rule will help prevent fracking chemicals and 
wastewater from contaminating water bodies. It does so by validating 
the integrity of fracking wells and increasing the standards for 
storage and recovery of waste fluid. The rule will require companies to 
publicly disclose the chemicals being pumped into public lands.
    I do not think that the new rule will fix all problems related to 
fracking. There is no reason that oil and gas development, including 
development which involves fracking, should be exempted from our 
country's landmark environmental laws. That is why I introduced the 
FRESHER and CLEANER Acts, which would require oil and gas development 
to comply with the Resources Conservation and Recovery Act and the 
Clean Water Act. Though legislation like this is required to further 
safeguard public health and safety, this rule is a good start.
    I am not opposed to fracking, and I believe we must utilize our 
natural resources. But we must do so in a careful manner. There are bad 
actors in the oil and gas business that cut corners and do not drill 
and frack properly and safely. The states unfortunately do not all have 
the expertise and resources to properly manage this exploding industry. 
While this rule will set a relatively low bar, it is one which ensures 
a baseline across the country to protect our public lands, and should 
be implemented.

                                 ______
                                 

[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S 
                            OFFICIAL FILES]

  --  May 29, 2015--Letter from the Wyoming Oil and Gas 
            Conservation Commission to the BLM Wyoming Office 
            requesting a variance from the regulatory provision 
            in each of the rule's sections.

                                 [all]
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