When the U.S. Congress first passed the Safe Drinking Water Act (SDWA) in 1974, it authorized the U.S. Environmental Protection Agency (EPA) to develop a program to protect vital under- ground drinking water resources from risks of industrial activities in which fluid is injected
into the ground. However, Congress also included language mandating that EPA not “interfere with or impede” oil and gas production unless it is “absolutely essential” in order to protect underground sources of drinking water.
The regulatory and legislative history of the SDWA Underground Injection Control Program (UIC) demonstrates the impact of this language on the UIC program’s evolution. The UIC program regulation of oil and gas underground injection activities is characterized by a pattern of exemptions, exceptions and lack of transparency resulting from the effort not to “interfere with or impede” oil and gas activities. Combined with “flexible” regulatory oversight added by Con- gress in 1980 and a dramatic record of under- funding, this raises questions about whether underground sources of drinking water are being protected.
As the 40th anniversary of the passage of SDWA approaches, changing circumstances suggest that review of the UIC program regulation of oil and gas underground injection activities is merited. Forty-four percent of Americans rely on groundwater for drinking water from Public Water Systems and private wells. This critical resource is stressed by drought, impacts of climate change and excessive withdrawal for human and agricultural use. Assumptions about the physical characteristics which make ground- water suitable for drinking water are based on technologies of forty years ago, but water treat- ment has dramatically changed. Lastly, but by no means least important, the dramatic increase in oil and gas production using new “unconventional” technologies, including but not limited to high volume hydraulic fracturing, presents challenges not anticipated when the UIC program was developed.
This paper provides an overview of how the Safe Drinking Water Act’s Underground Injection Control Program regulates oil and gas under- ground injection activities and aspects of the program that are out of date and could be ineffective at meeting the statutory goal of protecting underground sources of drinking water.