Fracking-caused earthquakes: how alleged threats could trigger the Corps of Engineers' section 10 jurisdiction.

Author:Booher, Jacob
Position:Of the River and Harbor Act of 1899
 
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  1. INTRODUCTION II. BACKGROUND III. SECTION 10 OF THE RIVERS AND HARBORS ACT AS A POTENTIAL BASIS FOR AUTHORITY A. Courts Have Embraced Section 10's Upland Jurisdiction B. The Corps' Regulations Acknowledge Section 10's Upland Jurisdiction but the Corps' Administrative Practices Neglect Its Upland Jurisdiction C. Triggering Section 10's Upland Jurisdiction D. How the Corps Could Prevent Harm Under Section 10 1. Enjoining Earthquake-Linked Operations 2. Subjecting Certain Fracking Operations to the Department of the Army Permitting Process E. Likely Resistance to Corps Regulation. IV. CONCLUSION I. INTRODUCTION

    There is growing concern that earthquakes caused by hydraulic fracturing ("fracking") could damage nearby dams, locks, and levees, threatening human lives, the environment, and the integrity of the nation's waterways. The U.S. Army Corps of Engineers (Corps), as the federal agency tasked with protecting and maintaining the navigable capacity of the nation's waters, (1) should evaluate this concern and determine what legal authority it could utilize, if any, to protect these structures from the alleged threats posed by fracking. This Comment examines the viability of one such statutory authority--section 10 of the Rivers and Harbors Act. (2)

    Part II provides background information on the Corps and explains the alleged threat that fracking-caused earthquakes pose to the Corps' projects. Part III introduces section 10 as a potential source of legal authority that has been effectively utilized to regulate activities that--like fracking--occur outside of the nation's waterways, yet still effect the waterways. Part III also argues that section 10 provides a strong legal foundation for subjecting certain fracking operations to the Corps' permitting program and for enjoining other operations. Lastly, Part III briefly explores a few potential objections to the Corps' utilization of section 10 to prevent earthquakes. Part IV concludes that if the alleged threats posed by fracking-caused earthquakes are validated, the Corps will have sufficient legal authority under section 10 to address those threats and prevent harm to the nation's waterways.

  2. BACKGROUND

    The Corps owns and operates more than 670 flood damage reduction and navigation structures throughout the United States. (3) These structures protect life, property, and the environment, and facilitate recreation and navigation on the nation's waterways. (4) The Corps is tasked with ensuring the safety and integrity of these projects. (5) By utilizing its regulatory and enforcement authorities, the Corps works to prevent and remedy negative impacts to its projects, as well as punish those who cause damage."

    Fracking is a drilling technique used by energy extraction companies that artificially increases the permeability of fuel-bearing geological formations, resulting in faster, more efficient extraction of oil and gas. (7) The process involves pumping millions of gallons of fluid mixtures into wells at such a high pressure that the geological formations fracture, creating expansive networks of small fissures. (8) When the fluid pressure is released, the fissures remain propped open by particles that were suspended in the fluids, allowing oil and gas to flow back to the wellbore with ease. (9)

    The use of fracking has expanded rapidly over the last decade, attracting the attention of citizens and environmental organizations concerned that the process may pose unstudied threats to human health and the environment. (10) One of the many concerns is that fracking near civil works projects--such as dams, locks, and levees--could compromise the integrity of those projects. (11) More specifically, there is growing concern that fracking-related activities are causing earthquakes that have the potential to destabilize civil works projects to the point of failure, resulting in loss of life, property, and the use of navigable channels. (12)

    A growing body of science supports a causal connection between fracking processes and earthquakes. (13) Multiple studies released within the last few years link wastewater injection wells, (14) and fracking wells, (15) to measurable earthquakes. The studies note the increased fluid injection associated with these fracking processes has resulted in a significant increase in the number of earthquakes rattling the United States. (16) Although most fracking-linked earthquakes have been relatively small, some earthquakes have been large, causing significant damage. (17) For example, in November 2011, a 5.6 magnitude, injection-induced earthquake in Oklahoma injured two people and damaged as many as 200 homes and businesses. (18) Links between injection wells and earthquakes have caused state regulators in Arkansas and Ohio to shut down well sites near fault lines, and a Texas company to shutter wells that were causing earthquakes near the Dallas-Fort Worth Airport. (19)

    Although scientists have established a relationship between fluid injection wells and earthquakes, they have yet to directly analyze whether these earthquakes could cause damage to civil works projects, like those managed by the Corps. (20) Natural earthquakes have caused significant damage to dams and levees in the past. (21) Those natural earthquakes, however, were of significantly higher magnitude than the human-induced earthquakes experienced to date. Fracking and wastewater injection have been documented as causing mostly small earthquakes, with the largest reaching magnitudes of 3.6 and 4.8, respectively. (22)

    According to the U.S. Geological Survey, earthquakes above magnitude 5.0 have the potential to cause structural damage to homes. (23) Significant damage is generally associated with earthquakes above magnitude 6.0. (24) The magnitude at which the Corps' projects could experience damage is highly variable and dependent on a multitude of factors, including the project's foundation material, proximity to the epicenter of the earthquake, architectural design, and amount of stress on the project at the time of the earthquake. (25) In 2005, the State of California Department of Water Resources released a study evaluating what impact a 6.5 magnitude earthquake would have on the levees in its Central Valley. (26) The study found that more than thirty levee breaches could occur, causing major flooding, jeopardizing California's economy, and threatening public safety. (27) Repairing the damage would take at least fifteen months, and cost the state at least thirty billion dollars. (28) It is yet to be determined whether fracking could trigger a damage-causing earthquake of such high magnitude. Scientists, vested industries, and concerned citizens will continue to explore the connection between injection-induced earthquakes and vulnerable civil works projects. As that connection is examined, the Corps--as the caretaker of civil works projects--should investigate what legal authority, if any, it could harness to regulate hydraulic fracturing near its projects, should a genuine threat be found.

  3. SECTION 10 OF THE RIVERS AND HARBORS ACT AS A POTENTIAL BASIS FOR AUTHORITY

    Section 10 of the Rivers and Harbors Act is one of the Corps' many legal authorities that should be evaluated for its potential use to abate risks if concerns that fracking-induced earthquakes could compromise Corps civil works projects are validated. (29) Section 10 is the Corps' primary authority to regulate actions that interfere with the navigable capacity of the nation's waterways. (30) Section 10 reads:

    The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any ... structures in any ... water of the United States ... except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of ... any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same. (31) Section 10 is best understood if broken down into its three clauses. The first clause contains a general prohibition against obstructing navigable waters without congressional approval. The second clause is more specific, making it unlawful to build any structure within navigable waters without permission from the Corps. (33) The last clause makes it unlawful to excavate or deposit fill within navigable waters, or in any way modify the "course, location, condition, or capacity" of a navigable water without the Corps' permission. (34)

    The first two clauses, as well as the first half of the third clause, are generally considered the basis for the section 10 permit program operated by the Corps. (35) The section 10 permit program, as it is commonly understood, generally requires that individuals who build structures, fill, or excavate in navigable waters, apply for and receive a permit before starting their activity. (36) The second half of clause three contains an often-overlooked prohibition of any activity that affects the navigable capacity of navigable waters without a permit. (37) This clause is significant because it is a catchall for all navigation-affecting activities that are not specifically enumerated in the other clauses. This portion of clause three is also important because it contains no explicit geographical limitation. It does not say, as clause two does, that actions within navigable waters that alter or modify navigable waters are unlawful. (38) This raises the question of whether the Corps, through this third clause, has the authority to reach beyond waterways and regulate activities on uplands that, despite occurring outside of navigable waters, alter or modify navigable waters. (40)

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