Fracturing: exempted or never covered?

Opponents of natural gas drilling like to describe hydraulic fracturing as having been “exempted” from federal drinking water laws as part of the 2005 energy bill. But to Daniel Steinway, an attorney with Baker Botts who represents the industry, you can’t “exempt” something that was never really covered.
As Steinway explains, injecting the fracturing fluid into the ground has traditionally been regulated at the state level. Even when the Federal Safe Drinking Water Act was written in the 1970s fracturing remained covered by state rules.
It wasn’t until the late 1990s, however, that the federal government became tied to fracturing. In a case in Alabama a federal district court ruled the EPA could exercise authority over the process — even though the EPA argued against such an interpretation of the FSDWA.
Even with that court decision, however, the EPA did not exercise that authority (except in Alabama) between the time of the court decision and 2005, when the Energy Policy Act of 2005 formally excluded EPA authority of the process.
All this does not mean there are no federal laws drillers must follow related to fracturing fluids. The fluids that come to the surface with natural gas production are considered “produced water” and are subject to the Clean Water Act.
If it’s discharged or stored in bodies of water on the surface it must comply with the Clean Water Act. If it is reinjected into underground formations for permanent storage it much comply with a provision of the Safe Drink Water Act. And if there’s a spill of fluids on the surface (which seems to be a more common problem) there are federal rules that apply as well.