Summary: A brief look at the fracking industry in Northern Michigan, the laws and regulations, and how fracking is impacting the Grand Traverse Bay Watershed and the Great Lakes. Fracking has been occurring in Northern Michigan for decades, but, compared to the Marcellus Shale, has been essentially overlooked by the national limelight. The Great Lakes are a vast natural resource, therefore it is imperative that fracking’s impacts to the watersheds feeding the Great Lakes, such as the Grand Traverse Bay watershed, be considered. The laws and regulations in Michigan do not provide enough protection, but new regulations are currently being proposed and non-governmental organizations have played a key role in educating the public and hopefully strengthening the protection of the Great Lakes.

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By Alisha Falberg

Nestled between the Leelanau Peninsula and the Michigan mainland lies Grand Traverse Bay. Growing up in Traverse City, the city at the basin of the Bay, I was lucky enough to call this beautiful water body my home. Having grown up on a water body this pristine, I never stopped to think just how lucky I was; I took the Bay, and its water quality, for granted. Grand Traverse Bay, part of Lake Michigan, has exceptional water quality. According to the Environmental Protection Agency’s (EPA) watershed quality assessment report , Grand Traverse Bay is of “good” quality; there are a few “impaired” parts, primarily caused by E. coli from recreation, but overall, the water quality of the Bay is very good. However, fracking in northern Michigan—part of the recent fracking boom—could impact this pristine watershed, as well as the rest of the Great Lakes.

While the Marcellus Shale, Texas, and California have been in the public eye, fracking in the Great Lakes region has been largely ignored. But fracking, or hydraulic fracturing, is occurring in northern Michigan and at a great rate. Fracking has been employed in Michigan since the late 1980s throughout the northern lower peninsula’s Atrim shale and Collingwood/Utica shale, which contain vast sources of natural gas. In 2010, the Antrim shale became the U.S.’s thirteenth largest source of natural gas, comprising over 12,000 drilled wells. The Collingwood/Utica shale is a much deeper formation than the Antrim shale, and in 2010, 5.5 million gallons of water was used in this active fracking well, producing an average of 2.5 million cubic feet of natural gas a day for 30 days. Both of these shale formations cross into the Grand Traverse Bay Watershed. Over the past five years, 1,070 oil and gas permits have been issued across the state.

The surface water impacts—such as contamination from spills, leaks, and/or the disposal of inadequately treated shale gas wastewater, and the accumulation of toxic and radioactive elements in soil or stream sediments near disposal or spill sites—and ground water impacts from fracking could apply to the Grand Traverse Bay watershed, and thus to Grand Traverse Bay and Lake Michigan. For example, disposal methods currently allowed in Michigan greatly threaten surface water quality. Fracking wastewater is typically disposed of by injecting it into deep underground wells; however, Michigan ” still allow[s] untreated wastewater to be sprayed onto roads for dust control . . . or directly onto lands.” This method of disposal greatly threatens surface water, as the runoff will flow directly into the watershed, and, in the case of the Grand Traverse Bay watershed, will directly contaminate Grand Traverse Bay. Additionally, as fracking consumes an extreme amount of water, wells drilled in the Grand Traverse Bay watershed region could permanently remove millions of gallons of water from the watershed’s water cycle. Maps , showing countless well locations and drilling sites in the five counties in the Grand Traverse bay watershed, are available from the Michigan Department of Environmental Quality (DEQ) by county.

States are primarily responsible for regulating fracking activities, as fracking is exempt from most federal laws targeted toward environmental protection, such as the Clean Water Act, National Environmental Policy Act, and the Safe Drinking Water Act. However, Michigan laws also largely exempt fracking from key water protection statutes, like Michigan’s codification of the Great Lakes Compact. In fact, Michigan’s codification of the Great Lakes Compact under the Natural Resources and Environmental Protection Act of 1994, Great Lakes Preservation section , exempts the oil and gas industry from complying with the requirements of large quantity water withdrawals, including obtaining a water withdrawal permit, stating a withdrawal undertaken as part of an oil and gas activity are exempt withdrawals unless they result in a diversion. Considering that fracking has been occurring in Michigan over the past few decades, and deep horizontal well drilling has been in abundance since 2010, Michigan’s laws and regulations are minimum at best.

Michigan’s main law that regulates fracking is the Natural Resources and Environmental Protection Act of 1994, Part 615, Supervisor of Wells (NREPA). This section outlines what the duties of the supervisor of wells are, such as the prevention of waste, not allowing drilling in any of the actual Great Lakes, and requiring all drilling operations be done in such a manner as to prevent the pollution of, damage to, or destruction of fresh water supplies, including inland lakes and streams, the Great Lakes, and connecting waters (MCL §§ 324.61504-61506).

The regulations promulgated the Michigan’s Department of Environmental Quality’s Office of Oil, Gas, and Minerals (OOGM) require all oil and gas well projects to go through a permitting process , the application of which contains an Environmental Impact Assessment and a public comment period. The Environmental Impact Assessment section of the permit takes careful note of the location of the proposed well with regards to inland lakes and streams, wetlands, and water supplies. The DEQ regulations also require wells to be drilled at least 300 feet from fresh water wells, do not allow surface water to be used for drilling, and require wastewater, or “flowback,” to be disposed of in underground injection wells.  However, considering the number of permits that are granted by OOGM each year, the regulations, the permitting process, and the duties of the supervisor of wells under NREPA seem to be not enough to protect the watersheds that lead into the Great Lakes

Recently, the DEQ has proposed new rules for fracking in Michigan. The proposed regulations created an entirely new section specifically on fracking, as well as added language throughout the existing regulations to refer to fracking. The draft proposed rules include: new definitions, such as flowback fluid, high volume hydraulic fracturing, hydraulic fracturing, and large volume water withdrawal; further permitting requirements, incorporating a large volume water withdrawal assessment component and permit; monitoring of nearby freshwater wells; sampling and analysis of groundwater baselines; further well completion notifications and reporting and monitoring requirements, encompassing storage and disposal of flowback fluids and eliminating use of flowback for dust control on roads; and mandating disclosure of fracking fluid chemical additives.

However, these proposed rules are not being strict enough. For example, there is currently no notification to concerned parties, such as public interest groups and citizens, of pending permit applications, such as there are under other NREPA sections requiring permitting. Additionally, the proposed regulations do not require monitoring of nearby stream flows or surface waters, which could be significantly impacted, and, while they propose groundwater sampling, the proposed regulations are not sufficient in length of time required for the monitoring nor do they monitor a great enough sample of possibly impacted groundwater wells and aquifers.

Non-governmental organizations, like FLOW , however, are taking the lead in commenting on the proposed rules and educating communities on how they can make sure fracking takes into account water quality and the environment. FLOW’s focus is on how water, especially the Great Lakes, is held in the public trust, and therefore, should be protected and preserved for all to enjoy. FLOW reaches out to local governments helping provide them with legal strategies to protect their communities from the environmental harms of fracking. Local ordinances, such as the Zoning Enabling Act of 2006 and the Township Ordinance Act of 1945 , provide townships and counties with legal authority to adopt either zoning ordinances that govern land use or police power ordinances that govern health, safety, and pollution issues associated with unconventional hydrocarbon development.

Without watchdog groups, like FLOW, or baykeeper organizations, like The Watershed Center Grand Traverse Bay , which does on-the-ground projects, commented on DEQ’s proposed regulations, and advocates to protect the watershed, the Great Lakes could be in even greater danger of pollution from fracking. With large and prosperous natural gas shales so close to a massive, pristine natural resource like the Great Lakes, it is even more imperative that Michiganders work diligently to conserve and preserve the beautiful water we all grew up with and took so much for granted. Protecting these great water bodies from the dangers of fracking should be at the forefront in our fight to reign in and better regulate this industry.

Alisha earned her LLM in Environmental Law from Vermont Law School and her JD from Penn State’s Dickinson School of Law. Alisha recently traveled to China, where she volunteered with the Wildlife Conservation Society’s China office and Greenpeace East Asia. Currently, Alisha is providing legal services to The Watershed Center Grand Traverse Bay , helping to maintain the high quality of Grand Traverse Bay, her home.

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