A Fractured Debate

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Nearly three years ago, the discovery that a Collier County oil mine had been “fracked” sent the region into a tailspin, generated national news and led to a sudden realization: There was almost nothing in Florida law to regulate, restrict or halt the controversial practice.

Florida policymaking stopped decades ago—when the only way to extract oil was to sink a well straight down and pull the liquid straight up, a relatively straight-forward procedure in which the potential risks and environmental impacts were generally understood.

As legislators descend on Tallahassee this month, they’re under mounting pressure to update the laws and protect the environment as the oil industry takes a new look at Florida as a source of domestic fuel.

Two Southwest Florida lawmakers, Rep. Ray Rodrigues (R-Estero) and Sen. Garrett Richter (R-Naples), have filed companion bills that address everything from permitting to fines to the need for scientific data. They’re calling for a moratorium on new mining procedures until independent scientists study how the techniques could affect Florida’s geologic structure and water system.

If enacted, their proposals would be the first to explicitly regulate new mining techniques, which fall under terms ranging from “unconventional extraction” to “extreme extraction” to “high-pressure well stimulations,” the term used in the legislation. There are various types of new techniques, but they all basically do the same thing: crack or dissolve rock using water, chemical and pressure in order to release underground oil.

The bills are raising hackles—and not from the energy industry.

Environmental groups believe the legislation as written creates a giant loophole by identifying “high-pressure well stimulation” too narrowly. Meanwhile, some local elected officials and civic organizations are denouncing language that would prohibit local regulation of the oil and gas industries—and void the fracking ban Bonita Springs and Estero enacted.

“We’re feeling a little picked on here,” says Bonita Springs Mayor Ben Nelson, whose city banned fracking because of concerns about the toll heavy industry could take. He says he’s worked well with Rodrigues and Richter in the past and hopes they’ll have a change of heart. “We’re trying not to be a hard case, but at the same time we’re trying to stand up to our right for home rule.”
As that debate goes on, other lawmakers—including Sen. Dwight Bullard (D-Cutler Bay) whose district includes Hendry and portions of Collier—are calling for an outright ban on fracking and related procedures.

“I’m one of those people who doesn’t like to tempt fate,” Bullard says. He says Richter’s bill “definitely doesn’t go far enough.”

Meanwhile, state Rep. Jose Javier Rodriguez, a Miami Democrat, wants to put the question to residents. He and Sen. Jeremy Ring (D-Margate) are pushing for a referendum question asking citizens if they want to enact a constitutional amendment banning unconventional drilling.

“I believe the legislation proposed, while well intentioned, effectively will only lay down a welcome mat,” Rodriguez said during a visit to Lee County in October. “Once you set the regulatory framework, it is essentially saying, ‘Please come do business with us.’”

To which David Mica, executive director of the Florida Petroleum Council, would no doubt say: We already do business with you.

“My industry has been in your readers’ area since the early ’40s,” Mica told Gulfshore Business late last fall while en route to a legislative hearing on the matter. Oil was discovered in Florida in 1943 near Immokalee. The primary source of it is the Sunniland Trend, an oil reserve stretching from Fort Myers to Miami. “We really do want to produce American oil and gas. We really want to create jobs. We really want to create revenue not just for property and mineral rights owners but for the government.”

The question is: Can the state appropriately regulate this resurging industry?


Rodrigues has been trying to address fracking for four years now. Last year’s abrupt end to session killed reform efforts, but he and Richter are hopeful that 2016 is the year to answer the questions about these new techniques and put some current-day regulations into an otherwise vastly out-of-date rulebook. In early December, the House version passed its second committee.

“If we are going to have this type of extraction, what are the best practices?” Rodrigues asks.

The legislation takes out some loopholes—like the gaping one that allows energy companies to apply for a conventional well and then frack it later on. That’s legal: State law requires them to inform the DEP of “workovers” (procedures meant to restore or increase production) but it doesn’t ask for a separate permit. Rodrigues and Richter’s bills do.

“The DEP doesn’t have the ability to say ‘no.’ The well is already permitted at this point,’” Rodrigues says.

That’s exactly what had happened at the Collier-Hogan well—the site of the 2013 fracking incident that Rodrigues says turned fracking from the theoretical to the actual in Florida.

In addition to more stringent permitting practices, the legislation imposes increased fines for violators, broadens and strengthens inspection requirements, requires specific well stimulation permits, mandates companies to disclose chemicals on the website FracFocus and sets aside $1 million for the independent, peer-reviewed study examining how new drilling techniques could affect Florida’s geology and its water system.

“It will not address the concerns of those who have an agenda—who want a ban no matter what. It will address the concerns of those environmentalists who trust the science,” Rodrigues says.

Fail to approve new regulations (or enact an all-out ban), and the state will be stuck in the status quo, Richter cautioned in an email to Gulfshore Business.

“Without the successful passage of this legislation, we will simply be maintaining the status quo in our state where oil operators are allowed to operate in a gray area within the confines of the law, where oil activities are not held to stringent enough regulatory standards, even as the onshore oil and gas industry continue to make technological advances both here in the State of Florida and nationwide.”

That may be true—but there are two major sticking points.

We’ll start with the more technical of them: Is the legislation worded broadly enough to govern new techniques? No, says Jennifer Hecker, the director of natural resource policy at the Conservancy of Southwest Florida. The bills, she believes, only define and seek to regulate high-pressure well stimulation—the kind that creates enough pressure to fracture rock. She’s worried about one procedure in particular, matrix acidizing, which uses acid to dissolve rock and release the oil. That technique is

particularly effective for carbonate reservoirs— like Florida’s.

“It’s a different technique, and the bills are too narrowly defined,” says Hecker, adding that the Collier-Hogan well underwent a matrix acidizing procedure before being fractured. “It sounds like semantics, but everything in the bill is limited only to true standard fracturing.”

To which Mica of the petroleum council declares “Balderdash!”

And Richter counters, “that claim is a red herring because this legislation would absolutely capture those activities and DEP has testified publicly to that affect many times.”

Lawmakers, no doubt, have some hefty, technical hearings before them to settle that and other matters.

The second major issue is the land-use one. Richter and Rodrigues’ bills would prohibit local governments from regulating the energy industry—and void any ordinances they’ve already put in place like the fracking ban Bonita Springs and Estero approved. The two lawmakers say the DEP—not individual municipalities—has the expertise and manpower to regulate the industry.

But some local leaders balk at that assertion. The Florida League of Cities opens its 2016 legislative agenda by arguing the importance of home rule: “Strong Home Rule powers ensure that government stays close to the people it serves. Intrusion on Home Rule from the state or federal government undermines the constitutional right of local citizens to govern themselves,” its document reads.

“[Cities] have incorporated for particular reasons, namely quality of life issues,” Nelson, the Bonita mayor says. Residents say they just don’t want the heavy industry coming there, and the ban provides a shield just in case the industry were to identify a potential drill site within city limits.

There’s confusion, too. Estero Mayor Nick Batos believes existing law gives municipalities the final say in whether an exploratory or drilling permit is issued.

In Estero, people feel there’s just too much uncertainty over the safety and hazards of unconventional drilling.

“And when you are dealing with something as finite as our water supply … once it’s contaminated, once it’s gone, it’s gone,” Batos says.


That’s why a decision on drilling is so critical. New extraction techniques have created a surge in domestic oil production and allowed energy firms to tap previously inaccessible reserves. In Southwest Florida, surveyors are combing the Big Cypress National Preserve to see what additional energy lies beneath.

In some ways, state drilling laws are especially important. During the Florida Fracking Summit, held in Fort Myers last October, Mike Freeman, an attorney for the environmental group Earth Justice, pointed out several flaws with federal energy policy, such as the so-called Halliburton loophole, which exempts hydraulic fracturing from federal oversight under the Safe Drinking Water Act.

Environmentalists and local politicians hope the legislative proposals on the table can be tweaked to answer various concerns. Collier County Commissioners have asked for several changes including: allowing home rule for local governments; clarifying the definition of “high-pressure well stimulation” to ensure all potential new techniques are covered; clarification on how wastewater from oil extraction will be regulated; disclosing all chemicals used to local emergency responders, not just state regulators. That last one reflects concerns that the list of chemicals provided to the publicly accessible FracFocus site won’t be complete because the industry can claim certain trade secrets.

And at the same time, lawmakers will have to ask them selves if they see value in supporting the energy industry. Even though Florida is no Texas, the oil and gas industry still generates $23 billion a year and supports 286,800 jobs, according to the Petroleum Council.

Residents recognize what’s at stake.

“Protection of the lifestyle that everybody moved here for is important. That’s what fuels our economy. That’s why we’re all here,” said Steve Sherman of Fort Myers, who attended the fracking summit to learn more. His biggest concern is the amount of water hydraulic fracturing requires and the strain our water tables may be under as Southwest Florida’s population continues to rise.

Rae Ann Wessel, the Natural Resource Policy Director for the Sanibel-Captiva Conservation Foundation, also attended the conference. She said the public trusts its government to keep citizens safe—to protect its drinking water, its air and its soil. Much weighs on lawmakers this session.

“The fate of all of this is what we really need to get a handle on. That’s what I’m discovering here,” she said. GB


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