Call Our Firm:   605.385.0330   |   701.355.6885

Commercial Transactions & Litigation, Environmental Law, Natural Resources Law, & Energy Law

Posts Tagged ‘Water Rights’

Midwest Water Technology Conference

Posted on: May 29th, 2014
by David Ganje

 Midwest Water & Wastewater Technology Conference

 

                       

 

6/5/2014

When: Thursday,   June 5, 2014
Visit Exhibitors from 7:30 to 8:30 AM
Where: Map this event »
College of Lake County, C-Building
19351 West Washington Street
Grayslake, Illinois  60030
United States
Contact: Lisa   Hoffhines
lisa@isawwa.org
Phone:      866-521-3595 ext. 2

 

 

 

Details

 

T-CON:   Midwest Water & Wastewater Technology ConferenceABOUT   THE CONFERENCE:The   Midwest Water & Wastewater Technology Conference is the new and improved   technology conference for industry professionals sponsored by the Illinois   Section AWWA, Central States Water Environment Association, Illinois Water   Environment Association and the College of Lake County. The Technology   Conference incorporates multiple learning tracks related to the planning,   design, implementation, and operation of water and wastewater-based   technologies. The multi-track approach makes the conference ideal for utility   managers, IT professionals, as well as operations and field staff. If you can   only attend one technology conference this year, this is the one to attend!

T-CON   GENERAL SCHEDULE

TIME ROOM AGENDA    
7:00-7:30am C006 Exhibitor     Set-up
7:30-8:15am C006 Breakfast     | Registration | Visit Exhibit Booths
8:15-8:30am C005 T-CON     Welcome and Opening Remarks
8:30-9:30am C002,     C003, C005 Technical     Sessions
9:30-10:00am C006 Morning     Break | Visit Exhibit Booths
10:00-12:00pm C002,     C003, C005 Technical     Sessions
12:00-1:00pm C002,     C003, C006 Lunch     | Visit Exhibit Booths
1:00-2:00pm C002,     C003, C005 Technical     Sessions
2:00-2:30pm C006 Afternoon     Break | Visit Exhibit Booths
2:30-3:15pm C005 Keynote     Speaker
3:15-3:30pm C005 Raffle     for iPad Air and MORE! | Closing Remarks

 

Presentation Title
Can You Recover After A Disaster With     Your Control System?
Comparison of Ammonia And DO Aeration     Control Strategies To Optimize Energy And Process At Low Capital Cost: A     Case Study
Drawing The Curtains On Windows XP –     What Does The End Of Win XP Mean For SCADA Systems?
Geocentric Web Mapping Solutions In     GIS
Going Beyond The Meter: Expanding     Traditional Data Collection Methodology To Increase Revenues
How GIS Has Helped The City Of     Chicago And The Department Of Water Management (DWM) Embark On A Very     Aggressive Plan To Replace 880 Mile Of Water Main In 10 Years!
How To Select An Economical And     Secure Remote Terminal Unit (RTU) Delivery System For WWTPs And Pump     Stations
Identifying And Locating Existing     Backflow Prevention Devices Inside A Building Using Bluetooth Smart     Technology
Increasing The Resiliency: Standby     Power Generation
Integrating SCADA with Other Plant     Systems
Internet of Things – Enabling A New     Level Of Control, Reporting And Efficiency
Making Your Water Department     Paperless With Laserfiche ECM
Master Metering Using A SCADA System
Mobile Data Collection, Visualization     And Execution
Mobile Interfacing Within     Water/Wastewater
Quick Tour Of ArcGIS Online And     Practical Uses For Water / Wastewater
SharePoint 2013 – Technical Overview
Speaking Their Language: Public     Engagement Through Social Media For Public Works
Understanding Pressure, Temperature,     And Flow Instrumentation
Using SCADA To Reduce Energy     Consumption And Operate More Efficiently
Water Systems: A Twofold Look Into     Physical Security And Cyber Security
Water/Wastewater Tablet Success For     Less Than $1000

 

 

 

Water Systems Security

by David Ganje

WATER SYSTEMS SECURITY

INTRODUCTION……………………………………………………………………………………………………….. 1

BRIEF HISTORICAL OVERVIEW……………………………………………………………………………… 1

WATER SECURITY……………………………………………………………………………………………………. 2

  1. Physical Security …………………………………………………………………………………………..      3
    1. i.              Milwaukee & Cryptosporidium…………………………………………………………….. 4
    2. ii.            WaterWorks: Physcial Security…………………………………………………………….. 6
  2. Cyber-Security……………………………………………………………………………………………….      9
    1. i.              WaterWorks: Cyber-Security………………………………………………………………… 11

RECOMMENDATIONS FOR ENHANCED SECURITY………………………………………………. 12

VIRTUAL ATTACHMENT:

Ass’n of State Water Admins., Security Vulnerability Self-Assessment Guide for Small Drinking Water Systems, Nat’l Rural Water Ass’n (May 30, 2002), available at http://www.epa.gov/ogwdw/dwa/pdfs/vulnerability.pdf.

 

 

Presentation to the Illinois Chapter of the American Water Works Association.

 

© 2014. All Rights Reserved. David L. Ganje.

 

I. Introduction

This article discusses current security issues surrounding water treatment and waste facilities. The sources of attack are myriad, but manifest via physical attacks and cyber-attacks. A physical attack on a water treatment and waste facility occurs when an individual or group causes physical damage to the facilities, structures infrastructure, systems, or the water itself on site. A cyber-attack occurs remotely and disrupts the computer systems that control the treatment and waste facility. Whether the attack be physical, cyber, or some combination, the goal is the same: to harm, even kill, the local population and cause panic. This article will give a brief historical overview of American water systems, discuss the current water security concerns of both physical and cyber-security, and make some practical recommendations for enhanced security.

 

The Utility and Controversy of Disposal Wells

Posted on: March 24th, 2014
by David Ganje

                        The Utility and Controversy of Disposal Wells

Greater attention, rightfully, is now paid in the oil patch to our first natural resource: water. From all fronts affected, parties are more aware of the proper stewardship of water.  This stewardship does not come without controversy. That famous Geo-hydro geologist Mark Twain was correct:  Whiskey is for drinking, water is for fighting. The North Dakota State Water Commission projects the amount of water needed for developing a Bakken Formation well for natural gas production at approximately three acre feet. The required water must come from a freshwater source. With the oil patch growth through 2019, Bakken wells could require as much as 51,000 acre feet (a.f.) of water. The general uses of water in the oil patch include well drilling and completion, well production, the so called use of maintenance water which requires fresh water sources, and after-production. I will focus this article on the management and disposal of used water in the ‘after production phase’ which water is often referred to as produced water or saltwater. The other important aspects of water uses, as well as tribal regulations and water law, will be left for another discussion.

During hydraulic fracturing – commonly known as fracking – water mixed with industrial chemicals and proppants (a mix of sand or ceramic particles) are forced into the well system to release oil and gas. The waste water from the process is the so called produced water or salt water. Produced water is the largest volume by-product from an oil and gas well.  Along with the chemicals used during the drilling produced water is highly saline, usually 10 times that of ocean water. Its improper use or disposal would damage soil productivity or pollute near-surface water aquifers used for irrigation and drinking water. North Dakota statutes specifically prohibit this remaining produced water from polluting any freshwater supply in the state. Disposal wells are the most common final method for removal of unusable produced water or saltwater.  North Dakota currently has 470 active saltwater disposal wells.  The well process involves injecting the produced saltwater and associated wastes into naturally occurring subsurface formations called confining geologic zones.  As technology advances the industry has other non-well options for produced water management. Such technology includes obtaining fracking water from saline groundwater sources, or from municipal waste water. A fresh water source such as an aquifer must be allowed to replenish itself (recharge), so the careful stewardship and use of water in the oil patch continually relevant. Let us look at the current practice of disposal well procedures and issues.

Upon returning to the surface there are two common methods of handling produced water:

  1. Re-injection into the oil-producing formation for enhancing oil and gas production
  2. Injection into an underground formation that naturally contains saltine water. This second method is also known as Salt Water Disposal (SWD) which are also called disposal wells.

SWD is considered the most economic final disposal method. The U.S. Environmental Protection Agency classify these wells as class II wells used to inject fluids associated with oil and natural gas production operations.

Under the guidelines of the Underground Injection Control Program established by the federal Drinking Water Safe Act, North Dakota has imposed regulations:

(a)              for pits and ponds containing saltwater liquids and brines produced by the hydraulic fracturing operations

(b)              Governing the process of underground injection wells.  A technical permit application is required for these SWD wells.

A disposal well must go through an application and approval process.  This is also called the siting of a well.  The information the state studies from an application is comprehensive and involves detailed geologic data.  A disposal well must also complete a mechanical integrity test before it becomes properly permitted and can operate. Information and data which must be submitted, and reviewed, before the state would approve an SWD well permit application include:

  1. Geologic name of lowest known fresh water zone
  2. A plat depicting the area and detailed description of the location, well name, and operator of all wells in the area of review. The area wide plat must include: nearby injection wells, producing wells, plugged wells, abandoned wells, drilling wells, dry holes, and water wells. The plat must also show seismic faults, if known or suspected
  3. Testing and recording the original bottom-hole injection of the well
  4. A description of the proposed injection program
  5. A quantitative analysis from the two nearest fresh water wells
  6. A written notice to all landowners within the area of review who must be notified of the proposed injection well.
  7. This notice informs the landowners that comments or objections may be submitted
  8. Schematic drawings of the well bore and surface facility construction.

The controversy surrounding salt water disposal wells concern spills, potential leaks and earthquakes. Spills occur. These events are saltwater surface spills not related to the disposal well or to the well integrity of a properly permitted well. Spills happen because of human error and bad equipment.   As with all Bakken oil and gas production procedures, it can be said: most in the industry do it right, but some just do it.  Saltwater spills occur on the surface, and are often a mechanical malfunction or error in human judgment. The risk of a spill from a saltwater disposal well is not from a properly permitted well itself.  When a spill occurs it is usually during the act of storing or delivering wastewater to the disposal well. Consider for example that there are 470 active operating disposal wells in North Dakota, but more than 2100 saltwater pipelines, and it is easier to understand that the ‘getting to the well’ is where problems arise. New rules have recently been promulgated by the Industrial Commission for ‘underground gathering pipelines’.  These regulations will address the construction and deconstruction [shutdown] of saltwater service pipelines.

Do disposal wells contaminate water wells and aquifers? The question is more properly stated:  Do disposal wells fail or leak? Thousands of disposal wells have been permitted in the U.S.  In 2012 a company called Halek Operating ND LLC was fined civilly and charged criminally by the Industrial Commission for illegal action and operating a disposal well after having been ordered to shut-in the well. In that case, among other things, the administrative law judge also found that the company had operated the disposal well without first completing a mechanical integrity test on the well. The state found no damage to aquifers from the illegal activity.  I know of no failures or leaks from properly permitted disposal wells located in North Dakota and South Dakota in my lifetime. And information from both states’ regulatory agencies report that such events have not occurred.

Do disposal wells cause earthquakes? Thousands of disposal wells have been permitted in the U.S. The state of Arkansas is in a region of the continent that has recognized natural earthquake activity. Because the Arkansas Oil and Gas Commission thought that disposal wells may have been causing or aggravating earthquakes in the state it ordered a study. After the study was completed in 2011 the state regulatory authority established a moratorium on new and on operating disposal wells in an area that resulted in the closure of 4 of the state’s 700 disposal wells. Natural earthquakes are more likely to occur of course in earthquake-prone geology. A region prone to natural earthquakes is more likely to be the place where a quake caused or affected by a disposal well might occur. The Bakken and Williston basin are not known as  geologically earthquake-prone areas of the continent, and the state permitting process does not authorize active disposal wells near a fault line. I know of no earthquakes caused by properly permitted disposal wells in North Dakota and South Dakota in my lifetime. And information from both states’ regulatory agencies report that such events have not occurred.

 

David Ganje of Ganje Law Offices practices natural resources, environmental and commercial law.     The website:  lexenergy.net           The contents of this article are intended for general information purposes only and are not intended as legal advice.

Surface Water Drainage Issues — A Legal Perspective

Posted on: March 20th, 2014
by David Ganje

SURFACE WATER DRAINAGE ISSUES —   A LEGAL PERSPECTIVE

Water rights and water law issues are not limited to groundwater regulation and riparian surface water rights.  This article will discuss the subject of surface water drainage issues, and will focus on the subject from the point of view of surface water drainage in South Dakota. The article will not discuss other jurisdictional water management issues such as tribal water law and regulation.  In order for the management of a state’s future water drainage to be effective and efficient, one must consider the existing state of the law.  In 1985, the South Dakota Legislature delegated responsibility for drainage decisions to individual counties, rather than have such matters handled at the state level. The state’s drainage legislation also allows counties to take emergency measures to regulate drainage, develop and enforce a county drainage plan, and regulate nonconforming drains or drainage schemes. This places the responsibility before county commissioners regardless of their (county commissioners) preference concerning who they would have regulate and manage such issues.

The authority granted to county commissioners can be broken into three broad areas. First, county government is given the designated legal authority to undertake drainage planning as a potential method of avoiding the problems that usually accompany times of high runoff. Second, the Legislature provided for the resolution of private disputes at the county level as an alternative to court actions. Both of those areas were new grants of authority to the counties; prior to 1985 there was no drainage planning mechanism in the statutes, and private disputes were left to the courts for resolution.

The third area of legislative delegation is the locally granted legal authority over the construction, maintenance and improvement of surface land drains. This was not a grant of “new authority”; county government in the state has had jurisdiction over such matters for many years. While the statutes were amended to some extent over older established practices, the basic county legal and management authority over construction, maintenance and repair of drainage works was not substantially altered.

A South Dakota board of county commissioners may not avoid the impact of these statutes by passing a resolution or ordinance divesting itself of authority over these matters.  In fact, the statute allows for a mandamus action if the county refuses to perform any nondiscretionary duty.  While the board is not compelled to undertake drainage projects or maintenance on its own, once a proper petition is received for either a project (individual or multiple parties) or maintenance and repair, the board has a duty to proceed as the statutes require.

The law does provide that a board may refrain from hearing specified types or categories of drainage disputes. That statute also provides, however, that when a board of resolution does not exercise its authority to handle drainage disputes, the circuit court is the entity with jurisdiction to hear those disputes.  Its functions as a board of resolution, however, are separate from its functions with reference to construction, maintenance and repair of drainage projects and works. The state legislature gave the county commission authority to limit its jurisdiction as a board of resolution. However, no such opt out has been granted concerning the county commission’s jurisdiction over drainage projects including new projects, and construction, maintenance and repair of new and existing projects.

The articles and blog articles on this website should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information purposes only and may not be quoted or referred to in any other publication or proceeding without the prior written consent of David L Ganje.

Recent New York State Water Regulations

Posted on: November 24th, 2013
by David Ganje

Recent NY State Water Regulations Not Ready for Prime Time

In New York state, groundwater rights are based on landownership rights. A property owner can withdraw as much water for use provided the rights of other property owners are not adversely affected. Water systems in the state require Water Supply Permits issued by the state’s Department of Environmental Conservation (DEC) if they have the capacity to withdraw 100,000 gallons per day or more of ground or surface water and they do not qualify for an exemption under state regulations.

The state draws fresh water from three sources namely the Susquehanna River Basin, Delaware River Basin and the Great Lakes Basin.

Earlier this year, the DEC’s new water withdrawal regulations came into effect. These regulations are designed “to regulate the use of the water resources of the state… by implementing a water withdrawal permitting, registration and reporting program for water withdrawals equaling or exceeding a threshold volume.” Under the new regulations the threshold volume refers to the withdrawal of a volume of one hundred thousand gallons of water or more per day.

The new regulations do not affect those in possession of DEC issued water supply permits as of February 15, 2012 or those actions (e.g. withdrawals approved by the Delaware River Basin Commission or Susquehanna River Basin Commission, withdrawals of hydropower facilities under a valid Federal Energy Regulating Commission license, or withdrawals used for fire suppression or other public emergency purposes) which are exempt in accordance with 6 NYCRR 601.9. All other water withdrawal actions that meet or exceed the 100,000 gallons per day threshold will require a DEC permit. Power generating stations and municipal water systems are examples of operators that typically use more than 100,000 gallons of water per day.

Initial permits issued under the new regulations will be implemented using a staggered schedule that enables the largest water users to obtain permits with priority over small water users.

Areas of Concern

Efforts to preserve and manage an invaluable natural resource such as water are laudable. The regulations do however raise areas of concern including:

  1. The proposed regulations have been placed on the table without a cumulative impact analysis of water usage in the state, including water usage for hydrofracking.
  2. The new regulations are inherently unfair to small water users who are last in the pecking order when it comes to the issuance of withdrawal permits.

Discussion of Areas of Concern

Hydrofracking is a process that forces a mix of water, sand and chemicals down a gas or oil well under extremely high pressure with the goal of cracking previously impermeable rock (typically shale) to create fractures that will allow trapped oil and/or gas deposits to flow to the surface.

The Marcellus Shale, encompassing 104,000 square miles across Pennsylvania, West Virginia, Ohio, and parts of New York, is the largest source of natural gas in the United States. Since 2008, hydraulic fracturing has been used to release and capture the shale gas for energy consumption. However, New York does not permit the drilling of the Marcellus Shale formation. For the past five years, the DEC has had a ban on high volume hydrofracking. The moratorium was put in force during the Paterson administration by executive order that called for such revisions to the Draft Supplemental Generic Environmental Impact Statement to analyze comprehensively the environmental impacts associated with high-volume hydraulic fracturing combined with horizontal drilling. The DEC will not issue permits for hydrofracking until it obtains assurances from the NYDepartment of Health that the process would be safe.

Hydrofracking uses water, but the volume used should be put in the context of other water uses currently in place. In the U.S. more water is used to cool power plants than for any other use pursuant to the United States Geological Survey. Over 53.7 billion gallons per day of water was used to cool power plants in the Great Lake states in the year 2000. By comparison, hydrofracking of the Marcellus Shale formation throughout Pennsylvania requires a total of 3 to 5 million gallons of water over a 2 to 5 day period per well based on Susquehanna River Basin Commission data.
The EPA estimates a horizontal well in a shale formation can use between 2 million to 5 million gallons of water. It must be noted that depending on the geological formation, technology used and type of well being drilled, water usage varies.

Horizontal hydrofracking is estimated to use five to ten times as much water as vertical hydrofracking. As Monika Freyman notes, “the whole drilling and fracking process is a well-orchestrated, moment-by-moment process requiring that one million to five million gallons of water are available for a brief period ….. they need an intense amount of water for a few days, and that’s it.” The overall amount of water used for hydrofracking, even in states like Colorado and Texas that have been through severe droughts in recent years, is still small: in many cases 1 percent or even as little as a tenth of 1 percent of overall consumption, far less than agricultural or municipal uses.

The water used in the hydrofracking process in Pennsylvania comes primarily from fresh water obtained from surface sources such as rivers or recycled water from previous hydrofracking operations. Withdrawal of surface water should be undertaken when assurances are provided, supported by scientific evidence, that downstream water quality and quantity is sufficient to meet existing and anticipated needs of people, wildlife and ecosystems in the affected area.

The DEC initiated an environmental study on hydrofracking almost five years ago subject to a well known longstanding moratorium. Governor Cuomo anticipates making a final decision on hydrofracking in the state before the 2014 elections. Business groups have expressed their frustration with the unresolved moratoriums; the NY chapter of the National Federation of Independent Business has called for an end to “paralysis by analysis”. The Federation has also advocated the enactment of stringent standards to protect the environment and health while permitting the extraction of natural gas by hydrofracking.

The New York Farm Bureau is a non-governmental organization representing the agricultural sector. The Bureau takes the position that hydrofracking, with certain rules in place can protect the environment and would provide an economic benefit for the state enabling farms to not only continue to operate but expand. The NY Farm Bureau supports rules that would require gas drilling companies to disclose the composition of their hydrofracking mixture as a condition to obtaining DEC permits in addition to strict measures that would prevent methane migration into wells and aquifers.. The Farm Bureau advocates payments on a per unit basis for right-of-way agreements with oil and gas companies. These are but a sample of the four dozen policy statements the Farm Bureau advocates in its support of natural gas drilling in the state.

Conversely studies by academics including Professor Vengosh of Duke University indicate that hydrofracking produces high concentrations of metals, salts and radioactivity downstream from a wastewater treatment facility in Pennsylvania.

It is surprising that the DEC has proceeded to promulgate water withdrawal regulations that do not address hydrofracking. Regulations were scheduled to be issued earlier this year, but the DEC continues to await the report of the New York State Commissioner of Health. It is hoped that the Health Commissioner’s report will soon address hydrofracking and horizontal drilling practices and their impacts.

Effective June 1, 2013 large water users (100 million gallons or more per day) were required to submit applications for DEC withdrawal permits. Each year thereafter, other users will be required to apply for DEC permits until all users withdrawing 100,000 gallons or more per day submit applications by February 2017.

While water availability in New York is sufficient to meet domestic and commercial requirements, concerns have been raised that large water users with permits may not be eager to adjust their withdrawals in times of scarcity to meet the needs of small users. Given the anticipated increase in human population, large volume water use if hydro fracturing moratorium is lifted and the effects of global climate change the availability of water in this stare should not be taken for granted.

Recommendations

The DEC upon digesting the long awaited and yet to be published environmental report on hydrofracking should draft revised water withdrawal regulations that address the needs of all stakeholders. The economic opportunities and benefits of hydrofracking on the Marcellus Shale should of course be balanced against the health and environmental concerns of state residents and the wildlife with whom they share the land, air and water of the Empire State but eight years of indecision is long enough.

As Cornell University researchers Rahm and Riha noted, rules and regulations are needed to ensure that water withdrawals are performed in a way that is considerate of natural conditions and existing withdrawals for other purposes.