February 2, 2011 I said in my coverage of hydraulic fracking in Kansas: "...the state is not allowed to approve any water right for fresh water when other, lesser quality waters are available to be used. Presumably this would find very small (if any) amounts of fresh water being used for fracking, or any other oil & gas purpose, in Kansas."
Turns out this is not exactly the case. KSA 82a-711 actually says: "...except that the chief engineer shall not approve any application submitted [for a water right] for the proposed use of freshwater in any case where other waters are available for such use and the use thereof is technologically and economically feasible." And this same language shows up in KSA 82a-727 dealing with approvals by the chief engineer of temporary permits - most often used by the oil & gas industry for well drilling purposes. So, seems the operable words are "technologically and economically feasible".
I then did a quick search of my temporary and term permits for their water sources. (Yeah, I know, I should have done this back in February!) From January 1, 2011 to September 21, 2011, within GMD 4, I found 32 oil & gas permits issued. Thirty-one were for groundwater and one was for surface water. All were for freshwater. I didn't expect to see this. I called the division of water resources to ask: Had they issued a blanket ruling that Dakota Aquifer waters (and all other waters below the Ogallala Aquifer) were too difficult to use?; or, Were they not aware of the lesser quality water requirement?; or, What? Moreover, the small number of permits issued thus far in 2011 in our area has me wondering what percentage of drilling activity is even bothering to secure the water rights required by law. I'll look into this later (and likely blog about it as well).
Anyway, I don't think the industry can argue that Dakota, Cheyenne, Cedar Hills or other brackish waters below the Ogallala are technologically out of reach - as they drill through them routinely on every well completion. This only leaves the possibility of these waters being economically challenging. Comforting, isn't it? The good news is all 32 permits were for drilling wells - a relatively small amount of water. There were no water flood projects or the kind of operations that use huge quantities of water over many years.
Turns out the state was aware of the rule, and indicated that it was an aspect of their regulatory duties that needed, and was slated for, more attention and broader discussions in the near future. And they promised my question and comments would be included in these discussions. While use of freshwater in some oil and gas operations is probably justified, we just need to have the smarts to determine which operations are justified and which are not, and then the guts to enforce this law more closely. My prediction is that the oil and gas industry in Kansas may want to start preparing to better justify their water use needs and start planning on the use of more brackish waters.