William & Mary Environmental Law and Policy Review


Romany M. Webb


The U.S. has recently experienced a domestic energy renaissance, made possible by technological advances, enabling the development of unconventional oil and gas resources. Vital to this development is hydraulic fracturing (“fracking”), whereby fluid is injected underground at high pressure to fracture the rock, thereby enabling the flow of oil and gas. Fracking has recently faced growing opposition with many concerned about its environmental impacts, particularly its potential to adversely affect water resources, because fracking uses vast amounts of fresh water that ends up as contaminated wastewater. Most of this wastewater is disposed of through underground injection, resulting in its permanent removal from the hydrological cycle. As an alternative, however, the wastewater could be recycled for use in future fracking treatments. This would lead to a decline in fresh water withdrawals for fracking, reducing the potential for water shortages, which are already becoming a problem in arid and semi-arid areas, where many fracking sites are located. In view of these benefits, policymakers in some states have recently sought to encourage greater recycling, but with limited success. This Paper outlines additional policy options for encouraging recycling. It argues that the current low rates of recycling are due, in large part, to the ease with which oil and gas producers can acquire fresh water and dispose of wastewater. After reviewing the existing legal framework for fresh water acquisition and wastewater disposal, the Paper identifies various reforms aimed at making these activities more difficult for oil and gas producers, and thereby encouraging them to invest in recycling.