On January 17, 2013, South Dakota’s Board of Minerals and Environment (“BME”), a subdivision of the state’s Department of Environment and Natural Resources, adopted amendments to South Dakota’s oil and gas well regulations. The amendments specifically address hydraulic fracturing operations.

Under the new rules, operators must submit information to the FracFocus Chemical Disclosure Registry, including, the well fracture date, operator name, true vertical depth, total water volume, and hydraulic fracturing fluid composition.

In doing so, operators must ensure they disclose the trade name, supplier, purpose, any intentionally added ingredients, CAS numbers, the maximum ingredient concentration in the additive, and the maximum ingredient concentration in the hydraulic fracturing fluid. Following the lead of other states, the rules do include a trade secret exemption. The rules also establish detailed standards for interim and final reclamation of abandoned well sites.
The new rules, which were proposed in December 2012, were adopted at a public hearing on January 17, 2013. During that hearing, BME amended the hydraulic fracturing reporting rule (§ 74:12:02:19) to clarify that companies hydraulically fracturing oil and gas wells are only required to disclose ingredients intentionally included in their hydraulic fracturing fluid, and that they are not required to disclose trade secrets or proprietary information.

Amendments to the proposed well site reclamation rules (§§ 74:12:03:06 and 74:12:03:07) involved changes to what constitutes adequate surface reclamation. The original proposed rules described adequate reclamation as returning disturbed areas back to their original condition or a condition acceptable to the surface landowner.

The amended rules describe adequate reclamation as returning disturbed areas to a condition suitable for pre-drilling land use, with an option to reclaim disturbed areas to an alternate land use if acceptable to the surface landowner.

South Dakota is part of the large Bakken shale play, which also encompasses parts of North Dakota, Montana, and Wyoming. However, the state has not seen the same level of hydraulic fracturing activity as has occurred in western North Dakota and other areas with tight shale formations.

This article was prepared by Heather M. Corken (hcorken@fulbright.com or 713 651 8386) and Kristen Hulbert (khulbert@fulbright.com or 713 651 5303) from Fulbright’s Environmental Law Practice Group.