The Register-Herald, Beckley, West Virginia

Balancing Act

February 24, 2011

Lawmakers still mulling legislation

BECKLEY — Members of the West Virginia Legislature are currently considering two markedly different bills regarding the regulation of natural gas, and it’s not clear if either will make it through this legislative session.

“The Hydraulic Fracturing and Horizontal Drilling Act” was created by legislative staff for the Interim Judiciary Subcommittee A. The second bill was drafted by the West Virginia Department of Environmental Protection.

Both bills were created with input from a variety of sources and after presentations from various stakeholders. While similar processes were involved in generating both bills, the documents, each more than 100 pages long, differ in many respects.

The interim bill largely applies to horizontal drilling of the Marcellus shale and large-scale hydraulic fracturing, while the DEP bill institutes changes industrywide.

The DEP bill would require advance notice to surface owners of seismic activity on their land, while the interim bill would not. In the DEP bill, however, owners are only entitled to a minimum three-day notice, while the interim bill grants a minimum of 15 days notice, including a list of all planned surface activities and proposed compensation before the permit is filed.

The DEP bill also requires drillers to install an emergency services safety plan in case of an accident at the well site. The interim bill does not contain such a requirement.

Permit fees also vary in each bill. The DEP bill provides a new $10,000 permit fee for horizontal well drilling, while the interim bill would set a $15,000 permit fee, $10,000 modification fee and a $5,000 annual fee.

The DEP bill also provides new surface and air protection regulations, while the interim bill does not. Under the DEP bill, drillers are required to be 100 feet from any surface water or 200 feet from a water well, while the interim bill would restrict horizontal wells to no less than 1,000 feet from a water well or building and must be at least 100 feet from surface waters.

Where drillers can dispose of fracturing fluid is also handled differently by each bill. The DEP bill would require a certificate of approval from a registered professional engineer to construct impoundments where “frac water” will be stored. The interim bill specifically requires dual liner and leak protection systems for impoundments.

The interim bill would also require increased inspection of well casings used in the drilling process, increase bonding requirements for new horizontal wells, allow intervention of new permits based on history of compliance with the Department of Highways and offer preservation of local zoning and land use laws. 

It also provides a permitting fast lane for drillers who can reach a use agreement with surface owners. Without an agreement, the interim bill requires drillers to post an additional bond.

The DEP bill offers provisions to require a surface reclamation plan before a well is plugged. It also adds a surface owner representative to the Shallow Gas Well Review Board and on the Oil and Gas Conservation Commission. The DEP bill also includes language to prevent permit-blocked operators from continuing to operate under a different entity.

Both bills would require drillers to have a water management plan. Currently, there are no laws regarding the source and amount of water that can be withdrawn for drilling and fracturing. Both also would require that a list of the additives to be used in fracturing be contained in the water management plan.

The DEP and interim bills further require that once drilling has been completed, a list of additives actually used be provided as well.

Neither bill addresses concerns about public notices of horizontal drilling, prohibition of burial of waste, or requirements to mark buried waste sites, or requirement of providing notice to water suppliers of possible spills in streams as requested by the West Virginia Surface Owners’ Rights Organization.

Various lawmakers have stated their intention is to combine elements of each bill, as well as make additional changes to laws and regulations.

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