Summary of New Rules for Horizontal Drilling in West Virginia, as of July 1, 2013
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The document outlines recent amendments to the regulations governing horizontal drilling and well operations in West Virginia, emphasizing new requirements for permit applications, safety plans, and water testing. Key changes include stricter identification of wells near drilling sites, confidentiality provisions for chemical information, and enhanced water supply testing protocols. Operators must ensure compliance with these updated regulations, which aim to improve safety and environmental protections associated with horizontal well operations.
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Specifically, the rule defines water sources and supplies as “existing water wells and developed
springs used by surface owners or water purveyors for consumption by humans or domestic
animals.” But the statute lists wells and springs generically, not as existing or developed, and
also includes another category: “water supply source.” This creates a situation where a surface
owner or water purveyor may have a “water supply source,” and is arguably entitled to notice
and to have their source tested, but does not have an “existing water well” or a “developed
spring” – for example, a pond fed by a surface stream used for livestock.
Additionally, the rebuttable presumption that drilling and/or the oil and gas well is the
proximate cause of contamination or deprivation of a freshwater source or supply within 1500’
of the center of the well pad applies to a very broad category of freshwater sources and supplies
because it is not limited by the qualification the sources or supplies be used for “consumption by
humans or domestic animals.” Furthermore, the statute specifically requires an operator to
replace water supplies that are used for “domestic, agriculture, industrial or other legitimate use
from an underground or surface source” if found to have proximately caused the contamination,
deprivation or diminution of the supply. In order to rebut the presumption applicable to this
broad category of freshwater sources and supplies, the operator is afforded two defenses related
to water testing: 1) water testing shows that pollution existed prior to drilling or alteration
activity; and 2) the landowner or water purveyor refused access for purposes of water testing. To
preserve these defenses, an operator must, at a minimum, attempt to test those freshwater sources
and supplies subject to the rebuttable presumption which may include sources beyond the rule’s
narrower requirement to only test existing water wells and developed springs used for human or
domestic animal consumption.
In addition to the specific provisions noted above, there are other requirements operators
should be aware of:
1. Many of the plans submitted as part of a permit application now require
certification by a West Virginia registered professional engineer, including erosion and sediment
control plans which must now contain both a narrative and a set of drawings, site construction
plans, pits and impoundments with a capacity of greater than five thousand (5000) barrels
associated with a specific well work permit and plans for centralized pits and impoundments.
2. Where circumstances may warrant an immediate response by WVDEP such as in
response to hazards to public safety or environmental contamination, operators are now required
to report to WVDEP within twenty-four (24) hours of the occurrence of the following events: 1)
the discovery of defective, insufficient or improperly cemented casing; 2) the inspection of a pit
or impoundment with a capacity of greater than five thousand (5000) barrels discloses a potential
hazard; 3) failure of embankments of a centralized pit or impoundment as a result of landslides
or slope failures that affect the safety or design capacity of the centralized pit or impoundment;
4) the inspection of a centralized pit or impoundment discloses a potential hazard; and 5) spills or
pollutant discharges constituting reportable discharges, including “[a]ny pit failure which results
in a discharge to any surface water of the state,” and “that are reasonably expected to
contaminate surface water or groundwater.”
For more information, please contact Joseph Jenkins at jjenkins@lgcr.com.](https://image.slidesharecdn.com/overviewwvdephorizontalrulesineffect-130703081816-phpapp02/85/Summary-of-New-Rules-for-Horizontal-Drilling-in-West-Virginia-as-of-July-1-2013-3-320.jpg)
Summary of New Rules for Horizontal Drilling in West Virginia, as of July 1, 2013
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- 2. Page 2 of 3 The Legislature amended subdivision 35-8-5.7.a to require well site safety plans to include “the anticipated MSDS Sheets” of chemicals that will be on site and for the safety plan to be provided to the surface owner and any water purveyor or surface owner entitled to notice and water testing as set forth in section 35-8-15. Section 35-8-6 sets forth the form and content requirements for plats submitted with permit applications. Noteworthy inclusions are: 1) subdivision 35-8-6.2.e requires mineral and surface boundary lines to be clearly distinguishable; 2) in addition to the requirement that all active, drilling and abandoned wells within 1200’ (or 2400’ if the well is deeper than 3000’ and penetrates a coal seam) of the well being permitted are identified on the plat, subdivision 35-8- 6.2.j further requires all active, drilling and abandoned wells within 500’ of the horizontal section of the well bore also be identified; and 3) for purposes of the 625’ well location restriction for occupied dwellings, occupied dwellings are defined as being used for “human habitation on a permanent or periodic basis” and do not include temporary structures, such as: mobile camping units, unless affixed to the ground, not immediately removable and connected to at least one public utility; tents; structures not equipped for long-term human habitation; and structures erected at the same time activity indicating the prospect of horizontal drilling on the site commenced. Paragraph 35-8-9.1.b.3 requires records of water used for hydraulic fracturing and for flowback and produced water to be kept not only for production activities but also for the transport of water, including disposal locations. The Legislature rewrote subsection 35-8-10.1 pertaining to well records and the confidentiality of hydraulic fracturing and stimulation processes. In response to concerns raised by the oil and gas industry, this subsection was amended to allow the operator or service provider to “designate the information regarding the specific identity or concentration or both of a chemical as a confidential trade secret not to be disclosed to the agency or anyone else.” However, there are two exceptions to this confidentiality: 1) WVDEP can request the confidential information as part of an investigation but any confidential information provided to WVDEP shall not be construed as publically available; and 2) a healthcare professional can request confidential information during a medical emergency or for diagnostic or treatment purposes, but should the healthcare professional improperly disclose the confidential information, he or she may be subject to suit for violation of trade secrets. With regard to well records, note also that subdivision 35-8-10.2.a requires the well completion report to identify the “exact location of the as-drilled wellbore.” Apart from natural gas and oil that may be extracted from the unconventional shale plays, natural gas liquids are also recognized as an important product. In response, subdivision 35-8- 11.1.a now requires well operators, as part of their annual production reporting, to report the amount in barrels of natural gas liquids separated under their control. With regards to water supply testing, section 35-8-15 sets forth the specific requirements for meeting the Horizontal Well Act’s provisions regarding notice to surface owners and water purveyors, testing of water sources and the rebuttable presumption of contamination. However, it is important to highlight that the rule is narrower in scope than the statutory requirements.
- 3. Page 3 of 3 Specifically, the rule defines water sources and supplies as “existing water wells and developed springs used by surface owners or water purveyors for consumption by humans or domestic animals.” But the statute lists wells and springs generically, not as existing or developed, and also includes another category: “water supply source.” This creates a situation where a surface owner or water purveyor may have a “water supply source,” and is arguably entitled to notice and to have their source tested, but does not have an “existing water well” or a “developed spring” – for example, a pond fed by a surface stream used for livestock. Additionally, the rebuttable presumption that drilling and/or the oil and gas well is the proximate cause of contamination or deprivation of a freshwater source or supply within 1500’ of the center of the well pad applies to a very broad category of freshwater sources and supplies because it is not limited by the qualification the sources or supplies be used for “consumption by humans or domestic animals.” Furthermore, the statute specifically requires an operator to replace water supplies that are used for “domestic, agriculture, industrial or other legitimate use from an underground or surface source” if found to have proximately caused the contamination, deprivation or diminution of the supply. In order to rebut the presumption applicable to this broad category of freshwater sources and supplies, the operator is afforded two defenses related to water testing: 1) water testing shows that pollution existed prior to drilling or alteration activity; and 2) the landowner or water purveyor refused access for purposes of water testing. To preserve these defenses, an operator must, at a minimum, attempt to test those freshwater sources and supplies subject to the rebuttable presumption which may include sources beyond the rule’s narrower requirement to only test existing water wells and developed springs used for human or domestic animal consumption. In addition to the specific provisions noted above, there are other requirements operators should be aware of: 1. Many of the plans submitted as part of a permit application now require certification by a West Virginia registered professional engineer, including erosion and sediment control plans which must now contain both a narrative and a set of drawings, site construction plans, pits and impoundments with a capacity of greater than five thousand (5000) barrels associated with a specific well work permit and plans for centralized pits and impoundments. 2. Where circumstances may warrant an immediate response by WVDEP such as in response to hazards to public safety or environmental contamination, operators are now required to report to WVDEP within twenty-four (24) hours of the occurrence of the following events: 1) the discovery of defective, insufficient or improperly cemented casing; 2) the inspection of a pit or impoundment with a capacity of greater than five thousand (5000) barrels discloses a potential hazard; 3) failure of embankments of a centralized pit or impoundment as a result of landslides or slope failures that affect the safety or design capacity of the centralized pit or impoundment; 4) the inspection of a centralized pit or impoundment discloses a potential hazard; and 5) spills or pollutant discharges constituting reportable discharges, including “[a]ny pit failure which results in a discharge to any surface water of the state,” and “that are reasonably expected to contaminate surface water or groundwater.” For more information, please contact Joseph Jenkins at jjenkins@lgcr.com.