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West Virginia DEP to Submit Horizontal Drilling Rule to Lawmakers

Regulators with the West Virginia Department of Environmental Protection (DEP) plan to file a legislative rule governing horizontal natural gas drilling that they hope may be adopted by state lawmakers next year.

Although the legislative rule, also known as Title 35-8, has the same name and shares other similarities with an emergency rule that was enacted last summer (see Shale Daily, Aug 24, 2011), DEP spokesman Tom Aluise said the language of the two rules and landmark legislation signed by Gov. Earl Ray Tomblin in December also has differences.

"We had to take a lot of that language that was in the emergency rule and craft a legislative rule to get that on the books permanently," Aluise told NGI's Shale Daily on Tuesday. "Emergency rules are only good for 15 months, so you have to have a way to cement these regulations. One way to do that is to file a legislative rule, which carries the weight of law if it's approved by the legislature."

The West Virginia Legislature is scheduled to convene its 60-day session for 2013 on Jan. 9. Aluise said the DEP plans to submit the legislative rule to Secretary of State Natalie Tennant before her office publishes the June 29 edition of the weekly State Register. He said a 30-day public comment period and a subsequent public hearing would follow the rule's publication.

"We had hoped to pass this rule last year but it didn't get done in time," Aluise said. "So we have had to move to the 2013 session."

The new Title 35-8 outlines protections for water quality and quantity, including tougher standards for well casing and cementing, pit and impoundment construction, water supply testing and groundwater remediation. The proposal makes changes to bonding requirements, permitting, and the forms used by DEP inspectors and others. Operators also would have to submit an estimate of the volume of water that would be used for drilling, fracturing or stimulating a well.

In addition, under the rules if more than 210,000 gallons of water were to be used during any given month, the permit applicant also would have to file a water management plan (either per individual well or by watershed) with the DEP Office of Oil and Gas. Operators also would be required to submit a list of the additives used in fracking and another list of the additives that were actually used when the well was completed.

"It's more expansive," Armando Benincasa, an attorney with the Charleston, WV-based firm Steptoe & Johnson PLLC, told NGI's Shale Daily. "I don't think there's anything in there that the industry would consider a surprise." Benincasa said one interesting new requirement under Title 35-8 is that an operator must respond to surface owners or water purveyor requests to perform water sampling and testing at any water wells or springs within 1,500 feet of the center of a well pad.

"There are some nuances where the industry will likely make some comments as it goes through the notice and comment process," he said.

Tomblin signed the Natural Gas Horizontal Wells Control Act into law last December (see Shale Daily, Dec. 27, 2011). The measure is expected to generate $2.4 million in fees annually, which the DEP plans to use in turn to hire additional field inspectors and permit reviewers as it handles a growing caseload in the Marcellus Shale.

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