Introduced Version
House Bill 2254 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2254
(By Delegates Manypenny and Fleischauer)
[Introduced February 13, 2013; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §22-6A-18 of the Code of West Virginia,
1931, as amended, relating to requiring the Secretary of the
Department of Environmental Protection to order the operator
of a gas and oil operation whose operations have resulted in
contamination, diminution or interruption of a water supply
for domestic or agricultural purposes to provide an emergency,
temporary and permanent water supply and pay costs; requiring
operators to pretest water wells and domestic springs within
three thousand five hundred feet of the center of the well pad
prior to drilling; continuing the obligation of operator to
provide water supply pending final resolution of litigation;
and modifying the defenses to the rebuttable presumption that
the drilling or oil and gas well, or both, is the proximate
cause of any contamination, diminution or interruption of
water wells or springs.
Be it enacted by the Legislature of West Virginia:
That §22-6A-18 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 6A. NATURAL GAS HORIZONTAL WELL CONTROL ACT.
§22-6A-18. Civil action for contamination or deprivation of fresh
water source or supply; presumption; water rights and
replacement; waiver of replacement.
(a) Nothing in this article affects in any way the rights of
any person to enforce or protect, under applicable law, the
person's interest in water resources affected by an oil or gas
operation.
(b) Unless rebutted by one of the defenses established in
subsection (c) of this section, in any action for contamination or
deprivation of a fresh water source or supply within one thousand
five hundred feet three thousand five hundred feet of the center of
the well pad for horizontal well, there is a rebuttable presumption
that the drilling and the oil or gas well or either was the
proximate cause of the contamination or deprivation of the fresh
water source or supply.
(c) In order to rebut the presumption of liability established
in subsection (b) of this section, the operator must prove by a
preponderance of the evidence one or more of the following
defenses:
(1) The pollution existed prior to the drilling or alteration
activity as determined by a the predrilling or prealteration water
well test required under subsection (d) of this section;
(2) The landowner or water purveyor refused to allow the
operator access to the property to conduct a predrilling or
prealteration water well test;
(3) The water supply is not within one thousand five hundred
feet three thousand five hundred feet of the well; or
(4) The pollution occurred more than six months after
completion of drilling or alteration activities one year following
the last fracking or stimulating activity.
_____(5) The pollution occurred as the result of some cause other
than the drilling or alteration activity.
(d) Any operator electing to preserve its defenses under
subdivision (1), subsection (c) of this section Operators shall
retain the services of an independent certified laboratory to
conduct the predrilling or prealteration water well test. A copy
of the results of the test shall be submitted to the department and
the surface owner or water purveyor in a manner prescribed by the
secretary.
(e) Any operator shall replace the water supply of an owner of
interest in real property who obtains all or part of that owner's
supply of water for domestic, agricultural, industrial or other
legitimate use from an underground or surface source with a comparable water supply where the secretary or other court with
jurisdiction determines that the water supply has been affected by
contamination, diminution or interruption proximately caused by the
oil or gas operation, unless waived in writing by that owner.
(f) The secretary may shall order the operator conducting the
oil or gas operation to:
(1) Provide an emergency drinking water supply within twenty-
four hours;
(2) Provide temporary water supply within seventy-two hours
that will continue until such time that a permanent replacement
water supply has been provided and that is adequate to meet the
needs of the landowner based on historical usage;
(3) Within thirty days begin activities to establish a
permanent water supply or submit a proposal to the secretary
outlining the measures and timetables to be used in establishing a
permanent supply and begin activities. Alternatively, within thirty
days submit a proposal to the secretary outlining the measures and
timetables to be used in establishing a permanent supply and begin
activities within thirty days of submitting the proposal. The
permanent supply shall be equal to the quality and quantity used
historically and shall be sufficient to satisfy the potential need
for domestic and agricultural supply. The total time in providing
a permanent water supply may not exceed two years. If the operator
demonstrates that providing a permanent replacement water supply cannot be completed within two years, the secretary may extend the
time frame on case-by-case basis; and
(4) Pay all reasonable costs incurred by the real property
owner in securing a water supply.
(g) A person as described in subsection (b) of this section
aggrieved under the provisions of subsections (b), (e) or (f) of
this section may seek relief in court.
(h) The secretary shall propose rules for legislative approval
in accordance with the provisions of article three, chapter twenty-
nine-a of this code to implement the requirements of this section.
(i) Notwithstanding the denial of the operator of
responsibility for the damage to the real property owner's water
supply or the status of any appeal on determination of liability
for the damage to the real property owner's water supply, the
operator may not discontinue providing the required water service
until authorized to do so by the secretary or a court of competent
jurisdiction a final resolution, through court order or otherwise,
has been achieved.
NOTE: The purpose of this bill is to require the Secretary of
the Department of Environmental Protection to order the operator of
a gas and oil operation whose operations have resulted in
contamination, diminution or interruption of a water supply for
domestic or agricultural purposes to provide an emergency,
temporary and permanent water supply and pay costs. The bill
requires operators to pretest water wells and domestic springs
within three thousand five hundred feet of the center of the well
pad prior to drilling. The bill requires an operator to continue its obligation to provide a water supply pending final resolution
of litigation. The bill modifies defenses to the rebuttable
presumption that the drilling or oil and gas well, or both, is the
proximate cause of any contamination, diminution or interruption of
water wells or springs.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.