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Introduced Version House Bill 2098 History

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Key: Green = existing Code. Red = new code to be enacted
H. B. 2098


(By Delegates Hamilton, Klempa, Shaver, M. Poling and Tabb)

[Introduced February 11, 2009; referred to the
Committee on Energy, Industry and Labor, Economic Development and Small Business then the Judiciary.]




A BILL to amend and reenact §22-6-6 of the Code of West Virginia, 1931, as amended; and to amend and reenact §22-7-3 of said code, all relating to prohibiting oil and gas operators from daylighting; defining daylighting; promulgation of rules; exceptions; and providing increased compensation for surface owners under certain circumstances.

Be it enacted by the Legislature of West Virginia:
That §22-6-6 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §22-7-3 of said code be amended and reenacted, all to read as follows:
ARTICLE 6. OFFICE OF OIL AND GAS; OIL AND GAS WELLS; ADMINISTRATION; ENFORCEMENT.

§22-6-6. Permit required for well work; permit fee; application; daylighting prohibited; exceptions ; promulgation of rules; soil erosion control plan.

(a) It is unlawful for any person to commence any well work, including site preparation work which involves any disturbance of land, without first securing from the director a well work permit. An application may propose and a permit may approve two or more activities defined as well work.
(b) The application for a well work permit shall be accompanied by applicable bond as prescribed by section twelve, fourteen or twenty-three of this article, and the applicable plat required by section twelve or fourteen of this article.
(c) Every permit application filed under this section shall be verified and shall contain the following:
(1) The names and addresses of: (i) The well operator; (ii) the agent required to be designated under subsection (e) of this section; and (iii) every person whom the applicant must notify under any section of this article together with a certification and evidence that a copy of the application and all other required documentation has been delivered to all such persons;
(2) The name and address of every coal operator operating coal seams under the tract of land on which the well is or may be located, and the coal seam owner of record and lessee of record required to be given notice by section twelve, if any, if said the owner or lessee is not yet operating said the coal seams;
(3) The number of the well or such other identification as the director may require;
(4) The type of well;
(5) The well work for which a permit is requested;
(6) The approximate depth to which the well is to be drilled or deepened, or the actual depth if the well has been drilled;
(7) Any permit application fee required by law;
(8) If the proposed well work will require casing or tubing to be set, the entire casing program for the well, including the size of each string of pipe, the starting point and depth to which each string is to be set, and the extent to which each such string is to be cemented;
(9) If the proposed well work is to convert an oil well or a combination well or to drill a new well for the purpose of introducing pressure for the recovery of oil as provided in section twenty-five of this article, specifications in accordance with the data requirements of section fourteen of this article;
(10) If the proposed well work is to plug or replug the well: (i) Specifications in accordance with the data requirements of section twenty-three of this article; (ii) a copy of all logs in the operator's possession as the director may require; and (iii) a work order showing in detail the proposed manner of plugging or unplugging the well, in order that a representative of the director and any interested persons may be present when the work is done. In the event of an application to drill, redrill or deepen a well, if the well work is unsuccessful so that the well must be plugged and abandoned, and if the well is one on which the well work has been continuously progressing pursuant to a permit, the operator may proceed to plug the well as soon as the operator has obtained the verbal permission of the director or the director's designated representative to plug and abandon the well, except that the operator shall make reasonable effort to notify as soon as practicable the surface owner and the coal owner, if any, of the land at the well location, and shall also timely file the plugging affidavit required by section twenty-three of this article;
(11) If the proposed well work is to stimulate an oil or gas well, specifications in accordance with the data requirements of section thirteen of this article;
(12) The erosion and sediment control plan required under subsection (d) of this section for applications for permits to drill; and
(13) Any other relevant information which the director may require by rule.
(d) An erosion and sediment control plan shall accompany each application for a well work permit except for a well work permit to plug or replug any well. Such This plan shall contain methods of stabilization and drainage, including a map of the project area indicating the amount of acreage disturbed. The erosion and sediment control plan shall meet the minimum requirements of the West Virginia erosion and sediment control manual as adopted and from time to time amended by the division, in consultation with the several soil conservation districts pursuant to the control program established in this state through section 208 of the federal Water Pollution Control Act Amendments of 1972 (33 U.S.C.1288). The erosion and sediment control plan shall become part of the terms and conditions of a well work permit, except for a well work permit to plug or replug any well, which is issued and the provisions of the plan shall be carried out where applicable in the operation. The erosion and sediment control plan shall set out the proposed method of reclamation which shall comply with the requirements of section thirty of this article. The Office of Oil and Gas may promulgate rules permitting daylighting in specifically described conditions if, based upon scientific studies of hydrogeology, botanical succession and any other relevant fields, which rules may permit daylighting in specifically described conditions with the separately signed consent of the surface owner. For the purposes of this subsection, "daylighting" means the practice of clearing timber and other woody materials back from the roadway or site to allow entrance of sunlight and wind in an attempt to accelerate drying of the road or site surface. In the event a rule is promulgated, the Office of Oil and Gas shall promulgate a form describing the practice of daylighting, the surface owner's rights under this section and the rule, and containing consent language, which form shall be served on surface owners upon whose land daylighting is proposed at the same time the well permit application is served as required by section nine of this article. The practice of daylighting roads or well work sites is otherwise prohibited unless allowed by the aforesaid rules promulgated by the Office of Oil and Gas.

(e) The well operator named in such the application shall designate the name and address of an agent for such the operator who shall be is the attorney-in-fact for the operator and who shall be is a resident of the State of West Virginia upon whom notices, orders or other communications issued pursuant to this article or article eleven, chapter twenty-two, may be served, and upon whom process may be served. Every well operator required to designate an agent under this section shall, within five days after the termination of such this designation, notify the director of such this termination and designate a new agent.
(f) The well owner or operator shall install the permit number as issued by the director in a legible and permanent manner to the well upon completion of any permitted work. The dimensions, specifications and manner of installation shall be in accordance with the rules of the director.
(g) The director may waive the requirements of this section and sections nine, ten and eleven of this article in any emergency situation, if the director deems such action believes necessary. In such case the director may issue an emergency permit which would be effective for not more than 30 days, but which would be subject to reissuance by the director.
(h) The director shall deny the issuance of a permit if the director determines that the applicant has committed a substantial violation of a previously issued permit, including the erosion and sediment control plan, or a substantial violation of one or more of the rules promulgated hereunder, and has failed to abate or seek review of the violation within the time prescribed by the director pursuant to the provisions of sections three and four of this article and the rules promulgated hereunder, which time may not be unreasonable.
Provided, That in In the event that the director does find that a substantial violation has occurred and that the operator has failed to abate or seek review of the violation in the time prescribed, the director may suspend the permit on which said the violation exists, after which suspension and the operator shall forthwith cease all well work being conducted under the permit. Provided, however, That the The director may reinstate the permit without further notice, at which time the well work may be continued. The director shall make written findings of any such determination and may enforce the same in the circuit courts of this state and the operator may appeal such the suspension pursuant to the provisions of section forty of this article. The director shall make a written finding of any such determination.
(i) Any person who violates any provision of this section shall be is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $5,000.00, or be imprisoned confined in the county jail not more than 12 months, or both fined and imprisoned confined.
ARTICLE 7. OIL AND GAS PRODUCTION DAMAGE COMPENSATION.
§22-7-3. Compensation of surface owners for drilling operations.
(a) The oil and gas developer shall be is obligated to pay the surface owner compensation for:
(1) (A) Lost income or expenses incurred as a result of being unable to dedicate land actually occupied by the driller's operation or to which access is prevented by such the drilling operation to the uses to which it was dedicated prior to commencement of the activity for which a permit was obtained measured from the date the operator enters upon the land until the date reclamation is completed;
(2) (B) The market value of crops destroyed, damaged or prevented from reaching market;
(3) (C) Any damage to a water supply in use prior to the commencement of the permitted activity;
(4) (D) The cost of repair of personal property up to the value of replacement by personal property of like age, wear and quality; and
(5) (E) The diminution in value, if any, of the surface lands and other property after completion of the surface disturbance done pursuant to the activity for which the permit was issued determined according to the actual use made thereof by the surface owner immediately prior to the commencement of the permitted activity.: If the oil and gas developer uses a road or site location to which the surface owner does not agree, and if it was not necessary to use a road or site location other than the locations to which the surface owner would agree, then the measure of damages is the diminution of value of the entire tract of land of the surface owner according to its highest and best use at the time the road and site construction began.
(2) The amount of damages may be determined by any formula mutually agreeable between the surface owner and the oil and gas developer.
(b) Any reservation or assignment of the compensation provided in this section apart from the surface estate except to a tenant of the surface estate is prohibited.
(c) In the case of surface lands owned by more than one person as tenants in common, joint tenants or other coownership, any claim for compensation under this article shall be is for the benefit of all such coowners. The resolution of a claim for compensation provided in this article shall operate as a bar to the assertion of additional claims under this section arising out of the same drilling operations.


NOTE: The purpose of this bill is to prohibit oil and gas drillers from "daylighting" the roads and sites they build by cutting down timber in wide swaths of both sides of the road or site. An exception can be made by rule by the Office of Oil and Gas if the exception is based on scientific studies. Also the bill increases the compensation a surface owner receives from the driller for using the surface owner's land for well road and well sites if the driller places the road or site in places the surface owner did not want unless it was necessary for the driller to place the road and site where it was placed.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
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