Senate Bill No. 460
(By Senators Foster, McCabe, Sprouse, Wells and Stollings)
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[Introduced February 5, 2007; referred to the Committee on
Natural Resources.]
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A BILL to amend and reenact §20-1-7 of the Code of West Virginia,
1931, as amended, relating to requiring the Director of the
Division of Natural Resources to promulgate a rule applicable
in Kanawha State Forest, where the state owns the surface
land, but the rights to explore and produce gas, oil or coal
bed methane are owned by or have been leased to other persons.
Be it enacted by the Legislature of West Virginia:
That §20-1-7 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 1. ORGANIZATION AND ADMINISTRATION.
§20-1-7. Additional powers, duties and services of director.
In addition to all other powers, duties and responsibilities
granted and assigned to the director in this chapter and elsewhere
by law, the director is hereby authorized and empowered to:
(1) With the advice of the commission, prepare and administer, through the various divisions created by this chapter, a long-range
comprehensive program for the conservation of the natural resources
of the state which best effectuates the purpose of this chapter and
which makes adequate provisions for the natural resources laws of
the state;
(2) Sign and execute in the name of the state by the "Division
of Natural Resources" any contract or agreement with the federal
government or its departments or agencies, subdivisions of the
state, corporations, associations, partnerships or individuals;
(3) Conduct research in improved conservation methods and
disseminate information matters to the residents of the state;
(4) Conduct a continuous study and investigation of the habits
of wildlife, and for purposes of control and protection, to
classify by regulation the various species into such categories as
may be established as necessary;
(5) Prescribe the locality in which the manner and method by
which the various species of wildlife may be taken, or chased,
unless otherwise specified by this chapter;
(6) Hold at least six meetings each year at such time and at
such points within the state, as in the discretion of the Natural
Resources Commission may appear to be necessary and proper for the
purpose of giving interested persons in the various sections of the
state an opportunity to be heard concerning open season for their
respective areas, and report the results of the meetings to the Natural Resources Commission before such season and bag limits are
fixed by it;
(7) Suspend open hunting season upon any or all wildlife in
any or all counties of the state with the prior approval of the
Governor in case of an emergency such as a drought, forest fire
hazard or epizootic disease among wildlife. The suspension shall
continue during the existence of the emergency and until rescinded
by the director. Suspension, or reopening after such suspension,
of open seasons may be made upon twenty-four hours' notice by
delivery of a copy of the order of suspension or reopening to the
wire press agencies at the State Capitol;
(8) Supervise the fiscal affairs and responsibilities of the
division;
(9) Designate such localities as he or she shall determine to
be necessary and desirable for the perpetuation of any species of
wildlife;
(10) Enter private lands to make surveys or inspections for
conservation purposes, to investigate for violations of provisions
of this chapter, to serve and execute warrants and processes, to
make arrests and to otherwise effectively enforce the provisions of
this chapter;
(11) Acquire for the state in the name of the "Division of
Natural Resources" by purchase, condemnation, lease or agreement,
or accept or reject for the state, in the name of the Division of Natural Resources, gifts, donations, contributions, bequests or
devises of money, security or property, both real and personal, and
any interest in such property, including lands and waters, which he
or she deems suitable for the following purposes:
(a) For state forests for the purpose of growing timber,
demonstrating forestry, furnishing or protecting watersheds or
providing public recreation;
(b) For state parks or recreation areas for the purpose of
preserving scenic, aesthetic, scientific, cultural, archaeological
or historical values or natural wonders, or providing public
recreation;
(c) For public hunting, trapping or fishing grounds or waters
for the purpose of providing areas in which the public may hunt,
trap or fish, as permitted by the provisions of this chapter, and
the rules issued hereunder;
(d) For fish hatcheries, game farms, wildlife research areas
and feeding stations;
(e) For the extension and consolidation of lands or waters
suitable for the above purposes by exchange of other lands or
waters under his or her supervision;
(f) For such other purposes as may be necessary to carry out
the provisions of this chapter;
(12) Capture, propagate, transport, sell or exchange any
species of wildlife as may be necessary to carry out the provisions of this chapter;
(13) Sell timber for not less than the value thereof, as
appraised by a qualified appraiser appointed by the director, from
all lands under the jurisdiction and control of the director,
except those lands that are designated as state parks and those in
the Kanawha State Forest. The appraisal shall be made within a
reasonable time prior to any sale, reduced to writing, filed in the
office of the director and shall be available for public
inspection. The director must obtain the written permission of the
Governor to sell timber when the appraised value is more than five
thousand dollars. The director shall receive sealed bids therefor,
after notice by publication as a Class II legal advertisement in
compliance with the provisions of article three, chapter fifty-nine
of this code, and the publication area for such publication shall
be each county in which the timber is located. The timber so
advertised shall be sold at not less than the appraised value to
the highest responsible bidder, who shall give bond for the proper
performance of the sales contract as the director shall designate;
but the director shall have the right to reject any and all bids
and to readvertise for bids. If the foregoing provisions of this
section have been complied with, and no bid equal to or in excess
of the appraised value of the timber is received, the director may,
at any time, during a period of six months after the opening of the
bids, sell the timber in such manner as he or she deems appropriate, but the sale price shall not be less than the
appraised value of the timber advertised. No contract for sale of
timber made pursuant to this section shall extend for a period of
more than ten years. And all contracts heretofore entered into by
the state for the sale of timber shall not be validated by this
section if the same be otherwise invalid. The proceeds arising
from the sale of the timber so sold, shall be paid to the Treasurer
of the State of West Virginia, and shall be credited to the
division and used exclusively for the purposes of this chapter:
Provided, That nothing contained herein shall prohibit the sale of
timber which otherwise would be removed from rights-of-way
necessary for and strictly incidental to the extraction of
minerals;
(14) Sell or lease, with the approval in writing of the
Governor, coal, oil, gas, sand, gravel and any other minerals that
may be found in the lands under the jurisdiction and control of the
director, except those lands that are designated as state parks.
The director, before making sale or lease thereof, shall receive
sealed bids therefor, after notice by publication as a Class II
legal advertisement in compliance with the provisions of article
three, chapter fifty-nine of this code, and the publication area
for such publication shall be each county in which such lands are
located. The minerals so advertised shall be sold or leased to the
highest responsible bidder, who shall give bond for the proper performance of the sales contract or lease as the director shall
designate; but the director shall have the right to reject any and
all bids and to readvertise for bids. The proceeds arising from
any such sale or lease shall be paid to the Treasurer of the State
of West Virginia and shall be credited to the division and used
exclusively for the purposes of this chapter;
(15) Exercise the powers granted by this chapter for the
protection of forests, and regulate fires and smoking in the woods
or in their proximity at such times and in such localities as may
be necessary to reduce the danger of forest fires;
(16) Cooperate with departments and agencies of state, local
and federal governments in the conservation of natural resources
and the beautification of the state;
(17) Report to the Governor each year all information relative
to the operation and functions of the division and the director
shall make such other reports and recommendations as may be
required by the Governor, including an annual financial report
covering all receipts and disbursements of the division for each
fiscal year, and he or she shall deliver such report to the
Governor on or before the first day of December next after the end
of the fiscal year so covered. A copy of such report shall be
delivered to each house of the Legislature when convened in January
next following;
(18) Keep a complete and accurate record of all proceedings, record and file all bonds and contracts taken or entered into, and
assume responsibility for the custody and preservation of all
papers and documents pertaining to his or her office, except as
otherwise provided by law;
(19) Offer and pay, in his or her discretion, rewards for
information respecting the violation, or for the apprehension and
conviction of any violators, of any of the provisions of this
chapter;
(20) Require such reports as he or she may deem to be
necessary from any person issued a license or permit under the
provisions of this chapter, but no person shall be required to
disclose secret processes or confidential data of competitive
significance;
(21) Purchase as provided by law all equipment necessary for
the conduct of the division;
(22) Conduct and encourage research designed to further new
and more extensive uses of the natural resources of this state and
to publicize the findings of such research;
(23) Encourage and cooperate with other public and private
organizations or groups in their efforts to publicize the
attractions of the state;
(24) Accept and expend, without the necessity of appropriation
by the Legislature, any gift or grant of money made to the division
for any and all purposes specified in this chapter, and he or she shall account for and report on all such receipts and expenditures
to the Governor;
(25) Cooperate with the state historian and other appropriate
state agencies in conducting research with reference to the
establishment of state parks and monuments of historic, scenic and
recreational value, and to take such steps as may be necessary in
establishing such monuments or parks as he or she deems advisable;
(26) Maintain in his or her office at all times, properly
indexed by subject matter, and also, in chronological sequence, all
rules made or issued under the authority of this chapter. Such
records shall be available for public inspection on all business
days during the business hours of working days;
(27) Delegate the powers and duties of his or her office,
except the power to execute contracts, to appointees and employees
of the division, who shall act under the direction and supervision
of the director and for whose acts he or she shall be responsible;
(28) Conduct schools, institutions and other educational
programs, apart from or in cooperation with other governmental
agencies, for instruction and training in all phases of the natural
resources programs of the state;
(29) Authorize the payment of all or any part of the
reasonable expenses incurred by an employee of the division in
moving his or her household furniture and effects as a result of a
reassignment of the employee:
Provided, That no part of the moving expenses of any one such employee shall be paid more frequently
than once in twelve months;
and
(30)
Promulgate a rule in accordance with the provisions of
chapter twenty-nine-a of this code, applicable to Kanawha State
Forest where the state owns the surface land, but where the rights
to explore for or produce gas, oil or coal bed methane are owned by
or have been leased to other persons.
(a) The rule shall set out the standards and practices adopted
by the state for surface use by the owner of the rights to explore
for or produce gas, oil or coal bed methane, by the owner's lessee,
or by an "operator" or "well operator" as that term is defined in
section one, article six, chapter twenty-two of this code,(all
these persons being included in the term "operator" for the
purposes of this paragraph thirty) that will allow the operator to
do what surface use is allowed by the conveyances or leases under
which the right to exploration or production were obtained, but:
(i) Protect the surface and the natural heritage of Kanawha State
Forest ecosystems and plant communities for present and future
generations; (ii) restore such ecosystems and communities where
practicable; (iii) minimize surface and subsurface land
disturbance; (iv) limit tree, shrub, vegetation and topsoil losses
and degradation; and (v) limit the operator to only the rights to
explore and produce that were owned or leased.
(b) The rule shall be promulgated after consulting with the Office of Oil and Gas of the Department of Environmental
Protection, a professor of soil, at colleges or universities in
West Virginia, a West Virginia University Wildlife Extension
Specialist, the West Virginia Division of Natural Resources'
Natural Heritage Program botanist, the Kanawha State Forest
Foundation, the West Virginia Native Plant Society, the Division of
Culture and History State Historic Preservation officer, the local
soil conservation district, and others considered appropriate.
(c) The rule shall provide for minimum impact upon the
surface, including, without limitation, the use of existing roads
where possible and minimization of graveling of roads, and
consistent with the other requirements of this subjection.
(d) The rule shall be at least as protective of the surface as
the West Virginia Soil Erosion and Sediment Control Manual of the
Department of Environmental Protection, Office of Oil and Gas in
use at the time this subsection takes effect, but the rule may vary
from its requirements.
(e) The rule shall require that reclamation of all lands
affected shall be with a diverse, effective and permanent
vegetative cover of the same seasonal variety native to the area of
land to be affected and capable of self-regeneration and plant
succession at least equal in extent of cover to the natural
vegetation of the area: Provided, That if it takes time for seed
sources for this vegetation to be developed, then for a period of two years the state may waive this rule and permit seeds of species
known to be native to West Virginia and suitable for the region in
which Kanawha State Forest is located be used.
(f) The rule shall provide that at least sixty days before the
operator's entry onto the surface land for the purposes of each new
well drilling or other "well work" as that term is defined by
section one, article six, chapter twenty-two of this code,
including entry onto land before surveying, the operator shall give
written notice to the senior state employee whose principal duties
are performed at Kanawha State Forest of the current state of the
operator's plans for that "well work". Notwithstanding the
provisions of subsection (a), section ten, article six, chapter
twenty-two of this code, the state has thirty days to comment on
any well work permit application, and notwithstanding the
provisions of section eleven, article six, chapter twenty-two of
this code, no permit shall be issued based on an application to do
well work in Kanawha State Forest less than thirty days after
filing of the application. The rule shall also provide that at
least two weeks before entry onto the surface land for the purpose
of road maintenance with motorized equipment the operator shall
give written notice to the senior state employee whose principal
duties are performed at Kanawha State Forest of the roads to be
maintained, the purposes of the maintenance, the maintenance to be
done, the equipment to be used and the expected dates and times of maintenance. The rule shall further provide that at least forty-
five days before entering onto the surface land for road
construction or similar surface disturbance for purposes other than
that which must be approved as a part of an application for well
work the operator shall give written notice to the senior state
employee whose principal duties are performed at Kanawha State
Forest of the operator's plans.
(g) The Rule shall provide that the "daylighting" of roads and
sites is prohibited.
(h) The Rule shall require the operator to place a Class I-O
legal notice in every county in which the land is located that the
operator intends to drill a new well or do other well work at least
sixty days prior to entering into Kanawha State Forest for that
purpose. The notice shall state that a public hearing on the
state's response to the operator's permit application will be held
by the state and shall give a telephone number and e-mail address
for Kanawha State Forest where the public may find the date, place
and time of the hearing and the URL for the website of the Division
of Natural Resources where the notice of the hearing will be
posted.
(i) The Rule shall require that when the senior state employee
whose principal duties are performed at Kanawha State Forest
receives prior notice of entry onto the surface land of Kanawha
State Forest by an operator as required by this rule, the state shall have a public hearing at least seven days before the entry,
before the deadline for any comments the state may make on a permit
application, or before the state signs any statement of no
objection pursuant to West Virginia Code, Section 22-6-11. The
state shall make the notice received available to the public on the
website of the division and as the rule may otherwise provide
within two weeks of receipt. The Kanawha State Forest shall
maintain records of those who request in writing or electronically
to have notice of public hearings by e-mail or similar electronic
communications or by facsimile copy of any hearings pursuant to
this Rule. The state shall give notice of any hearings required by
this Rule and of the availability of a copy of the notice in the
State Register, by posting on the appropriate web site of the
Division of Natural Resources, and by e-mail or facsimile
transmission as requested to those for whom it has records pursuant
to this subdivision. At the hearing the state shall provide its
planned comments or response and allow for comment by the public.
(j) The rule shall set out enforcement actions that the state
may take, including, without limitation, injunctions and the
awarding of attorney's fees to the state, for violations of the
terms of the severance document, lease or other documents or
agreements giving rise to or limiting the right to explore for or
drill in Kanawha State Forest Rule or for violations of the terms
of this Rule or other law.
(k) The Legislature hereby finds that an emergency exists
compelling promulgation of an emergency rule, consistent with the
provisions of this subsection. The Legislature therefore, directs
the Director of the Division of Natural Resources to file, on or
before the first day of July, two thousand seven, emergency rules
specifying criteria as required by this subsection; and
(31) Promulgate rules, to implement and make effective the
powers and duties vested in him or her by the provisions of this
chapter and take such other steps as may be necessary in his or her
discretion for the proper and effective enforcement of the
provisions of this chapter.
NOTE: The purpose of this bill is to require the Director of
the Division of Natural Resources to promulgate a rule applicable
in Kanawha State Forest, where the state owns the surface land, but
the rights to explore and produce gas, oil or coal bed methane are
owned by or have been leased to other persons. The rule is to set
out the standards adopted by the state for surface use that will
allow the operator to exercise the operator's rights to use of the
surface and subsurface, but protect the surface, the natural
heritage of Kanawha State Forest ecosystems and plant communities
for present and future generations, minimize land surface and
subsurface disturbance and tree, shrub, vegetation and topsoil
losses and degradation, and limit the operator to only what rights
the operator has.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.