V&E Shale Insights — Tracking Fracking E-communication, August 23, 2011

On August 22, 2011, the West Virginia Department of Environmental Protection (WVDEP) issued an emergency rule outlining several new requirements governing the development of horizontal wells in the Marcellus Shale. The emergency rule increases the WVDEP's regulatory oversight of horizontal drilling of oil and natural gas wells, adding additional permit and operational requirements focused on hydraulic fracturing, or "fracking." This emergency rule was issued as a result of Governor Tomblin's Executive Order No. 4-11, which directed the WVDEP to issue rules on horizontal drilling.

Permit Application Requirements

The rule specifically applies to the development of horizontal wells and sets forth new requirements for well work permit applications for these wells. The rule provides that all applications for well work permits involving well sites that will disturb three acres or more of the surface must be accompanied by an erosion and sediment control plan and a site construction plan, both of which must be certified by a West Virginia registered professional engineer. The rule also sets forth specific minimum standards for site construction. Applications for these types of well sites also must contain a site-specific well site safety plan.

Water Management Plan

The emergency rule also requires permit applicants to submit a water management plan if the applicant intends to use more than 210,000 gallons of water during any one-month period. The water management plan, which may be submitted either on an individual well basis or on a watershed basis, must include detailed information about the source and anticipated usage of the water, including:

  • The type of water source, such as surface or ground water; the county in which each water source is located; and the latitude and longitude of each anticipated withdrawal location;
  • The anticipated volume of each withdrawal;
  • The anticipated months during which withdrawals will be made;
  • The planned management and disposition of wastewater from fracturing, stimulation, and production activities; and
  • A listing of the anticipated additives that may be used in the water for fracturing or stimulating the well, and, upon well completion, a listing of the additives that were actually used.

Additionally, for all surface water withdrawals, the water management plan must identify the current designated and existing water uses, demonstrate that sufficient in-stream flow will be available immediately downstream of the point of withdrawal, and identify the methods to be used to minimize significant adverse impact to aquatic life.

Operational Rules

The emergency rule also imposes operational requirements and directs operators to protect the quality and quantity of surface and ground water systems both during and after drilling operations and during reclamation. Among other requirements, the rule directs operators to comply with record-keeping requirements regarding the quantity of flowback water from hydraulic fracturing activities, the quantity of produced water from the well, and the method of management or disposal of the flowback and produced water. The rule also provides that all drill cuttings and drilling mud be disposed of in an approved solid waste facility or on-site in a manner that is otherwise approved by the state. The rule further adds casing and cementing requirements to prevent the migration of gas and other fluids into fresh ground water and coal seams.

Public Notice Procedures

Notably, the rule imposes public notice requirements on operators intending to drill horizontal wells within the boundaries of a municipality. At least 30 days prior to commencing drilling the first well on any well pad located within the boundaries of a municipality, operators must place a Class I legal advertisement in a newspaper of general circulation in the area where the well is proposed to be drilled. The notice must provide the location of the proposed well, the date on which site preparation for the well will begin, and the applicant's contact information.

What This Means to You

The emergency rule continues the growing trend of increased regulation of natural gas development in the Marcellus Shale. The rule will become effective once approved by the West Virginia Secretary of State and will remain in effect for 15 months. The emergency rule may be replaced or supplemented with legislation and/or a permanent rule to be adopted using "non-emergency" procedures, including public notice and comment. Interested parties should carefully track the development of rules related to hydraulic fracturing in West Virginia and participate in the public comment process for any new rulemakings proposed by the WVDEP or other state agencies with jurisdiction within the Marcellus Shale.

A copy of the emergency rule is available here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.