Questions from Water Celebration Day

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1 Questions from Water Celebration Day Julie Archer, WV Surface Owners Rights Organization What barriers inhibit surface owners or counties from simply repurchasing several leases, or offering to purchase new leases? Barriers for surface owners to simply repurchasing the rights to the minerals beneath their land, as opposed to leases, are: 1.) Finding out who owns the minerals beneath their land; 2.) Once they find out, convincing the mineral owner to sell those rights; and 3.) Financial barriers to purchasing those rights, especially at times like the present when there is significant interest in leasing and developing those rights. Potential barriers aside, WV-SORO encourages surface owners to find out who owns the minerals beneath their land and to try and by at least a percentage or share of the minerals. If there is no lease in affect, this gives the surface owner some control over whether or how the minerals will be developed. Even owning a small interest, would give the surface owner a say because they cannot move forward with a lease unless everyone who owns an interest agrees to the same lease terms. (Although, note that sometimes those who own a majority interest can go to court to force a partition, but these suits are generally filed in heirship situations where some of the heirs cannot be located or are unknown.) Additionally, even if a surface owner is unable to obtain or buy the mineral rights, by knowing who owns the mineral rights and building a relationship with them the surface owner my be able to persuade the mineral owner to help make sure the surface owners interests are protected when development occurs. And if there is no lease, the surface owner might be able to help with lease negotiations (ie: do leg work on offers; research lease terms that would help protect both the surface and mineral owner) in exchange for the right to consent to sign off on the well site and access road locations, or even a percentage of the royalty. Our Surface Owners Guide to Oil and Gas, which is available at (specifically Appendix D) discusses in detail how surface owners can find out who owns the minerals beneath their land. As far as the counties are concerned, if the property taxes are not paid on the minerals, then the minerals are sold at public auction by the sheriff for non-payment of taxes. If a surface owner knows who owns the minerals beneath their surface they can file a Statement of Lienholders and Other Interested Parties with the local sheriff to be notified by mail if those minerals are sold for nonpayment of taxes. (See our Guide for more details on this.) 1

2 Some states have dormant mineral laws or acts that provide for reuniting inactive mineral rights with the surface estate. Unfortunately, West Virginia is not one of them. When the surface owner does not own the mineral rights who answers for damages to surrounding lands? For damages to neighboring lands that went beyond, or outside the acreage, anticipated in the driller's permit plan, a landowner would have a common law nuisance or trespass case against the driller and perhaps an even stronger case if their surface did not overly the mineral tract being developed. (Note: Under the law, any of the surface land or tracts within the boundaries of the mineral tract at the time ownership was severed can be accessed to get to and develop those minerals. But the surface of the land cannot be used to get the minerals from a neighboring mineral tract.) For damages anticipated in the driller s plans and for which the neighboring landowner would have been entitled to notice of the permit application and the opportunity to comment on it, such as damages from building an access road across the neighboring property to get to the well site, the neighboring landowner would have the right to claim damages under the Oil and Gas Production Damage Compensation Act. The types of damage for which the Act provides compensation are: (1) 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 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) The market value of crops destroyed, damaged or prevented from reaching market, (3) Any damage to a water supply in use prior to the commencement of the permitted activity, (4) The cost of repair of personal property up to the value of replacement by personal property of like age, wear and quality, and (5) 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. See Chapter 6 of the Surface Owners Guide to Oil and Gas for more information on the Act. You said you have 15 days. You have no chance to say how it goes. And you don t want close to your home. Base drills have all the rights. The person doesn t. (200 feet to home) It s not that surface owners do not have rights, but enforcing their common law rights and keeping the drillers from doing more than is fairly necessary to their land can be difficult unless they are able and willing to go to court because the driller has many advantages over the surface owner: More 2

3 money, more lawyers, generally more knowledge and experience, etc. However, surface owners do have a few small advantages and there are things the surface owner can do before and when the driller show up to help protect their land and try to get leverage to negotiate for things they want. One of these is their right to comment on the driller's permit application. (Another is their right to damages under the Damage Compensation Act discussed previously.) But the surface owner only gets 15-days to comment on the permit application and can only comment on how the well site and access roads will be built, not on where they will be located. Only comments directed at limited specific aspects of a drillers plan will get consideration. The fact that gas wells can be drilled 200 feet from people s homes is of particular concern for Marcellus Shale operations, given their duration, the noise, light and other pollution from the sites. There is also the potential for series accidents like fires and explosions Anyone What materials are filtered from the recycled water? I m not sure the flowback is filtered when it is recycled. I believe it is just diluted with freshwater before more chemicals are added to achieve the right concentration. Are there places where they use wastewater plants discharge water or storm oversurge water for fracking fluids? Prior to 2009, some publicly owned treatment works (POTWs) in West Virginia were accepting wastewater from Marcellus drilling operations. However, after problems with high total dissolved solids (TDS) in the Monongahela River, the DEP told POTWs that they needed to meet minimal requirements and conduct extensive testing for pollutants of concern in order to continue accepting the waste. To my knowledge, this effectively put an end to the practice in West Virginia, and there are no POTWs that currently accepting drilling wastewater. There continues to be debate about well contamination from fracking. Would it not be helpful for industry and individual companies to routinely include tracers in frac fluid to at last settle the questions in many instances? At that point the other concerns e.g. about cement, old abandoned wells, etc. can be addressed. Agreed. This might be the way to answer once and for all if fracturing fluid is contaminating groundwater, especially where old wells and faults might serve as conduits. Although it could take years, or decades, for a contaminant plume to pass by an individual well. A 2006 study by the U.S. Geological Survey found that groundwater in aquifers of West Virginia ranged in age from 5.9 to 56 years, with a median age of 19 years. The study concluded that because most of the groundwater sampled and analyzed in the study is young (geologically speaking), the potential for human activity to adversely affect ground water quality in West Virginia is high. According to the report, the ages indicate, that the State s aquifers are vulnerable to contaminant sources in a time span of less than 3

4 30 years (see This is why we oppose the 6-month limitation on the operator's presumptive liability for water contamination as proposed in the bill recommended by the Joint Select Committee on Marcellus Shale. Re: Tracers in frac fluid. In instances where pollution is claimed, results should at least be submitted and/or available to DEP Office of Oil and Gas if not publicly available? We would definitely like to see the Office of Oil and Gas move toward a system of electronic permitting and making well completion, inspector s reports and incident reports available at their website. But at the very least, incidents where pollution has affected the State s waters ground or surface should be fully documented on line. Should not each company be required to identify any abandoned well within the pool of gas/shale being tapped? And then assure that those older wells be plugged by someone e.g. either the Marcellus driller and/or agreement with owner of the older well? Ideally, yes. A provision in the proposed Marcellus regulations recommended by the Select Committee says that in the event of a potential migration event, the Secretary may require the operator to conduct an evaluation of the operator s adjacent oil and gas wells [within 2,500 feet] to determine well cement and casing integrity and to evaluate the potential mechanism of migration. While we believe such an investigation is important in determining the cause of the migration, should such an event occur, an evaluation of all existing oil and gas wells within 2,500 feet of a proposed well (including the horizontal legs) could help prevent such migrations from happening in the first place. According to the DEP there are approximately 12,000 wells listed as abandoned. 4,500 of those have no known operator. Last week at WVU Law School Professor Tom Kinnamen of Bucknell University refuted many of the methods and conclusions regarding the economic analysis of Marcellus impacts made by Dr. Witt of WVU. This overall conclusion is that the economic gain will be great for some but that the losers in this play will be the people who live in the communities where the gas is developed. This is the story of West Virginia coal all over again. We have already seen this in Wetzel County. Are we the martyrs again? How do we balance the boom and survive the bust? Do you agree or disagree that West Virginians are being asked again to allow industry to exploit our resources in the spirit of patriotism and sacrifice? What can we do? If anything The Marcellus Shale presents a unique opportunity for economic development in West Virginia and the quality of life we have during and after the boom should be among the benefits. Unfortunately, the current reality is that this new boom in drilling is poorly regulated and poses serious threats to human health, the environment and our rural way of life. There is also little or no accommodation of surface owners' concerns or plans or uses for their property when they are faced with oil and gas development. Surface owners and citizens living near these drilling operations need relief. It is imperative that the legislature enact legislation to protect the people and resources of the state and for citizens of the State to demand that the do so. Since the legislature has already given tax breaks to the industry for infrastructure, it would seem unconscionable to do nothing for citizens and the 4

5 environment. For surface owners in particular, giving them some say in the process in exchange for these intrusions upon their lives and property is the least the legislature can do. How do they change gas water to fresh? I m not sure I understand the question. If by gas water you mean flowback, it is not possible. There is not an effective way to treat it. 5

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