The introduction of legislation relating to Marcellus Shale continued yesterday in West Virginia with House Bill 4513 by Delegates Manchin, Beach, Caputo, Fleischauer, Iaquinta, Longstreth, Mahan, Manypenny, Marshall, and Perdue. While the proposed legislation primarily codifies existing administrative guidance developed and introduced in January 2010 by the West Virginia Department of Environmental Protection (WVDEP) through its permit addendum, the new legislation will also require well operators to submit water resources protection plans and meet additional record-keeping requirements.
Consistent with existing WVDEP guidance, the proposed legislation will compel operators to supply certain information to the WVDEP prior to drilling, fracturing, or stimulating Marcellus Shale gas wells that require the taking of more than 750,000 gallons of water from a state water resource in any given month. The information to be submitted relating to state water resources includes: (1) the type of water to be used (for example, surface water or groundwater), (2) the location of the withdrawal point, (3) the anticipated volume of each water withdrawal, (4) the anticipated months for water withdrawals, (5) planned management and disposition of generated wastewater, and (6) a list of additives used for fracturing or stimulating the well. The proposed legislation will also demand that well operators keep records of produced water and the manner in which such water is handled, including details of its transport, disposal, and/or re-use.
Finally, the proposed legislation will require operators to develop a water resources protection plan for all surface water withdrawals. The plan must disclose the existing uses of water, reveal any public water intake points, and confirm "that a sufficient instream flow will be available immediately downstream of the point of withdrawal." The proposed legislation attempts to codify WVDEP's "Water Use Guidance Tool" to define "sufficient instream flow" by approving any withdrawal that meets guidance tool standards as being sufficiently protective of state water resources. In the event that the Water Use Guidance Tool "indicates that water withdrawals should be limited or restricted but local conditions suggest otherwise," withdrawals will be permitted only if "the withdrawal rate is limited to maintain a passby flow in the stream immediately downstream of the point of withdrawal that is protective of the environment." However, the proposed legislation does not define the standard for this limitation, and as a result, there is substantial uncertainty as to its application. Furthermore, WVDEP's guidance tool is newly-developed and thus its use in the field has not been subject to review, leaving its impact on operators to be unknown at this time.
Click here to track the status of the proposed legislation or obtain a copy.
Armando Benincasa
Chase Tower - Eighth Floor
707 Virginia Street E.
Charleston, WV 25301
304.353.8147
armando.benincasa@steptoe-johnson.com