Frack Check WV » surface owner rights

Development of the Rogersville Shale in SW West Virginia is Risky Business

Duane Nichols — Wed, 24 May 2017 05:05:45 +0000

Rogersville shale exploration for oil & gas

Be careful, Cabell and Wayne counties, about shale development in SW WV

Letter to the Editor by Bill Hughes, Huntington Herald-Dispatch, April 7, 2017

The fracturing operations of the Marcellus shale gas exploration and production in West Virginia began 10 years ago in Wetzel County, in the Northwestern part of West Virginia. It remains a major center of natural gas activity.

Since I live in the center of Wetzel County, I was interested in reading the recent article in The Herald-Dispatch about the success story on Cenergy manufacturing company located in Milton. It is definitely good to know that there is an expanding, well managed business, providing professional design and manufacturing to the shale gas industry. Cenergy provides good jobs and is benefiting from the shale gas operations taking place to the north in the active gas field. Unfortunately, the unemployment rate here stays well above the West Virginia average. Here, we live in what is called the sacrifice zone. That means your gain is our pain.

Any time there is a new target of drilling opportunities like the Rogersville shale in the Cabell and Wayne counties area, the same industry sales and marketing pitch is broadcast. A leasing frenzy starts. Wetzel residents heard all the landsmen’s partially true promises of the natural gas industry when Chesapeake Energy first appeared here to claim rights to dominate our rural communities. And like most advertising and public relations strategies, there is always a sliver of truth to the tale.

We should always think twice when an industry needs to spend millions of dollars to tell you it will be marvelous to have their industrial operation in your residential or farming neighborhood. Landsmen have the script memorized. The general themes go like this. Shale gas drilling and fracking is: a dependable, proven technology; fundamentally safe; delivers cheap, clean fuel; and will create jobs and be an economic boon for West Virginia.

Before Cabell residents swallow these statements whole, we might wish to dissect them. Is this a proven process? Well, when Chesapeake invaded Wetzel, we were definitely a shale gas guinea pig in the state. The process we experienced was not 50 years old. It was still very much experimental. The process is improving now. It has gotten better in some respects. But keep in mind that any time the fracturing equipment fleet shows up with canisters of Cesium 137 on them, this is definitely not your grandfather’s well drilling.

These newer well bores need high-volume, high-pressure slick water fluids for fracturing their very long laterals. Your grandfathers’ wells were safe and simply vertical only. And the low level radioactive drill waste products now should have some special disposal requirements.

These “advertised as safe” wells have had their problems with gas releases due to well blowouts, explosions, fires and accidents. But unlike local chemical plants contained within walls and roofs, these accidents happen in our communities.

What about the clean fuel claim? Yes, it is true that natural gas, when finally burned, is cleaner that coal when it is burned. Unfortunately, that is a very narrow slice in the overall cradle-to-grave environmental impact and is hardly the only metric to use. It is a very narrow window to look through.

Also, to categorize shale gas as a safe fuel requires us to ignore the diesel fumes from over 30,000 horsepower of fracturing pump engines and the subsequent combustion fumes from the well pad gas processing equipment. And for the cheap fuel label to be true, we must ignore the major externalized costs to public health, water quality and exposure to silica dust. We must also ignore the daily community inconvenience to the traveling public and the public costs to repair infrastructure damage caused by oversized vehicles. And these funds might have to come from an already stretched thin general state budget. After 10 years of drilling, we are still a poor state. So much for the economic boon from shale gas.

Some free advice from the sacrifice zone in Wetzel to prospective targets in Wayne and Cabell: Do your homework. Residents living there above the Rogersville shale must become better informed; review the 10 years of drilling history here. Discount the self-serving sales pitch of the natural gas industry. Consider the future you wish to leave to you grandchildren. And try to resist the flash of cash since there is no hurry to sign any lease. The Rogersville shale is not going anywhere soon. It can wait until you are better informed.

Bill Hughes, a resident of Wetzel County, WV, has been monitoring the Marcellus shale development from the beginning.

Be Sure to Limit Access to Any ROW or Easement Across Your Property

Duane Nichols — Sat, 08 Oct 2016 20:10:50 +0000

Access to Right of Way (ROW)

Letter to Surface Land Owners Regarding Rights of Way from George Neall:

My wife and I own property where two other property owners have a deeded ROW/easement across our property. Anyone could use this ROW, even unauthorized people, if we did not control it by having a locked gate and/or periodically checking people who use it. We can install gates on the ROW for control of our goats and horses, i.e., where they graze. Right now there are 3 gates through which the ROW users must go through and promptly close. So the deeded ROW does not prevent us from using the property as we see fit.

The video from the BBC details what visitors to family cemeteries where mountain top removal has taken place must typically do in West Virginia. Visitors have to “jump through several hoops” to visit such cemeteries. They have to schedule the visit in advance, wait for an escort, and undergo “hazard training”.

I visited several fracking sites two years ago where energy companies had uncontrolled access to well pads, across surface land they did not own. At that time, I questioned how such companies could do this without any input or control by the surface property owner. I understand the reality that many state’s laws give mining and energy companies the right to do almost anything they think they need to do in order to mine the coal or recover the gas/oil they are after. But do those same state laws mean that surface owners have no legal rights”? I don’t think so as this would surely be seen as a violation of their Constitutional rights.

I’m not an attorney, but it seems to me that surface owners would still retain certain legal rights over the access and use of their property for ROWs or activities like mining. If I were a surface owner and companies were driving across my land, I think I would try to manage or control what was happening. I realize that I could not legally prohibit a mineral owner from gaining access to my property, but surely I would retain the right to ensure that anyone entering the property had the legal right to do so.

Without this right, unauthorized parties could “openly and notoriously” enter my property and potentially claim it under adverse possession. Pollution and/or damage might occur to my land. Without knowing exactly who might have caused it, it would be difficult to recover damages from the responsible party. My land might be posted for hunting and fishing and this cannot be controlled if unauthorized people have access. This would require knowing who the authorized people and companies were. I would also notify the company of any insurance requirements that might affect their access or operations. We are all familiar with signs that say something like “Our insurance prohibits customers from entering the shop”. As landowners, we have similar rights.

I think that if I were a property owner and had mining/oil/gas/pipeline construction traffic across or through my property I would try doing the following:
1.            Notify the mining owner/ROW user that effective on such-and-such date I would be installing an access gate to the road. The purpose of the gate would be to ensure unauthorized personnel were not trespassing on or using my property.
2.            Ask the mineral owner/ROW user to provide me with the names of companies, personnel, and vehicles (by vehicle make/model and license plate number) who are authorized to have access to the land and let them know that access to people or companies not listed would be denied.
3.            Ask the mineral owner/ROW user to notify authorized personnel that the land is posted and hunting and fishing are prohibited. Firearms are not permitted to be carried on the property.
4.            The gate would be in the closed position when attended and personnel desiring access must stop and check in with the attendant, who would open the gate after ensuring the person was authorized. Vehicles will be required to stop upon both entering and leaving.
5.            When the gate is unattended, persons/vehicles wishing access would not be required to stop, but a camera (like a game camera) could record the license plate number of each vehicle and the time/date.
6.            Notify the mineral owner/ROW user that smoking on the property is prohibited due to the increased fire hazard and litter associated with cigarette butts. The mineral owner/ROW user should advise all authorized personnel of this restriction. Littering is also prohibited. Violators will be issued a fine and/or denied access.
7.            Notify the mineral owner/ROW user they are responsible for contamination resulting from their use of the ROW
8.            Post speed limits on unpaved access roads to limit the amount of dust generated.
9.            Notify the mineral owner/ROW user that livestock (goats, cattle, horses, etc.) may be grazing in certain areas and that gates controlling livestock access, if closed, must be promptly re-closed to prevent livestock from straying.

Mining companies have the “hazard training requirements. Surface owners have a similar “rules” requirement, whereby people authorized by the mineral owner/ROW user to have access would be required to read a “rulebook” and sign a form acknowledging they have read the book and will comply with the requirements? They could even be issued a card, just like the coal companies do for the hazard training. Of course, authorized personnel would need to show their card each time. Perhaps they could be required to schedule visits in advance, just like the mountaintop removal coal companies do for people visiting grave sites?

I would expect the mineral owner(s)/ROW users to legally try to prevent me from doing this. With proper backing/support, such legal actions should be welcomed as they could be used to generate lots of negative public opinion of the mining/oil/gas company/ROW user, and might help establish a legal precedent that would help protect other property owners’ rights.

>> George Neall, Retired Engineer/P.E.

Watch the video at this site:
http://www.bbc.com/news/magazine-28304338

WV Supreme Court Says Some Drilling Regulations Predate the Gas Boom and Need Updating

Duane Nichols — Mon, 26 Nov 2012 22:32:07 +0000

: Julie Archer of WV-SORO

From Articles by David Beard, Morgantown Dominion Post, Sunday, November 25, 2012

The state Supreme Court suggested to the Legislature that this week it take a look at surface-owner rights — in particular, possibly granting owners the right to appeal Department of Environmental Protection (DEP) gas well permits.

State code pre-dates the horizontal drilling-hydraulic fracturing boom, the court said, and may need to be updated. Some local legislators said it’s uncertain at this point how the whole body might respond to the idea.

The Supreme Court released an answer late Wednesday in the case of a Doddridge County surface owner, Matthew L. Hamblet, who wanted to appeal a WV DEP well work permit for his property. He filed his appeal in Doddridge Circuit Court, basing his case on a 2002 Supreme Court ruling. The WV DEP and EQT moved to dismiss the appeal. The court denied the dismissal motions, but asked the Supreme Court if the 2002 case — which applied to coal seam owners — also means state code allows surface owners to appeal DEP permits.

The 19-page Supreme Court answer said “no” several times, but it added this comment: “This Court urges the Legislature to re-examine this issue and consider whether surface owners should be afforded an administrative appeal under these circumstances.”

Interim legislative session now underway

Senate President Jeff Kessler, D-Marshall, said it was “interesting to see the open invitation” from the court to revisit the law. He would want to take a closer look at the issues with his attorneys in the coming weeks before the regular session begins in 2013. Noting the court’s comments that much of the code in this area is out of date, he said the Natural Gas Horizontal Well Control Act remains a work in progress. Since the act is still young, the Legislature may want to sit back a while longer and see how things play out.

The surface-owner rights the court refers to, damage compensation and violation of lease rights, are both after-the fact measures. In its brief, West Virginia Surface Owner’s Rights Organization (WV-SORO) argued that a right to appeal is more proactive, to protect owners from “erroneous effects on their interests.” In the Hamblet case, state requirements were disregarded, and the state waived the requirements “without any apparent reasoning.”

WV-SORO spokeswoman Julie Archer spoke with The Dominion Post and drafted an email response to the decision: “This is not the outcome we had hoped for in this case. We are disappointed that the Court did not affirm that surface owners have a constitutional right to appeal the state’s decision to issue drilling permits, and that they declined to address our argument regarding surface owners’ rights to an administrative hearing before the permit is issued. However, we appreciate that the court has urged the Legislature to re-visit the issue and to consider whether surface owners should be afforded an administrative appeal. We hope the Legislature will heed the Court’s recommendation.”

WV – Oil and Natural Gas Association Executive Director Corky DeMarco said the statute clearly grants mineral owners the right to produce their minerals in a responsible manner, and association members have had to deal with conflicts with surface owners. Asked about the court’s suggestion to the Legislature, DeMarco observed there are some contentious leases out there. He said previous legislatures have debated the issue on numerous occasions and he doesn’t see any value in debating it again. DeMarco added he was pleased that the justices chose to base their decision on code as it stands and not try to rewrite the code from the bench.

WV-SORO asked for two things: The right to a hearing before the permit is issued and the right to an appeal if the WV-DEP allegedly errs in granting one. The court didn’t address the first request. The Supreme Court studied the 2002 case, called “Lovejoy,” and state code, and determined that the protections in code for coal seam owners don’t apply to surface owners. Coal seam owners can appeal WV-DEP decisions; surface owners may only file comments on the proposal within 30 days.

The court noted WV-DEP’s and EQT’s assertions that surface owners have court recourse to seek compensation for damages. The court said that much of the code was written before the Marcellus and horizontal drilling/fracking boom, and as such, is out of date. Because of that, it urged the Legislature to revisit the appeals issue.