E-mail to the West Virginia Association of Counties about Floodplain Permits

WVSORO sent the following e-mail to the West Virginia Association of Counties alerting them that Counties should let surface owners know when drillers apply for floodplain permits and change their ordinances to make that a permanent part of the process.   You may want to read it and the documents attached to its links.

June 1, 2013

Hi Patti,

I am sending this to you as head of the West Virginia Association of Counties because floodplain regulation is implemented is at the county (and municipal) level.  Your County Commissioners, at least, will be concerned about what I am about to explain out of concern for their constituents, and out of concern for the finances of their counties.

As you know, I am a lawyer, and a co-founder of the West Virginia Surface Owner’s Rights Organization that educates surface owners and tries to protect surface landowners from abuses by oil and gas drillers.  And as we are all hearing, the Marcellus Shale is a game changer for individuals and governments.

I think your County Commissioners should be aware of the huge impact the drilling of Marcellus Shale wells from their new, huge well pads will have on the floodplain permits/ordinances of counties (and municipalities).  Doddridge County has already been sued over a faulty floodplain ordinance.  EQT filed a lawsuit saying that as a result of the County’s constitutionally flawed floodplain ordinance (because the ordinance did not give notice etc. to surface owners), the County is prohibiting EQT from extracting minerals which it is lawfully entitled to extract.  In a hearing in Circuit Court on December 14, 2012, EQT stated (Page 76 lines 20 through 24 of the hearing transcript) and the judge acknowledged (Page 78 lines 13 through 16) that EQT had filed a claim for damages. In paragraph 39 of its amended petition EQT said it has expended $287,000.00 on the permitting and planning process for the wells it wanted to drill.  In addition, EQT asked for attorneys’ fees, costs and expenses (See Amended Petition“Prayer for Relief” Paragraph (j))!  I think your counties will want to amend their floodplain ordinances, and until that can be done, I think your counties need to let surface owners know if a driller applies for a floodplain permit.  Read on.

Here is the problem:

All the local flood plain ordinances followed a model circulated by the State often based on FEMA requirements.  That model assumes that the owner of the surface of the land is the person or entity that will be applying for a permit to put fill or structures on the surface in a flood plain.  However, if the surface owner does not own the minerals, or even if the surface owner owns the minerals but has leased them out, it will be the oil and gas driller and not the surface owner that applies for the flood plain permit — AND UNDER THE CURRENT MODEL ORDINANCE, THE SURFACE OWNER WILL KNOW NOTHING ABOUT, AND HAVE NO INPUT INTO, THE DRILLER’S APPLICATION FOR AND RECEIPT OF THE FLOODPLAIN PERMIT TO PUT FILL AND STRUCTURES ON THE SURFACE OWNER’S LAND.

The Doddridge County Commission found itself in a mess when EQT filed for a permit to move 19,000 cubic yards of fill (and maybe more) into a surface owner’s meadow.  The County granted the floodplain permit.  The citizens who owned the land where the well pad was going to be, plus those who own the land upstream and downstream, knew nothing about the application for or the granting of the permit until after it was done and too late to appeal.  Those citizens showed up in numbers at the next County Commission meeting.  The County withdrew EQT’s permit.  EQT then sued the County Commission.  The judge ruled that, “The Doddridge County Flood Plain Ordinance is in violation of the West Virginia Constitution to the extent that the Ordinance fails to provide Due Process to surface and adjoining landowners potentially affected by the development for which EQT Production Company seeks a permit. . . .The subject Ordinance . . . must afford notice and an opportunity to be heard upon the requested permit to this class of property owners.”  Circuit Court Order  Paragraphs 1 and 3.

Doddridge County has now adopted a new floodplain ordinance (signed copy here) that gives notice and some rights to input to the surface owners where the oil and gas activity is going to occur, plus those nearby.   (A signed copy of which can be obtained from the Doddridge County Commission, and an unsigned copy will be posted on the surface owners’ webs site soon if that has not been done already. ) Different counties may do the notices differently, and it needs some further refinement to make sure minor flood plain changes do not need to jump through unnecessary hoops.  But your County Commissions (and municipalities that have their own floodplain ordinances) need to make changes for the benefits of their citizen surface owners – and to keep themselves from being sued.  Suggested changes to do this may come out in a new model from the State is working on.

In the meantime, if the Counties get applications for floodplain permits from oil and gas drillers, it would be wise for the counties to ask the drillers for the names and addresses of the surface owners (the driller already had to have them for the drilling permit from the Department of Environmental Protection), and for the county to send the surface owners a copy of the application, and give the surface owners time and a chance for input on the permit application.

Please let me know if you or any of your members have any questions.

Dave McMahon

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