This article originally provided by The State Journal

December 20, 2007

Proposed Rules Tighten Oil, Gas Drilling in State Forests

Rules being brought forward by the West Virginia Division of Natural Resources would toughen public notice, land reclamation requirements for any oil and gas operations in state forests, although not necessarily to the extent that some environmentalists want.

Story by Walt Williams

Oil and natural gas drillers would need to step with a lighter tread in state forests under proposed rules they say are an overreaction to a 2006 incident in Kanawha State Forest that sparked public outcry.

The rules being brought forward by the West Virginia Division of Natural Resources would toughen public notice and land reclamation requirements for any oil and gas operations in state forests, although not necessarily to the extent that some environmentalists want.

Still, conservation groups support the changes while representatives from the oil and gas industry say that they go too far in restricting drilling.

"We believe that the proposed rules that the DNR has placed before the (Legislative Rule-Making Review Committee) are just too onerous," said Charlie Burd, executive director of the Independent Oil and Gas Association of West Virginia.

Currently, oil and gas drilling is allowed in state forests, unlike in state parks, where it is specifically prohibited by state law.

The proposed rules are fallout from an incident in the Kanawha State Forest, where a contractor for a gas company leveled a nearly mile-long swath of trees in the forest, a move that generated public outcry from residents who regularly use the woods.

The outcry resulted in legislation in the 2007 Legislature aimed at creating new standards for oil and gas drilling in state forests. What ultimately passed was a bill establishing a 60-day public notice requirement for drilling and directing the DNR to come up with new rules regulating drilling in state forests.

The proposed rules are seeking a balance between drilling and other uses of forest lands, such as recreation, DNR spokesman Hoy Murphy said.

"Extraction is one of those uses, but we have to make sure they don't disturb or conflict with other (users) that use that property," he said.

Among the proposed rules is one that requires drillers to use seed mixtures that are beneficial to wildlife and are not considered "invasive species" that displace native vegetation when they reclaim a site.

It is one of few changes that supporters of the rules are displeased with. Dave McMahon, founder of the West Virginia Surface Owners' Rights Organization, would rather have the state require that drillers reclaim a site using native vegetation.

The rest of the bill is more to his liking. Another new requirement would prohibit drillers from clearing more trees around a roadbed than is necessary to use the roadbed, a process known as "daylighting."

"They put (a road) in looking like a superhighway," McMahon said. "It's much wider than it needs to be, and they could have used other techniques."

There are only about 40 oil and gas wells in West Virginia's state forests that Nicholas "Corky" DeMarco, director of the West Virginia Oil & Natural Gas Association, knows about, so drilling in the forests isn't a large part of the industry.

But companies and individuals still own the rights to the minerals underneath forest lands. West Virginia and other states traditionally have given drillers the ability to access those minerals even if they don't own the surface above them, asserting that the resources are a type of property.

"If you curtail us from operating in forests and other public lands, the state does not own the minerals," DeMarco said. "Someone else owns the minerals, then you have a violation of their property rights and then it could be a taking."

DeMarco said the tree clearing in the Kanawha State Forest was the result of contractor mistake and that oil and gas drillers already agreed to more restrictive regulations on state property to satisfy public concerns.

Groups such as the West Virginia Highlands Conservancy don't see the changes already made as enough. Julian Martin, vice president for state affairs for the organization, said oil and gas companies don't want sunshine on what they are doing.

"They don't want any regulation because they fear setting a precedent, and they will have regulations for private landowners, too," he said.

The rule-making committee was supposed to take up the legislation during the December interim session, but it delayed its hearing until the January session.

The Kanawha State Forest Coalition -- a citizen group that supports additional regulations for state forests -- lists several changes it likes in the new rules:

• Forest officials must accept the public's comments on how the state forests should comment as surface owners on drillers' applications for well permits.
• Drillers must notify forest officials when they are coming to do road maintenance at least five days an advance, and officials must forward that notice to citizens who have signed up to get copies of it.
• Drillers have to meet with state forest personnel before filing for a Department of Environmental Protection permit.
• Drillers have to identify known trails and other features of the forest and other known users of forests when planning their well sites and access roads.
• Forest officials can require proposed well and road locations to be moved to accommodate recreational use, natural resources and other values.
• Drillers have to change the locations of proposed well sites and access roads or provide mitigation if endangered or rare species are in those areas.
• The steepness of roads is limited to grades that will not erode if properly maintained.
• Graveling of roads is limited to the minimum necessary to prevent erosion during the expected post-drilling use of the road.
• Drillers must install more waterbars, culverts and broad-based dips.
• Bulldozer "tracking" cannot be used by drillers to prepare for re-planting vegetation.
• Construction and maintenance are limited to the dry months of the year.
• Forest officials can order the drillers' operations suspended during inclement weather.