On July 12, 2011, the Office of the Governor of West Virginia issued Executive Order No. 04-11, the goal of which is to encompass and regulate horizontal drilling and the development of the Marcellus Shale and other reservoirs that may be developed through unconventional methods and directing the West Virginia Department of Environmental Protection (WVDEP) to take immediate actions as outlined in the Executive Order, including promulgation of emergency rules, to protect the public health, safety and welfare of our citizens.

The Executive Order recognizes the importance of the role natural resources in general and Marcellus Shale in particular play in the State’s economy, including jobs creation and tax revenue, while also acknowledging the concerns of our citizens that the development of our natural resources must be performed in a manner that minimizes or eliminates the accidental spills of fluids used in the drilling and completion of wells in the Marcellus Shale, improper construction of production-related infrastructure and other possible environmental incidents.

The Executive Order outlines the steps to be taken by the WVDEP as follows:

1.    Affirms the WVDEP Memorandum dated July 30, 2010, which announced that the land application of any return fluids from completion activities in the Marcellus Shale formation is prohibited.
 
2.    Prohibit the disposal of return fluids from any gas well completed in the Marcellus Shale into any publicly-owned wastewater treatment plant, unless the WVDEP has approved such action in writing.

3.    Increase the regulatory oversight of practices and equipment to further ensure that no pollutants are disposed of or discharged into waters of this State in violation of any applicable State or federal water quality standards and effluent limitations.

4.    Promulgate emergency rules in accordance with W. Va. Code § 29A-3-15, to ensure the immediate preservation of the public health, safety and welfare and to prevent substantial harm to the public interest that could result from spills of fluids used in the drilling and completion of wells in the Marcellus Shale, improper construction of drilling and production-related infrastructure and other possible environmental incidents.

5.    Require that erosion and sediment control plans submitted in conjunction with well work permit applications involving well sites that disturb 3 acres or more of surface, excluding pipelines, gathering lines and roads, be certified by, and constructed in accordance with plans certified by, a registered professional engineer.

6.    Require all well work permit applications involving well sites that disturb acreage in excess of 3 acres to be accompanied by a site construction plan certified by, and constructed in accordance with plans certified by, a registered professional engineer and containing such information as the Secretary of the WVDEP may require.

7.    Require well work permit applications to estimate the volume of water that will be used in conjunction with drilling, fracturing or stimulating the well for which the permit is sought. If the drilling, fracturing or stimulating of a well will require water withdrawals from the waters of this State in amounts in excess of 210,000 gallons during any month, then the applicant must file a water management plan, on either an individual well basis or watershed basis as part of the well work permit application that must include: (a) the type of water source, such as surface or groundwater, the county in which each water source to be used for water withdrawals is located, and the latitude and longitude of each anticipated withdrawal location; (b) the anticipated volume of each water withdrawal; (c) the anticipated months when water withdrawals will be made; (d) the planned management and disposition of wastewater from fracturing, stimulation, and production activities; (e) a listing of the anticipated additives that may be used in water used for fracturing or stimulating the well and, upon well completion, a listing of the additives that were actually used in the fracturing or stimulating of the well.
 
8.    Require all water management plans to include the information required in 7. above and the following: (a) identification of the current designated and existing water uses, including any public water intakes within one mile downstream of the withdrawal location; (b) for surface waters, a demonstration, using methods acceptable to the Secretary of the WVDEP, that sufficient in-stream flow will be available immediately downstream of the point of withdrawal. A sufficient in-stream flow is maintained when a pass-by flow that is protective of the identified use of the stream is preserved immediately downstream of the point of withdrawal; and (c) methods to be used for surface water withdrawal to minimize significant adverse impact to aquatic life.

9.    Require all well work permit applications involving well sites that disturb acreage in excess of 3 acres to include a well-site safety plan to address measures to be employed for the protection of persons on the site, as well as the general public and the environment.

10.    Require all well work permittees to protect the quantity and the quality of water in surface and groundwater systems both during and after drilling operations and during reclamation by (a) withdrawing water from surface waters of the State by methods deemed appropriate by the Secretary of the WVDEP so as to maintain sufficient in-stream flow immediately downstream of the withdrawal location; (b) Casing, sealing or otherwise managing wells to keep fluids or natural gas from entering ground and surface waters; (c) conducting oil and gas operations using best management practices so as to prevent, to the extent practicable, additional contributions of suspended or dissolved solids to streamflow or runoff outside the permit area, but in no event shall the contributions be in excess of requirements set by applicable State or federal law; and (d) registering all water supply wells with the Office of Oil and Gas and constructing and plugging all such wells in accordance with applicable law.

11.    Require well operators, as defined in W. Va. Code § 22-6-1, who withdraw more than 210,000 gallons of waters of this State to adhere to certain reporting and recordkeeping requirements more fully described in the Executive Order.

12.    Require any well work permit applicant seeking to drill the first horizontal Marcellus Shale well on any particular well pad located in an area within the boundaries of any municipality to publish public notice of the filing of such well work permit application in the form, manner and containing the substance prescribed by the Secretary of the WVDEP.

13.    Require all “drill cuttings,” and associated “drilling mud,” to be disposed of in an approved solid waste facility or managed in a manner otherwise approved by the Secretary of the WVDEP with regard to all operations that exceed 3 acres of disturbed surface and/or require 210,000 gallons of water withdrawal per month.

14.    Evaluate its overall regulatory authority over drilling activities related to horizontal wells that exceed 3 acres of disturbed surface and/or require 210,000 gallons of water withdrawal per month and identify additional areas of critical regulatory concern, including but not limited to well construction and design standards, air emissions, drill cuttings management, recycling of produced fluids and water management.