On April 12, 2013, the West Virginia Legislature passed Senate Bill 243 which contained, among other West Virginia Department of Environmental Protection (“DEP”) rules, the Rules Governing Horizontal Well Development 35-8 (“Rule”). The Rule was developed to provide further direction in the implementation and administration of the Natural Gas Horizontal Well Control Act that became effective on December 14, 2011 (“Act”).

1. Plats of wells – § 6.2.j. regarding plats was revised with respect to the requirement to identify all wells (active, drilling or abandoned) within 500 feet of the horizontal section of the well bore by adding the following sentence: “To make this demonstration, the permit applicant may rely on all available records and locational information; the permit applicant need not conduct a physical survey of the area.”
2. Occupied dwellings – § 6.2.k.2 which contains the 625 foot buffer zone for “occupied dwellings” was revised to state that for the purpose of this rule “occupied dwellings” shall mean “dwellings that are used for human habitation on a permanent or periodic basis.” The underscored word replaces the word “temporary.” This subsection continues with the addition of the following sentence: “An occupied dwelling is not a structure designed for temporary human habitation, i.e. a mobile camping unit, unless such unit is affixed to the ground, not capable of immediate removal, and attached to at least one public utility; tents or similar camping units; unimproved structures that are not equipped for long-term human habitation; temporary structures erected on the premises commensurate with the initiation of activity indicating the prospect of horizontal drilling activities on the site; and similar temporary structures.”
3. Bond forfeiture – § 8.3.a.1 was revised by removing the additional penalty of bond forfeiture for failure to timely notify the Chief of the Office of Oil and Gas of well transfers.
4. Intermediate casing – § 9.2.f.1 was revised by adding the following qualifier to the requirement to cement all intermediate casing to the surface: “unless conducted in a manner otherwise approved by the secretary.”
5. Report of leakage – § 9.2.j was revised from requiring reporting of “any leakage” detected during the annual inspection of a well to requiring reporting of “more than de minimus[sic] leakage.”
6. Reporting of additives – § 10.1.a which addresses the reporting of additives used in frac fluids was revised by the addition of the following sentence at the end of subsection a: “The Office will protect the information designated to be confidential trade secrets in accordance with the West Virginia Freedom of Information Act, W. Va. Code § 29B-1-1, et seq. and the process outlined in its Procedural Rule titled Confidential Information Submitted Pursuant to the Natural Gas Horizontal Well Control Act.”
7. Reclamation of Pits – § 12.4.h which requires operators to reclaim all pits such that they are not left in a condition that “prevents use of the surface for any use available prior to the well activity” was revised with the addition of the phrase “unless otherwise allowed by agreement with the surface owner. . .”
8. Preventing waste – § 13.1 which requires the use of “every possible precaution” to prevent waste of oil or natural gas was revised to require the use of “every reasonable precaution . . . .”