By John McFerrin
The West Virginia Legislature has come and gone, mostly (at press time they still had to finish the budget). It’s time to look at what happened.
Rights of Surface Owners and Mineral Owners
This controversy has come up every year for the last few years. It goes by different names—“forced pooling” is one—but it is the same controversy.
The controversy is over how to honor the rights of surface owners and the rights of minority owners of oil and gas. It arises because a gas well is often planned to take gas from several different tracts of land. Each of these tracts may be jointly owned by several different people. This raises the possibility that a minority owner could prevent the drilling. The controversy has become more intense in the last few years because of horizontal drilling. Horizontal wells reach a much larger area than conventional wells, creating a much larger number of landowners who could potentially object to the project.
The proposals would change the law so that a majority (or a super-majority such as 75%) could approve the drilling over the objections of the minority. Proposals from different years differ in details but this is the heart of the controversy.
After much discussion and great controversy, this year’s version failed to pass. It will be back next year.
In addition to forced pooling, there was an effort to give gas companies a right to come onto land to survey for possible pipeline locations without the landowner’s permission. It did not pass.
There were two bills that loosened protections for the waters of West Virginia. Both passed.
That one of them was commonly referred to as the “coal bill” tells you most of what you need to know: (1) it’s bad for water quality; and (2) West Virginia politics still being West Virginia politics, it is likely to pass.
Before the “coal bill”, the law on water quality contained the assumption that water must be clean enough to support life, including both that of tiny bugs at the bottom of the food chain as well as that of people. Included within this is the assumption that if the water cannot support the tiny bugs it won’t be good for people either.
To carry out this common sense assumption, the law required that companies not cause a “biologic impairment” of the waters.
The “coal bill” changed that. Although companies must still meet what are known as numeric effluent limits (water leaving the site must contain no more than X amount of this pollutant, Y amount of this pollutant, etc.), the bottom line requirement that there be no biologic impairment is gone.
For more specifics on the bill, see the April, 2017, issue of The Highlands Voice. For insight into why the coal industry thought such a bill was necessary, see “Court of Appeals Enforces Conductivity Rules” in the February, 2017, issue of The Highlands Voice. To see it, go to wvhighlands.org/highlands-voice-mag/.
The second water quality bill that passed was the “Cancer Creek” bill. The Cancer Creek bill (now law) does two things. First, it changes how compliance with water quality standards is determined. Compliance with a standard is determined by measuring the amount of pollutant that is in a given volume of water in the stream. If we can assume when granting permits that there is more water in the stream, then more pollutants can be added to the stream.
For years and years, permits were issued based on assumptions that streams were at their lowest flow. Low flow means that fewer pollutants can be added. Cancer Creek changes the assumptions about stream flow so that we assume there is more water in the stream. If we change those assumptions, then industries will be allowed to discharge more toxins into our streams.
Second, Cancer Creek removes mixing zone protections. Currently, toxic dischargers must space out the discharges so that any discharge will be diluted. The dilution allows more pollution while at the same time requiring it to be spread out. The new law allows more toxic dischargers to locate closer together and create larger toxic hot spots.
It is called Cancer Creek not just for alliteration’s sake but because some of the toxins are carcinogens. That was not the official name of the bill.
In another water related bill, there was a bill to exempt 2,300 oil & gas tanks from the Aboveground Storage Tank Act. The Aboveground Storage Tank Act was West Virginia’s attempt to regulate storage tanks so as to prevent another spill such as the one that happened near Charleston. The bill exempting oil and gas tanks passed.
A bill was introduced to eliminate the Department of Environmental Protection Environmental Advocate. The position the bill would eliminate was aimed at helping everyday citizens navigate the DEP’s complex regulatory system. The bill was referred to committee and disappeared. For more on the position of Environmental Advocate and the precipitous firing of the very effective occupant of that position, see the February, 2017, issue of The Highlands Voice.
Local Energy Efficiency Partnership (LEEP) Act
This bill would have created a method for businesses who wanted to make energy efficient building upgrades to finance those upgrades. The bill passed the Senate 34-0 and was sent to House Government Organizations Committee where it died.
Tax increase for industrial wind farms
In order to encourage the development of wind energy, West Virginia had previously set the property tax rate on the equipment for wind farms much lower than the rate for most other businesses. The Legislature had before it a bill that would take away the subsidy and tax the equipment at wind farms just as other property is taxed. The proposal passed the Senate but never made it out of committee in the House.
In another wind related development (or non-development) the initiative to improve the siting rules for industrial wind farms didn’t make any progress. There are currently rules which give guidance on where wind farms should be located but they don’t work very well. We had hoped that the Legislature would revise those rules to make them more effective. There were not enough Senators or Delegates willing to champion such an effort so it never got off the ground.