W. Va. Code R. § 35-3-4

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 35-3-4 - Permit Required for Coalbed Methane Well; Permit Fee; Soil Erosion Control Plan

4.1. Application for Permit; Issuance, Conditions, and Modifications.

4.1.a. An application for any well work permit required for a CBM Well, except permits to plug a well, shall be made on Form WW-5B, "Application for Coalbed Methane Well Work Permit," and shall be accompanied by:

4.1.a.1. A "Notice of Application for a CBM Well Work Permit" in the form prescribed by W. Va. Code § 22-21-9;

4.1.a.2. A plat in the form prescribed by § 22-21-6(5) and W. Va. Code §22-6, and further described in section 9 of this rule;

4.1.a.3. A Performance Bond, Corporate Security, or other security in one of the forms prescribed by W. Va. Code § 22-6-26, or in lieu thereof cash or collateral security allowed by W. Va. Code § 22-21-8;

4.1.a.4. Form WW-9, "Construction and Reclamation Plan," applicable to the plan required by W. Va. Code § 22-21-6(d) and a plan for performing the reclamation required by section 14 of this rule;

4.1.a.5. With any initial application to drill a Coalbed Methane well the fees required by W. Va. Code § 22-21-6(c)(2) (application fee of two hundred fifty dollars), W. Va. Code § 22-6-29, (special reclamation fee of one hundred dollars) and any fees associated with any environmental permits required under Chapter 22;

4.1.a.6. If applicable, the consent required by W. Va. Code § 22-6-21;

4.1.a.7. If stimulation of the well is proposed, the consent required by W. Va. Code § 22-21-7 or in lieu thereof the request for hearing prescribed by W. Va. Code § 22-21-7(b);

4.1.a.8. Copies of statements of no objection from persons entitled for notice pursuant to W. Va. Code § 22-21-7;

4.1.a.9. A statement describing whether any users under subdivision 13.3.e were identified and the manner in which any such users were provided with notice as required under subdivision 13.3.f; and

4.1.a.10. If applicable, the consent required by W. Va. Code § 22-21-20.

4.1.b. Where there is more than one type of well work, a single application may be used provided all such well work is noted on the Form WW-5b filed in connection therewith.

4.1.c. The applicant for any permit mentioned in this rule must file an original and two (2) copies of the Application and an original and four (4) copies of the Notice, plat and, except for application for a permit to plug a CBM Well, a Construction and Reclamation Plan.

4.2. Notice to Surface Owners of Record; Proof of Notice; Comments.

4.2.a. For purposes of notice of surface owners of record, pursuant to W. Va. Code § 22-21-6, the applicant CBM well operator shall be entitled to assume, subject to performing the public record review described in subdivision 4.2.b. below, that the specific person(s) listed on the relevant tax ticket(s) maintained by the Sheriff pursuant to W. Va. Code § 11A-1-8 (as distinguished from the listing of an estate, or of person(s) as "agent" or with "et al" or "heirs" or other designation indicating unspecified owners or record) were in fact surface owners of record when the tax ticket was prepared.

4.2.b. To establish that a surface owner identified on a tax ticket has not transferred an interest in the surface, the CBM well operator must review, from the date the surface owner acquired the surface, or for ten (10) years prior to the date of the review, whichever period is shorter, the "Grantor Index" and the "Fiduciary Index" maintained in the office of the Clerk of the County Commission. If the review identifies surface owner(s) in replacement of or in addition to the tax ticket listing, all successor names shall likewise be checked in the Grantor and Fiduciary Indexes to establish the surface owner(s) of record on the date the review is made.

4.2.c. Where the relevant tax ticket(s) list an estate, or list person(s) as "agent" or with "et al" or "heirs," or other designation indicating unspecified owners of records in the office of the clerk of the county Commission to determine whether the total number of such owners is more than three (3) and, if the total number of such owners is three (3) or less, the names(s) of the surface owner(s) of record on the date the review is made.

4.2.d. If the identification of the surface owners of record is made pursuant to the criteria of subdivisions 4.2.a., 4.2.b. or 4.2.c. within ninety (90) days of the date of filing of the application for a permit, the CBM well operator need not review the records again prior to the filing.

4.2.e. Except where notice by publication is permissible under the provisions of W. Va. Code § 22-21-9(c), the notice to surface owners of record required by W. Va. Code § 22-21-9 shall consist of true, complete copies of all documents required under subdivision 4.1.a. of this rule and shall contain a statement of the methods and time limits for filing comment and objection, who may file comment and objection, the name and address of the chief with whom the comment and objection must be filed, the ability to obtain additional information from the chief, the fact that such persons may request notice of the permit decision, and a list of persons qualified to test water as provided in this section.

4.2.f. All comments filed pursuant to the provisions of W. Va. Code § 22-21-10 shall be in writing, and should contain the name, address and telephone number of the person filing the comment, the CBM well operator's name and CBM well number, and the approximate location of the proposed CBM well site including district and county as indicated in the permit application. Comments may be accompanied by other pertinent documents. Other than as prescribed in this rule, no particular form for the comment is prescribed.

4.2.g. Proof of personal service may be made by the return of any sheriff or other official empowered by law to serve process, or by affidavit of personal service on Form WW-70 by any person, including but not limited to any employee or agent of the CBM well operator. If service is effected by certified mail, service is effective upon mailing and the return receipt card or other postal receipt for certified mailing with postal stamp affixed or photocopy will be accepted as proof of service.

4.2.h. Notice of publication under the provision of W. Va. Code § 22-21-9(c) shall be substantially as provided in Form WW-71CBM. Proof shall be supplied by affidavit of publication from the newspaper.

4.2.i. No permit will be issued until all required proof of notice has been filed with the chief.

4.3. Notice to Coal Owners or Operators, Proof of Notice.

4.3.a. Notice to Coal Operators, Owners or Lessees - A copy of the completed notice and application of any CBM well permit as required by W. Va. Code § 22-21-6, including the associated Construction and Reclamation Plan, Consent and Agreement (if applicable), Plat, and Certificate of Notice required by subdivision 4.3.c., shall be used as the form of the notice to Coal Operators, Owners or Lessees required by W. Va. Code §§ 22-21-6, 22-21-7 and 22-21-9, and shall be mailed by registered or certified mail to coal operators, owners or lessees.

4.3.b. Proof of personal service may be made by the return of any sheriff or other official empowered by law to serve process, or by affidavit of personal service on Form WW-70 by any person, including but not limited to any employee or agent of the CBM well operator. If service is effected by certified mail, service is effective upon mailing and the return receipt card or other postal receipt for certified mailing with postal stamp affixed or photocopy will be accepted as proof of service.

4.3.c. Notice of publication under the provisions of W. Va. Code § 22-21-9 shall be substantially as provided in Form WW-71CBM. Proof shall be supplied by affidavit of publication from the newspaper.

4.3.d. No permit will be issued until all required proof of notice has been filed with the chief.

4.4. Notice to Natural Gas Owners, Lessees, and Operators.

4.4.a. A copy of the completed notice and application of any CBM well permit including the plat shall be used as the form of Notice required to be provided to each owner and lessee of record and each operator of natural gas surrounding the well bore of a proposed CBM well and existing in formations above the top of the uppermost member of the "Onondaga Group" or at a depth less than six thousand feet, whichever is shallower, pursuant to W. Va. Code § 22-21-9. Notices to gas operators shall be sufficient if served upon the agent of record with the office of oil and gas.

4.4.b. Proof of personal service may be made by the return of any sheriff or other official empowered by law to serve process, or by affidavit of personal service on Form WW-70 by any person, including but not limited to any employee or agent of the CBM well operator. If service is effected by certified mail, service is effective upon mailing and the return receipt card or other postal receipt for certified mailing with postal stamp affixed or photocopy will be accepted as proof of service.

4.4.c. Notice of publication under the provisions of W. Va. Code § 22-21-9 shall be substantially as provided in Form WW-71CBM. Proof shall be supplied by affidavit of publication from the newspaper.

4.4.d. No permit will be issued until all required proof of notice has been filed with the chief.

4.5. Review of Application; Issuance of Permit for CBM well in the absence of objections.

4.5.a. The chief shall review each application for a CBM well work permit and shall determine whether or not a permit shall be issued.

4.5.b. No Permit shall be issued less than fifteen days after the filing date of the application for any CBM well work except plugging or replugging; Provided, that if the applicant certifies that all persons entitled to notice of the application under the provisions of W. Va. Code § 22-21-9 have been served in person or by certified mail, return receipt requested, with a copy of the CBM well work application, including the erosion and sediment control plan, and the plat and further files written statements of no objection by all such persons, the chief may issue the CBM well work permit at any time.

4.5.c. Subject to the requirements of W. Va. Code § 22-21-22, no permit for plugging or replugging shall be issued less than five days after the filing date of the application except a permit for plugging or replugging a dry hole: Provided, that if the applicant certifies that all persons entitled to notice of the application under the provisions of W. Va. Code § 22-21-9 have been served in person or by certified mail, return receipt requested, with a copy of the CBM well work application, including the erosion and sediment control plan, and the plat and further files written statements of no objection by all such persons, the chief may issue the CBM well work permit at any time.

4.5.d. The chief may cause such inspections to be made of the proposed CBM well work location as to assure adequate review of the application. The permit shall not be issued, or shall be conditioned, including conditions with respect to the location of the well and access roads, prior to issuance if the chief determines that:

4.5.d.1. The proposed CBM well work will constitute a hazard to the safety of persons; or

4.5.d.2. The plan for soil erosion and sediment control is not adequate or effective; or

4.5.d.3. Damage would occur to publicly owned lands or resources; or

4.5.d.4. The proposed CBM well work fails to protect fresh water sources or supplies.

4.5.e. The chief shall promptly review all comments filed. If after review of the application and all comments received, the application for a CBM well work permit is approved, and no timely objection or comment has been filed with the chief under the provisions of W. Va. Code §§ 22-21-10, 22-21-11 and 22-21-22, the permit shall be issued, with conditions, if any.

4.6. Consent and Agreement of Coal Owner or Operator.

4.6.a. Evidence of the Coal Owner, lessee, or operator consent and agreement as required by W. Va. Code § 22-21-6 shall be submitted to the chief on Form WW-5A and shall become a part of the permanent well record.

4.6.b. In the absence of the applicant submitting evidence of a consent and agreement on Form WW-5A, a request for hearing before the board may be submitted accompanied by an affidavit which shall include all the information required by W. Va. Code § 22-21-7.

4.7. Issuance of Permits.

4.7.a. The determination to deny a permit under the provisions of W. Va. Code § 22-21-6(g), or to deny or condition a permit under the provisions of W. Va. Code § 22-21-12 shall be in writing and issued within thirty (30) days from the date the Notice and Application in complete form with the required documents are filed, except in those cases where comments or objections have been filed pursuant to W. Va. Code §§ 22-21-10 and 22-21-11 or where an applicant has submitted a request for hearing before the Board as provided by W. Va. Code § 22-21-7(b).

4.7.b. The determination to deny, issue or condition a permit under the provisions of W. Va. Code § 22-21-13, shall be in writing and issued within thirty (30) days from the date of receipt of the Coalbed Methane Well Review Board order by the chief in complete form with all documents as required.

4.7.c. In the absence of a pooling order or an order establishing special field rules issued by the Board, no permit to drill a CBM well within 100 feet of the outermost boundary of a coalbed methane tract, leased premises, or unit from which coalbed methane will be produced or within 1,600 feet of an existing CBM well for which a permit application is on file, shall be issued by the chief unless the CBM well operator has provided consent as required by W. Va. Code § 22-21-20.

4.7.d. The permit and any conditions to or modifications of the proposed permitted well work shall be issued by endorsement on or attachment to the "Permit" copy of the Application Form WW-5B.

4.7.e. Any permit issued shall expire automatically unless the permit well work is commenced within twenty-four (24) months of the date the permit was issued. No permit shall be extended to authorize the commencement of well work after the expiration date of twenty-four (24) months.

4.7.f. Upon the issuance of any permit pursuant to the provisions of this article, the chief shall transmit a copy of such permit to the Office of the Assessor for the county in which the well is located.

4.7.g. Upon the issuance or denial of any permit pursuant to the provisions of this article, the chief shall transmit a copy of such permit or denial to all persons noticed in the permit application pursuant to W. Va. Code § 22-21-9.

4.8. Prior to the construction of roads, locations and pits for any permitted well work, the CBM well operator or his contractor shall notify the appropriate oil and gas inspector and allow the opportunity of inspecting and approving the construction and method of reclamation for all proposed areas to be disturbed in siting, drilling, completing or producing the well. In addition, the CBM well operator or his contractor shall notify the appropriate district oil and gas inspector twenty-four (24) hours before actual permitted well work is commenced.

4.9. Drilling prohibition 200 feet - No coalbed methane well shall be drilled nearer than two hundred feet from an existing water well or dwelling without first obtaining the written consent of the owner of such water well or dwelling.

W. Va. Code R. § 35-3-4