US Forest Service issues plan allowing fracking in George Washington National Forest

On Tuesday, November 18, 2014, the United States Forest Service’s (USFS) Southern Regional Forester issued a Revised Land and Resource Management Plan and Record of Decision allowing natural gas drilling to take place on 177,200 acres of the George Washington National Forest located in Virginia and West Virginia. The new plan will go into effect in early 2015.

Notably, the plan does not prohibit operators from utilizing hydraulic fracturing technology to develop the forest lands. This differs from the original draft management plan which would have prohibited horizontal drilling. Prior to beginning operations, however, all development proposals are required to undergo an additional environmental impact analysis and will be subject to public comment.

The USFS’ announcement comes just months after Pennsylvania Governor Tom Corbett similarly lifted a 2010 moratorium banning Pennsylvania from leasing public parks and forest lands.

Following Governor Corbett’s decision, Pennsylvania negotiated a settlement with environmental groups which barred the issuance of any new leases until the Commonwealth Court ruled on a related lawsuit regarding whether Corbett’s decision to use funds from natural gas leasing in the general budget violated the Pennsylvania constitution. Oral arguments in that case were held in October but no ruling has been issued to date.

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This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713 651 3662) and Shannon DeHont (shannon.dehont@nortonrosefulbright.com or +1 724 416 0431) from Norton Rose Fulbright's energy practice group.

Virginia plans to expand disclosure of fracking chemicals

Virginia’s Department of Mines, Minerals and Energy (“DMME”) issued a notice that it plans to amend its Oil and Gas Regulations (4VAC25-150) to ensure that these regulations reflect current industry best practices and to expand the disclosure of chemical ingredients used in oil and gas operations, including hydraulic fracturing. The deadline for public comments is February 12, 2014. The DMME plans to hold a public hearing on the proposed action after publication in the Virginia Register.

The Virginia Oil and Gas Association has petitioned the DMME to amend the Oil and Gas Regulations to require oil and gas companies to participate in Frac Focus to ensure that all chemicals used in hydraulic fracturing are fully disclosed and available to the public. “This initiative is intended to alleviate public concern that they are not aware of chemicals utilized in the fracing process. Even though this industry has been safely utilizing the fracing process for over 50 years, the Association wants to be totally transparent.” The deadline for public comments is February 26, 2014.

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This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.

Chesapeake Appalachia, LLC, to pay large CWA 404 civil penalty

The U.S. Environmental Protection Agency and the Department of Justice announced on December 19, 2013, that Chesapeake Appalachia, LLC, will pay a $3.2 million civil penalty and spend an EPA-estimated $6.5 million to restore 27 sites damaged by discharges of fill material into streams and wetlands and to implement a Clean Water Act (CWA) 404 compliance plan at the company’s natural gas extraction sites in West Virginia.

Of the 27 sites, four are freshwater impoundments, one is a compressor station, six involve operations related to vertical wells, and the remaining 16 sites involve operations related to horizontal drilling.

In addition to a civil penalty of $3.2 million, the Consent Order requires restoration where feasible, mitigation, employee training for five years in West Virginia, Virginia, Maryland, and Pennsylvania, and integration of a CWA Section 404 compliance protocol into its operating procedures in West Virginia.

According to EPA’s press release, the civil penalty is one of the largest ever imposed for violations of CWA 404. The penalty will be divided between the United States and West Virginia. More information, including the Consent Order, is available on EPA’s web site.

The consent decree, lodged on December 19 in the Northern District of West Virginia, is subject to a 30-day public comment period and court approval.

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This post was written by Janet McQuaid (janet.mcquaid@nortonrosefulbright.com or +1 724 416 0427) from Norton Rose Fulbright's Energy Practice Group.