State Parks Vulnerable

Much of land could be drilling for oil and gas

Morgantown Dominion Post
8 May 2011
By David Beard

The state of West Virginia does not own the mineral rights under a significant portion of its state forests and wildlife areas, according to numbers provided by the Division of Natural Resources (DNR) Office of Land and Streams.

That means it would have little or no power to stop a gas well drilling company from coming on those lands to drill.

According to common law, the mineral estate is dominant over the surface estate when it comes to property rights, said the West Virginia Surface Owners’ Rights Organization.

State parks are protected by code — when the state owns the surface — but not state forests or wildlife management or public access areas, DNR said.

Several local legislators said that’s one reason the Legislature needs to take action on Marcellus regulation.


State parks

DNR said the state owns or leases a total of 524,540 surface acres — counting state parks, state forests, wildlife management areas (WMAs) and public access areas. It owns oil and gas rights to 166,642 acres — just under 32 percent.

State code blocks access to minerals under state-owned state parks, no matter who owns the rights, DNR said. It owns or leases 76,954 surface acres of parkland, and owns oil and gas rights to 36,887 acres — just under 48 percent.

Leased parklands are not similarly protected.

Locally, the state owns Cathedral State Park in Preston County, and all the mineral rights. It owns Valley Falls State Park in Marion County — about 1,145 acres. It owns the oil and gas rights to 887 acres, but the entire surface is protected, DNR said.

Tygart Lake State Park is 2,138 acres, but the state leases 1,453 acres from the U.S. Army Corps of Engineers, and owns no underground rights.

It leases all of Pricketts Fort State Park — about 188 acres — from the Army Corps and has no mineral rights.


State forests and wildlife areas

The state owns 71,392 acres of forest, and has oil and gas rights to 42,591 acres — just under 60 percent.

If the state wishes to sell or lease mineral rights, it has to advertise for sealed bids, according to state code.

Coopers Rock State Forest in Monongalia and Preston counties covers 12,713 acres. The state’s oil and gas rights extend beyond its borders — 13,740 acres.

The area that could be most affected by Marcellus drilling is state WMAs and public access areas. They total 376,179 acres, owned or leased. West Virginia has the oil and gas rights to only 87,158 acres — a little more than 23 percent.


Agencies and legislators comment

The Department of Environmental Protection (DEP) handles all gas well permitting in the state, and submitted a bill to the Legislature during its last session dealing with environmental issues.

Asked about these state land issues, DEP spokeswoman Kathy Cosco said those kind of recommendations would fall to the DNR. The DNR referred questions to legislative liaison Emily Fleming, who was not in the office Friday.

The Legislature handled a number of Marcellus regulation bills, and passed none of them. House Bill 2878, which died before its third reading, addressed public land issues.

It required the DEP, when reviewing permit applications, to take into account the impact on publicly owned parks, forests, game lands, recreational and wildlife areas, scenic rivers and natural landmarks.

The Senate bill, SB 424, which died on the last day of the session, had no such provisions.

Delegate Mike Caputo, D-Marion, said these land concerns are one good reason acting Gov. Early Ray Tomblin needs to call a special session this summer.

“It all needs to be one complete package,” Caputo said. “We can’t stick our heads in the sand and hope this Marcellus issue goes away by itself.

“State land issues are a major concern,” he said. Capito said some questions to address include whether the state would benefit by leasing minerals that it owns; if it would save taxpayers money; and how it would affect state forests and waters.

“I wish we would quit talking about it and get down there and do something about it,” he said. “I’ve gotten more calls on Marcellus shale issues than any other issue in my 15-year history in the House.”

Capito said he is disappointed that Tomblin has said he won’t call a special session. Tomblin has said the DEP can draft rules to handle permitting.

“Everybody’s concerned,” he said. “We should bring all the stakeholders to the table and protect all the citizens of West Virginia.”

Sen. Bob Beach, DMonongalia, said that many people probably assume the forests and WMAs are protected in the same way as the parks.

Because they aren’t, at some point the Legislature should address that, and perhaps require that several parties sign off on issuing those permits — such as the governor, the DNR and perhaps even the Legislature.

Delegate Tim Manchin, D-Marion, said the state should be able to control the access to public lands because they’re a resource for the people to enjoy.

He said he doesn’t support a ban on drilling on state lands, since sometimes it can be a benefit, but the state should have the control. “To the extent we can be allowed to legislate that, we should.”

Delegate Barbara Evans Fleischauer, D-Monongalia, noted the provisions of HB 2878. Since it failed, “I think it is very important that we have an inventory of what actions have been taken and that we set a policy on it.”

Delegate Dave Pethtel, DWetzel, said, “Those lands should be protected.”

He has not studied this aspect of the Marcellus issue in depth, but, “We need to get a balanced regulatory bill so that we can protect the environment and promote this industry at the same time.”

Delegate Mike Manypenny, D-Taylor, said he’d be interested in an interim study on accessing natural gas under parks and state lands.

“I don’t have a problem with going after it as long as it doesn’t interfere with public use and enjoyment.”

Perhaps, Manypenny said, the Legislature could require that horizontal drillers access the minerals under state lands from outside the boundaries of those lands — since the horizontal bores can extend as far as 6,000 feet.

Before proposing any sort of legislation on this, he’d want to do some digging on the constitutionality of the proposals.