Title of Regulation: 9VAC15-20. Guidelines for the Preparation of Environmental Impact Assessments for Oil or Gas Well Drilling Operations in Tidewater Virginia (amending 9VAC15-20-10, 9VAC15-20-20, 9VAC15-20-40, 9VAC15-20-70, 9VAC15-20-150, 9VAC15-20-170).

Statutory Authority: § 45.2-1646 of the Code of Virginia.

Effective Date: January 5, 2022.

Agency Contact: Bettina Sullivan, Department of Environmental Quality, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4204, FAX (804) 698-4178, or email bettina.sullivan@deq.virginia.gov.

Summary:

Pursuant to Chapters 387 and 532 of the 2021 Acts of Assembly, Special Session I, the amendments change the name of the Department of Mines, Minerals and Energy to the Department of Energy.

9VAC15-20-10. Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:

"Access road" means a paved or unpaved route or path from a public highway or public road to a well site or associated facility.

"Associated facilities" means any facility used for gas or oil operations in the Commonwealth, other than a well or well site.

"Chesapeake Bay Preservation Area" means an area delineated by a local government in accordance with "9VAC25-830: Chesapeake Bay Preservation Area Designation and Management Regulations" and § 62.1-44.15:74 of the Chesapeake Bay Preservation Act. A Chesapeake Bay Preservation Area consists of Resource Protection Areas and Resource Management Areas.

"Cuttings" means fragments of rock produced in a well bore by a drill bit and brought to the surface by drilling fluids or air pressure.

"Department of Environmental Quality" means the Department of Environmental Quality as described in § 10.1-1182 et seq. of the Code of Virginia.

"Department of Mines, Minerals and Energy" means the Department of Mines, Minerals and Energy as described in § 45.1-161.1 § 45.2-100 et seq. of the Code of Virginia.

"Director of the Department of Energy" means the Director of the Department of Energy or the director's authorized agent.

"Director of the Department of Environmental Quality" means the Director of the Department of Environmental Quality or his the director's authorized agent.

"Director of the Department of Mines, Minerals and Energy" means the Director of the Department of Mines, Minerals and Energy or his authorized agent.

"Drilling fluid" means any fluid or drilling mud circulated in the well bore during drilling operations.

"Economic characteristics" means activities associated with the production, distribution, and consumption of goods and services.

"Enhanced recovery" means (i) any activity involving injection of any air, gas, water, or other fluid into the productive strata; (ii) application of pressure, heat, or other means for the reduction of viscosity of the hydrocarbons; or (iii) the supplying of additional motive force other than normal pumping to increase the production of gas or oil from any well, wells or pool.

"Environment" means the natural, scenic, and historic attributes of Virginia.

"Environmental impact assessment" or "assessment" means that documentation that is required by § 62.1-195.1 § 45.2-1646 of the Code of Virginia to be a part of any application for a permit to drill an oil or gas well in Tidewater Virginia.

"Exploratory well" means any well drilled (i) to find and produce gas or oil in an unproven area, (ii) to find a new reservoir in a field previously found to be productive of gas or oil in another reservoir, or (iii) to extend the limits of a known gas or oil reservoir.

"Facilities and equipment" means all infrastructure supporting the development, drilling, construction, completion, or operation of any gas or oil operation including but not limited to well drilling equipment, well heads, separators, compressors, pumps, manifolds, vehicles, fluid circulation systems, waste handling facilities, storage tanks, valves, pipelines, etc., used to explore for, produce, or transport oil or gas.

"Fiscal characteristics" means the structure of taxation, public revenue, public expenditure, and public debt.

"Gas" or "natural gas" means all natural gas whether hydrocarbon or nonhydrocarbon or any combination or mixture of them, including hydrocarbons, hydrogen sulfide, helium, carbon dioxide, nitrogen, hydrogen, casing head gas, and all other fluids not defined as oil.

"Gas or oil operation" or "operation" means any activity relating to drilling, redrilling, deepening, stimulating, production, enhanced recovery, converting from one type of well to another, combining or physically changing to allow the migration of fluid from one formation to another, plugging, or replugging any well, land disturbing activity relating to the development, construction, operation, and abandonment of a gathering pipeline, the development, operation, maintenance, and restoration of any site involved with gas or oil operations, or any work undertaken at a facility used for gas or oil operations. The term embraces all of the land or property that is used for or that contributes directly or indirectly to a gas or oil operation, including all roads.

"Gas well" means any well that produces or appears capable of producing a ratio of 6,000 cubic feet (6 Mcf) of gas or more to each barrel of oil, on the basis of a gas-oil ratio test.

"Gathering pipeline" means (i) a pipeline that is used or intended for use in the transportation of gas or oil from the well to a transmission pipeline or other pipeline regulated by the Federal Energy Regulatory Commission or the State Corporation Commission or (ii) a pipeline that is used or intended for use in the transportation of gas or oil from the well to an off-site storage, marketing, or other facility where the gas or oil is sold.

"Highly erodible soils" means soils (excluding vegetation) with an erodibility index (EI) from sheet and rill erosion equal to or greater than eight. The erodibility index for any soil is defined as the product of the formula RKLS/T, as defined by the Food Security Act (F.S.A.) Manual of August, 1988 in the "Field Office Technical Guide" of the U.S. Department of Agriculture, Soil Conservation Service, where K is the soil susceptibility to water erosion in the surface layer; R is the rainfall and runoff; LS is the combined effects of slope length and steepness; and T is the soil loss tolerance.

"Highly permeable soils" means soils with a given potential to transmit water through the soil profile. Highly permeable soils are identified as any soil having a permeability equal to or greater than six inches of water movement per hour in any part of the soil profile to a depth of 72 inches (permeability groups "rapid" and "very rapid") as found in the "National Soils Handbook" of July 1983 in the "Field Service Technical Guide" of the U.S. Department of Agriculture, Soil Conservation Service.

"Historic properties" means any prehistoric or historic district, site, building, structure, or object included in or eligible for inclusion in the National Register of Historic Places or the Virginia Historical Landmarks Register including any artifacts, records, and remains that are related to and located within such properties.

"Historic properties survey" means a survey undertaken to establish the presence or absence of historic properties, and any related and necessary management plans developed to conserve such resources.

"Land-disturbing activity" means any change in or reconfiguration of the land surface or vegetation on the land surface through vegetation clearing or earth moving activities including but not limited to clearing, grading, excavating, drilling, transporting, or filling.

"Mcf" means, when used with reference to natural gas, one thousand cubic feet of gas at a pressure base of 14.73 pounds per square inch gauge and at a temperature base of 60°F.

"Natural area preserve" means a natural area that has been dedicated pursuant to § 10.1-213 of the Code of Virginia.

"Natural heritage resources" means the habitat of rare, threatened, or endangered plant and animal species, rare or state significant natural communities or geologic sites, and similar features of scientific interest benefiting the welfare of the citizens of the Commonwealth.

"Natural heritage survey" means a survey undertaken to establish the presence or absence of natural heritage resources, and any related and necessary management plans developed to conserve such resources.

"Nontidal wetlands" means those wetlands other than tidal wetlands that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, as defined by the U.S. Environmental Protection Agency in response to § 404 of the Federal Water Pollution Control Act, in 33 CFR 328.3b.

"Oil" means natural crude oil or petroleum and other hydrocarbons, regardless of gravity, that are produced at the well in liquid form by ordinary production methods and that are not the result of condensation of gas after it leaves the underground reservoir.

"Oil well" means any well that produces or appears capable of producing a ratio of less than 6,000 cubic feet (6 Mcf) of gas to each barrel of oil, on the basis of a gas-oil ratio test.

"Open space" means any land, water, or submerged land that is provided for, preserved for, or used for (i) park or recreational purposes; (ii) conservation of land or other natural resources; (iii) cultural, historic, or scenic purposes; (iv) assisting in the shaping of the character, direction, and timing of community development; or (v) nontidal or tidal wetlands.

"Operations area" means the location of the well, well site, associated facilities, production facilities, access roads, pipeline systems, and other related facilities and equipment necessary to the conduct of a gas or oil operation.

"Person" means any individual or group, any partnership, corporation, association, organization, or other legal entity, including any public body.

"Pipeline corridor" means those areas that pipeline systems pass through or will be constructed to pass through, including associated easements, leases, or rights-of-way.

"Pipeline systems" means all parts of those physical facilities through which gas or oil moves in transportation, including but not limited to pipes, valves, and other appurtenances attached to pipes such as compressor units, metering stations, regulator stations, delivery stations, holders, or other related facilities.

"Production well" means a well, related production facilities and equipment, and activities related to the drilling of a well for the purpose of developing and producing, or converting an exploratory well to develop or produce, oil or gas from geological strata for the purpose of sale, exchange, transfer, or use by the owner or for the purpose of exchange, transfer, sale, or use by any other person.

"Rare, threatened, or endangered species" means any insect, fish, wildlife, or plant species that is listed as, is a candidate for listing as, or is recommended for listing as a rare, threatened, or endangered species by the U.S. Fish and Wildlife Service, the Department of Agriculture and Consumer Services, the Department of Game and Inland Fisheries Wildlife Resources, or the Department of Conservation and Recreation.

"Recreational resources" means the broad range of outdoor and indoor public and private areas and facilities, many of which are identified in the "Virginia Outdoors Plan," used in meeting Virginia's recreational needs including but not limited to public parks, public forests, natural areas, wildlife management areas, lakes and reservoirs, historic resources, trails, rivers, beaches, water access areas, Virginia byways, tidal and nontidal wetlands, and greenways.

"Scenic resources" means features that characterize an area by giving it a special visual identity or that present unique vistas or landscapes, including but not limited to such features as designated or candidate state or federal scenic rivers, federal or state scenic highways or parkways, Virginia byways, and scenic values as recognized by local, state, or federal governments.

"Tidal wetlands" means "vegetated wetlands" and "nonvegetated wetlands" as defined in § 28.2-1300 of the Code of Virginia.

"Tidewater Virginia" means that area of Virginia as defined in § 62.1-44.15:68 of the Code of Virginia and the localities of Manassas and Manassas Park.

"Virginia Outdoors Plan" means the State Comprehensive Outdoor Recreation Plan developed and administered by the Department of Conservation and Recreation.

"Waste from gas, oil, or geophysical operations" means any substance other than gas or oil that is (i) produced or generated during or results from the development, drilling, and completion of wells and associated facilities or the development and construction of gathering pipelines or (ii) produced or generated during or results from well, pipeline, and associated facilities' operations including, but not limited to, brines and produced fluids other than gas or oil. In addition, this term shall include all rubbish and debris, including all material generated during or resulting from well plugging, site restoration, or the removal and abandonment of gathering pipelines and associated facilities.

"Well" means any shaft or hole sunk, drilled, bored, or dug into the earth or into underground strata for the extraction, injection, or replacement of any gaseous or liquid substance, or any shaft or hole sunk or used in conjunction with such extraction, injection, or placement. The term shall not include any shaft or hole, sunk, drilled, bored, or dug into the earth for the sole purpose of pumping or extracting therefrom potable, fresh or usable water for household, domestic, industrial, agricultural, or public use and shall not include water boreholes, methane drainage boreholes where the methane is vented or flared rather than produced and saved, subsurface boreholes drilled from the mine face or an underground coal mine, any other boreholes necessary or convenient for the extraction of coal or drilled pursuant to a uranium exploratory program carried out pursuant to the laws of this Commonwealth, or any coal or nonfuel mineral core hole or borehole for the purpose of exploration.

9VAC15-20-20. Authority.

This chapter implements § 62.1-195.1 § 45.2-1646 of the Code of Virginia, which requires the Department of Environmental Quality to develop criteria and procedures to assure the orderly preparation and evaluation of environmental impact assessments for gas or oil well drilling operations in Tidewater Virginia.

9VAC15-20-40. Applicability.

The environmental impact assessment requirements and criteria apply to all oil or gas well drilling operations, whether an exploratory well or a production well, proposed to occur in Tidewater Virginia. Any person proposing to drill an exploratory well or production well in Tidewater Virginia shall submit to the Department of Mines, Minerals and Energy, as part of his the person's application for a permit to drill such a well, an environmental impact assessment.

9VAC15-20-70. Description of the environment and natural resource features potentially affected by the gas or oil operation.

A. The discussion under this part shall include a description of the existing environment and natural resource features which that will be or may be affected by the gas or oil operation and how they will be or may be affected. The analysis of the environment and natural resource features shall encompass, at the minimum, any area located within 1320 feet of a proposed well and within 100 feet of proposed pipeline systems or associated facilities unless the applicant for the permit to drill can demonstrate that a smaller impact analysis area is appropriate given the nature and location of the proposed gas or oil operation and the potential impact of such an operation on the environment and natural resources. The 1320-foot distance is half of the statewide well spacing requirement set out for gas wells in § 45.1-361.17 § 45.2-1616 of the Code of Virginia and will ensure that the impact analysis for wells established in Tidewater Virginia at the statewide spacing will be tangential. The 100-foot distance from pipelines and associated facilities will ensure that Chesapeake Bay Preservation Areas or other environmentally sensitive resources that may be affected by the oil or gas operation will be detected. The potential for impacts by the proposed oil or gas operation on natural resource features and the environment which that are located outside of the 1320-foot impact analysis area for wells and the 100-foot impact analysis area for pipeline systems and associated facilities shall also be considered and discussed. The discussion shall be supported with graphic information in the form of a plat or plats at a scale between 1:1000 and 1:4000 showing the location of natural resources that will be or may be affected by the proposed operation. The discussion shall include, but not be limited to:

1. Physical site conditions such as:

a. Topographical features including relief, slope, project area elevation, and landscape features such as beaches, sand dunes, shorelines, etc.;

b. Surface water hydrology and drainage patterns including locations of embayments, rivers or streams and related subaqueous beds, tidal or nontidal wetlands, and the 100-year floodplain in the watershed potentially affected by the proposed operation;

c. Existing surface water quality characteristics and how water quality may be affected by emissions from the proposed operation;

d. Existing air quality and how air quality may be affected by emissions from the proposed operation;

e. Geological conditions such as groundwater hydrogeology, including the depths to the top and bottom of groundwater aquifers; general characteristics of the geologic strata to be penetrated by drilling activities; and a discussion of the possibility for land subsidence and any potential impacts associated with land subsidence which may result from the operation;

f. A description of the existing water quality of groundwater aquifers which that will be or may be affected by drilling activities or liquid waste disposal activities focusing particularly on the potability of water in potentially affected aquifers and the extent to which identified aquifers are currently used as domestic or community water supplies;

g. A discussion of the soil types on which an operation will be located, including an identification of prime agricultural lands, highly permeable soils, highly erodible soils, and soil profile descriptions of each representative soil series on the well site to a depth of 72 inches;

h. The identification and location of any public water supply intakes within the watershed where an operation will occur and located within 10 miles downstream of the proposed well site; or any public or private water supply wells located within a one-mile radius of the proposed oil or gas well drilling operation; and

i. Chesapeake Bay Preservation Areas, both Resource Protection Areas (RPAs) and Resource Management Areas (RMAs), located within 1320 feet of the proposed operations area.

2. Biological conditions and resources including but not limited to:

a. A description of the terrestrial and aquatic habitat types and associated flora and fauna, including any natural heritage resources which that are documented by performing a natural heritage survey in conformance with methodologies established by the Department of Conservation and Recreation, and any rare, threatened, or endangered species present;

b. A description of the use patterns of terrestrial habitat by wildlife, including areas such as nesting, roosting, breeding, and calving areas or other unique natural habitat;

c. A description of the use patterns of freshwater, estuarine, and marine habitat by terrestrial and aquatic species, including but not limited to submerged aquatic vegetation, fish spawning areas, shellfish beds, habitat of anadromous fish and other finfish, and benthic organisms; and

d. State Wildlife Management Areas, State Natural Area Preserves, National Wildlife Refuges, or elements of Virginia's National Estuarine Research Reserve System or other unique or important natural communities.

3. Culturally important areas such as historical, open space, and recreational resources, including those resources listed in the Virginia Outdoors Plan, including but not limited to:

a. Historic properties which that are documented by performing a historic properties survey in conformance with guidelines established by the Department of Historic Resources;

b. Public beaches;

c. Scenic resources;

d. Public water access sites;

e. Local, state, or national parks, recreational areas, open space, or forests;

f. State-owned or state managed lands;

g. Federally-owned or federally managed lands;

h. Easements held for agricultural, forestal, open space, horticultural, or other conservation purposes; and

i. Prime agricultural lands as identified by the U.S. Soil Conservation Service and important farm lands as identified by the Virginia Department of Agriculture and Consumer Services.

B. Describe the typical noise levels currently existing at the proposed operations areas. Describe any operation activities that will produce noise over 65 decibels measured at the boundary of the operations area, the source and daily duration of those activities producing the noise, and the estimated external noise level at the nearest noise receptor such as a residence, school, hospital, business, public meeting place, feature identified in the Virginia Outdoors Plan, or wildlife habitat. The applicant should describe what measures, if any, will be taken to reduce projected exterior noise levels below 65 decibels at the nearest receptor.

C. Describe any activities associated with the operation that will produce light or glare within the operations area after sundown and before dawn. Describe the hours that artificial lighting sources will exist, including flaring of wells, gas processing facilities, or production facilities, the intensity of any light sources, and the time such light sources would be in operation. Describe the potential aesthetic, nuisance, safety, or environmental hazards that light or glare may produce outside of the operations area. Describe what steps, if any, that will be taken to minimize light or glare.

D. Describe the actions and measures that will be taken to avoid, minimize, and mitigate impacts on natural, scenic, recreational, and historic resources identified in the assessment. The assessment shall also discuss irrevocable or irreversible losses of the natural resources identified in the assessment.

9VAC15-20-150. Department of Environmental Quality notification by the Department of Mines, Minerals and Energy.

Upon receiving a permit application to drill an oil or gas well in Tidewater Virginia, the Director of the Department of Mines, Minerals and Energy shall notify the Director of the Department of Environmental Quality that a coordinated review of an environmental impact assessment must be initiated. The applicant shall provide the Department of Mines, Minerals and Energy with 17 copies of the environmental impact assessment and the Department of Mines, Minerals and Energy will deliver the copies to the Director of the Department of Environmental Quality. The 90-day review process will begin upon receipt of the appropriate number of copies of the environmental impact assessment by the Director of the Department of Environmental Quality.

9VAC15-20-170. Review of comments.

The Director of the Department of Environmental Quality shall review all written state agency, local government, planning district commission, and public comments and any written or oral comments received during any public hearing. Based on the review by the Director of the Department of Environmental Quality of written comments, oral and written comments received at public hearings, and the environmental impact assessment, the Director of the Department of Environmental Quality will prepare and submit a written report of its findings and recommendations to the Director of the Department of Mines, Minerals and Energy. The findings and recommendations of the Director of the Department of Environmental Quality on an assessment will be available for public inspection at the offices of the Department of Environmental Quality.