Research: How do severed mineral estates affect West Virginia’s farmers?

October 1, 2015   Tags:

We worked with Vermont Law School graduate Sarah Danly, to explore options for farmers with severed mineral rights, and today we’d like to share her research, “Impacts of Severed Mineral Estates on Agriculture Surface Owners in West Virginia.” This research is the product of conversations and partnerships with many long-time advocates and experts such as The West Virginia Agricultural Land Protection Agency, West Virginia Surface Owners Rights Association, and the WVU College of Law.

Why is this important now? As Sarah’s research says, “new technology opens up new opportunities in extraction, existing laws become less clear even as impacts spread. At the same time, the complexity of the network of applicable law and policy, provides many opportunities for minor changes to improve protection and rights of surface owners.”

Download a PDF of the paper here. Here are some brief takeaways:

  • Research indicates that 62% of the acreage affected by Marcellus Shale drilling is farmland – and agriculture is affected at the landscape level by the “ the removal of surface acreage from agricultural (cropland, pasture, hay and forestry) production to accommodate the needed infrastructure.”
  • A 2013 survey of landowners in West Virginia with at least one well on their property found “dramatic differences between split and fee simple properties, with split estate owners overwhelming dissatisfied whereas fee simple owners were overwhelming satisfied.”
  • The Oil and Gas Production Damage Compensation Act includes compensation for lost income, market value of lost crops, and lost value of used surface land, this compensation is not awarded until after the drilling operations are complete, meanwhile, the lost crop production could seriously impede a farm’s economic viability.
  • Water impacts may significant to the farmer as “water loss in the water table affects osmosis preventing underground water from nourishing deep roots of trees and crops. This can deprive producers of the ability to grow crops on their land permanently.”
  • Mineral owners are not liable for any damages unless the surface owner can show “unreasonable, excessive or negligent use.”

What’s next?

The West Virginia Food & Farm Coalition partnered with the WVU College of Law to provide farmers with a “Primer on Mineral Severance for WV Farmers”: including, unique concerns for farmers, what are surface owners’ rights, the landscape for agricultural conservation easements, available resources, action steps for farmers if you’re looking to acquire land or if you’re a surface owner, and what’s being done to change the current situation in WV (e.g. through longstanding organizations like Surface Owners Rights Organization). The resource is now available in our free library.

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