For operators of conventional and unconventional oil and gas wells, the evolving framework of Pennsylvania’s oil and gas law is set to turn “you break it, you bought it” into “it’s broken and you were nearby, so you bought it.”

A pervasive concern for landowners and oil and gas operators alike is the effect of drilling operations on neighboring water wells. Regardless of whether the effect was the direct cause of unconventional drilling, under the Pennsylvania Oil and Gas Act, Pub. L. No. 13, Cl. 58, 2012 Pa. Laws 78–166 (codified throughout 58 Pa.C.S. (2016)), operators are presumed to be liable if such contamination occurs within proximity of the unconventional drilling. Operators can rebut this presumption by performing proper pre-drilling or pre-alteration surveys; however, the applicable regulation to the act, 25 Pa. Code Section 78a.52(c) (2016), soon to be effective upon publication in the Pennsylvania Bulletin, provides little in the way of additional guidance. Adding to the pressure is the recent $4.2 million jury verdict stemming from the Ely v. Cabot Oil & Gas, No. 3:09-CV-2284 (M.D. Pa. Feb. 29, 2016) case. This article will discuss the interplay between the presumption of liability, the effect of the Ely decision, and the forthcoming final regulations to the act. Both operators and landowners alike should emerge with a clearer picture of the steps required to navigate these transitional tides.

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