W. Va. Code R. § 38-2D-5 - Rights Of Entry

5.1. Consent to entry. -- The WVDEP shall take all reasonable actions to obtain written consent from the owner of record of the land or property to be entered in advance of such entry. The consent shall be in the form of a signed statement by the owner of record or his authorized agent which, as a minimum, includes a legal description of the land to be entered, the projected nature of the work to be performed on the land and any special conditions for entry. The statement shall not include any commitment by the WVDEP to perform reclamation work not to compensate the owner for entry.

5.2 Entry for studies or exploration.

(a) The WVDEP or its agents, employees, or contractors, shall have the right to enter upon any property for the purpose of conducting studies or exploratory work to determine the existence of adverse effects of past coal mining practices and the feasibility of restoration, reclamation, abatement, control, or prevention of such adverse effects.

(b) If the owner of the land to be entered under this section will not provide content to entry, the WVDEP shall-give notice in writing to the owner of its intent to enter for purposes of study and exploration to determine the existence of adverse effects of past coat mining practices which may be harmful to the public health, safety, or general welfare. The notice shall be by mail, return receipt requested, to the owner, if known, and shall include a statement of the reasons why entry is believed necessary. If the owner is not known, or the current mailing address of the owner is not known, or the owner is not readily available, the notice shall be posted in one (1) or more places on the property to be entered where it is readily visible to the public and advertised once in a newspaper of general circulation in the locality in which the land is located. Notice shall be given at least thirty (30) days before entry.

5.3. Entry and consent to reclaim.

(a) The WVDEP or its agents, employees, or contractors, may enter upon land to perform reclamation activities if the consent of the owner cannot be obtained.

(b) Prior to entry under this section, the WVDEP shall find in writing with supporting reasons that:

(1) Land or water resources have been adversely affected by past coal mining practices,

(2) The adverse effects are at a state where, in the interest of the public health, safety, or the general welfare, action to restore, reclaim, abate, control, or prevent should be taken; and

(3) The owner of the land or water resources where entry must be made to restore, reclaim, abate, control, or prevent the adverse effects of past coal mining practices is not known or readily available, or

(4) The owner will not give permission for the WVDEP or its agents. employees, or contractors to enter upon such property, to restore, reclaim, abate, control, or prevent the adverse effects of past coal mining practices.

(c) The WVDEP shall give notice of its intent to enter for purposes of conducting reclamation at least thirty (30) days before entry upon the property. The notice shall be in writing and shall be mailed, return receipt requested, to the owner, if known, with a copy of the findings required by this section. If the owner is not known, or if the current mailing address of the owner is not known, notice shall be posted in one or more places on the property to be entered where it is readily visible to the public and advertised once in a newspaper of general circulation in the locality in which the land is located. The notice posted on the property and advertised in the newspaper shall include a statement of where the findings required by this section may be inspected or obtained.

(d) WVDEP, its agents, employees, and/or contractors shall have the right to immediately enter upon any land or property without the owner's consent where an emergency exists and any other property to have access to such property to do all things necessary or expedient to study, restore, reclaim, abate, control, or prevent the adverse effects of past coal mining practices.

(e) The WVDEP shall make reasonable efforts relative to the emergency conditions that exist to obtain written consent from the owner of the land and/or property to be entered in advance of such entry. If the owner of the land to be entered under this section will not grant written consent to entry or is not known or readily available, then written notice of such entry shall be provided the owner within a reasonable period and in a manner in accordance with the requirements set forth in section 2D-5 of this rule. Notice to any owner shall not be required prior to the entry of the WVDEP, its agents, employees, and/or contractors upon any property for emergency reclamation activities.

(f) Prior to entry under this section, WVDEP shall make a written finding with supporting reasons that the situation qualifies as an emergency, which is defined as follows:

(1) An emergency exists constituting a sudden danger or impairment that presents a high probability of substantial physical harm to the health, safety, and general welfare of the public before the danger can be abated under normal program operating procedures.

(2) No other person or agency will act expeditiously to restore, reclaim, abate, control, or prevent the adverse effects of past coal mining practices.

(g) Such entry shall be construed as an exercise of the police power of the State for the protection of the public health, safety and general welfare and shall not be construed as an act of condemnation of property nor of trespass thereof. The moneys expended for such work and the benefits accruing to any such premises so entered upon shall be chargeable against such land and shall mitigate or offset any claim in or any action brought by any owner of interest, in such premises for any alleged damages by virtue of such entry: provided, however, that this provision is not intended to create new rights of action or eliminate existing immunities.

Notes

W. Va. Code R. § 38-2D-5