Advisory Panel on High-Volume Hydraulic Fracturing Potential Funding Streams September 26, 2011

There are a number of options for raising revenue necessary to support state resource needs in order to properly regulate High-Volume Hydraulic Fracturing (HVHF). A menu of options is provided in Section B of this paper. Prior to discussing these options is some information about DECs existing funding streams. A. Existing Revenue Streams in New York

Currently, there are two primary mechanisms in New York which provide funding to support State activities and oversight related to oil and gas drilling: a drilling permit fee and fees associated with the construction stormwater State Pollution Discharge Elimination System (SPDES) permit. Natural gas production is also subject to a local tax, the ad valorem property tax. Drilling permit fees Drilling permit fees are specified under Environmental Conservation Law (ECL) 231903(1)(b). These fees are one time, refundable permit fees, and are deposited in the states General Fund. These permits are not renewable. The fee structure, last updated as part of the 2003-04 State Budget (Chapter 62 of the Laws of 2003), is based on the measured depth (including the horizontal length) of the well, as follows: Table 1: Depth 1-500 501-1000 1001-1500 1501-2000 2001-2500 2501-3000 3001-3500 3501-4000 4001-4500 4501-5000 5001-5500 Existing DEC Permit Fees Depth 5501-6000 6001-6500 6501-7000 7001-7500 7501-8000 8001-8500 8507-9000 9001-9500 9501-10000 10000+ Fee $2,280 $2,470 $2,660 $2,850 $3,040 $3,230 $3,420 $3,610 $3,800 $3,800 + $190 per additional 500 feet

Fee $190 $380 $570 $760 $950 $1,140 $1,330 $1,520 $1,710 $1,900 $2,090

In addition to the depth fee, applicants are required to submit a flat $100 fee with each permit application which is deposited into a Special Revenue Other account, the Oil and Gas Account, and is used to plug orphaned and abandoned wells. SPDES Construction General Permit fees In addition to the gas drilling permit, each well will require coverage under the High-Volume Hydraulic Fracturing (HVHF) General Permit, pursuant to the State Pollution Discharge Elimination System (SPDES) program. All construction activity under a SPDES General Permit is subject to a fee pursuant to ECL 72-0602(q). The law requires that a $100 fee be imposed for every disturbed acre of land covered by the permit plus $600 per acre of impervious surface that will remain post-construction. This is a one-time fee paid initially; an annual fee of $100 is paid

while coverage under the permit continues. These funds are deposited into a Special Revenue Other account at DEC, the Environmental Regulatory Account, which supports DEC activities. Ad valorem taxes Local property taxes are imposed by counties in New York State on gas production within their jurisdictions with assessments by well based on unit of production value. These taxes are governed by Title 5 of Article 5 of the Real Property Tax Law. The unit of production value is calculated by the oil and gas unit within the Office of Real Property Tax Services (ORPTS), within the Department of Taxation and Finance. This topic will be discussed at greater length in future papers. The potential revenue generated by the ad valorem tax is discussed in the revised draft Supplemental Generic Environmental Impact Statement (dSGEIS) in section 6.8.4.2, and is presented in summary in Table 6.50 on page 6-259. B. Potential Additional Program Fees

DEC has identified several potential additional fees that could be imposed associated HVHF. In developing recommendations, we suggest keeping these principles in mind: Revenue should offset state costs for regulation, monitoring and enforcement; Revenue should be predictable and recurring; Administrative burdens should be minimized; i.e., administrative costs associated with collecting fees cannot be more than the fees themselves; and The approach should support policy goals. HVHF Drilling Fee A new permit fee could be established for HVHF natural gas extraction. This fee would be in addition to the existing depth fee and would support the increased oversight activity associated with HVHF as compared to conventional gas drilling. This could be a flat fee or a sliding scale fee based on some measureable parameter tied to the activity such as water usage. It could also be used when a well is re-fractured or a well is plugged back to explore a formation shallower than the target formation. Operating Permit Fee A new fee could be established that is based solely on the production phase of a well. The existing fee structure is based on the drilling phase, although regulation and oversight continue through the production phase. In the Mined Land Reclamation program, for example, mining operations are required to submit an annual fee for the amount of acres under development or otherwise un-reclaimed for that year (see ECL 72-1005). There are a variety of ways that such a fee could be assessed, including a flat fee per well, a sliding scale fee based on the number of wells or well pads that an operator controls, and a fee triggered by a minimum number of wells. Increase In Permit Fees Increasing permit fees could result in incremental increases in revenue through an existing mechanism. The fees currently are based on the measured depth and length of a well and do not consider the method of extraction. If fees are increased, wells drilled conventionally could also be impacted. New York currently has the highest drilling permit fees in the country. Pennsylvania amended its law in 2009 to increase permit fees from $100 to a depth-based fee 2

(similar to New Yorks), which generally ranges from $1,500 to $3,000 for Marcellus Shale exploration. Well Transfer Fee A fee could be established for wells that are transferred from one party to another. When the plugging liability for a well is transferred from one operator to another, the operator is required to obtain approval from DEC. DEC must review the new owners financial security, perform a field inspection to ensure that the well site is in compliance and require that the financial security is transferred to the new operator. Compulsory Integration Fee When operators do not control the entirety of a proposed spacing unit for an oil or gas well, DEC undertakes the process of bringing the remaining land into the unit through compulsory integration. This process ensures that all landowners from whose property oil or gas may be drained are compensated. Owners who are not controlled by the operator make elections to choose the type of investment and level of compensation they desire. Compulsory integration hearings are subsequently held to review the elections and issue an order. Sometimes adjudicatory hearings must also be held to resolve conflicts. Presently, there are no fees for this process. Well Spacing Variance Fee Variances are needed when a proposed spacing unit does not conform to the statutory uniform spacing requirements set forth in ECL 23-0501 or pursuant to 6 NYCRR Part 553. When variances are needed, DEC reviews the geological and engineering justification for a variance. This includes providing public notice and an opportunity for hearing if there are concerns. Presently, there are no fees for undertaking these activities. Annual Report Fee A fee could be required to accompany the annual report on oil and gas wells. Every operator with active wells in New York State is required to file a report with DEC which enumerates the number of wells under control and the production of each active oil and gas well. Among other things, DEC compiles the production data and, in turn, provides the data to the Department of Taxation and Finance. The Department of Taxation and Finance uses the data to determine the unit production value for determining ad valorem tax rates. The production data is also provided to county tax assessors to determine the total tax for that operator within their jurisdiction. Leasing of state lands The state presently has over 60,000 acres under lease for oil and gas exploration and development. The last time the state undertook an offering was in 2006 at the height of the Trenton-Black River formation development. Over $32.3 million in state revenue was generated from state land leasing and production during the period 1999-2010. Future state land lease sales would require DEC to identify appropriate acres for lease, including working with other state agencies, and to develop new lease provisions to reflect the conditions set forth in the revised dSGEIS. Mineral rights would be put out for competitive bidding. This revenue stream is constrained by conditions proposed in the revised dSGEIS to preclude surface activity related to HVHF on certain state lands. 3

State land could also be leased for pipeline construction and a fee could be charge based on length of pipeline and/or amount of gas throughput annually. Severance Taxes The majority of states with significant natural gas production impose a severance tax, including Alaska, Arkansas, Louisiana, Ohio, Oklahoma, Texas, West Virginia and Wyoming. In all, at least 34 states have a severance tax. The one major exception among large gas production states is neighboring Pennsylvania, where Marcellus Shale drilling is active but no severance tax is imposed. Severance taxes are excise taxes on natural resources severed or extracted from the earth or water within a political jurisdiction (e.g., a state). They are usually paid by the producer or severer. The primary policy rationale for a severance tax is that the state (the public) is being compensated for the depletion of a non-renewable and finite resource from within its borders. Private landowners are generally compensated by lease payments and royalties paid by producers. Severance taxes have been in existence in the U.S. since the early 1900s (the first state to impose them was Texas in 1905), and they are commonly applied to oil, natural gas, coal and precious metals. There are several structural elements to a severance tax. These include the measure of the tax (by volume, by value, or some combination), the tax base (type of wells taxed, exemptions for small production wells), the tax rate, whether rate preferences are included, and how the tax revenue is used. Type of tax States with gas severance taxes impose one of two basic types of taxes: 1) A per unit tax based on the unit volumes of gas produced (e.g., thousand cubic feet, or mcf); 2) a value-based tax where the rate is imposed on the market value of the gas produced/sold. Most states opt for the latter with 20 of the 27 states using this approach and 7 states using the per unit method. The major producing states use the market value method. Two states, including West Virginia where Marcellus shale drilling is now underway, have taxes with both per unit and value components. Proponents argue that using market value better captures the economic value of the resource and the producers ability to pay. Tax Base Most states tax all the gas produced and do so at the same tax rate. A number of states provide a number of exemptions. For example, some states exempt gas from small stripper wells wells which produce less than 22,000 mcf per year. Tax Rates Tax rates in market value tax states range from under 1 percent to 22.5 percent of production value. Alaska has the highest rate at 22.5% while Montana has the lowest at 0.76%. West Virginias tax has both a market value rate at 5% and a per unit rate of 4.7 cents per mcf. Severance tax proposals for Pennsylvania, advanced by former Governor Rendell in Executive Budgets in 2009 and 2010, used the West Virginia tax rates as a model. Tax rates in per unit states range from a low of 1.063 cents per mcf (in California) to a high of 28.5 cents per mcf (in Florida).

Arkansas and Texas have lower preferential rates for high cost gas (e.g., shale gas) during an initial production period. These reduced rates for the first three years or so apply to roughly 45% of the yield of a shale gas well over its 20+ year lifespan as most production is in the first three years. Oklahoma recently enacted legislation (effective for production commencing on or after July 1, 2011) that provides for a 1% tax rate on gas from horizontal wells for the first 48 months of production. These and other states severance taxes are as follows: Table 21 Tax Measure
Net Value Gross Value less treatment and transportation costs

State
Alaska Arkansas

Tax Rate
22.5% 5% except 1.5% for 'high cost' wells for up to 4 years and 1.5% for other wells for first 2 years; 1.25% for 'stripper' wells.

Colorado Gross income 2-5% Louisiana Volume 16.4 cents per MCF Ohio Gross Value 2.5 cents per MCF Oklahoma Gross Value 7% Texas Market Value 7.5% West Virginia Gross Value & Volume 5%; 4.7 cents per MCF Wyoming Gross Value 6.00% *Gross value is the value of natural gas produced at the point of production. Value is the sale price at the mouth of the well. Market value means the producers actual cash receipts from the sale of natural gas to the first purchaser less the actual costs to the producer of dehydrating, treating, compressing, and delivering the gas to the purchaser.

The burden of severance taxes is not generally borne by consumers in the imposing state.2 This is because prices are set in markets that extend beyond the borders of the State. New York gas producers would be price takers; that is, the price at which they are able to sell their gas is set by the market, not the producers themselves. As price takers, they would likely be unable to increase their price to pass the tax through to purchasers. C. Other States Permit Fees

Most states that have severance taxes do not impose significant permitting fees. The approaches used vary widely from state to state. Most states charge a modest fee, some flat, others based on depth. Some require additional permits in certain circumstances. For example, Ohio requires an additional $1,000 urban drilling fee to be paid if activity will take place in a city, town or other local government with a population of 5,000 or more. In Table 3 below is a list of permit fees charged by various gas producing states.

Ozpehriz, Niyazi, 2010 The State Taxation of Natural Gas Severance in the United States: A Comparative Analysis of Tax Base, rate, and Fiscal Importance. 2 See, e.g., Mitch Kunce, Shelby Gerking, William Morgan, Ryan Maddox, 2003 State Taxation, Exploration and Production in the U.S. Oil Industry, Journal of Regional Science 43, no 4 pp. 749-770; Bernard Weinstein, 1984 Who Pays the Severance Tax?, Policy Studies Journal 12(3): 537-545.

State Alaska Arkansas Colorado Louisiana

Ohio

Type of Fee No permit fee Flat fee No permit fee Varies based on depth 0-3,000 feet 3,100-10,000 feet 10,100+ feet Flat fee

Table 3 Fee $300 $126-$1,264

Additional Fees/Permits

$500

Oklahoma Pennsylvania

Flat fee Varies based on depth 0-1,500 500 foot increments to 12,000 feet Varies based on depth 0-2,000 feet 2,100-4,000 feet 4,100-9,000 feet 9,100+ feet Varies based on depth <20 feet 20+ feet Flat fee

$175 $900-$3,000

Texas

$200-$300

Urban Well Drilling $1,000 Re-Issue Fee - $250 per year in operation Expedited Service Fee $250 Expedited Service Fee $500 Orphan well surcharge - $200 Abandoned Well surcharge - $50 Expedited Service Fee $150 Spacing fee - $200 Online filing fee $1,350

West Virginia

$650-$900

Wyoming

$50

Several states provide for an expedited service fee. In Texas, if the fee is paid a permit application is processed in one to two days, compared to normal processing of three to four days. In Ohio, permits are processed in five days if the expedited service fee is paid. Other states, such as Colorado do not charge a permit fee. Conversely, in Alaska although permit fees are not assessed, the Alaska Oil and Gas Conservation Commission charges the industry its entire operational cost.