Owners come in different varieties – residential, commercial, industrial and agricultural – to name the more obvious. Hydraulic Fracturing affects each owner similarly, and also, differently. The scope of the recently enacted Illinois Hydraulic Fracturing Act is designed to protect sensitive populations associated 
with each variety of owner – that is, the people who live, work, visit or own real property used for or near a hydraulic fracturing operation. 
 
Let’s be clear, the process can be safe, but it is in everyone’s interest to trust and verify. 
 
It is important to recognize that there are currently more than 20,000 fractured wells in Illinois, and there is no credible evidence of risk due to contamination or seismicity. Indeed, sub-surface energy sources have been exploited for over a century in Illinois – beginning with coal and petroleum production over a century 
ago. Recently, higher energy prices have spurred investment in wind farms and solar panels, and the experience in those historic operations is applicable to operations and land ownership associated with hydraulic fracturing in Illinois. 
 
What is an owner to do now that Illinois enacted the Hydraulic Fracturing Act?
 
First, our advice is to hire a qualified attorney. Much of the land we expect will be involved with hydraulic fracturing operations are in southern Illinois, where oil, gas and mineral rights have been historically severed. That is, the owner of the surface likely does not own, or likely has limited or no title to the subsurface. Who owns the subsurface rights and does that person or entity currently exist – especially in those instances where the sub-surface mineral rights have not been exercised for some time – longer than anyone can remember. Did those rights expire? 
 
Illinois recognized this issue several years ago in Severed Mineral Interest Act. In those instances, courts are authorized appoint local representatives with fiduciary authority for unknown and undetermined owners of mineral rights, and those appointed representatives can, with court approval, enter leases and 
accept money from the operator/lessee and hold the royalties in trust until the rightful owners are determined. According to the law, if the mineral rights have been severed twenty or more years ago, title to the mineral rights could merge with the surface owner if the unknown interest are not identified or fail to 
appear within one year of the lease. Regardless, the lease itself is best reviewed by a qualified lawyer.
 
Individual land owners may also have the right to deny access to drilling operations at their property. However, because hydraulic fracturing can now be accomplished horizontally, or because the material being exploited may be in a sub-strata that lies beneath the land, access may be accomplished at neighboring land. In that instance, the Illinois Department of Natural Resources has authority under the Illinois Oil and Gas Act to grant access to the subsurface in certain circumstances. In those instances, a court reviewing the circumstances must balance the private property interests and the interests of the community in gaining the energy as well as preventing waste and necessity of multiple wells. If that 
balance is struck in favor of the drilling operation, the landowner has a right to receive his or her share of the production royalties after paying his or her share of the costs. The owner’s lawyer will evaluate the facts and interpret the law and assist any such owner in protecting the owner’s interests. 
 
In addition, drillers and energy companies will seek lease terms, options and royalties – the same or similar terms that were involved in earlier negotiations associated with mineral rights this past century. Indeed, how are the royalties paid (only while the well is in production with a base rental payment)? When does the lease expire? What are the scope of the indemnities and warranties? What right does the landowner have to terminate the lease? Under what grounds? What about closure? What financial and other assurances that the site will be closed and clean at the termination of the lease? What happens at abandonment? What about violations of the law? Lawyers are a critical player in determining adequate 
responses for each landowner.
 
As part of the trust and verify methodology owners must employ when considering hydraulic fracturing opportunities, owners are wise to consider collecting pre-drilling evidence – samples – and establishing admissible evidence of soil and water conditions at the owner’s property prior to the initiating of activities. Owners, like operators, are well served to develop reliable, admissible evidence that will be included or supplemented in the administrative record to support their positions. It is important to recognize that the administrative agency’s decision on permits and compliance is subject to a deferential standard of judicial review and the record is critical. So a lawyer knowledgeable with real estate, hydraulic fracturing, environmental law and administrative principles is ideal for the benefit of the client.
 
Finally, every land owner should investigate the proposed lessee and operator. What is their experience? How are the proposed lessee and operator structured? What is the driller’s record of violations in Illinois and elsewhere? What about the operator’s history of compliance? Hydraulic fracturing operations present many opportunities to owners, but those opportunities involve risks that must be understood, quantified, analyzed, accepted or rejected or shared. A lawyer is the first professional a client should consider. Otherwise, owner’s run the risk the same pitfalls experienced by previous owners during the wild-cat exploration of this past century.