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Oil and gas development is highly regulated Operators must comply with state and federal environmental laws to protect clean water endangered species and historical and cultural resources State conservation laws regulate well spacing setbacks from lease lines and occupied structures permitting requirements and operational rules whereas local rules may impose additional restrictions Operations on federal lands are subject to the requirements of the National Environmental Policy Act onshore orders governing surface use and rules for waste prevention and hydraulic fracturing These public governance mechanisms materially influence surface use mitigation and reclamation and have greatly reduced the environmental impacts of hydrocarbon development It is against this background of public governance that splitestate landowners and energy developers negotiate terms of surface use and compensation for damages The resulting agreements fill in the gaps and complement public governance mechanisms As such surface damage agreements are a highly adaptable and effective private governance instrument to promote sitespecific surface management plans and environmental behavior and best practices brbrThis article examines the surface damage agreement as an instrument of private governance identifies opportunities to increase the governance function of surface damage agreements through the incorporation of thirdparty standards and verification and explores the potential of other private governance instruments to influence upstream surface management practices

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