SALEM, Ohio — Are you being wooed by a landman for a pipeline easement? You may want to slow down the relationship and think about what you want before jumping in. Remember, this is a lifetime commitment.
And it won’t be a relationship between you and the landman. The pipeline easement will be relationship between you and the pipeline company.
There will be some give and take at first, and the landman will make an offer for the easement. But that’s not where the relationship should end.
Take a breath
Once the initial offer is announced, it is time to introduce the agreement to your attorney.
“Enter the agreement only after careful consideration and getting legal advice,” said Dale Arnold, Ohio Farm Bureau director of energy policy.
When it comes to pipeline easements, landowners need common sense in deciding what to include in the easement, adds Art Brate, who retired from the Natural Resources Conservation Service and is now working as a consultant.
“Never sign the agreement right away. Get legal representation that has experience working with farmers and agriculture,” said Brate.
Additional equipment, additional money
First of all, Arnold suggests that ,after talking to an attorney, the easement agreement spells out that it is for one right-of-way and one piece of infrastructure.
“Have them come back and renegotiate each time,” said Arnold.. “One pipeline per easement.”
If a pipeline company asks to install additional metering and compressors on the property, Arnold recommends the additional compensation be spelled out in the easement.
When negotiating the easement, landowner should remember certain rights on the easement could be restricted and that should mean additional payment.
Brate said it is important for landowners to get everything specified in the pipeline easement agreement. If the specifications of a pipeline easement are not spelled out in an agreement, then a landowner can’t go after the pipeline contractor if it’s not completed according to the landowner’s wishes.
One stipulation that Brate recommends be included in the easement agreement is that the landowner has three years to go back on the contractor in case something wasn’t completed according to the specifications, or the landowner suffers crop damages because of something related to the pipeline construction.
“It doesn’t prevent problems, but it helps when getting them to fix them,” said Brate.
Brate has worked with he Ohio Department of Natural Resources to create a set of specifications and feels anyone entering a pipeline easement should at least include these standards and personalize them for the land as necessary.
Landowners can also print them out and take them to their attorney and instruct them to include them as part of the filed pipeline easement at the county courthouse.
Brate said many landmen will give a landowner a hard time about enclosing the pipeline easement standards developed in conjunction with the ODNR, but the enclosure could make all the difference. He said the landman is just making the deal — the contractors are going to be doing the work and they will then have a written copy of what needs to be done on the property legally.
“In the end, they’ll go for it. They want you to sign on the dotted line,” said Brate.
Arnold suggests a map be attached the easement as well. Ensure the map shows special features of the farm, including land that should be protected, like tillable soil and stream crossings. He recommends including GPS coordinates of where the land features are, so the pipeline company and the contractors know exactly what is included in the property.
He also suggested an access road width, and size of the construction site, be specified in the easement. Make the access roads beneficial to your farm by requiring the pipeline company to use what has already been established on the property. Ask the pipeline company to simply upgrade what is there, so their equipment can get in and out.
Brate strongly encourages landowners to talk about drainage issues, especially in large farm fields.
Insist on the conversation, he says, and be armed with pictures and other details so that you can tell the landman what is needed in the easement. Include how deep the tiles are in agriculture fields and ensure that the agreement includes that information, and how deep you want them after the construction is completed. Then have an attorney make sure that is spelled out in the agreement.
Other specifications Brate recommends include stipulating the pipeline contractor will remove rocks bigger than 3 inches from the area disturbed. He also recommends a temporary cover crop be planted and that there be a 3 percent or greater slope built into the land. The cover crop can be specified in the agreement.
“Make adjustments to the lease to fit the farm,” adds Arnold.
Consider whether the land should be planted as a pasture, wildlife mixture, rye or wheat? Once the decision is made, ensure the landman knows and put it in the written agreement so the contractor knows.
The markers being constructed near the pipelines are causing some contention with farmers, but
Arnold said there isn’t much that can be done about them since they are a federal law.
He said he expects it to be a growing problem, as farmers accidentally hit them with equipment. The markers that cause the most havoc are the ones in the middle of the field.
Brate also urges farmers to be proactive when it comes to fencing. Be specific on what type of fence needs built and include the type and number of gates to be built. He also urges landowners to consider if they want the fence moved.
“Don’t wait until they are building the fence.”
Intrastate vs. interstate
Be aware there are intrastate pipelines and interstate pipelines. Interstate pipelines are typically large in diameter (larger than 6 inches) and cross different states. Intrastate pipelines are typically smaller in diameter (six inches) and are within a single state only.
Eminent domain can be used to obtain easements for interstate pipelines (federal projects), but not intrastate pipelines.
Brate said he is actually more concerned about the construction of intrastate pipelines than interstate pipelines, saying some contractors feel construction of smaller pipelines is no big deal because of the size and distance involved.
Brate doesn’t agree.
“It is a big deal. Especially when considering drainage tile is involved in many projects,” said Brate.
Both Arnold and Brate agree the landowner should have control over what is being built on the farm and how it is being constructed.
“It’s your land and you have to live with it, Get things done the way you want them,” said Brate.
All landowners should remember this is a lifetime commitment, the only way to get out of this relationship is for the pipeline company to vacate the property once the agreement is signed.
Tips for pipeline easements
- Contact an attorney when a landman makes an offer for an easement onto your property.
- File a set of specifications along with the pipeline easement at the county courthouse. The specifications are available at: http://soilandwater.ohiodnr.gov/swcds/conservation-engineering#PIP
- Do your research. Go to the county Soil and Water Conservation District and obtain records and or pictures of the drainage tile in your fields. Look for patterns in the drainage tile and in your soil.
- Ensure the specifications stated in the agreement that the pipelines installed in cropland or pasture land is buried 5 feet beneath the soil. Check out the specifications you want in your easement including pipeline depth, fencing adjustments, cover crops and access roads.
- Use the opportunity given to improve your access roads onto your property, just be sure to get it in writing in your easement.
- Before the pipeline construction crew leaves, ensure they have GPS location and elevations recorded.
- The ODNR has created a set of standards recommended for pipeline construction. For a copy of the standards, visit: http://soilandwater.ohiodnr.gov/swcds/conservation-engineering#PIP.
Source: Ohio Farm Bureau Federation/ Ohio Department of Natural Resources
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Thanks, Kristy, for a good article! As you mention:
Contact an attorney when a landman makes an offer for an easement onto your property.
Don’t try and “go-it-alone” or worse yet, fall for the malarkey that “your neighbor signed it without an attorney” line.
Our farm “inherited” what we had thought was a harmless oil/gas line easement from a 1941 signing. Nothing was done on it for over 50 years. BUT, when you wake up one early morning to various rumbles to see huge Caterpillar dozers and other monster machines tearing up your land, trees, tiles, and making mince-meat out of your contoured areas you’ve worked years to build, you get an education real quick.
When asked to halt, the guys on the machines just say: “The guys with the easement sent us here…”