6.3.3: The Easement Agreement
- Page ID
- 15668
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Credit: Dave Messersmith
The Easement Agreement
- Is a contract between property owner (Grantor) and pipeline operator (Grantee)
- Provides Grantee permanent easement for constructing, operating, maintaining, repairing...
- Is filed in Register and Recorder's Office
- Uses addenda to modify and limit the agreement
Many aspects of a pipeline easement are negotiable. Typically, a pipeline representative will present the landowner with a preprinted agreement. This document can serve as a starting point for a two-way negotiation, or it can be fully accepted or rejected by the landowner. You can make changes to the easement by creating an addendum that is approved by both parties. Most easements are negotiated by an independent contractor, generally known in the industry as a “landman” (regardless of the person’s gender). Having this third-party independent contractor involved can complicate and confuse the communication with the pipeline company that will be the owner of the easement rights. Below is a sampling of considerations that may be included in a pipeline agreement or addressed with an addendum:
- Width of the permanent easement and time line for completion of construction
- Definition of the terms and width of any temporary construction easement
- Identification of any independent contractors and subcontractors that the pipeline company will use and make the pipeline company responsible and liable for all acts on your property by independent contractors and subcontractors
- Requirement of the pipeline company to indemnify the land owner from the acts and omissions of the independent contractors and subcontractors as well as those of the pipeline company
- Requirement of the pipeline company to pay property tax rollback penalties associated with pipeline development on your property
- Definition and limitations of access to both permanent and temporary easements
- Payments for trees, crops, etc., damaged during the installation of the pipeline
- Reseeding of easements and what types of grasses and other improvements, including the amount of time following completion of construction for surface restoration to be completed
- Identification of all stream crossings, statement of methods of stream crossings, and requirement for restoration of stream crossings after construction
- Specification of the “double ditch” method of topsoil removal during construction so that the topsoil can be placed back on the surface (not at the bottom of the trench) during site restoration
- Requirement that the landowner be provided an “as-constructed” survey of the easement with an official seal by the surveyor within a stated period of time following completion of construction
- Replacement or installation of fencing and gates (with materials specification), including which gates will have locks and the kinds of the locks to be used
- Limitation of the number of keys or number of people with lock combinations
- Identification of an actual person at the pipeline company who will be landowner’s contact, with immediate notice to the landowner when this person is replaced (Require the pipeline company to give 30 days’ notice to landowner of any such change in contact person or related contact information.)
- Definition of access post-construction to the easement with specific method and location of all access roads and methods
- Prohibition or limitation of surface appurtenances to the pipeline
- Requirement of minimum depth of soil from surface to top of buried pipeline and requirement that this minimum depth be maintained at all times
- Termination of the lease automatically by nonuse of installed pipeline for a stated number of days
- Definition of “abandonment” of the pipeline as a termination of easement event and requirement of the pipeline company to remove all abandoned pipelines
- Requirement of prior landowner consent for any assignment of the easement to another party
- Limitation of the easement to one pipeline of a stated diameter, with no right to install additional pipelines and no right to increase the diameter of the pipeline
- Definition of substances that can be transported in the pipeline (e.g., flowback and/or produced water can be as environmentally dangerous as can unscented natural gas)
- Requirement of the same post-construction restoration of surface for pipeline repairs as for original construction
- Right to seek surface damages for pipeline repairs as for the initial pipeline installation
- Confirmation whether gas to be transported will be scented or unscented
- Permanent and temporary easements by metes and bounds descriptions and with official surveys, pre-construction and post-construction (as-built survey)
- Alternative dispute resolution method that provides the cheapest, quickest, and least burdensome way to resolve conflicts between landowner and the pipeline company
- Surface uses, if any, by the landowner that will be prohibited in the easement and statement of these limitations in the easement
- Scope of the easement specified so that the pipeline operator is limited in its activities on your property
It’s important to note that these examples are not an exhaustive listing of all terms, conditions and addenda that may be negotiated by a landowner. The list is meant to provide general examples that are commonly observed.
Required Reading