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Authored by:
David Anderson, SR/WA Denbury Resources
David Sinclair, SR/WASteele Land Services
Douglas SipeFederal Energy Regulatory Commission
STRATEGIES FOR PIPELINE PERSONNELPractical Applications for
Successful Project Implementation
Published December 19, 2012
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Special AcknowledgementThe authors would like to acknowledge the
following professionals for their efforts in developing this
valuable training tool for pipeline personnel.
Contributing Authors:
Leonard Boschetti , SR/WAUniversal Field Services, Inc.
Patrick BradyPercheron Acquisitions
Mike BryantWillbros
Steve Chastain, SR/WAPercheron Acquisitions
Randy KeyesAnadarko Petroleum Corporation
Lori KomatarWilliams Northwest Pipeline
Brent LeftwichContract Land Staff, LLC
Dr. Mazie Leftwich, Psy.DContract Land Staff, LLC
Steve McDanielSteele Land Services
Alex OsborneTransCanada Corporation
Steve PattonWilliams Transco
Larre SloanIndependent
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STRATEGIES FOR PIPELINE PERSONNEL
Practical Applications for Successful Project Implementation
I. TRAINING OBJECTIVES
A. History and Background
Beginning in early 2005, the pipeline industry began to
experience a boom period in
terms of the number of long haul pipelines being built to
transport natural gas from
areas such as the Barnett Shale west of Ft. Worth, Texas, the
Haynesville Shale in
northwest Louisiana, and coal seam gas off the western slope of
the Rocky Mountains.
The high demand for energy industry professionals during this
period created a surge of
new individuals coming into the energy industry to fill this
need.
In some cases, these new professionals received little or no
training in how to properly
work with landowners to purchase the required right of way or
effectively address
landowner questions or concerns. The number of landowner related
complaints to
agencies such as the Federal Energy Regulatory Commission (FERC)
and congressional
representatives at both the state and federal level also began
to increase during this
period. In response to these complaints, several states took
action to strengthen their
eminent domain laws and enact statutory requirements to provide
landowners with a
basic set of information prior to the start of easement
negotiations. Pressure from
Congress was also being applied to FERC to determine if the
increased number of
landowner related complaints was a problem with un-trained
workers or if this was a
manifestation of the culture of how interstate pipeline
companies treated landowners.
In response to growing pressure from the FERC, the Interstate
Natural Gas Association
of America (INGAA) developed and published its Americas Natural
Gas Transporters
Commitment to Landowners in July 2008 (Attached as Exhibit A).
INGAA member
companies agreed to adhere to these 8 Commitments and to review
them with any
personnel expected to be in contact with landowners or other
stakeholders on new
interstate natural gas pipeline projects. In addition,
interstate natural gas pipeline
companies were being encouraged to perform additional
Right-of-way agent training to
assure issues and questions were being addressed in a consistent
manner during a
pipeline project. Few companies had this type of training and as
a result, the
International Right of Way Association (IRWA) was contacted to
help in develop a
training module/seminar that would target the Right-of-way agent
in the field and focus
on specific methods and approaches to help those individuals
representing pipeline
companies be more effective at addressing concerns of landowners
and stakeholders.
The IRWAs Pipeline Committee was assigned the task of developing
this training
module/seminar and the following is the result of that effort.
The goal of this training is
to help all professionals supporting a pipeline project
understand that when working with
landowners and stakeholders it is important to treat them
respectfully, honestly, and
fairly, give full details of a project, be considerate of their
rights and needs, give them a
voice in the discussions, and address all issues and concerns in
a timely manner.
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B. Targeted Audience
This training module is designed for those project personnel
having the potential to
come into contact with landowners and/or their representative(s)
from the earliest
stages of project development through construction, clean-up and
restoration. When a
project parallels an existing facility and operational personnel
are likely to come into
contact with landowners during the normal course of operations,
it would be prudent to
include them in the target audience even though they may not be
directly involved in
the projects development.
Recognizing that project personnel enter and exit a project with
regularity based upon
their individual roles and responsibilities, the audience for
this module is not static. It
will be incumbent upon a projects management team to ensure that
this training
module is made a part of each team members orientation prior to
formally entering the
project.
The following is a list of typical project personnel that would
benefit from this training
module:
Right of Way Supervisors/Agents
Project Managers and their field support staff
Design Engineering
Any office and/or field office personnel that are subject to
receive or respond to
calls, correspondence or electronic communications from
Landowners
Surveyors and their field support staff
Environmental team members
Cultural/Archeological team members
Inspectors
Any construction personnel involved in the design and/or layout
of the project or
its associated facilities (i.e. construction spread foremen or
constructability
experts)
Operations personnel where the new facility will parallel an
existing facility
FERC and other Federal and state agency representatives that
have the potential
to interface with the landowner and other stakeholders
There may be a limited number of ancillary project
contractors/vendors (experts) that
are not subject to this training module but who could
occasionally come in contact with
landowners. These experts include such disciplines as
appraisers, timber cruisers,
geotechnical specialists, etc. These personnel should be
thoroughly briefed prior to
contacting a landowner and should not enter a landowners
property unless accompanied
by a project team member who has successfully completed this
module.
C. Scope
This training module provides a core curriculum of information
considered essential to
successful communications with landowners. With the INGAA
Commitment to
Landowners 8 principles at its core, participants will be
introduced to information,
processes and techniques that will equip them to honestly,
respectfully and confidently
communicate the needs and objectives of the project in a timely
manner while being
considerate of the rights and needs of the landowner.
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Each participant will enter a project with varying degrees of
project and/or public
communications experience. This module is designed to equip the
participants with a
uniform message and the methods to communicate that message with
consistency and
integrity. Essential components of the message will be:
Why this course? A history and background of what led us
here.
Legal Aspects of Rights Acquisition
Ethical Behavior
Successful Negotiating Skills
Landowner Interaction Principles
Addressing Eminent Domain questions and the Eminent Domain
process
Providing consistent messaging will move each project team
closer to the goal of
developing landowner trust and reducing the number of legitimate
landowner complaints
associated with the project. This process will also aid in
ensuring that the landowner has
a voice in the discussions and that all landowner issues and
concerns are adequately,
appropriately and respectfully addressed.
D. THE FERC FILING PROCESS: For Projects falling under FERC
Jurisdiction
Project sponsors-often pipeline companies falling under the
jurisdiction of the FERC are
typically those classified as Interstate Natural Gas Pipeline
Companies. FERC is an
independent agency that regulates the interstate transmission of
electricity, natural gas,
and oil. FERC reviews proposals and authorizes construction of
interstate natural gas
pipelines, storage facilities, and liquefied natural gas (LNG)
terminals, as well as the
licensing and inspection of hydroelectric projects. FERC is the
lead federal agency for
the purpose of National Environmental Policy Act (NEPA)
compliance for all interstate
natural gas infrastructure proposals. As the designated lead
agency, the FERC
coordinates the regulatory review among federal agencies and
maintains a single,
consolidated federal record for any subsequent appeals or
judicial reviews.
Pipeline companies who seek authorizations from the FERC for
natural gas facilities have
a choice, subject to the FERCs approval, of one of two filing
procedures: the traditional-
filing process or the pre-filing process. The key difference
between these filing processes
is that in the traditional process the FERC staff involvement
does not begin until after
the project proponent files its application with the FERC. In
pre-filing, the staff begins to
devote significant resources to working on the project prior to
the filing of an application
at the FERC. Pipeline companies that have natural gas projects
involving new
infrastructure that choose the Commissions pre-filing process
must formally request and
be accepted into the pre-filing process. This process was
established to allow and
encourage early involvement by citizens, government entities,
non-government
organizations and other interested citizens from the earliest
possible stages of our
review of the design and routing of a natural gas project.
The pre-filing process benefits all stakeholders because the
NEPA review and scoping
process begins well before the company files an application with
the FERC. This allows
for issues to be raised and addressed, and appropriate
mitigation measures to be
included in the companys application. Earlier and more
productive involvement will lead
to better project designs and less contentious applications to
FERC and other agencies.
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When the pre-filing process is implemented properly, an
application filed with the FERC
is more likely to address the anticipated environmental impacts
and to include
appropriate mitigation measures. The goal of pre-filing is for
the pipeline company to
submit an application to the Commission for consideration that
is inclusive of everyones
interests.
The FERC encourages energy companies to seek greater involvement
from stakeholders
early in the planning so those who are interested can
participate in the review process.
By initiating public outreach prior to submission of an
application, issues are raised and
addressed and solutions crafted and presented as part of the
application.
The FERC suggests applicants make a commitment to involve
landowners and other
interested citizens in the project planning process, inform
them, listen to and record
stakeholders ideas and knowledge of the project area and
environment, and when
possible, incorporate their feedback into project plan and
design. Applicants are
encouraged (or, in the case of the pre-filing process, required)
to develop a public
participation plan early in the project and make sure all
communication is clear and easy
to understand.
Pre- Pre-filing
The FERC realizes and stresses to applicants the value and
importance of public
participation, thus public participation work is beginning
earlier and becoming more
robust in U.S. pipeline projects. Many applicants begin public
involvement work
developing comprehensive public consultation plans, conducting
research and meeting
with stakeholders before filing a request to participate in the
FERCs pre-filing process.
The FERC encourages and supports this pre- pre-filing approach
and consults with
applicants regarding project design, corridor studies and
stakeholder consultation
activities. A meeting between the applicant and the FERC at this
point in the process is
important in regard to defining roles.
Pre-filing Process
Companies wishing to site, construct and operate energy
facilities can use the FERCs
pre-filing procedures and review process Subsection 157.21
(Title 18 C.F.R.) under
Section 7 of the Natural Gas Act. Officially, the pre-filing
process begins when the FERC
accepts an applicants pre-filing request and issues a pre-filing
docket number. The
FERC expects the pre-filing request to include: project
schedule; project purpose and
need; project description, maps and drawings; list of other
federal and state agency
permits and assessment of willingness to participate; public
outreach and consultation
plan; list of project stakeholders and interested parties and
summary of work completed
to date. In addition, applicants are to include in the
pre-filing request, proposals from at
least three prospective third-party contractors from which the
FERC will choose one to
assist FERC staff in preparing the Environmental Impact
Statement (EIS) (or
Environmental Assessment (EA), if applicable).
Within 7 days of the FERCs acceptance of the pre-filing request,
the applicant must
provide locations for open houses and agency meetings. Within 14
days, the applicant
must contact all stakeholders not already informed about the
project and all potentially
affected landowners to notify them of this filing. Also, the
applicant may use this
notification to invite stakeholders to attend open houses. These
open houses are
hosted, coordinated and sponsored by the applicant and typically
are held in an informal
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setting which fosters general discussion about the project. The
FERC and/or the third
party contractor may attend.
The FERC pre-filing process includes a scoping period which
begins when the agency
issues a Notice of Intent (NOI) to prepare an EA/EIS. The FERCs
purpose for the
scoping period is to gather input from state and federal
agencies and the public that will
help identify and refine the issues that will be covered in the
environmental review.
Typically about three weeks into the 30-day scoping period, the
FERC hosts public
scoping meetings in the project area. At the scoping meetings,
landowners and other
stakeholders have an opportunity to ask questions and comment on
issues pertaining to
their properties or concerns about the project, provide input
regarding alternatives to be
evaluated and identify potential construction constraints.
During the pre-filing scoping period, the FERC gathers input via
mail, electronic
submittals to the Web site, agency meetings, and weekly
conference calls with the
applicant and at public scoping meetings. The FERC treats all
comments equally, uses
them during the environmental review process and includes them
as part of the formal
public record on the project. The FERC posts all pre-filing
project data (applicant
submissions; FERC notices, letters, meeting summaries and
transcripts; and public
comments) online on its eLibrary system at www.ferc.gov. The
pre-filing docket serves
as a central repository for documents and becomes the formal
record of the project.
Applicants review comments received during the pre-filing
scoping period and respond to
issues raised during scoping in a filing submitted to the FERC
within 14 days of the end
of the scoping period. The filing is then posted on the FERCs
elibrary where they are
available to the public. Applicants also address issues raised
and/or incorporate
information received during scoping, at open houses, or through
agency consultations in
the environmental resource reports. These reports are submitted
to the FERC initially as
pre-filing drafts. The applicant then incorporates FERC comments
on the drafts and
resubmits the final environmental resource reports with the
final FERC certificate
application.
Applicants must submit monthly reports during pre-filing to the
FERC detailing the
applicants project activities including surveys, stakeholder
communication and meetings
and agency meetings, and engineering and environmental
activity.
The FERC EIS Pre-filing review process can be found on Chart
1.
Application Filing
Under Section 7 of the Natural Gas Act, applicants must conform
to the requirements of
Sections 157.5 and 157.14 and must show that the project is or
will be required by the
present or future public convenience and necessity.
When the FERC receives and accepts a formal application, a
Notice of Application (NOA)
is published in the Federal Register and a new docket number is
issued. Within three
days of the NOA, applicants are required to notify affected
landowners (as defined by
regulation) by certified or first class mail and make copies of
the application available for
public review at libraries in the project area. The notification
must contain the docket
number, the FERCs pamphlet explaining the certificate process, a
description of the
applicant and proposed project, a general description of
landowner commitments,
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project contact information, a brief summary of landowner
rights, information about how
the landowner can obtain a copy of the application and a copy of
the FERC NOA. If the
notice is returned undeliverable, the applicant is required to
make a reasonable attempt
to find, correct and resend notices. Within 30 days of the
application date, the applicant
must file an updated list of affected landowners, including
information about notices that
were returned as undeliverable.
Applicants must also publish two public notices in daily or
weekly newspapers in general
circulation in each county in which the project is located
within 14 days of the NOA.
Once the NOA is published, members of the public can also file
to become interveners
an official party to a proceeding. As interveners, individuals
will receive project filings
(from the applicant and other interested parties/interveners)
and other regulatory
documents related to the project. Interveners can file
petitions, file for rehearing of a
FERC commission decision and have legal standing in a Court of
Appeals if they
challenge the Commissions final decision. In return, they are
required to send
correspondence to the FERC, the applicant and all other
interveners for the project.
The FERC then prepares and issues a draft EIS and announces the
dates and locations of
the public comment meetings. The Environmental Protection Agency
issues a Notice of
Availability, which marks the beginning of a 45-day public
comment period and
announces the dates and locations of the public comment
meetings. The FERC uses
comments to revise the draft EIS and issue a final version.
After Approval
Based on its review, and assuming the FERC approves the project,
the FERC issues a
Certificate of Public Convenience and Necessity. At this point,
the formal public
participation process essentially ends; however, stakeholders
may continue to work with
the applicant to resolve landowner issues and address
certificate conditions set by the
FERC and they continue to have the opportunity to provide
comments or feedback to the
FERC. The applicant must address the certificate conditions
before proceeding with
construction and operation of the project. . Once the FERC
approves a project and issues
a certificate of public convenience and necessity, then eminent
domain is granted by
Section 7 (h) of the Natural Gas Act.
Public Comment
The FERC accepts and welcomes comments about the project at any
time from the initial
request for pre-filing through the issuance of a Certificate of
Public Convenience and
Necessity and through the construction phase. If the public
wants comments to become
part of the formal project record, they must submit them to the
FERC. The FERC
accepts comments: via the mail; electronically; conducts scoping
and public comment
meetings in the project area; posts all project data online for
public viewing (via the
FERCs eLibrary and the public can subscribe to the FERCs
eRegistration and
eSubscription to track new postings online) and accepts requests
from those wishing to
become interveners once an application has been submitted for a
Certificate of Public
Convenience and Necessity.
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II. LAND RIGHTS ACQUISITION: What rights does the
pipeline company need?
A. Survey Permission
Following or during the selection of the general route of the
pipeline, it is the obligation
of the Right-of-Way Agent (agent) to secure permission from
all
landowners/stakeholders that will allow access to their property
to conduct survey
operations. Obtaining permission to survey is typically the
first contact with property
owners and agencies and if conducted properly, the survey
contact should create a
positive image for the pipeline company throughout the duration
of the project.
The agent should be familiar with and knowledgeable of the scope
of the project prior to
contacting a stakeholder for survey permission. The agent should
also be able to discuss
the need for the proposed project as well as all details of the
project. This initial contact
is the critical first step in establishing an environment
whereby the agent is able to
conduct good faith negotiations for an easement. When meeting
with the stakeholder to
secure survey permission, the agent should strive to establish a
positive relationship
built on good communication, mutual respect and trust.
In order to begin the process of contacting stakeholders, the
right of way group must
develop a preliminary ownership or preliminary landowner line
list identifying the
probable landowners along the pipeline route. This list is most
often generated from
property tax rolls along the proposed route. The line list will
also contain contact
information for each owner. This information will be utilized by
the agent to begin the
process of securing survey permission. The method for
contacting
landowners/stakeholders will generally vary based on individual
pipeline company
procedures, project-related demographics and statutory
requirements. Some companies
request that agents obtain written permission from each
stakeholder while other
companies require only verbal permission via a telephone call.
Contacting stakeholders
by telephone is certainly much faster than conducting personal
contacts; however it
should be noted that it is much easier for a
landowner/stakeholder to refuse survey
permission over the telephone.
When written permission is required, the agent is furnished a
permit form or agreement
that should be completed and signed by the
landowner/stakeholder. When verbal
permission is acquired, the agent may be required to complete a
survey permit form or
will document the permission granted in a contact report that
should include the
stakeholders name and address, date and time of the call and any
requirements
stipulated by the stakeholder such as prior notice, tenant
notification, safety training,
and timber and agricultural assessment.
Another method of obtaining survey permission is by mail. Some
pipeline companies will
instruct agents to send letters with a survey permit form
enclosed. The stakeholder is
asked to fill out the form, sign it and return it in an enclosed
envelope. This method is
also used when dealing with non-resident stakeholders. This
method continues to gain
popularity, particularly on FERC projects where a complete
record of communication is
essential.
Usually, county, state and federal agencies will have their own
form of letter agreements
granting survey permission that will require pipeline company
execution. These
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agreements may require indemnity language and insurance
certificates before survey
permission is granted.
The pipeline company will typically establish procedures to
address problems with
stakeholders who refuse to grant survey permission. All refusals
must be documented in
a manner similar as if survey permission was granted. This can
be accomplished by
documenting these refusals on a contact report stating reasons
given by the stakeholder
for denial. Some states provide certain pipeline companies and
utilities a statutory right
to survey. This statutory right allows these companies to
proceed with certain types of
surveys without the express permission of the stakeholder. In
most cases, notification
to the stakeholder is all that is required prior to entering the
property. An attorney
should be consulted to determine if any of these statutes apply
to the project.
Another important consideration in the stakeholder
identification and notification process
is recognizing the difference between the project corridor and
the construction corridor.
The project corridor is typically significantly wider than the
construction corridor and will
require notifications during the preliminary stages of a
projects development beyond the
boundaries of the construction corridor. In most instances,
environmental and cultural
studies will encompass an area several hundred feet wide in
which the construction
corridor will ultimately be located. The wider study area
assists FERC and the company
in considering the projects possible impact to environmental or
cultural features which
might be outside of the construction corridor, but may be
adversely impacted by their
proximity to the projects construction activities. These wider
study areas may also aid
in insuring that minor route modifications that may become
necessary during
construction can be proposed within an area that has already
been studied. There are
also regulations which stipulate wider notification areas when
the project passes through
a High Consequence Area (HCA) or if the project contains
facilities such as compressor
station which require much larger areas of notification due to
potential noise impacts.
TYPES OF SURVEYS TO BE PERFORMED
The agent must be well informed of the different types of
surveys that will be conducted
on stakeholder property and secure survey permission or notify
the stakeholder for each
activity.
To facilitate the preparation and submittal of various
environmental and cultural
resource documents and permit applications, the pipeline company
must submit
construction plans and detailed environmental and cultural
resource data to federal,
state, and local agencies for the proposed project. To assess
the impacts and issues
related to design of the pipeline system and its safe operation,
land use and the
environment are thoroughly analyzed in a process that includes
public and landowner
involvement. This thorough analysis first entails examining the
information available
from existing resources such as maps; data supplied by federal,
state, and local
agencies; previous studies in the area; and historical data. To
supplement and confirm
this information, biological, cultural, and other miscellaneous
surveys may be required
on an individuals property.
Field surveys may include, but are not limited to, the
following:
1) Location or Civil Surveys to locate the boundaries of the
project study corridor for
all other surveys, obtain an accurate description of existing
features, and locate the
proposed centerline of the pipeline.
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2) Geotechnical Surveys to drill small boreholes to gather core
samples to determine
the underlying soils and rock.
3) Cultural Resource Surveys to determine potential effects to
historic properties
and/or historic or prehistoric archaeological sites and
artifacts.
4) Geomorphological Surveys to evaluate presence and extent of
subsurface cultural
remains.
5) Wetland Delineations and Waters of the U.S. surveys
6) Threatened and Endangered Species Habitat Assessments and
Species-
Specific Surveys.
7) Raptor and Migratory Bird Treaty Act (MBTA) Surveys
Highly trained engineers, scientists, and technicians operating
under the guidance of
project managers perform these surveys. Project study survey
widths will vary based on
discipline and site conditions (i.e. rural, urban, federal
lands, etc.), A width of 300 feet is
not unusual to conduct these types of surveys. Wider areas may
be needed at road
crossings and river crossings. The following section text
generally describes each type
of survey listed above.
Civil Survey
Survey parties of two to four people outfitted with the most
sophisticated satellite
mapping equipment will accurately locate the boundaries of the
project study corridor
for all other survey teams and may leave wooden survey stakes
and flags (bright
ribbons) as markers. As the proposed project progresses,
additional civil surveys may be
conducted identifying the location and elevation of existing
features such as streams,
roads, and buildings, and identifying the planned centerline
(also with wooden survey
stakes and flags). The agent should be informed and
knowledgeable as to whether any
minor brush clearing or tree limb removal will be required. This
information should then
be clearly communicated to the landowner. The agent should
understand and clearly
communicate to the survey company any landowner concerns or
requirements regarding
gates, animals, children, etc. Depending on field conditions,
civil survey crews are
typically able to survey one half-mile of proposed route per
day.
Geotechnical Survey
In specific areas, such as large river or road crossings,
geotechnical crews will need to
identify subsurface soil and bedrock characteristics. This is
imperative to determine if a
Horizontal Directional Drill (HDD) can be utilized to cross
these features. At these
geotechnical bore sites, a truck or track mounted drilling rig
would drill a three to six-
inch-diameter hole and obtain soil and bedrock samples.
Typically, two to four small
trucks with trailers support this work. If required, the
pipeline company would require
landowner cooperation and permission to move these vehicles to
and from the
geotechnical bore sites. After completion, the boreholes are
completely back-filled, and
the work site restored. Each boring typically takes one to three
days depending on the
types of soils and the depth of borings. On federal and some
state lands, particularly in
the western U.S, a Temporary Use Permit is required from the
land managing agency
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prior to beginning the borings. This permit can take several
weeks to several months to
obtain.
Cultural Resources Surveys
Comprehensive cultural resource (i.e., archaeological) surveys
will be conducted within
the project study corridor, determining the presence or absence
of historic and
prehistoric objects, structures, or sites. Survey parties of one
to four individuals (usually
two) typically walk along the proposed project study corridor
looking for cultural
resource-related artifacts, objects, and historic structures.
Depending on soil
characteristics and surface visibility, the archaeologist may
dig small holes up to three
feet deep called shovel tests. On federal and some state lands,
the cultural resource
contractor will be required to obtain an Archaeological Resource
Investigation Permit
(ARPA) prior to conducting any survey work to ensure proper
field protocols are used.
In addition, a private landowner may refuse to allow a cultural
resource survey to be
conducted on his/her property and the company must abide by that
decision.
Cultural Resource studies are defined as Class I, Class II or
Class III.
Class I inventories are completed with the use of existing data
from cultural
resource inventory files maintained by the BLM or a states State
Historic
Preservation Office (SHPO).
Class II inventories are statistically based sample surveys
designed to aid in
characterizing the probable density, diversity, and distribution
of cultural properties
in the area, to develop and test predictive models and to answer
appropriate
research questions.
Class III intensive field surveys are conducted by professional
archaeologists
thorough pedestrian survey of an entire target area. The intent
of a Class III
inventory is to locate and record all historic properties and is
consistent with
standards in the Secretary of the Interiors Standards and
Guidelines for
Archaeology and Historic Preservation (48 FR 44716). Class III
surveys are the
most intensive and the most often required for areas that have
not been subjected
to previous inventories or have not been subjected to complete
surface disturbance
in the past.
Geomorphological Investigations
Geomorphological investigations, consisting of backhoe trenches
to identify subsurface
cultural remains at high probability areas (e.g., streams and
tributaries) will be
conducted as deemed necessary based on shovel testing and core
sampling results, as
well as professional judgment and concurrence from the State
Historic Preservation
Office. At these sites, a backhoe will typically dig a small
trench to determine the
presence or absence of historic and prehistoric buried surfaces
that might contain
objects, structures, or sites. If required, the pipeline company
would require landowner
cooperation and permission to move vehicles to and from the
geomorphological survey
site. After completion, the trenches will be completely
back-filled, and the work site
restored as close as possible to its original condition. Each
investigation typically takes
one to three days depending on the type of soil and the
feature(s) identified.
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Wetland Delineations and Waters of the U.S Surveys
Wetland delineations and Waters of the U.S. surveys will be
conducted within the project
study corridor, determining the presence or absence of wetlands
and/or water bodies
and mapping or delineating their boundaries. The type and extent
of the wetlands
and/or water bodies will help to identify the permit(s) required
and the methods of
construction to be used. Survey parties of two to four
individuals typically walk the
project study corridor performing a visual examination of the
area. Depending on plant
species, water, and soil characteristics, occasional limited
soil sampling and site-specific
measurements may be conducted in addition to the delineation of
the feature
boundaries. If necessary, the biologist may dig small holes
(typically only one or two
feet in depth) to determine soil characteristics. The soil is
studied closely, measurements
are recorded, and then the soil is returned to the hole and the
grass or sod replaced.
The survey teams may place pin flags or markers behind detailing
areas requiring
further survey work. Biological survey crews typically cover 3
to 4 miles per day.
Threatened and Endangered Species Surveys
Threatened and endangered species surveys can be classified into
two field efforts: (1)
habitat assessments identifying whether species-specific habitat
are present within the
survey corridor and (2) detailed species-specific surveys where
suitable habitat is
identified. A general habitat assessment is typically conducted
simultaneously with the
aforementioned wetland delineations and Waters of the U.S.
surveys. If deemed
necessary, species-specific surveys may be conducted later in
the same year and/or the
following year. Survey parties of two to four individuals
typically walk the survey
corridor, performing a visual examination of the area. If
species and/or habitat are
identified, the biological survey team may need to revisit the
property for further
examination. Biological survey crews typically cover 3 to 4
miles per day, depending on
the type of survey and species potentially present.
Raptor and Migratory Bird Treaty Act (MBTA) Surveys
Raptor and MBTA surveys can be classified into three field
efforts: (1) habitat
assessments identifying whether species-specific habitat are
present within the survey
corridor, (2) detailed species-specific surveys where suitable
habitat are identified, and
(3) an over-flight identifying raptor nests from the air. A
general habitat assessment is
typically conducted simultaneously with the aforementioned
wetland delineations and
Waters of the U.S. surveys. An over-flight conducted in a
fixed-wing aircraft or
helicopter is an effective means of identifying and locating
raptor nests from an aerial
perspective. These over-flights are typically quick once-overs.
If deemed necessary,
species-specific surveys may be conducted. Survey parties of two
to four individuals
typically walk the project study corridor, performing a visual
examination of the area. If
species are identified, the biological survey team may need to
revisit the property for
further examination. Biological survey crews typically cover 3
to 4 miles per day,
depending on the type of survey and species potentially
present.
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12
B. What is an Easement?
Although definitions vary among jurisdictions, an easement is
generally defined as a
non-possessory interest or right to use the land of another for
a particular purpose.
Several elements of this definition are noteworthy.
First, an easement is non-possessory in the sense that the
easement owner or holder
does not exercise such control so as to exclude others from
occupying the land. Second,
an easement is an interest in land and does not constitute full
ownership. The easement
owner may use the land for a specific purpose, but may not
occupy and possess it as
does the underlying landowner. Additionally, because an easement
is an interest in land
it generally has to be memorialized in writing so as to satisfy
the Statute of Frauds (i.e.,
requiring contracts for the transfer of an interest in land be
in writing). Finally, the
easement owner can only use the land for a particular purpose.
An easement owner
does not have carte blanche authority over the land; in fact,
activities outside the scope
of the easement generally constitute trespass.
Easements can be classified into two types based on the nature
of the easement holder.
The first type, an easement appurtenant is an easement that
benefits one parcel of land,
known as the dominant estate or tenement, and burdens another
parcel of land, known
as the servient estate or tenement. Easements appurtenant are
attached to the land
and are transferred automatically when the servient or dominant
tenement is sold to a
new owner.
Example: Landowner A grants an easement to an adjoining parcel
of land, owned
by Landowner B, allowing B to use a portion of A's property as a
driveway.
Landowner A owns the servient tenement or estate, while
Landowner B, who benefits
from the easement, owns the dominant tenement or estate. Because
the easement
belongs to the land and not a specific person, B will still be
able to use the easement
if Landowner A sells his property to Landowner C. Likewise, if
Landowner B sells his
property to another landowner, the new landowner will also be
able to use the
easement.
The second type of easement, known as an easement in gross,
benefits a person or
entity, rather than a parcel of land. As a general rule, a
pipeline easement is considered
to be an easement in gross. Generally, an easement in gross is a
personal right and
cannot be assigned or transferred unless the document creating
the easement provides
otherwise. In order for an easement in gross to be assignable or
transferable, the
granting document will typically contain a provision similar to
the following: The terms,
conditions and provisions of this grant shall extend to and be
binding upon the grantee,
it heirs, successors and assigns."
Example: Landowner A grants an easement to a utility company,
allowing the
company to construct, operate and maintain a pipeline across his
property. By
definition, the easement is an easement in gross since the land
burdened by the
easement does not benefit another property. Landowner A may
transfer the
property to Landowner B without terminating the easement.
However, as a general
rule, the utility company may not effectively transfer its
easement to another
company without the landowner's consent unless the granting
document provides
otherwise.
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13
There are various ways to create an easement. Generally, an
easement may be created
(i) expressly (i.e., explicit terms in writing), (ii) by
implication; or (iii) by prescription.
Express Easements. There are two types of express easements:
voluntary and
involuntary. A voluntary express easement is created by a
written agreement
negotiated between the parties either granting or reserving an
easement. An
involuntary express easement is created when the easement owner
is granted a
court-ordered easement through eminent domain or condemnation
proceedings.
Note that condemning entities (e.g., utilities, pipelines,
railroads, etc.) do not have
inherent eminent domain authority. Instead, this power has been
delegated, by
statute, from the sovereign authority vested in the Federal
and/or State
governments.
Implied Easements. Implied easements are created when two
parcels of land were
at one time treated as a single tract, or owned by a common
owner. An easement is
implied by existing use if the easement is necessary for the use
and enjoyment of
one parcel of land, and the parties involved in dividing the
tract intended that the
use continue after the division. Additionally, an easement is
implied by necessity
when one parcel of land is sold, depriving the other parcel of
access to a public road
or utility.
Prescriptive Easements. Prescriptive easements or easements
obtained through
adverse possession, can be created through court proceedings if
an individual or
entity has used property in a certain way for a certain number
of years. Generally,
in most jurisdictions, a prescriptive easement will be created
if the use of the
property meets the following requirements:
The use is open and notorious, i.e., obvious and not secret;
The individual or entity actually uses the property;
The use is continuous for the period of time prescribed by
statute, typically
between 5 and 30 years; and
The use is adverse to the true owner, i.e. without the owner's
consent or
permission.
A detailed explanation of easements created by eminent domain
proceedings, by
implication or by prescription is beyond the intended scope of
this manual. The
following section focuses primarily on the typical provisions
contained in a pipeline
easement document negotiated between the parties.
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14
C. Typical Easement Language: Anatomy of a Pipeline Easement
Document
There is no such thing as a uniform pipeline easement agreement
that is universally
applicable to all pipeline construction and expansion projects.
Rather, as a general rule,
a pipeline operating company, i.e., easement owner, will
specifically tailor a project-
specific easement agreement to accommodate: (i) the nature and
timing of the intended
project/facilities; (ii) the applicable laws and regulations of
the governing jurisdictions;
(iii) the operating philosophy of the easement owner; (iv) any
foreseeable expansion
plans; (v) any requirements requested by governmental agencies
with oversight
authority; and (vi) any provisions required to accommodate local
customs or industry
standards.
Even given the diversity of the above, the provisions of a
pipeline easement can be
generally categorized as follows:
Provisions Regarding Easement Scope Location, Dimensions and
Utilization
Provisions Regarding the Addition of Future Facilities
Provisions Regarding the Easement Owners Duties and
Obligations
Provisions Regarding the Landowners Duties and Obligations
Provisions Regarding Duration and Termination
The following sections provide an overview of typical provisions
and the issues involved
with each category.
1. Provisions Regarding Easement Scope Location, Dimensions and
Utilization.
Often referred to as the Granting Clause of an easement, there
has been a
substantial amount of litigation involving the claims of vague
easement location
descriptions and over-utilization of easement rights by easement
owners.
Consequently, a well-drafted easement document should include:
(i) a legal
description of the affected land; (ii) the precise location of
the easement across the
affected land; (iii) a description of the physical facilities
that the owner can place
within the easement (iv) a list of activities and functions that
the easement owner
can conduct within the easement; and (v) provision for how the
easement owner can
utilize the affected land to access the easement (i.e., ingress
and egress).
Description of the Affected Land. The Easement document should
include the
legal description of the affected land. This is imperative for
two reasons. First, in
order to satisfy the Statute of Frauds, the easement document
needs to be
signed by the owner(s) of the affected land. Second, in order to
record the
easement document, it needs to contain a sufficiently precise
legal description so
that the document can be properly indexed in the county property
land records.
Note that an easement document does not have to be recorded to
be effective
against the current landowner. However, for an easement to be
effective against
a subsequent purchaser of the affected land, it does have to be
recorded to
provide constructive notice. Since a number of county clerks
only maintain a
parcel index, it is imperative that the easement document
contain a sufficient
legal description in the format prescribed by the county
clerk.
Location of the Easement. A well-drafted modern easement
document will
contain a description of the location of the permanent easement
on the affected
land. In fact, some States have statutory requirements for
minimum easement
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15
location descriptions. Notwithstanding statutory requirements, a
precisely
described easement location clarifies the rights/expectations of
the parties and
adds future certainty during the lifespan of the pipeline.
Following are typical
methods for adequately describing the location of the easement
across the
affected land:
A metes and bounds description of the easement boundaries within
the
affected land.
A stated easement width, centered or offset on an established
survey line.
A survey plat attached to the easement document that depicts
the
easement boundaries across the affected land.
In addition to describing the location of the permanent
easement, its not
uncommon for the easement document to provide for temporary
working space
during the duration of initial construction. Typically, this is
described as an
additional easement strip adjacent to one boundary of the
permanent easement.
The easement owners right to utilize this additional space
usually expires
automatically at the end of the initial construction phase or on
a stated date.
Description of Physical Facilities. The easement document will
typically
describe the physical facilities and improvements that can be
constructed and
maintained by the easement owner to accommodate the intended
purpose of the
easement. This description can involve: (i) the type and number
of facilities
(e.g., pipeline, pipelines, valves, flanges, pumps, cathodic
protection units,
communication lines, control facilities, appurtenances, etc.);
(ii) the size of the
facilities (e.g., a ten inch (10) diameter pipeline, a 50 x 50
valve site, etc.);
and (iii) the location of the facilities within the easement
(e.g., in relation to the
easement boundaries, aboveground, belowground, etc.).
Approved Uses and Activities within the Easement. Almost
without
exception, the granting clause of the easement document will
specify the types of
activities and functions that the easement owner can conduct
within the
easement. Additionally, the granting clause may provide a
description of the
types of products that can be transported by the pipeline.
Example: Grantor . . . does hereby grant to . . . Grantee . . .
the right at
any time or times to construct, maintain, operate, protect,
repair, replace,
change the size of and remove a pipe line or pipe lines and
appurtenances for
the transportation of oil or oil products, gas and water . .
..
Ingress and Egress. Ingress and egress is a fancy way of saying
entering
and exiting. A well-drafted easement document should specify the
parties
agreement on how (and when) the easement owner can use the
affected land to
access the easement. Sometimes, access is generally agreed to at
convenient
points (see Example, below). Other times, access is limited to
certain gates
and/or field roads. In addition, the easement document may
specify some period
of advance notice for non-emergency access.
Example: Grantor . . . does hereby grant to . . . Grantee . . .
the right . . .
to construct, inspect, operate . . . a pipe line . . . along a
route to be selected
by Grantee, with the right of ingress and egress at convenient
points to and
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from said facilities . . . for the purpose aforesaid on, over
and through certain
lands situate in the County of Hennepin and State of Minnesota
and described
as follows: NW of Section 28, Township 116 North, Range 22
West.
Other Typical Uses. In addition to the above, other typical uses
can include:
The Easement owners right to clear the easement of trees and
vegetation.
The easement owners right to utilize self-help to remove
obstructions and
encroachments.
2. Provisions Regarding the Addition of Future Facilities.
Occasionally, an
easement document may provide for the addition of future
pipelines. Such a
provision is called an additional line right or multiple line
right provision.
Historically, courts have upheld the enforceability of
additional line right provisions if
the payment amount for the additional line(s) is ascertainable
from the original
easement document. Courts have not stricken additional line
right provisions
because they were subsequently determined to be unfair, contrary
to market
conditions, or simply a bad bargain.
Example: Thereafter, upon the laying of each additional line
there shall be
paid $1.00 per lineal rod, or fraction thereof, of said
additional lines so laid.
3. Provisions Regarding the Easement Owners Duties and
Obligations. An
easement owner has both implicit and explicit duties associated
with the easement
document. Implicitly, the easement owner has a duty not to
breach the terms of the
easement document or overburden the affected land beyond its
stated rights.
Explicitly, easement documents typically include the following
types of provisions
further defining an easement owners duties:
Duty to Remediate or Pay for Damages. As a general rule,
easement
documents address the easement owners responsibility and
liability for damages
arising from the exercise of its rights. These provisions vary
greatly and can
include: (i) a list of items subject to damage payments; (ii)
the basis for
determining damage payments; and (iii) the process for effecting
damage
settlements (e.g. arbitration or disinterested third party
appraisers).
Additionally, some states have enacted damage settlement
statutes that require
compensation for future crop years.
Example: All damage to crops and timber and fences, buildings,
drain tile
and other improvements on said premises which Grantor may
sustain by
reason of Grantees exercise of aforesaid rights shall be paid
for within a
reasonable time after such damage is sustained. If the amount of
damages
cannot be mutually agreed upon, the same shall be ascertained
and
determined by three disinterested persons, one thereof to be
appointed by
the owner of the premises, one by [the pipeline company] . . .
and the third
by the two so appointed . . ., the award of two of such persons
being final and
conclusive.
Duty to Bury the Pipe a Certain Depth. While the D,O,T, requires
minimum
depth of cover, for pipelines, burial depth provisions in excess
of these
requirements are commonly requested by the landowner to be added
to
easement language in agricultural areas. Example: Grantee . . .
hereby
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covenants, insofar as it is practicable so to do, to bury said
pipeline . . . so as not
to interfere with the ordinary cultivation of that part of said
premises which at the
time of construction has been under cultivation.
4. Provisions Regarding the Landowners Duties and Obligations.
Similar to
easement owners, owners of affected lands also have implicit and
explicit duties
associated with the easement document. Unless expressly
prohibited, the general
rule is that affected landowners cannot unreasonably interfere
with an easement
owners rights and its exercise thereof. Stated positively, an
affected landowner can
reasonably interfere with the rights granted pursuant to an
easement document.
Unfortunately, this standard is somewhat vague and open to a
range of
interpretations; consequently, for clarity and certainty its
best to agree to a list of
the affected landowners prohibited activities.
Typically, prohibited activities can include the following:
A duty not to construct or allow obstructions or encroachments
on the easement.
A duty to maintain or not change the ground elevation on the
easement.
Example: Grantor agrees not to build, create or construct any
obstructions,
engineering works or other structures over said pipe line or
pipe lines, nor
permit it to be done by others.
5. Provisions Regarding Duration and Termination. Easement
documents will
generally include a provision addressing the duration and/or
termination of the
easement. Pipeline easements can last in perpetuity or
automatically expire after a
fixed or stated period of land. Additionally, some easements are
written to terminate
upon the occurrence of an event (e.g., termination upon 18
months of continuous
non-use.
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III. ETHICAL/PROFESSIONAL BEHAVIOR
How a person is treated often says more about a company than an
official statement
made by company officials. Industry Professionals working in
support of a pipeline
project must be respectful of the landowners and should dress
and act professionally at
all times. While the agent will typically be the single point of
contact for discussions
with the landowner, any of the aforementioned individuals
supporting the project,
especially surveyors and environmental scientists may come into
contact with the
landowner or their representatives while on the property. What
is said during these
encounters can dramatically impact easement negotiations, both
positive and negative.
Any encounter with the landowner should be communicated to the
Right of Way group,
so that when the agent meets again with the landowner, the agent
knows everything
that has transpired on the property. To the extent feasible, the
agent should fully
prepare before meeting with a landowner; having information
regarding project scope,
timing, impact, land ownership and other information in order to
make your presentation
with confidence. As an overriding principle, an agent should
never make promises that
cannot be kept or make representations as to the conduct of
other project-related
disciplines.
Pipeline companies should stipulate that agents make use of
landowner contact sheets
which afford the professional the ability to accurately record
the date and time of a
meeting as well as the content of the discussion. Many times
these contact sheets can
be used in follow-up visits to demonstrate that the agent
understood the landowners
concern and has taken action to address it. Landowner contact
sheets should be looked
upon as a part of the projects official record and should be
concise and factual. They are
a record of the contact and not a record of the agents opinions.
FERC stipulates the use
of phone logs and contact records of calls received on official
project hotline numbers
and may refer to these contact records in referencing a concern
that a stakeholder
brings to their attention. Individual landowner contact records
compiled by the agent
may also be used by FERC to aid them in understanding a
landowners concern and
demonstrating the pipeline companys efforts to address it. In
addition, contact logs are
an essential component in the event the pipeline company needs
to exercise its eminent
domain rights.
When meeting with landowners in their homes or offices, business
casual dress is
typically appropriate, while clean jeans and a collared shirt
may be appropriate when
meeting outdoors or in a shop setting. Shirts without collars or
low-cut blouses can be
offensive in many setting and should be avoided. If uncertain as
to what may be
appropriate, business casual attire should be worn.
Agents should set up appointments to meet with the landowners at
convenient times for
the landowner and should always be prompt in attending those
meetings. If an agent is
going to be late or must reschedule the meeting, the landowner
should be given, as
much notice as possible and the meeting should be re-scheduled
for a more convenient
time that fits the landowners schedule. The agent must give
their undivided attention to
the landowner during a face to face meeting. Interruptions or
distractions by incoming
telephone calls or emails must not be allowed. Cell phones
should be put on vibrate or
quiet mode before meeting with the landowner. An agent should
always respond, to the
extent advisable, to requests for additional information from a
landowner and be timely
with the response. Always be courteous and respectful of the
time constraints a
landowner may have and make the discussions expedient and
personable.
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The agent must never over or underestimate the landowners level
of understanding, or
ability to understand, due to the landowners dress, manner of
speech, age, ethnicity or
social background. Racial, ethnic, age, national origin, sexual,
and religious slurs or
comments should not be a part of any conversation with the
landowner. Disparaging
remarks about other landowners, utility operators, or
contractors to the landowner are
typically viewed as unprofessional and should be avoided.
The agent should maintain a professional level of conversation
and never resort to
making personal comments with regard to the landowners tone or
tactics. The agent
should gracefully terminate discussions with a landowner if it
appears that further
conversation may lead to a situation whereby the landowners
anger appears to be
escalating in an uncontrolled manner or situation whereby the
landowner may consider a
physical altercation to make their point.
The agent should preserve the confidentiality of conversations
with each landowner and
never reveal the terms of an agreement with other landowners;
except for relaying
standard terms and approaches to issues on a uniform basis:
e.g., land restoration,
seeding, clean up, etc., and to convey that all landowners are
being treated fairly.
An agent should never engage in gossip or personal comments
about other landowners;
understanding that often general discussions regarding adjoining
lands may lead to
discovery of information about other landowners who have been
unavailable for direct
contact, e.g., learning about new landowners, relatives among
landowners, preferences,
disputes among neighbors, concerns: all of which can assist the
agent with overall
landowner relations and negotiations with and among neighboring
landowners. The
agent must always be discreet with information entrusted to them
by the landowner.
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IV. NEGOTIATION BEST PRACTICES & EMINENT DOMAIN
A. Negotiation Dos and Donts
As mentioned earlier, in mid-2008, the interstate natural gas
pipeline industry, through
INGAA, developed a set of guiding principles relating to a
companys interaction with
landowners. The eight principles include: being respectful in an
effort to build trust,
providing accurate and timely information, negotiating in good
faith, disclosing
regulatory requirements; not using eminent domain as a threat,
promptly responding to
issues, reaching out to affected stakeholders, and conducting
oneself as an industry
ambassador. While these guiding principles seem like common
sense and should be
easy to follow, each landowner is different and what works in
conversation with one
landowner may not work at all with another.
The negotiating process can be a stressful time for both the
landowner and the agent
trying to secure the land rights. Even the best explanation of
the need and benefits of
the project to the landowner can be met with anger, frustration,
or disinterest. It is
important for the - agent to recognize that they are a guest on
the landowners property
and that the landowners may see no benefit to allowing a
pipeline to be placed on their
land. At a minimum, the landowner may see the project as nothing
more than a
nuisance. Additionally, the landowner may see the placement of a
pipeline as being very
disruptive by impacting their business operation or full
enjoyment of the property.
It is very important for the agent to remain professional and
not allow the meeting(s)
with the landowner to devolve into personal attacks. Positive
verbal and body language
are essential to managing a successful negotiation. Any form of
negativity
communicated by the agent can quickly destroy the credibility or
trust trying to be
established with the landowner. While the agent is the
representative of the pipeline
company, the agent should always put themselves in the
landowners shoes and
consider how he/she would want to be treated. The following are
some suggestions of
positive language and positive phrasing to use when negotiating
with the landowner:
Positive phrases to help reinforce your message about the
project:
The company is interested in the concerns of every
stakeholder.
The company builds and operates reliable pipelines and
facilities.
The project, once in service, will be monitored electronically
24-7 by our
Gas/Pipeline Control surveillance team.
The company will construct the project using appropriate
technology and
construction techniques that will minimize impacts to your land
and the
environment.
The project will supply _____ jobs to this community (long and
short term) and will
add significant dollars to the local tax base.
The construction process from surveys to completion is carefully
monitored by
__________and all applicable rules and regulations are
followed.
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The company will restore all property to its pre-construction
condition to the
maximum extent possible.
After construction and restoration, the project site is
monitored to ensure that the
restoration objectives have been met and the company will work
with the property
owner(s) regarding varying restoration options.
The project will satisfy a public need by delivering
clean-burning natural gas to
generate electricity, heating, cooking, and other uses.
Positive phrases to maintain a professional demeanor and
minimize negative negotiating environments.
If you would send us ________, we would be happy to complete the
process for
you.
The information we have suggests that you have a different
viewpoint on this
issue. Let me see if I understand your position correctly and
Ill try to explain our
perspective to you.
Might we suggest that you [suggestion].
One option open to you is [option].
We can help you to [whatever] if you can send us [whatever]
Body Language: Positive actions to reinforce during interactions
with your audience
Speaking slowly and clearly
Standing with your arms and hands comfortably at your side
Eye contact with the audience
Smiling
Dress appropriately
Body Language: Negative things to avoid during conversations
with
your audience
Pencil fiddling
Rocking
Ring twisting
Tapping
Fig leaf stance
Parade rest
Choir pose
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22
Presentation Techniques
Things to Avoid
1. Dont get emotional, defensive, or argumentative.
2. Dont bluff or lie. If/When the truth comes out later, any
credibility or trust that
you may have had will be gone.
3. Dont use jargon or technical terms without being prepared to
explain their
meaning.
4. Dont be condescending or arrogant with the landowner or
stakeholders.
5. Dont touch any resident/local official or use force in any
way.
6. Dont discuss confidential information where others you dont
know can hear.
7. Dont use phrases such as: Its a done deal..you might as well
sign.
FERC wont let us move the route..it had better be true if you
say it!
If you dont sign, well use our power of eminent domain to
acquire the
easement.
8. Dont threaten eminent domain/condemnation. Be prepared to
address the subject
in the manner prescribed by the company if the landowner brings
up the
subjectthey will, so be prepared!!
9. Avoid discussing religion, politics, or any other potentially
divisive subject matter
Things to Practice
1. Be preparedanticipate questions that the public may want to
ask.
2. Be calm, truthful and helpful.
3. Show compassion.
4. Know your key messages and repeat them often.
5. Try to answer all questions as thoroughly as you can.
6. Admit you dont know the answers to specific questions if you
dont know. But,
add that you will find out or you will find someone else at the
company that can
answer their question. Follow-up in a timely manner
7. Immediately correct misperceptions or errors.
8. Practice the art of bridging.thats interestingtell me more
about that
9. Speak clearly and in plain English. No jargon/slang
10. Have translators available if not in an English-speaking
area
Always remember the principles of SMART COMMUNICATION
Smart Communication techniques are extremely important. Remember
that whatever
you say can (and will) be repeated, misinterpreted, or used
against you in the court of
public opinion, or worse, a court of law! Never put in writing
what you dont want to
see in print. Use only factual statements and leave your
personal opinions about the
project, the company, the landowner, the regulators, etc. out of
your status reports,
journals, emails and letters. They ALL have the possibility of
ending up in a court
proceeding or can be posted to websites, newspapers, and video
clips!
Attached as Exhibit B is a more detailed description of SMART
COMMUNICATIONS.
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B. Eminent Domain: How to respond to questions concerning
Eminent Domain
Eminent domain is without question the most difficult matter a
pipeline company and the
agents negotiating for easements must address. Pipeline
companies want to be viewed
as fair, but like each of us, they dont want to overpay for
something or accept terms
and conditions in an agreement they deem to be unfair.
Unfortunately, differences
between the landowner and the pipeline company regarding the
fair value of an
easement and its terms and conditions are very common and almost
inevitable.
The agent is tasked with the responsibility to strike the proper
balance of fairness
between the company and landowner. Occasionally, the parties
cannot come to an
agreement and it becomes a legal matter that must be decided by
a third party. While
the agent works to bring the parties together, the agent is the
representative of the
pipeline company and as such, has specific duties that must be
accomplished. As an
experienced professional, the agent is responsible for
negotiating in good faith with each
and every landowner and documenting those negotiations in such a
manner, so it is
clear that good faith negotiations took place between the
parties. Previous sections of
this material addressed methods and techniques how to accomplish
good faith
negotiations.
The following are some tips for handling the issue of eminent
domain:
It is the agents responsibility to identify tracts early in the
acquisition process
where they believe the use of eminent domain is most likely and
bring those tracts
and the details of the negotiations to the attention of the land
supervisor.
The agent should be intimately familiar with the
publicly-available
position/comments that FERC has made in regard to eminent domain
and be
prepared to communicate it to the landowner when asked. As a
general rule, if a
question arises concerning eminent domain, an agent should refer
directly to
FERCs position/comments. Following are various comments made by
FERC
concerning the topic:
The following comments are available on the Pre-Filing FAQs page
on FERCs
website (see
http://www.ferc.gov/industries/gas/indus-act/pre-filing/faqs.asp):
Q: What is Eminent Domain (Condemnation)?
A. Section 7(h) of the Natural Gas Act (NGA) grants the right of
eminent
domain when a certificate of public convenience and necessity is
issued by
the FERC under section 7(c) of the NGA.
Thus, when FERC finds that a proposed project is in the public
interest, it
will issue an order of convenience and necessity. The pipeline
company will
then have the right to acquire necessary property rights for
that project by
use of eminent domain if the pipeline company and landowner
cannot
reach a voluntary agreement regarding the terms of an easement
or the
compensation to be paid.
http://www.ferc.gov/industries/gas/indus-act/pre-filing/faqs.asp
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Q: What is the FERCs role in land negotiations?
A. Throughout the pipeline certificate proceedings, FERCs staff
and the
pipeline company must be responsive to landowners concerns. When
a
landowner requests reasonable right-of-way adjustments or
other
accommodations, staff may actively seek the pipeline
companys
concurrence. Also, FERC staff may make appropriate
recommendations to
ensure that any certificate issued is conditioned to require the
pipeline
company to make reasonable accommodations requested by
landowners or
affected towns. Further, FERC expects pipeline companies to act
fairly,
honestly and respectfully with landowners when they are
negotiating for an
easement. As long as the pipeline company is adhering to the
terms and
conditions of the certificate, FERC has no further role in the
eminent
domain process. Acquiring the necessary rights becomes a legal
matter
between the pipeline company and the landowner in the
courts.
The following comments can be found in the FERC publication,
entitled An
Interstate Natural Gas Facility on My Land? What Do I Need to
Know? (see
http://www.ferc.gov/for-citizens/citizen-guides/citz-guide-gas.pdf):
You will also have the opportunity to learn the views of other
interested parties.
The Commission (FERC) may approve the project, with or without
modifications,
or reject it. If it is approved and you fail to reach an
easement agreement with
the company, access to and compensation for use of your land
will be set by a
court. (see page 2)
Q: How do pipelines obtain a right-of-way?
A: The pipeline company negotiates a right-of-way easement
and
compensation for the easement with each landowner. Landowners
may be
paid for loss of certain uses of the land during and after
construction, loss
of any other resources, and any damage to property. If FERC
approves the
project and no agreement with the landowner is reached, the
pipeline
company may acquire the easement under eminent domain (a right
given
to the pipeline company by statute to take private land for
Commission-
authorized use) with a court determining compensation. (see page
6)
Q. What authorization allows the pipeline company to use
eminent
domain?
A: If FERC authorizes the project and the necessary easements
cannot be
negotiated, an applicant is granted the right of eminent domain
(section
7(h) of the Natural Gas Act and the procedures set forth under
the Federal
Rules of Civil Procedure (Rule 71A)). Under these conditions,
the
landowner could receive compensation as determined by the
courts. (see
page 20)
http://www.ferc.gov/for-citizens/citizen-guides/citz-guide-gas.pdf
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Q: Within what jurisdictions would an eminent domain
procedure
occur?
A: It is the companys desire to not proceed with condemnation
procedures
but if they must occur the companys legal staff will determine
the
jurisdiction.
The agent is free to discuss condemnation if asked directly or
the time has
come to address this subject during protracted negotiations. In
discussions with
landowners, tenants, and/or their attorneys, great care should
be exercised in
discussing this subject. Additionally, the agent should
emphasize that
eminent domain is the companys last choice in acquiring rights
for the
project. Condemnation is never to be used as a threat, express
or
implied to the landowner or their representative.
If, prior to receiving the FERC Certificate, you are asked by
the landowner,
Can you condemn me, your response should be similar to: Not at
this time,
but should the FERC grant a Certificate of Public Convenience
and Necessity for
this project, the right of eminent domain will be available to
us should
negotiations fail to reach an agreement. Again stress that
condemnation is
used only as a last resort and that it is our desire to reach an
amicable
settlement with each party.
The subject of condemnation should be discussed in a reserved,
professional,
and matter-of-fact manner as a last alternative to a negotiated
agreement. It
is the companys intention to make fair offers and to reach
voluntary
agreements. There are just some instances where the company has
no choice
but to enter a condemnation proceeding because the landowners
position is
intractable and the company has no viable alternative routing.
This is not
always a bad thing if presented correctly. Sometimes it helps to
have a
disinterested third party such as a commission or a jury to
reduce the
emotional issues and find common ground (or at least reasonable
solutions).
Eminent domain proceedings vary from state to state and legal
counsel should
be consulted regarding the specific process in the state where
the project is
taking place. However, the eminent domain process typically
follows the
general pattern outlined below:
o The condemnation appraisal is ordered and generated to assist
in
determining a fair market value for the rights to be acquired
by
condemnation. The appraisal report should be in narrative form,
and
prepared by a qualified and licensed, local appraiser
(preferably an MAI).
The landowner should be notified by the agent prior to the
appraisers
contact.
o The condemnation appraisal or summary letter is delivered to
the
landowner by the agent along with the offer and, if required, an
RPLS
stamped land plat (revised if necessary)
o The pipeline companys final offer letter, executed by the
appropriate
company official (land supervisor or attorney), is mailed to the
landowner.
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Typically the final offer letter package contains a summary of
offered
compensation and a response deadline.
o Depending on the situation and the legal requirements of the
state, it may
be necessary for the pipeline company attorney to send another
final offer
letter to initiate the condemnation process.
o The final offer letter is usually followed by a service of
summons and the
filing of a lawsuit.
o A conference and/or hearing before a judge/jury/commission
will likely be
required to discuss possession for construction. It may be
determined
that a separate mediation conference will need to be scheduled
to address
compensation. In addition, immediate possession may be granted
to the
pipeline company by the judge/jury/commission. However, it is
important
to note that the judge has discretionary authority regarding
immediate
possession and may not grant such authority if the pipeline
company
cannot demonstrate a compelling case for imminent harm.
o Settlement talks can continue during the condemnation process
with the
hope that the matter can be settled out of court. However, if
the
proceeding continues to the final step in the process, a hearing
before the
judge where either the commissioners or jury set the amount
of
compensation would take place.
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V. Construction Phase
Once easement acquisition is complete and the project moves into
the construction
phase, clear and ongoing communications with the landowner is
imperative.
Communication with the landowner begins with a review of the
easement for the
impacted tract of land. The construction schedule and the
sequence of crews (e.g.,
survey, clearing, trenching, etc.) should be communicated to the
landowner. Issues or
concerns raised by the landowner or other stakeholders should be
addressed
immediately, and communicated to Construction and Management on
a daily basis.
Communication with different groups such as Engineering,
Construction, Business
Development (Commercial), and the construction contractor need
to be ongoing and
continuous to efficiently revise any needs specific to the
detailed execution plan. These
communications should take place regularly and if necessary at
the daily construction
meetings.
Any communications/decisions requiring action on a particular
parcel of land will be
relayed to the appropriate agent and Right of Way (ROW)
supervisor, so the landowner
can be immediately contacted. On the ground meetings (tract site
meeting) will be
conducted by the agent or ROW supervisor along with other
personnel representing
Construction, Engineering, or construction contractor as
required. Any landowner
concerns during construction will be addressed by the agent.
General Requirements of the Right of Way Plan for the
Construction Phase of the Project
Deliverables:
1. Final Landowner Line List for construction and project
implementation which
details any special tract requirements from the landowner. All
special terms and
conditions should be communicated and explained to the
Construction Manager
and construction contractor.
2. File Review - A review of the documents impacting each tract
of land
(easements, leases, fee purchases, permits, and/or other
occupational
agreements) should be concluded prior to landowner notification
of construction.
Construction Notification should be at the earliest possible
time and no later than
72 hours prior to entry upon the tract.
3. Contingency Plan for the Acquisition of Additional Property
Rights not
purchased or within the anticipated project scope. These
additional needs should
be approached as any other land rights acquisitions for the
project, but with a
clear communication to the landowner for issues and reasons for
the additional
property rights. It should be noted that if these additional
needs are in conflict
with the conditions of a FERC certificate or outside of an area
that has been
studied and cleared for the project, the pipeline company might
experience
significant delays including, but not limited to the shutdown of
the project.
4. A Damage Claim Process should be established for resolution
of damage claims
with landowners and third parties for construction impacts not
previously
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compensated. Claims should be handled directly with the
landowner or party
presenting the claim in an expeditious manner .A clear
expectation of the
claimant should be sufficient documentation provided so the
claim can be
properly evaluated.
5. Contact Information for Agents supporting the construction
phase should be
provided to Construction, Engineering, and the Construction
Contractor and
confirmed from time to time to help in resolving problems with
landowners or
acquiring permissions or additional rights.
6. Property Inspection Process - Each tract should be reviewed
during
construction to assure compliance with the terms and conditions
of the
easement. Any deficiencies should be reported to the
Construction Manager,
Chief Inspection, and/or Right of Way Supervisor.
7. Landowner Follow-up Plan - After construction is completed on
each tract,
each landowner should be contacted by the agent and a meeting
established to
review the final cleanup. A final letter or sign off/clean-up
approval or damage
release form should be signed by the landowner for each
tract.
8. Transition Plan - Transitioning from the Construction phase
to the Operations
phase of the project should be undertaken by reviewing and
revising the Right of
Way Plan to include the following:
Providing Public Awareness information to landowners.
Evidence to Operations that damage claims have been finalized
and
completed.
Listing of general terms and conditions impacting Operations at
project
completion.
Final Landowners Line List and adjacent landowners when
applicable.
Issues/Opportunities
All issues and opportunities affecting the project should be
regularly discussed with
Project/Company Management and Construction. Problem resolution
or action to
mitigate a problem should be jointly decided upon and each party
should be assigned
specific roles and responsibilities. The agent is ultimately
responsible to ensure follow-up
with the landowner and reporting any problems to company
management. The following
is a list of issues that most commonly arise during a project
after construction begin:
Plats may need to be revised for additional acquisition of
easement or temporary
work space during the Construction phase.
Construction encroachment into areas where an easement or work
space was not
acquired. This will require quick action and timely
communication within the
project team and ROW to respond, evaluate, and correct.
Landowner or third party encroachment into the purchased right
of way. This will
require direct communication between ROW, Construction, and
Engineering for
resolution.
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Required permits not identified during agency interviews or
during the land rights
acquisition phase of the project. Legal counsel may be necessary
to help
determine jurisdictional requirements and expeditiously
obtain.
Forward construction schedule for tract impacts need timely
communication from
Construction and Contractor throughout the project to implement
terms and
conditions of each tract agreement.
Up to date alignment sheets are to be maintained. Contact
records are imperative
for clear communications both internally and externally to the
landowner.
VI. Post Construc