Sugar Creek Wind Farm project asks Logan County assistance in utilities easement snag

 

[December 11, 2018] 

LINCOLN 

On Wednesday, December 5, the Logan County Board Planning and Zoning Committee held its monthly meeting. One focus of discussion was a condition of approval for the Sugar Creek Wind Farm Project.

Currently the specific issue is getting authorization for connections to pipelines from Panhandle Eastern Pipe Line Company and Ameren.

Guests included Scott Koziar of Apex Clean Energy and Kyle Barry, attorney for the project.

Logan County Zoning Officer Will D’Andrea gave committee members a packet that listed condition 28, which says “the applicant shall provide authorization from Panhandle Eastern and Ameren to allow for crossing of gas pipelines.”

D’Andrea said there are several crossings in the Sugar Creek Wind Farm project, so the idea is that the company does everything in a proper way that does not disturb the gas lines, it would be safe to cross, or they would get some kind of authorization from the owners of the pipe line.

D’Andrea said there were some emails and correspondence to address Sugar Creek working with Panhandle to get authorization by having them sign a formal agreement. He asked Barry to explain the situation.

Barry said the condition calls for an approval by Panhandle and Ameren for any crossing of infrastructure. He said there was not an issue for Ameren since there are no crossings of their infrastructure, but there is a gas pipeline that goes through part of the project.

Barry said the company has sought to negotiate to enter into a crossing agreement with Panhandle. He said Panhandle does not have a problem with the crossing, but Panhandle’s problem is with wanting turbines to be at least 1,500 feet (setback) on each side of the pipeline.

Barry said the board previously approved a layout that complies with the setbacks. He said, “my position is that Panhandle does not have the right to tell the landowners, and the company and the board where to put the turbines given that the board has already approved it.”
 

Barry said the issue is that while the project has no problem agreeing to all the construction guidelines, Panhandle won’t officially agree to anything unless the project is willing to move the turbines, which is a problem because it would affect nine or ten turbines.

Koziar said his company has been working on a formal crossing agreement with Panhandle for four or five months. He said the Title Insurance is insuring the crossing, so it is not a real estate issue.

Koziar said Panhandle “does not have the right to stop a crossing.” Panhandle has “stonewalled” them for five months due to wanting a 3,000 foot or three-quarters of a mile swath through the project.

Koziar said Panhandle claims they sometime fly planes over the area to check pipelines, so when Koziar has asked landowners about it, they said they have never seen Panhandle doing that.

Koziar said Apex has offered to shut down turbines when Panhandle wants to fly through and has even offered to pay for drone services to see if there are issues with the pipeline, but Panhandle has refused to talk to them.

Koziar said the technical teams have been in contact with Panhandle and Apex has documents of how Panhandle wants them to cross the pipeline. He said they have told Panhandle they are “perfectly fine” with following the technical specs of how far they have to be below the line.

Koziar said Apex just does not agree that there needs to be a 3,000-foot setback. The setback is not any of property owner's easements - the legal right to use another property for a specific purpose - or any issue Apex would have with the landowners, it is just a requirement Panhandle is trying to put on the project for a formal agreement.

Barry said for most crossings, they have a “non-exclusive easement” and Panhandle cannot stop a landowner from crossing a pipeline. He said, “I think they see this as sort of a leverage point to try to use to move the turbines for whatever reason.”
Barry said the bottom line is that Panhandle is unwilling to sign a document saying they approve the crossings, which is what the condition says is needed.

Barry said the project does not have a problem complying with all their requirements and specifications for the crossing.

Koziar said typically for wind farms, it is often 50-50 whether they actually get a formal agreement with the utilities or gas pipeline as they cross. Typically, there is not a formal agreement saying this crossing is approved by one party or the other because they do not typically have that approval in their easements with landowners.

Committee member Dave Blankenship said Barry had stated the easement cannot stop a landowner from crossing, but he has seen it. Blankenship asked if these are both surface and subsurface crossings because he has seen easements where you are allowed to cross, but you are not allowed to bury to cross [the pipeline].

Koziar said if you have the crossing, all the landowner cannot do is interfere with access or maintenance of the pipeline, so there is no real estate issue with crossing the pipeline.

Barry said the turbines must be set back at least 650 feet, and the closest one is 700 feet.

Committee member Kevin Bateman said the way he understands it is that Panhandle is okay with the project boring the cable under the pipeline, they just don’t want the turbines above the pipeline within 1,500 feet. Bateman said if the requirement for aerial application of crops is that they turn the turbines off and the crop duster can fly between the turbines, then a plane like a Cessna should be able to get through.

Bateman said he agrees with the Wind Farm Company that if the county board is willing to allow them to follow the regulations to go under the pipeline and the gas company is not willing to sign the agreement just because they will not move the turbines, the company should be allowed to move forward. He said the project is meeting the board’s setbacks and just about everything they have asked for.

Bateman said since Apex has offered to turn turbines off at certain times and bore under pipeline, he wants to waive the signature of approval from Panhandle.

Blankenship said he agreed that it should be waived because as Barry stated, Panhandle does not have jurisdictional authority.

Committee Chairman Scott Schaffenacker asked whether there have been legal decisions or lawsuits in similar cases in Oklahoma.

Koziar said no, unless they say there is no real estate right to cross the easement.

Barry said a title company would insure companies against a lawsuit.

Barry said since it one of the board’s conditions, the board can provide feedback to Zoning Officer Will D’Andrea to determine whether the condition has been satisfied.

D’Andrea said they may need written assurance of how it will be constructed and will meet all the guidelines, so the condition is not tossed out.

Schaffenacker made a motion to amend condition 28 from “applicant shall provide authorization from Panhandle Eastern and Ameren to allow for crossing of gas pipelines” to “applicant shall provide legal assurances to allow for crossing of gas pipelines.”

Committee member Chuck Ruben said it could be changed to the applicant will provide assurance they will follow the technical specs provided by Panhandle to cross the pipeline.

Ruben said the matter should be brought before the full board since they passed the first set of regulations.

Koziar said Apex is working through the road use agreement with Logan County Highway Engineer Bret Aukamp. They are hoping to begin construction in spring or summer 2019.

The power for the project has been contracted and it is just a matter of meeting all the conditions for the project. They are working on getting soil readings at each individual turbine location.

The matter will be brought forward at the Logan County Board Workshop on Thursday, December 13.

[Angela Reiners]