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

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

1

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.

7

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

10

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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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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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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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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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.

21

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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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

24

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

25

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