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PIPA Recommended Practice BL07

BL07 "Understand the Elements of a Transmission Pipeline Easement"

Practice Statement Property developers/owners should have an understanding of the elements of and rights conveyed in a transmission pipeline easement.

Audience(s): Property Developer and Owner

Practice Description

Understanding the elements of and rights conveyed in a transmission pipeline easement can improve the relationship among stakeholders and ultimately pipeline and public safety.

An easement agreement and survey (and/or accurate drawing) should be available to the affected landowner. Easement agreements and survey documents may be available from various sources, including the pipeline operator and the county/municipal land records department.

The property developer/owner should consider what is allowed under the easement agreement relative to the pipeline operator's rights to site aboveground transmission pipeline facilities, such as compressor stations, metering stations, valves, pipeline markers, and cathodic protection systems (see PIPA Recommended Practice ND18). The property developer/owner and local government should work with the pipeline operator to ensure that any land use and development plans would not interfere with the current or potential future locations of such pipeline facilities or the operation and maintenance of the pipeline and related facilities.

What are the elements of an easement?

The forms of transmission pipeline right-of-way easements differ from company to company, and the legal requirements of a right-of-way easement differ from state to state. Easements can range from one page with a few provisions to twenty or more pages that attempt to address every eventuality. To be enforceable, the agreement must conform to all of the requirements set out by state law.

While requirements for easement provisions vary, the following items are typical for most easements.

  1. The easement must designate a grantee and a grantor. The grantor is normally the landowner or an agent of the landowner, and the grantee is normally the transmission pipeline company.
  2. The granting clause is normally the first or second paragraph of an easement and describes the rights granted to the grantee. For transmission pipeline easements, this clause usually lists the rights granted to the pipeline company such as: "lay, construct, maintain, alter, replace, change the size of, and remove a pipeline or pipelines..."
  3. Most states require that all real estate-related documents provide for compensatory consideration. The object is to provide the landowner with just or adequate compensation in exchange for the easement.
  4. The property over which the easement is granted and the locations and dimensions of the easement and of the transmission pipeline are described in some manner. Legacy easements may exist where the location of the pipeline or the boundaries of the right-of-way were not defined. New easements should define both.

    In most states, the property can be described by referencing its deed of acquisition or other related documents in the chain of title, by written description, or by plat or drawing. (Note: In some states, a drawing must be attached to an easement or right-of-way grant before the document can be recorded). The easement to be granted can be described by written description, by drawing or by a defined reference such as, for example: "Said right of way being fifty foot in width and extending twenty-five feet from each side of the centerline of the pipeline installed hereunder, together with the right to use a strip of land adjacent to the said right of way as temporary work space during construction of said pipeline, (all as generally depicted on Exhibit "A" attached hereto), on, over, under, and through the following described lands..."

    There may be a second, separate and fairly wide, temporary working easement. The easement should be surveyed and marked before construction begins.
  5. Optimally, easements should have a series of applicable provisions that further establish the rights and responsibilities of each party. Such provisions may include but are not limited to:
    1. Construction related provisions, including specifications of: temporary workspace, restoration requirements, timetable or time of day for construction, temporary crossings across open trenches or ditches, backfilling and compaction of trenches.
    2. Site-specific environmental issues.
    3. Other transmission pipeline details, such as: depth of cover requirements; number and size of pipelines; additional line rights; product transported; maximum size; maximum pressure; and above-ground facilities, such as but not limited to: test leads, markers, rectifiers, casing vents, valves and valve actuators, meter stations and pig launcher/receivers.
    4. Encroachments: driveways, access roads, gates or cattle guards where easement crosses fence lines, acceptable landowner uses (see PIPA Recommended Practice ND08)
    5. Routes of ingress and egress: maintenance of access roads, gates and/or cattle guards.
    6. Inspection and maintenance: right-of-way clearing, pipeline operator maintenance and inspection schedules.
    7. Pipeline and appurtenance abandonment: disposition of the transmission pipeline and easement after the pipeline is abandoned. Disposition of idled or out of use but not abandoned transmission pipelines.
    8. Liability for certain damages or negligence.
    9. Indemnification: An indemnity agreement provides that one party will save and hold harmless the other party against any legal causes of action, including environmental, levied as a result of activities both on and off the land. The indemnity could include both judgments and any legal fees incurred in defense of a suit. Each party should consider indemnification from the other.
    10. Notification of assignment to a third party: "Assignment" is the ability of a transmission pipeline operator to transfer the easement with the sale of the pipeline to another party. Landowners may want to be notified if the operator sells the pipeline to another entity.
    11. State and local government requirements.
    12. Payment: Payment may be specified, for example, for the easement, damages to crops, timber or other products located within or outside of the easement, impact to land entitlements, division between the landowners and the surface tenant, duration, survey fees, legal review fees, recording fees, and taxes on payment.
  6. The date of the document, signatures of the grantors and their acknowledgements are not provisions but are mandatory requirements of an easement or real estate type documents. Signatures of the grantors of the easement documents must be exactly as they appear on the previous documents confirming their capacity in which they hold title to the property. Notary public information is below the landowner and pipeline company signatures. Easements are recorded with the appropriate statutory body and are accessible to the public.