STRATEGIES FOR PIPELINE PERSONNEL

Practical Applications for Successful Project Implementation

Published D ecember 19, 2012

Authored by:
David Anderson, SR/WA
Denbury Resources
David Sinclair, SR/WA
Steele Land Services
Douglas Sipe
Federal Energy Regulatory Commission

Special Acknowledgement
The 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/WA
Universal Field Services, Inc.
Patrick Brady
Percheron Acquisitions
Mike Bryant
Willbros
Steve Chastain, SR/WA
Percheron Acquisitions
Randy Keyes
Anadarko Petroleum Corporation
Lori Komatar
Williams Northwest Pipeline
Brent Leftwich
Contract Land Staff, LLC
Dr. Mazie Leftwich, Psy.D
Contract Land Staff, LLC
Steve McDaniel
Steele Land Services
Alex Osborne
TransCanada Corporation
Steve Patton
Williams Transco
Larre Sloan
Independent

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.

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.

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 traditionalfiling 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.

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

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,

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.

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

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.

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 SpeciesSpecific 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 sixinch-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

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.

10

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.

11

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.

12

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.

13

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 projectspecific 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
Provisions
Provisions
Provisions
Provisions

Regarding
Regarding
Regarding
Regarding
Regarding

Easement Scope Location, Dimensions and Utilization

the Addition of Future Facilities
the Easement Owners Duties and Obligations
the Landowners Duties and Obligations
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

14

location descriptions.
Notwithstanding
described easement location clarifies the
adds future certainty during the lifespan
methods for adequately describing the
affected land:

statutory requirements, a precisely

rights/expectations of the parties and
of the pipeline. Following are typical
location of the easement across the

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

15

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

16

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.

17

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.

18

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.

19

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.

20

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

21

Presentation Techniques
Things to Avoid
1.
2.
3.
4.
5.
6.
7.

8.
9.

Dont get emotional, defensive, or argumentative.

Dont bluff or lie. If/When the truth comes out later, any credibility or trust that
you may have had will be gone.
Dont use jargon or technical terms without being prepared to explain their
meaning.
Dont be condescending or arrogant with the landowner or stakeholders.
Dont touch any resident/local official or use force in any way.
Dont discuss confidential information where others you dont know can hear.
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.
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!!
Avoid discussing religion, politics, or any other potentially divisive subject matter

Things to Practice
1.
2.
3.
4.
5.
6.

Be preparedanticipate questions that the public may want to ask.

Be calm, truthful and helpful.
Show compassion.
Know your key messages and repeat them often.
Try to answer all questions as thoroughly as you can.
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.

22

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.

23

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 Commissionauthorized 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)

24

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.

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)

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.

The final offer letter is usually followed by a service of summons and the
filing of a lawsuit.

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.

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 Construction

After construction is complete, the pipeline company often transitions right of way duties
from project specific right of way personnel to Company right of way personnel. If after
the initial construction phase is complete, additional work needs to be performed on the
pipeline, company right of way personnel need to assure the following:

Any damages resulting from the settling of the ditch-line or other post
construction damages are handled fairly and expeditiously.

The company abides by all pertinent environmental guidelines.

The agent needs to make every reasonable effort to be a landowner advocate in

communicating landowner concerns to the company.

The same sensitivity to landowner concerns demonstrated during easement

acquisition will continue throughout the lifetime of the pipeline.

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EXHIBIT A
INGAAS Americas Natural Gas Transporters
Commitment to Landowners
Core Principle #1
Respect and Trust
Positive, lasting relationships are built on mutual respect and trust. We will strive to
understand issues from the Landowners perspective and help them understand ours.
General Application
Open communication and use of listening skills will be critical to the development of a
positive relationship with the Landowner
Core Principle #2
Accurate and Timely Information
Providing natural gas transportation and storage services to the nation may create
concerns. We will provide Landowners with information regarding the importance of energy
infrastructure, the reason and need for the proposed project, and the processes in place
governing easement acquisition, certification, construction, operation and maintenance of
our facilities and the particulars of the project.
General Application
Agents trained in all phases of the pipeline project will allow for accuracy of information as
well as providing an opportunity for the Landowner to understand the project.
Core Principle #3
Negotiate in Good Faith
Agents will listen and strive to understand, and negotiate in good faith. We will make every
attempt to reach agreement with landowners in an honest, fair and reasonable fashion.
General Application
Good communication skills and pipeline project knowledge will assist in good faith
negotiations. Easement negotiations can become an emotional matter for the Landowner
and honesty, fairness and good manners will help to facilitate the process and overcome
potential emotional issues
Core Principle #4
Respect the Regulatory Compact
Final Approval for a project is not a certainty and our interactions with Landowners will
reflect that understanding. Prior to a Federal Energy Regulatory Commission (FERC)
decision, actions taken to negotiate easements or options are at the companys risk as there
is no guarantee the project will be approved. We will communicate clearly that federal
eminent domain cannot be exercised unless a Certificate is granted by FERC and will
distinguish clearly when, and if, eminent domain is exercised pursuant to state law.
General Application
Questions regarding eminent domain will most certainly be raised. A Right-of-way agents
clear understanding of the FERC regulations and presentation of these regulations in a nonthreatening manner is required.

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Core Principle #5
Responding to Issues
We will respond to Landowner concerns in a timely fashion. To enhance direct
communications and timely responses, we will provide Landowners with a single point of
contact within the company to answer any question or concern and to provide general or
project-specific information.
General Application
All information regarding any Landowner inquiry should be delivered in a timely manner as
should be mandated by the Company. Timely responses assist to foster the aforementioned
principles such as Respect and Trust, Delivery of Timely Information and Good Faith
Negotiations.
Core Principle #6
Outreach
We will engage with and promote awareness on the part of affected stakeholders early in
the planning process. In broadening our outreach, we will develop relationships with, and
introduce our industry to, those who might not have otherwise known about its benefits to
the community and our dedication to safely providing these services.
General Application
Early project outreach to Landowners is essential to insuring the development of positive
relationships with them. Right-of-way agents should be aware of these outreach attempts
and strive to become an engaged facilitator as per the Company philosophy.
Core Principle #7
Industry Ambassadors
Each company employee and representative is an ambassador for the industry. We will
ensure our employees and representatives interact with stakeholders in accordance with
these commitments.
General Application
Understanding the natural gas pipeline process and the industry as a whole is crucial for all
Right-of-way agents. Professional conduct and exercising the principles identified herein is
expected of each Right-of-way agent.
Core Principle #8
Ongoing Commitment to Training
We believe in continuous improvement in all aspects of our business. With the demand for
natural gas increasing and many new people entering the industry, we will train our
representatives to interact positively and productively with Landowners and other
stakeholders.
General Application
Right-of-way agents should strive to become familiar with and educate themselves about
the industry and the process. Seeking knowledge from peers and mentors in the industry
as well as becoming engaged in each training session or open house on their project will
help to make that Right-of-way agent an asset for the project.

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EXHIBIT B
Smart Communications
I)

Introduction
The Industry Professionals most important skill is his or her ability to communicate
information appropriately, timely and clearly to stakeholders and land supervisors.
Conveying proper information in the correct form is paramount to successful negotiations
and information exchange. Conversely, the communication of incorrect information or in an
inappropriate manner can create significant issues for the company and hinder the
successful completion of projects.
Recognizing that the convergence of technologies affects our ability and mode of
communications, this discussion will address verbal, written and electronic communications.
Knowing the who, what, when, and how of communicating is essential to successfully
providing necessary information to stakeholders. The Right-of-way agent must realize that
anything that is spoken or written will be considered as being done on behalf of the
company.

II)

Types of Communication
Verbal Communication
Verbal communication is widely used in this field. The Industry Professional must carefully
consider how verbal communications will be received, interpreted and repeated. When
dealing with landowners, flippant or overly casual remarks or attempts at humor must be
avoided. The Industry Professional needs to remember that this is a business relationship
and the landowner must be kept at arms length. It is unacceptable to make inappropriate
or unprofessional remarks to landowners or agencies at any time. A case in point would be
speaking disparagingly of others to landowners or agencies. The same facts repeated from
one person to another may not resemble the original facts and intent after only a few
transmissions. There is a risk that a verbal communication may be misinterpreted or
misunderstood. The preferred method of communication with landowners should always be
face to face meetings. Phone conversations are sometimes necessary, but are overall less
effective in closing a file.
Written Communication
Once a face to face relationship with the landowner has been established, then written
communication is the mode of communication that is more likely to confirm the proper and
correct information conveyed verbally, without the high risk of misinterpretation. However,
the expectation is that the Industry Professional will handle their business during face to
face meetings whenever reasonably possible. When conveying written information, the
Industry Professional has the ability to review his comments to insure they are proper and
clear. In certain circumstances, written forms of communication also allow the writer to
seek advice, clarification, support, approval and direction from their land supervisor prior to
sending it. The Industry Professional must remember that written communications provide
a permanent record, and leave little doubt regarding the intent of the communication or the
facts and information contained therein.

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Electronic Communication
Electronic communications are an important and timely tool in certain circumstances,
however, they sometimes have the stigma as being less formal or informal
communications.
Electronic communications carry the same benefits and detriments as
paper communications, but often do not receive the same level of scrutiny before being
sent. It is essential to give electronic communications close review before transmitting,
because they can be very easily forwarded to great numbers of people without the
knowledge or consent of the original sender. An electronic communication intended for an
individual can carry a very different meaning when read by someone other than the
intended audience, since the additional readers may not have the background information
or knowledge of the relationship between the sender and receiver. Long emails written in an
attempt to discuss issues related to a negotiation are to be avoided unless there is no other
reasonable alternative and the email has been reviewed and approved by the Industry
Professionals supervisor prior to sending. As stated above, face to face meetings are the
most effective way for Industry Professionals to address landowner issues.
Smart Communication Practices
The Industry Professional should adhere to these principles when communicating with the
public on behalf of the company:

Be an active listener
Assume possibility of public use
Be factual, professional and avoid sarcasm or demeaning language
Avoid inflammatory language
Limit distribution, but anticipate that it may be forwarded to others
Edit well
Accurately label subject lines
Address issues factually and calmly
Dont commit to emerging facts, unsubstantiated information, or contribute to rumors
Distinguish fact from legal conclusions
Be vigilant and cautious in all communications with and about landowners, competitors,
company personnel and others
All communication must be professional, not including flippant, disrespectful, or negative
language
Maintain confidentiality of negotiations and legal proceedings

Professional Writing Practices

The Industry Professional should use these basic practices to improve communication skills:

Determine whether verbal or written communication is appropriate

Always consider that written communication is a permanent record
Keep communication short and simple
Get to the point
Use short familiar words, avoid jargon
Avoid stuffiness by using a conversational professional tone
Be positive in tone
Be specific, accurate and consistent in conveying information
Edit, spell-check and proof for correctness

As set out above, ask land supervisor to review and approve prior to sending written
communications.

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CHART 1

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