SOME BASIC INFORMATION FOR LANDOWNERS ON GRANTING AND RESCINDING SURVEY PERMISSION Posted: July 31, 2013
The Bluegrass Pipeline project proposes to build a pipeline to transport “natural gas liquids” (NGLs) from Ohio and Pennsylvania to the Gulf region, where the liquids will be “fractionated” to separate out the hydrocarbons for export or use. Natural gas liquids are flammable petroleum hydrocarbons that include ethane, butane and isobutane, pentane, and propane.
While the exact location of the proposed pipeline, which will run from northern Kentucky and will tie into an existing Texas Gas transmission line in Hardinsburg, has not been established, representatives of the project sponsors (Williams Company and Boardwalk) have been approaching landowners in the counties through which the pipeline would be laid, which could include Bracken, Pendleton, Grant, Harrison, Owen, Scott, Henry, Franklin, Woodford, Shelby, Anderson, Spencer, Bullitt, Nelson, Meade, Breckinridge, Hardin and Larue counties.
This handout provides basic information to landowners regarding granting permission to allow surveying and rescinding that permission. It is not intended as a substitute for the advice of an attorney, and KRC recommends that you never sign any permission form or easement agreement without consulting an attorney first.
Some Considerations Before Granting Permission To Survey
Here are some considerations in deciding whether or not to grant permission to Bluegrass Pipeline and its agents to enter onto your land. (In reviewing the standard form agreement that landowners are being asked to sign, there are several key provisions missing). You may want to include these terms in any permission agreement that you sign, and to have your attorney draft a permission form that includes these protections.
1. You might require that notice be given to you of the date(s) and times that any person will be on your property. That notice should be in writing at least two weeks before the surveying is scheduled, and should be followed up by additional notice by mail or phone call at least 3 days prior to when anyone will be on the property.
2. You might require that no person be allowed onto your property unless you or another person of your choice is on the property at the time.
3. You might require proof of liability, casualty, and worker compensation insurance policies. By giving permission to anyone to enter onto your property, you become potentially liable for certain personal injuries that may occur on the property.
Conversely, while the survey permission form indicates that Bluegrass Pipeline will “pay for any and all damages to property, crops and fences that are caused by the Survey Work,” proof that the company conducting the surveying has both worker compensation and liability/casualty insurance is an important protection in the event that there is damaged caused to or by the surveyors. Additionally, the company should be asked to provide a letter of credit or evidence of a performance bond that will cover any damages.
4. You might require that the surveying company agree in the permission agreement to hold harmless and indemnify you for any injuries that occur to those surveying, and for any damage to the person or property of others caused by the surveying activity.
5. You might want to limit the duration and frequency of the permission so that it is not open-ended.
6. You might include a clause that terminates the permission if the surveying company violates any terms of the permission, such as not providing notice.
7. You might want to include a requirement that a copy of all survey information and reports concerning your property, (including geotechnical borings or surveys, and cultural and archaeological resource surveys) be provided to you within thirty (30) days after the information is collected.
8. You may want to include language indicating that “this permission does not constitute the grant of an easement, and is only a grant of permission to enter the property for the limited purposes described above.”
9. You may want to be specific about the sorts of surveying that you are allowing. The standard form provides an open-ended permission to conduct surveys that “include, but are not limited to”…. This open-ended language should be eliminated so that the specific activities that the permission allows are clear.
How To Withdraw or “Rescind” Permission
If you have given permission rather than making a written contract giving permission in return for payment or other “consideration,” you can rescind that permission at any time. A letter sent by certified mail, return receipt requested, is recommended, so that you have proof that the mail was delivered. If you have accepted a gift as part of the grant of permission, you should return that with the letter rescinding permission. Your letter can be straightforward, stating simply that:
“This letter provides notice that the permission to survey my land that I previously granted is withdrawn and rescinded effective today, _________. Bluegrass Pipeline Company, LLC and its successors, assigns, affiliates, agents, employees, and contractors, and including your company and its representatives, no longer have my permission to perform any surveys, or to enter onto my land for any reason or at any time.”
Send your rescission of permission letter by first-class mail, certified, return receipt requested, to the name and address on the card from the land agent who contacted you; Williams Company President Alan S. Armstrong, One Williams Center, Tulsa, OK 74172; and C T CORPORATION SYSTEM, Registered Agent for Bluegrass Pipeline Company, LLC, 306 W. MAIN STREET, SUITE 512, Frankfort, KY 40601
What if you don’t want the pipeline to cross your land?
If you don’t want the pipeline to cross your property, don’t grant permission to survey. While it is not yet settled that this pipeline project has the power to condemn easements in order to locate the proposed pipeline, generally companies would rather work with landowners willing to sell an easement than to pursue condemnation. If you would rather not have the pipeline on your property, “just say no” to a request to survey your land, since the survey is the first step to the company narrowing down the precise location of the pipeline. If you say “no,” it is more likely that the company may choose a different route with less opposition from landowners.
Where Can You Find a Lawyer?
If you don’t have an existing relationship with an attorney with whom you can consult, contact your county Bar Association, or the Kentucky Bar Association in Frankfort, for names of attorneys in your area that might be able to help advise you on whether to grant permission to survey, and on the language and conditions of any grant of permission.