County commissioners are balking at Kinder Morgan’s plan to take the path of least resistance by developing wells on private land instead of on adjacent, permit-heavy BLM land, including Canyons of the Ancients National Monument.
And Kinder Morgan is flexing its legal muscles by opposing a recent county permit requirement that the company obtain signed surface-use agreements from 21 landowners before installing 10 miles of electric transmission lines across private farmland.
“Kinder Morgan takes issue with the requirement for surface-use agreements,” county attorney John Baxter told the commission Monday. “They are saying they have the right to infrastructure for development, and nothing in the law says they have to have signed agreements.”
Kinder Morgan has lease agreements with the federal government to extract CO2 under private land. So-called split estates, where the surface is private but the underground minerals are sold to another party, can cause headaches for landowners and regulators.
To minimize impacts, surface-use agreements are negotiated between Kinder Morgan and landowners to compensate for impacts of infrastructure development such as wells, pipelines, compressor stations and transmission lines.
Landowner benefits can include cash payments, easements agreements, new and upgraded roads, compensation for crop loss, fence construction, and strategies to avoid industry impacts on farm and ranch operations.
Baxter said Kinder Morgan lawyers have told him the standard for surface-use agreements is that they are done in good faith and are carried out “to a reasonable degree.”
“Kinder Morgan could ask for judicial review. It would come down to what a judge determines is reasonable,” he said.
Landowners are critical of a Kinder Morgan proposal to install 10 miles of overhead transmission lines along county roads BB, CC, and 10 to power cluster facilities. They are pushing for them to be buried or to take a more direct route across BLM land that avoids private land.
As of Monday, none of the 21 landowners had signed surface-use agreements, creating a potential legal showdown between farmers and oil-and-gas developers.
To take a more direct route across a BLM canyon “would take two years to obtain the permits,” said Phil Kennedy, of Kinder Morgan. “Burying the line would more than double our costs.”
He said accommodations are being made to minimize impacts on farming, including placement of power poles to avoid center-pivot irrigation operations.
Commissioner Keenan Ertel urged both sides to continue negotiations.
“Landowners need to meet at the table, but I’m concerned about how Kinder Morgan is going about this. They’re riding the backs of private landowners because the BLM is too difficult,” he said. “Farming operations need to continue unimpeded, that is the right thing to do.”
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