Landowner Rights vs. Surveyor Access
Officially known as the “NEXUS Gas Transmission Project (Docket No. CP16-22-000) and Texas Eastern Appalachian Lease Project (Docket No. CP16-23-000)” to the Federal Energy Regulatory Commission (FERC), a 255-mile, 36-inch natural gas pipeline through central and northern Ohio, parts of Michigan and Ontario, Canada, has been met with resistance and protests by a handful of landowners. And, it has put land surveyors in the middle of the controversy.
“Ohio does not have right of access for land surveyors at present,” says Melinda A. Gilpin, executive director of Professional Land Surveyors of Ohio Inc. She adds that exemptions in the Ohio Revised Code are in the utility sections, not in the survey law sections.
“I do think that there are instances where surveyors should be permitted access to property that may require an exemption,” comments John F. Greenhalge, executive director of the Ohio State Board of Registration for Professional Engineers and Surveyors. He doesn’t offer specific examples of when those exemptions would be appropriate but adds that pipeline issues and other eminent domain issues over the past 20 years have made Ohioans reluctant to grant access to their property.
In its 2015 State Policies dated December 2014, the Ohio Farm Bureau Federation supported the right of access to adjacent properties during a boundary survey. The policy statement was included in a section on trespassing, which called for generally stricter rules and increased criminal penalties for trespassing and unauthorized activities.
The policy statement says, in part, “To perform a boundary survey, the surveyor should be able to enter adjacent private property as long as written notice is provided to adjacent landowners at least two days in advance and the surveyor pays for any damages caused on the adjacent properties.”
So, while there may not be any current legislative action planned or taking place relative to rights of access for land surveyors, there has been some limited support voiced by at least one important lobby in the state, the Ohio Farm Bureau Federation. That support, however, was stated specifically in relation to boundary surveys.
Confrontation and Courts
In the case of Spectra Energy’s NEXUS and TEAL pipeline projects, most landowners reportedly accommodated the survey work. (The TEAL project is a shorter segment of the overall pipeline.) Where NEXUS met resistance in Ohio, it was able get courts in Columbiana, Sandusky, Wood, Lucas, Fulton, Hancock, Lorain and Jefferson counties to allow surveyors access to conduct their survey work.
In July 2015, NEXUS sued landowners in Erie County for access. Then, it asked the Medina County Common Pleas Court for a temporary restraining order. In denying the restraining order, Judge Christopher J. Collier referred to other pending cases and said, “Had this Court granted the plaintiff’s motion for a preliminary injunction, the remaining causes of action would have become moot.”
NEXUS filed for a permanent injunction and added 94 other property owners as defendants. At the time, NEXUS reportedly had completed about two thirds of the surveys on thousands of properties in Ohio.
In October 2016, Judge Collier ruled NEXUS could survey despite property owners’ protests. In his ruling, Judge Collier said that Ohio law allows private companies to survey land for possible appropriation if they can prove they are energy or utility companies. He wrote, “The statute merely requires NEXUS to be organized for the purpose of transporting natural gas through tubing, pipes or conduits as a prerequisite for entry onto private property to conduct survey activities. NEXUS meets that definition, and therefore under the statute, has the right to enter property to conduct the surveys.”
Property owners appealed, but three 9th District Court of Appeals judges upheld Judge Collier’s decision, adding that similar decisions had been made in 11 other counties in Ohio and two courts of appeals.
Property owners’ concerns their property would be appropriated under eminent domain laws were addressed by Judge Collier who said, “The surveys simply aid in the FERC process by determining whether or not the proposed pipeline location is feasible.” He pointed out that the act of surveying doesn’t mean the land will be appropriated and could actually demonstrate certain properties would not be appropriate for the pipeline.
In Summit County, some different arguments were added when the mayor of Green, Gerard Neugebauer and the Green City Council supported having the pipeline rerouted to less densely populated areas. Some landowners in Summit County also opposed the pipeline and denied surveyors access to their property, starting yet another round of confrontations and court actions.
FERC Approves Impact Study
FERC approved and filed its final environmental impact statement (EIS) for the pipeline project. The Federal Register notice stated, “The final EIS assesses the potential environmental effects of the construction and operation of the Projects in accordance with the requirements of the National Environmental Policy Act. The FERC staff concludes that approval of the Projects would result in some adverse environmental impacts; however, these impacts would be reduced to acceptable levels with the implementation of NEXUS’ and Texas Eastern’s proposed mitigation measures and the additional measures recommended by staff in the final EIS.”
This is one more step towards approving construction, but the EIS does not equate to permission for NEXUS to begin construction.
What went into the conclusions that the environmental impacts would be reduced to acceptable levels? A lot of survey work.
The 541 document describes the survey process:
At the time the applications were filed with FERC, NEXUS had field surveyed about 90 percent of the total NGT Project route (about 230 linear miles) and Texas Eastern had field surveyed its entire route (about 5 linear miles). Completion of field surveys is primarily dependent upon acquisition of survey permission from landowners. If the necessary access cannot be obtained through coordination with landowners and the proposed Projects are certificated by FERC, the applicants may use the right of eminent domain granted to them under Section 7(h) of the NGA to obtain a right-of-way. Therefore, if the Projects are certificated by the Commission, then it is likely that a portion of the outstanding surveys for the Projects (and associated agency permitting) would have to be completed after issuance of the Certificate.
As a preliminary step in the filing process, NEXUS initiated contact with landowners starting in August 2014 in the form of a letter describing the project and “seeking permission to conduct environmental and cultural resource surveys on landowner property.”
The process for construction proceeds from surveying to cleaning and grading, trenching, pipe stringing and on through to cleanup and restoration. The EIS document describes the survey process:
The first step of construction involves survey crews staking the limits of the construction right-of-way, the centerline of the proposed trench, ATWSs [additional temporary workspace], and other approved work areas. NEXUS and Texas Eastern would mark approved access roads using temporary signs or flagging as well as the limits of approved disturbance on any access roads requiring widening. NEXUS and Texas Eastern would mark other environmentally sensitive areas (e.g., waterbodies, cultural resources, sensitive species), where appropriate. NEXUS and Texas Eastern would contact the One Call system for each state to locate, identify, and flag existing underground utilities to prevent accidental damage during pipeline construction.
The biological and cultural resource surveys NEXUS conducted included a corridor larger than required to construct the pipeline in order to allow for any shifts in the final location of the pipeline itself. Changes to the pipeline that are within the previously surveyed area typically don’t require further agency consultation. For changes that fall outside the survey corridor, a similar procedure is required for a variance request to assess impact – additional surveys, analyses, and agency consultation. This would also require additional documentation, including a statement of landowner approval.
The EIS also responded to a proposed alternative route put forward by the City of Green, Ohio. It said that the cost of an alternative is usually not considered unless it would render the cost of the project “economically impractical.” In this, the EIS included, “the potential delay in construction timing, effects on contracts, or costs of additional surveys and easements along an alternative route.”
Looking for Water
An important aspect of the survey work involved determinations of potential impact on endangered or protected species and in examining potential impact on wetlands and water sources. The survey corridor, therefore, was generally 300 feet wide.
Similarly, water sources were located and documented. According to the EIS, “Approximately 90 percent of the NGT Project facilities were surveyed for the presence of waterbodies along the route during the 2014 and 2015 field seasons. Field surveys for the remaining 10 percent would be conducted pending survey access and weather conditions. NEXUS used publicly available USGS topographic quadrangles, 2-foot contour LIDAR mapping data, and aerial photography to approximate waterbody boundaries where field surveys have not yet been conducted.”
Drainage was also important, and NEXUS developed a Drain Tile Mitigation Plan identifying the drain tile systems that would be potentially encountered. In part, it calls for NEXUS to contact landowners in advance of construction to develop an understanding and knowledge of existing and planned drain tile systems traversed by the pipeline and to provide locational information to landowners on property maps of any drain tiles discovered in pre-construction surveys. The plan included provisions to use GPS technology capable of 3D survey-grade accuracy or other similarly accurate technology.
In the TEAL portion of the project, Texas Eastern was required to follow methods mandated by Ohio state guidelines for archeological resources. The EIS states, “Texas Eastern followed Phase I cultural resources survey methods mandated in the Ohio state guidelines using a standard 15-meter survey transect, conducting pedestrian survey for those areas with greater than 50 percent ground visibility, and systematic shovel testing in areas with less than 50 percent ground visibility.”
End In Sight?
One aspect of a major construction project that is always important to the community is the potential for employment. While there is often a possibility for permanent jobs, the broader impact usually comes from temporary or seasonal jobs. This is not limited to construction labor.
The EIS stated local hires and local union halls would supply roughly 30 percent of the workforce for jobs such as surveyors, welders, equipment operators and general laborers.
The longer-term job impact was estimated at 38 permanent employees. This was considered to have no measurable impact on the economy or employment.
With the environmental impacts identified and mitigation or alternative plans in place, it would seem that NEXUS and Texas Eastern would be ready to apply for permits to begin construction. Among those final requirements, NEXUS and Texas Eastern must provide “detailed alignment maps/sheets and aerial photographs at a scale not smaller than 1:6,000 identifying all route realignments or facility relocations; staging areas; pipe storage yards; new access roads; and other areas that would be used or disturbed and have not been previously identified in filings with the Secretary.”
While NEXUS is closing in on the large-scale elements of the project, a number of details remain on the local level. As the EIS was approved and announced, the city council of Bowling Green, Ohio, voted unanimously not to grant an easement sought by NEXUS. The easement involves land the city acquired in 2015 and the pipeline would follow existing utility easement where power lines already exist. Spectra Energy offered the city $151,000, but it appears the company will need to reroute that segment of the pipeline or seek to acquire the city-owned land through eminent domain.
Meanwhile, in the city of Green, city officials told residents the EIS, which rejected the Green-suggested alternative routing, is not a final approval for the pipeline to be built. The city’s website also included the comment, “As for the surveys NEXUS is trying to complete, there is still not a court order in Summit County granting them access to private property without the property owner’s approval. If you do not want your property surveyed, you can ask the surveyors to leave. If they persist, please call the Summit County Sheriff’s office. ... If a court order is issued from Summit County, we will update this webpage.”