ND26 “Use, Document, Record and Retain Encroachment Agreements or Permits”
Practice Statement Encroachment agreements should be used, documented, recorded and retained when a transmission pipeline operator agrees to allow a property developer/owner or local government to encroach on the pipeline right-of-way for a long or perpetual duration in a manner that conflicts with the activities allowed on the easement.
Audience(s): Local Government, Property Developer and Owner, Transmission Pipeline Operator
Practice Description
A property developer/owner, local government, or utility may desire to encroach on a transmission pipeline right-of-way (ROW) for a long or perpetual duration in a manner that conflicts with the activities allowed by the easement agreement. Examples of such encroachment activities or uses include but are not limited to street and road crossings, ornamental fencing, heavy equipment crossings, large diameter utility crossings, pipeline casing extensions, blasting or use of explosives in the vicinity of pipeline facilities, pipeline cathodic protection facilities, driveways, residential lines (water, sewer, television, electric), golf course, biking trail, fencing, and sprinkler systems.
The property developer/owner, local government or utility should contact the transmission pipeline operator and provide information about the proposed encroachment. Necessary information may include a legal description of the land, a description of the desired activity or use in the right-of-way, surveys, plans and drawings.
After the encroachments and acceptable uses of the right-of-way are agreed upon, they should be documented in an encroachment agreement by the landowner and the easement owner. Documenting the agreement will help ensure land use activities are not conducted in a manner that could be detrimental to pipeline integrity and public safety
Some examples of common terms and conditions that may be included in an encroachment agreement are: 1) location of said activity or use, 2) indemnity of the operator for damage arising from the encroaching activity or use, 3) operator right to remove landowner facilities for future pipeline construction or maintenance, 4) landowner activity or use must be in compliance with all laws and regulations, 5) transferability/binding nature of agreement to future landowners, 6) landowner financial responsibility, and 7) landowner abides by state one-call requirements.
Examples of special provisions a transmission pipeline operator may require involve: 1) depth of cover and prohibition of heavy equipment over the pipeline, 2) hand digging and hand compaction near pipeline, 3) exposure of pipeline if boring, and 4) minimum clearance of facilities from the pipeline.
Pipeline operator recording practices vary but the agreement should be recorded if the rights and obligation of the encroachment may be transferrable. Recording an encroachment agreement would also serve to make the agreement available to the public. An encroachment agreement identifies and provides notice of encumbrances attached to the property. Access to such records and information is necessary to identify issues that may arise in planning the development and changes in use of the land. Identification of acceptable land uses provides the opportunity to proactively resolve conflicts and issues. Encroachment agreements should be retained by both parties for the duration of the encroachment.
References
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