Residents of the Hopewell Valley and neighboring regions have been reluctant hosts in recent weeks. Their unwanted guests? Contractors hired by the PennEast Pipeline Company to conduct a variety of surveys on their land.
The Federal Energy Resource Commission ruled that PennEast could construct a 120-mile natural gas pipeline in New Jersey and Pennsylvania in January 2018. But to get construction permits, PennEast has to prove to the state Department of Environmental Protection and the Delaware River Basin Commission that the pipeline would not pose environmental hazard.
In the meantime, PennEast sued more than 130 recalcitrant landowners along the route to gain access to their properties to do environmental surveys with an eye toward beginning construction by 2020. On Dec. 14, federal judge Brian Martinotti ruled that landowners must allow PennEast access. Shortly thereafter, PennEast had boots on the ground.
Timothy Duggan is an eminent domain lawyer with Stark and Stark in Lawrence. He represents many property owners whom PennEast sued. PennEast informs Duggan when clients’ properties are about to be surveyed.
“In certain cases, you have simple surveys such as walking the property and determining the boundaries,” Duggan says. “At the other end of the spectrum are geoborings, where they have to bring a drilling rig on property and drill below the surface.”
In other cases, surveyors do surveys for endangered species—bats, salamanders, certain birds—and survey for certain cultural artifacts, such as arrowheads and war relics. In other cases, they have to go out and look for wetlands and determine where they are as well as inspect properties for wells and septic systems. PennEast has to show that its proposed pipeline will not disturb these habitats and archaeological items as well as landowners’ own resources and utilities.
Landowners cannot interfere with a survey, but they can take photographs or videos of surveys before and after they are done, to document any changes to the property, or even as they are being done. “It’s very important to document what’s going on, in case any damage is done to your property,” Duggan says.
Duggan says that while surveys are inconvenient, they can be relatively unintrusive. In cases where no drilling is required, it is possible for surveyors to enter and exit a property and complete their survey without the landowner knowing that they have been there at all.
That is not always the case. “Being that a lot of these properties are in rural areas, there are issues,” Duggan says. “Certain people have hunting leases, where hunters are allowed to come on their property and hunt. We have to make sure the hunters stay off the property during the surveys. Other owners have cows and horses roaming the property, so they have to make accommodations so those animals don’t escape.”
Some farmers along the route are concerned that surveyors will leave open the gates to their deer fences, potentially leading to crop damage. And some affected properties are large, with limited access.
“On a lot of these, we’ve been in discussion with PennEast telling them where to park,” Duggan says. “I have one client where the easement area was half mile from their driveway. We wanted to make sure there was someone on site to escort them to that area, make sure they didn’t damage areas on their farm.”
Duggan says his clients’ ultimate concern is whether or not the pipeline is ever going to be built. The answer to that question depends on whether or not they can get the required permits from the DEP.
“We’re not going to know that until PennEast is done with all their surveys and tests and files their application with the New Jersey EPA,” he says. “PennEast has to get on these properties and complete these surveys to file an application with DEP. Once that’s filed, DEP will make a decision on whether to issue the applicable permits.
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The December court order gave PennEast access to the land for surveys, but not ownership of any land nor easement rights. If and when construction permits are issued, the company will then be able to either negotiate easements with property owners or claim them through eminent domain. Even then it will just be for an easement; titles will remain in the hands of the present property owners.
PennEast has eminent domain power because of the Natural Gas Act of 1938, which gave the Federal Power Commission jurisdiction over natural gas pipelines. The FPC became the Federal Energy Resource Commission in 1977.
When a company proposes construction of a natural gas pipeline, FERC determines if the pipeline is in the best interest of the nation. FERC approves pipeline projects by issuing a certificate of public convenience and necessity, as it did last January for PennEast.
PennEast and property owners can negotiate a settlement at any time. As long as both sides agree on a price for an easement, they can settle. “But once you settle, you’ve granted them the right to put a pipe in your backyard,” Duggan says. “Pretty much every one of my clients are so opposed to the pipeline that they’re not granting anything. If PennEast wants their property, they have to get a court order allowing it.”
While there is nothing landowners can legally do at this point to stop the surveys, they can take steps to try to minimize their impact. One thing they can do, Duggan says, is get involved with one of the organizations that has sprung up in opposition to the pipeline, like HALT (Homeowners Against Land Taking) or Hopewell Township Citizens Against the PennEast Pipeline.
He adds that it is worth recognizing that the contractors coming out to do the surveys are just that—contractors, not PennEast employees. “They’re trying to make a living and do a job,” he says.
Duggan says he, Hopewell Township and a lot of Hopewell Valley residents are committed to go the distance with PennEast. “We’re still at the beginning stages of this fight. There’s a long way to go before PennEast gets a shovel in the ground,” he says.