Wind energy is an important resource to develop in a State that has an abundant supply. The development of wind energy poses many land use questions, including competing rights to use the surface by oil and gas lessees, surface owners who pursue various agricultural uses and wind developers. The regulation of wind developers is left to individual counties through the exercise of home rule powers. Some counties have adopted comprehensive zoning regulations, others have not. As a result, regulations vary county by county.
We represent wind developers at all stages of the development process: negotiation of wind leases with landowners; appearance at zoning hearings to obtain necessary Special Use Permits (“SUP”); advice concerning what permits are required to cross existing easements with electric collection and transmission lines related to the project; negotiation of road maintenance agreements, decommissioning agreements, and agreements to make payments in lieu of taxes (commonly referred to as PILOT agreements) with the county where the project is located; negotiation of transmission easements for transmission lines; and transactional work related to the purchase of land for substations and maintenance facilities.
We also represent many oil and gas producers who in some cases have oil and gas leases on the same property that has been leased to a wind developer. We seek to facilitate the drilling of oil and gas wells through a cooperative interchange of information with the wind developer so that wind turbines and oil and gas wells can both be located on the surface, along with related infrastructure, so that the development of wind resources and mineral resources can both take place. Our firm has taken a leading role in resolving conflicts between wind developers and oil and gas producers. On October 21, 2011, Steven D. Gough spoke at a Kansas Bar Association (KBA)/Kansas Independent Oil and Gas Association (KIOGA) conference in Wichita, Kansas, and sponsored a paper entitled Oil Producers v Wind Producers, ___ Kan ___, ____ P. 3rd ____ (201_). Kansas follows the reasonable accommodation doctrine that recognizes the rights of both the oil and gas lessee and the rights of the surface owner who desires wind development on his property:
The obvious intent of the parties under … [an oil and gas] lease is that the licensed privileges of the lessee are to run hand in hand with those reserved to the lessor with neither interfering more than need be with the continuing uses of the other — the one for the exploration, production and transportation of minerals and the other for the pursuit of agriculture.
Rostocil v. Phillips Petroleum Company, 210 Kan. 400, 401, 502 P.2d 825 (1972). Because a wind developer’s rights are derived from the owner of the surface who has granted easements to the wind developer, we believe the reasonable accommodation doctrine will likely be applied by the courts to resolve disputes between wind developers and oil and gas producers. Existing law concerning blanket and express easements will also be used to resolve competing surface uses.
We have represented BP Wind Energy North America, Inc., in connection with the installation of a 100 Megawatt wind project in 2009 by Flat Ridge Wind Energy, LLC in Barber County, Kansas, and in connection with a 400 Megawatt wind project by Flat Ridge 2 Wind Energy, LLC in Harper, Kingman and Barber Counties in 2012. We currently represent wind developers in Pratt County and Kingman County that involve the installation of an additional 400 Megawatts to be completed by December 2016.