August 17, 2016
Nebraska

Meeting addresses wind lease agreement

By Mark Gaschler | Seward County Independent | August 17, 2016 | www.sewardindependent.com

The Saline County Wind Association held informational meetings in Ohiowa and Tobias Aug. 13-14, hosted by Chairman Dave Vavra and Vice Chairman Darrel Hayek.

At the Ohiowa meeting, Vavra told a crowd of more than 50 people that the association exists to protect and inform landowners regarding wind energy. This has become particularly relevant for the Tobias and Ohiowa areas as the SCWA has entered into negotiations with APEX Clean Energy of Charlottesville, Virginia, to enter a wind lease agreement in southwest Saline County and eastern Fillmore County. APEX would build a 300 megawatt wind facility in the planned area, consisting of 2.3 megawatt towers. Each tower would be 500 feet tall from the ground to the top of the blade.

Vavra said that wind associations like SCWA provide their members with help during lease negotiations, which can be dangerous to landowners unfamiliar with the legal details in the documents, such as the various easements.

Each contract would include an access easement to allow the company to get at the tower, which can lead to issues if the contract puts the liability of road maintenance on the landowner. There is a construction easement, not just for the tower itself, but on the roads that lead to the tower which are compacted by heavy equipment, and for the on-site concrete plant.

There’s a transmission easement for the cables that power travels through, both overhead and underground. There’s a non-obstruction easement, which prevents landowners from constructing tall buildings or planting trees that might alter the wind speed and direction.

There are overhanging easements for when part of the tower is over another piece of property. There are shadow easements if the tower’s shadow goes through a farmyard.

Vavra told the audience that there are five questions that should be asked during wind lease negotiations: How will your current land uses be affected by the project? How long will the agreement last? What are the obligations to you as a landowner? How are you going to be compensated, when and how often? What happens to the towers after the project ends?

Vavra said that SCWA has a lawyer in Denver who specializes in wind lease contracts and has helped them to settle some of the language and find places to fight for landowners and ensure maximum profits while decreasing their liabilities.

The meeting ended with an opportunity to join the SCWA, which Vavra said does not require members to approve or even encourage wind development in the area.

During the question and answer period, Vavra told the audience that 3,000 to 4,000 thousand acres are signed up for wind development, but the company needs need 9,000 thousand by Oct. 1. When asked if APEX would quit developing in the area altogether without the acreage, Vavra said he couldn’t speak for the company.

Another question came up on whether landowners or APEX would be liable to restore land blighted during the option period of a lease agreement, should APEX walk away. Vavra said that APEX would ultimately be liable to restore blighted land.

Another member of the audience asked if APEX could make use of eminent domain to take land. Vavra said that, as a private company, APEX has no right to eminent domain.