DTE’s Proposed Petoskey East Easements Could Restrict New Wells Across a 650-Foot Property Corridor

DTE is seeking voluntary easements from property owners to support their Petoskey East Pipeline Reinforcement Project. This post describes generally applicable issues. This post describes the current status of regulatory issues relating to the project.

While DTE’s contemplated project involves construction of a single 8-inch natural gas pipeline, DTE seeks easements that allow the construction of multiple pipelines of unlimited width transmitting any material suitable for a pipeline and the ability to partial assign those rights to allow other utilities to use the right of way. 

As described more detail in this blog post, Michigan law requires just compensation be determined based upon the assumption that an agency will use its newly acquired property rights to the full extent allowed by law.  When that principle is applied to the property rights currently sought by DTE, it would prohibit the installation of new wells within 300 feet on either side of the pipeline. Since the easement does not require the pipeline to be centered within the right-of-way, the width of the no-well zone would be just under 650 feet.

The Michigan Department of Environment, Great Lakes and Energy (EGLE) enjoys the statutory right to implement rules for a wide variety of environmental protection purposes. These rules include regulation of drinking well locations.  EGLE restricts certain types of wells from begin within specified distances of potential sources of contamination. A summary of EGLE’s Minimum Well Isolation Distances can be found here. According to this document, the following isolation distances apply.

I communicated with EGLE to obtain clarification about this chart. Generally, refined natural gas does not trigger a well-distance restriction because that type of pipeline is far more likely to explode than allow leak contaminants. However, other types of pipelines, including unrefined natural gas, pipelines for brine generated as part of the natural gas extraction process, and heavier petroleum products can harm aquifers and trigger a 300 foot well set-back distance. DTE’s present intention to construct a natural gas pipeline is irrelevant to establishing just compensation. DTE is choosing to seek broader rights and, as the blog post linked above addressing the full extent rule demonstrates, property owners will not be entitled to seek additional just compensation for future activities contemplated by these easements. For that reason, just compensation should be based on these limitations.

This is just one example issue of the factors that agencies disregard when attempting to convince property owners who are not represented by experienced eminent counsel to give away their rights.

If you have been approached by DTE for this, or any other project as well as any other condemning authority, please feel free to contact me.

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