Tennessee Gas Pipeline Co. is seeking an order from the state Department of Public Utilities to access nearly 450 properties statewide whose owners have denied survey rights to the Kinder Morgan subsidiary along the route of the proposed Northeast Energy Direct project.
The order would be "preliminary to eminent domain" proceedings involving land-taking for right-of-way easements if the property owners continue to refuse permission to surveyors, according to the 63-page document filed by the company.
The properties listed by the company include 39 in Berkshire County — four in Hancock, 13 in Lanesborough, three in Cheshire, five in Dalton, 10 in Hinsdale and four in Windsor. The pipeline route would pass through those six towns as well as a sliver of state land in Peru.
Among the most prominent targets of the company's effort to legally compel land surveys is Holiday Farm in Dalton, off Route 9.
"I believe Holiday Farm is no different from the other 400-plus properties and we have to develop a game plan based on the fact that we're listed," said Tim Crane, a co-owner. A portion of the farm is under a conservation restriction held by the Berkshire Natural Resources Council.
"I take it on face value that [Tennessee Gas] plans to assert whatever authority DPU may have against us," Crane added. "Thinking about it, this has come earlier in the process than I had expected, and we're still trying to evaluate what it means."
The Massachusetts DPU is in no hurry to rule on the Tennessee Gas petition. In response to an expected outpouring of public comments, the agency has scheduled six statewide hearings. The first is in Pittsfield at 7 p.m. Tuesday, March 29 in the Boland Auditorium of Berkshire Community College, 1350 West St. Written comments are accepted through May 6.
In its filing, consisting of three separate petitions, company attorneys argued that they need to survey the properties for archaeological and wetlands impacts, as well as any threats to endangered and rare species. Civil surveys are also required to establish property boundaries along the pipeline route, the company stated. On some properties, "geotechnical" and vernal pool surveys are requested.
The Tennessee Gas petition restates the company's case for the natural gas pipeline, citing a "public interest" for additional supplies in New England to address a shortfall for distributors and occasionally for electricity generating plants in times of high demand such as mid-winter.
"Tennessee has in good faith made efforts to obtain survey permission from owners of survey properties, including sending at least two letters requesting survey permission and attempting to discuss the request in person or via telephone," the document states. "Many survey property landowners have granted Tennessee permission to conduct the surveys."
However, as many as 450 have "either expressly refused to grant Tennessee permission to conduct the surveys or not granted Tennessee permission to conduct the surveys," the petition noted.
Tennessee Gas explained that surveys would be primarily limited to a 400-foot wide corridor in order "to fully delineate resource areas, endangered/rare species, and cultural resource areas, and to evaluate potential impacts to such areas in the event that the proposed pipeline route or temporary workspace must be modified." Agents would not get closer than 25 feet to a house during survey activities, the filing added.
The company also is seeking "blanket permission to travel across survey properties to access adjacent survey properties to conduct surveys when it is more feasible based on factors such as proximity, slope, terrain and environmental factors, to access adjacent survey properties."
The petition contends that state law empowers the DPU to grant permission to the company to conduct the surveys before federal regulators rule on the project. The company also argues that the surveys are needed to "secure permits and commence construction" and that in five previous cases, the state agency has granted orders to other natural gas companies compelling landowners to submit to the same type of surveys.
The company attorneys also wrote that no state or local permits are required if the DPU grants the order.
"Many landowners have received multiple letters and visits from the company's agents during the past two years, even after denying survey permission repeatedly," according to Kathryn Eiseman, the Cummington-based president of the opposition group Pipeline Awareness Network for the Northeast.
"These landowners are minding their own business and seeking to simply live their lives in peace," she said. "We are working to ensure that they have the legal guidance they need to deal with this assault on their privacy and unjustified intrusion on their property."
Eiseman speculated that Tennessee Gas spared at least 80 publicly held conservation parcels along the Massachusetts pipeline route, including those protected by the Article 97 amendment to the state constitution.
The project is under review by the Federal Energy Regulatory Commission. Kinder Morgan hopes for a favorable ruling by next November so it can begin construction and put the 420-mile pipeline from southwest Pennsylvania, upstate New York, Western Massachusetts, southern New Hampshire, terminating in northeast Massachusetts, into service in November 2018.
The commission rarely denies approval to pipeline applicants, though a company must demonstrate that the project meets requirements for "public convenience and necessity."
Opponents have suggested that approval is not a slam-dunk for Kinder Morgan since, so far, only about 40 percent of the natural gas that would be shipped along the route has been purchased through preliminary agreements with distributors such as Berkshire Gas Co., an $80 million investor in the $5 billion project. Berkshire Gas, citing a supply crunch, is denying hookups to new customers in its Pioneer Valley service territory.
The opposition groups contend that the company plans to export some of natural gas supply, up to 1.3 billion cubic feet a day, overseas, though Kinder Morgan has stated that it has no such agreements in place now.
Targeted properties ...
Thirty-nine Berkshire property owners are on a company list seeking a state order for compulsory pipeline route surveys. Tennessee Gas states that the landowners have denied permission for access by surveyors. The list, town-by-town, includes designated properties at the following locations:
Hancock: Main Street; Taylor, Hancock and Potter Mountain roads.
Lanesborough: North Main, Prospect, Bridge and Silver streets; Goodall and Old Orchard roads.
Cheshire: Nobody's and Ingalls roads.
Dalton: Forest Hill Drive; Cleveland and Adams roads; North Mountain Street.
Hinsdale: Fred Schnopp, Old Windsor and Adams roads; Forest Hill Drive.
Windsor: Peru, East Windsor and River roads.
Public comments ...
The DPU is encouraging written public comments on the Tennessee Gas request until May 6, pointing out that those comments are given equal weight to statements made by the public at scheduled hearings.
The address for regular mail is: Department of Public Utilities Siting Division, 1 South Station, Boston, MA 02110, Attn: Stephen August, Hearing Officer.
Property owners included in the company's petition seeking survey permission from the DPU will receive a public notice by mail advising of the public hearing schedule. Included will be a copy of the petition, and additional information about submitting written comments.