StateImpact: County Easement Controversy
Hydraulic fracturing and modern oil and gas drilling use a lot of water, a commodity that’s in short supply in northwestern Oklahoma’s booming oilfield. To get their water, energy companies lay temporary pipelines atop private property, but as StateImpact’s Joe Wertz reports, a county commissioner and a class-action lawsuit raise questions about the common practice.
Driving down a stretch of road in rural Oklahoma, it’s easy to ignore the thin strip of land sandwiched between the gravel and the fence line. But some of the grassy, dusty ditches are important real estate in oil and gas country.
Brandon McCamey is the foreman at Shirley Farm.
“They’ve got this pipe going forever,” McCamey says. “That’s how they get freshwater from a well or pond or whatever and they get it to the location for fracking purposes.”
McCamey works at a farm which makes money selling seed wheat and running cattle. Today, he’s spending most of the day breaking ice and helping unload a truck of young and lively red Angus.
But out here, the big business is under the ground, not on top of it. This is the Mississippi Lime, one of Oklahoma’s most booming oil plays. To bring freshwater in, and move waste fluid out, energy companies string miles of temporary plastic pipe along the side of the road. On private property. And they rarely ask the landowners for permission, or pay them for the privilege. McCamey says the eight-inch thick, stiff plastic tubing is a nuisance.
”Whenever the pipe was there, you couldn’t drive over it,” McCamey says. “You’d drag it, it’d catch on pickups. And you can see they almost pulled that guy’s mailbox over.”
Randy McMurphy is the District 2 Commissioner in Woods County, where the water pipeline controversy and uncertainty started.
“They couldn’t get to their mailbox,” McMurphy says. “The mail person couldn’t get there because there’s a line running right beside the mailbox, or through their gate. They didn’t know who to call, they didn’t know who it was that laid it there.”
The state of Oklahoma doesn’t regulate these water lines; counties do. Private citizens own the land, but the county has an easement alongside roads it maintains. The oil companies fill out a permit, pay the county a fee, and put their temporary water pipelines in the counties’ easements, which can be used for public utilities. After nonstop complaints from the landowners, McMurphy decided to change his district’s permit requiring energy companies to get landowner permission before they laid water lines.
“It’s not considered a public utility,” McMurphy says. “It’s for private gain, is the way I take it.”
McMurphy says oil companies weren’t happy with his permit change. But a 1982 opinion by the Oklahoma Attorney General’s office seems to agree with him. The AG at the time, Jan Eric Cartwright, wrote that these water lines aren’t “common carriers,” utilities like railroads, telephone or electric lines, or big state-regulated oil and gas pipelines.
“Anything that’s not a public utility or has to do with public transportation needs to have permission of the abutting landowner and the commissioner. Do you want me to take what I think is illegal money?” McMurphy asks.
That’s not standard practice around the state. The Oklahoma Independent Petroleum Association says a county permit is all the oil companies need. But several prominent landowners in northwest Oklahoma share Commissioner McMurphy’s reading of the law. They have filed a class action lawsuit against two big Oklahoma energy companies — Sandridge and Chesapeake — over water lines they say were laid without permission or financial compensation. Despite the uncertainty, Commissioner McMurphy says energy companies are probably still laying water lines — just without permits. And McCamey, the farm foreman, says landowners sometimes solve pipeline problems themselves.
McCamey says, “If you don’t get it buried, we’re going to take a chainsaw to it.”
There is talk that a new state law might be needed to determine authority over energy industry water lines, but no specific bills are being considered. Until then, it’s in the hands of courts, county commissioners and cowboys armed with chainsaws.
StateImpact is a collaboration of NPR member stations in Oklahoma.