This is a two-part story. The first part ran in the November 30 edition of the Herald.
LUSK – When landowners feel frustrated, helpless, confused or can’t get answers from an energy company, government entity or activist group, even politicians they often turn to legal advice from the Falen Budd Law Office. Attorney Karen Falen and her husband Frank offer decades of experience in working with and fighting for the rights of agriculture and landowners. They are particularly experienced in the process of helping to form and then assisting landowner groups-formalized groups of people that have formed with the intent for more power in a collective bargaining type capacity.
At the Nov. 28 meeting hosted by the Niobrara Conservation District and Niobrara County Commissioners, the Falens discussed their experience with energy companies and working with both state and federal government as well as local entities. Attorney Falen gave an overview of how the industrial siting permitting process with the DEQ works. The state Department of Environmental Quality (DEQ) issues the industrial siting permit which is required when there is intent to build a facility with an estimated construction cost of $253,878,000 or more. If the estimated cost is $203,102,400 - $253,878,000 a Certificate of Insufficient Jurisdiction must be obtained. Any facilities, functions or structures related to the project fall under the siting permit as well. The DEQ considers economic impact and does an environmental study. According to Attorney Falen’s research, the Pronghorn H2 company has hired an engineering firm that has started this process for a massive green hydrogen project in southeast Wyoming that the wind turbine project is going to be linked to.
The logical conclusion is that the wind turbine project is the proposed power source for much of the green hydrogen project that is anticipated to be the end goal for the company(s) that is funding the project. Some in attendance questioned however if this initial lease application wasn’t more of a “fishing” project to see if they could obtain landowner consents with murky intentions.
Falen also explained the siting permit goes to an industrial siting council that is appointed by the governor. This council was created by legislature. The siting council will hold an evidentiary hearing with the company presenting the burden of proof as to why they should be granted the permit. Those against the project can also provide evidence against the permit. It will take a while to get through the DEQ part of it and she hasn’t seen any DEQ applications. If the project stays entirely within Wyoming then the Environment Protection Agency (EPA) will have no say in the process since Wyoming has negotiated to keep all Wyoming-based and Wyoming-only projects under the oversight of state DEQ. If, however, transmission of the products or the energy network should spread across state lines then the EPA would also become involved.
Eventually the DEQ application will address many of the questions that the landowners have expressed regarding location, structure, process etc. The other entity that will be involved is the state engineer. This office has not seen or heard about any applications for change of use or diversion for state water information.
According to Falen, while the wind project is only one facet of a much larger project, the other elements are presumably in the works and the landowners have a cause to be wary and want to keep an eye on every “moving part” of this large and complicated project and process.
One of the best ways to get answers that seem to be slippery or evasive is to create a landowner group that will collectively have more power than a single individual.
Given the complex nature and many aspects of a project of this size there will not be any one centralized agency that will assemble all the information and give a broad impact statement or be able to answer questions about the entire project. This can create confusion and frustration so a landowners group that could be a central “location” or disseminator of information to its members and can be a solid solution for reliable information. According to Falen, “…a land owner group to give the people impacted better negotiating ability and political authority than you might have as an individual. By creating a landowner group of people impacted by this maybe they can go to the company and get some answers. I have seen the emails they have been sending the conservation district and they are pretty pathetic.”
At this time, the details of the project remain vague. The company has not been forthcoming with where the water for the project will come from, how the company plans to tie transmission lines together, who this impacts and who has the authority to do what. If a group of landowners does get together they could creating a negotiating board of representatives. Two immediate benefits that Falen sees to this is that it is better to negotiate as a block so land owners can end up with better terms for reclamation, better payments and better liability. This is often also a more cost effective solution for landowners to have representation for all the hearings so each individual doesn’t have to attend all hearings and public meetings.
Frank Falen also offered his input and experience when it comes to working with large energy companies and energy projects, As one attendee stated, “When they were first talking about the hydrogen plant in Niobrara County,I was contacted, the person was very evasive about answers about the project and just wanted to know who was for or against it. This concerns me that they are not getting “no’s” because no one has the information to make an informed decision. I didn’t feel comfortable saying one way or the other because I just didn’t know.”
This, Mr. Falen said, was exactly the reason many landowners chose to create those formalized groups with appointed representative, to get answers. Falen offered the example, that if an individual contacts a large company that person is unlikely to receive a complete, if any, answer to the questions they are asking. However, if an individual contacts the company stating that they represent a large acreage that the company is currently looking at for leases and a project, then they are more likely to be given audience with someone higher up in the company that could have answers.
In vague terms and press releases company and government representatives keep saying, “it is coming” but how do they know this if they haven’t actually talked to land owners and obtain permission yet?
Attorney Falen and Mr. Falen have been involved with land owner groups from BLM permitting to pipeline and power line right of ways. In Niobrara county there have been land owner groups for various projects. Mr. Falen emphasized the starting point isn’t to be for or against something but to get information. It is also to help protect community interests.
The next question many had was how the structure of a landowner group would work and if it would include any other entities with interest such as sportsmen, outdoor users or others. While Falen acknowledged those groups could be impacted he strongly advised against including them in the initial organization since the two groups, public land users and landowners/lease holders often do not have the same end goal in mind since they do not use the land in the same ways.
Tyler Seno offered clarification, when asked, that there is nothing in state statue that requires land close by but not in the footprint of the permit be paid for impact. There are examples of where many landowners might come together to make sure everyone is compensated for impact even if the turbine isn’t on someone’s private land.
Commissioner Pat Wade spoke up with some input regarding the entire project. Governor Mark Gordon has stated at least twice that Wyoming water will not be used for a project like this. Without Wyoming water Wade doesn’t understand how a project like this can even move forward. The company has made it clear that they are not interested in needing to use water that will have to be filtered or clarified from a previous use like oil and gas production. There is also discussion regarding the water currently allocated to power plant use and if those plants shut down would that allocation be moved to a green hydrogen project.
A landowners group could agree to invest in having legal representation combined with civic representative to ensure that clear answers are given to all these answers before a project receives approval to move ahead.
Seno also responded from the state’s perspective with state land is a trust and the trust is for the purposes of the schools so they are supposed to do what is in the best interest of the trust. There is precedent where this doesn’t necessarily mean highest dollar but there is stewardship consideration. Seno agreed that this is obviously a highly contentious project so he would anticipate this particular permit would take a minimum of a year before it would even come before the board, and that is only the wind portion of the project. All lessees would have to be notified of any hearings or public meetings and public notices will have to be run.
As this portion of the meeting drew to a close it was obvious that many in attendance were interested in learning more about the potential of a landowners group should this project appear to be moving forward.
Along with the information on the turbine permitting process and landowner groups the commissioners gave a brief update on the planning and zoning process. Chairman Pat Wade offered details for the next meeting to be held on December 8. This meeting continues the pre-revision process and will address wind, solar and road use permits for energy projects. Wade again emphasized the need for public input and community involvement throughout this project. Without that the zoning and planing board, BenchMark and the Commissioners cannot make an informed decisions. He reminded those present that they may give feedback by contacting BenchMark directly or utilizing the dropbox at the court house.
The final item discussed during the working group meeting was the Bureau of Land Management (BLM) Resource Management Plan (RMP) revision process. The RMP can greatly impact landowners in Niobrara and surrounding areas since they may not have subsurface rights (mineral rights) just because they own the land. Split-estate situations are common and can lead to conflict down the road. The BLM RMP is once again an opportunity for land owners to give input and feedback on what the government plans to do with public lands both surface and subsurface. The first deadline for input was November 28 and future deadlines will be published once the formal process begins sometime in the spring of 2023.