Be respectful and realistic. Because oil and gas companies are not required to sign a Surface Use Agreement, surface owners are not in a negotiating position. This is important when you talk to the company and ask questions. By respecting the company representative and realistic about the conditions that should be included, a surface owner is much more likely to get a surface use agreement. To avoid any problems, there are preventive measures that a solar developer can take to prevent disturbances. Once the mineral property has been separated, the most effective preventive measure is either to obtain a land abandonment contract or a hosting contract from the owners, so that they are contractually obliged not to disrupt the solar project. Regardless of whether the mineral materials are separated or not, the solar developer should obtain a hosting contract with the oil and gas tanker if an oil and gas operator has a valid lease on the land. In addition to one of these agreements, the solar developer should also review the Texas Railroad Commission`s website for the former oil and gas production, government regulations and all rules that may be imposed by the city (if the project is located in a city or in the Extra Territorial Jurisdiction (“ETJ”) of a city. Since under Texas law, the holder of mining rights is granted such extended rights, the best option for a surface owner is to contractually limit those rights.
The broadest contractual limit is a non-area agreement whereby the owner of the mineral property waives the right to use the area of the land on which the project is located. Mining owners may not be inclined to sign such a restriction. In order to allay the concerns of ore owners, agreements can be drawn up regarding the renunciation of the surface in order not only to protect the solar designer, but also to allow the mineral owner to develop the land vertically and through horizontal drilling and directed at sites that do not affect the solar project. If these provisions are contained, mineral owners may be more inclined to sign the agreement. If a solar designer is unable to obtain a surface waiver or hosting agreement from the mining owners and palms, the solar energy developer may eventually rely on the doctrine of accommodation after the construction of the project, especially if significant time passes. In addition, title insurance offers securities that offer the solar developer and its financing parties some protection against the effects of oil and gas transactions. While in some cases title insurance may be based on the doctrine of accommodation, title insurers often require that a significant percentage of mine owners have a waiver declaration or accommodation contract covering the entire territory prior to construction to provide the necessary references to the title policy. In addition, obtaining a surface waiver or hosting contract will provide full protection to the solar developer as long as the developer follows the next steps when obtaining the agreements, without accepting any other unusual problems. Be aware of old abandoned appliances or potential contamination problems. If this type of problem exists, it could be a starting point for a debate on the need to protect the use of the surface.
If a surface owner is concerned about pollution or safety issues, he or she has the right to contact the Texas Railroad Commission and request a review/assessment of the situation. Knowing that an oil tanker and a gas accelerator may be more inclined to work with a surface owner, if these problems exist, in order to avoid RRC`s involvement.