Few restrictions on Utopia pipeline

No federal, state certification necessary

By David J. Coehrs - [email protected]

Even as the Swancreek Township trustees have formally objected to local installation of Kinder Morgan’s Utopia East pipeline, some opponents have observed a less than resolute protest by landowners along its intended path.

The opponents say that may be because it seems less threatening than the larger NEXUS natural gas pipeline also proposed for the area.

What they may not realize, said an attorney representing NEXUS protesters, is that Kinder Morgan is playing by different rules that permit eminent domain rights and could all but ensure Utopia East’s construction.

The Swancreek Township Trustees unanimously passed a resolution April 18 protesting the pipeline, which would stretch between Harrison and Fulton counties and would run north approximately through the center of the township. Trustee Rick Kazmierczak said a formal statement will be drafted, but until then they are observing silence on the matter.

No trustees from Amboy or Fulton townships were available for comment.

Terry Lodge, a Toledo attorney representing area landowners against the installation of the NEXUS pipeline, said his research has shown the Utopia East pipeline to be an entirely different beast. He said because it would primarily transport ethane, which is used as feedstock in the production of plastics, the rules aren’t the same.

Under the Interstate Commerce Act, moving liquids along the proposed 215-mile, $500 million pipeline allows Kinder Morgan to act as a common carrier – a designation used by companies that advance public commerce by delivering a product to numerous customers. In terms of routing, common carriers are not under the jurisdiction of the Federal Energy Regulatory Commission (FERC) or the State of Ohio

“Even though they’re operating from an interstate basis, (ethane) is not a federally-regulated substance. That’s an important distinction,” Lodge said. He said the natural gas NEXUS wants to transport is regulated differently.

Kinder Morgan spokesperson Melissa Ruiz confirmed the company is under no FERC regulation to receive certification. FERC approves the commercial aspects of the transportation service.

The proposed Utopia East pipeline is under ecological guidance from the Ohio Environmental Protection Agency, the Ohio Department of Natural Resources, the Fish and Wildlife Service, and the Corp of Engineers. Those agencies may tweak small portions of the pipeline route, if necessary, to address environmental concerns in wetlands or along navigable waterways.

Because Kinder Morgan doesn’t need federal or state approval to lay pipeline “it’s not going to be a long, protracted process as it is with NEXUS, to get authorization,” Lodge said. He said the company’s relationship with Ohio can be likened more to a business transaction.

And the common carrier status allows Kinder Morgan to initiate eminent domain proceedings against reluctant landowners in the company’s path. “By falling into the definition of common carrier, they don’t have to go through hoops to be conferred through eminent domain power,” Lodge said.

Ruiz said the company has filed approximately 60 petitions across Harrison, Huron, Carrol, Wayne, Ashland, Seneca, Start, and Wood counties.

“We make these filings in the event that ongoing negotiations do not progress with a particular landowner. At that point, we can pursue our legal remedies in a timely manner and preserve our scheduling commitments to our customers,” she said.

She added that Kinder Morgan is confident most landowners will come to an easement agreement before court intervention is necessary.

Lodge said the battle against the 12-inch Utopia East pipeline may not be as fierce because “the perception is not as sensational for accident scenarios as the 36-inch NEXUS. They don’t have the high pressure issues NEXUS has.”

Area activist Paul Wohlfarth, an outspoken detractor of the pipeline companies, particularly of NEXUS, said he doesn’t see much organized effort against Kinder Morgan. He said that may be due to support from the local Four County Farm Bureau.

“There’s no opposition group, per se, fighting it,” Wohlfarth said. “Most farmers are members of the farm bureau, and they’re not going to fight the farm bureau. We don’t find much opposition when you go farther west into farmland.”

He said that’s disappointing, because “we don’t see them stepping forward, and the landowners should be the ones motivated to fight it.”

Renee Walker, a County Road 3 resident, said the Utopia East pipeline is slated for construction about a mile west of her home. The idea of either Kinder Morgan or NEXUS claiming eminent domain upsets her deeply.

“It’s my land, I pay the taxes on it, yet they can come in and do whatever whey want to it. They just see dollar signs. They don’t care about lifestyle,” she complained. “As soon as someone doesn’t get their way in this country, especially a business, they go right for eminent domain.”

She received a contract for easement rights from Kinder Morgan last fall. “It was a joke. It gave them every right to do anything on our farm any time they wanted, and it gave us no rights,” she said.

“I don’t care about compensation. If you’re a true farmer, the land means more to you than any dollar amount. That’s their life. (The pipeline companies) do not understand our soil, they do not understand our water table, they do not understand anything about our farm.”

A native of Swancreek Township, Deborah Swingholm operates Green Pipeline Initiative.org, a grassroots campaign against encroaching pipelines. She attended the township trustees’ meeting, and requested the resolution against Kinder Morgan.

Swingholm said she purchased her County Road D property specifically to be in the Oak Openings region she believes the Utopia East pipeline would threaten. The proposed pipeline route through the township is about 1 1/2 miles from her home.

“Kinder Morgan Utopia represents significant damage to the Oak Openings region,” she said. “They would clear-cut trees, disturb wetlands, trench through sensitive soils and the shallow sand aquifer, and they could potentially harm drinking wells.”

Swingholm also worries about the dangers of pipeline ruptures and explosions, but said because Utopia East would be constructed of smaller pipe it’s slightly less a threat than the NEXUS pipeline. She’s more concerned with retaining the environmental balance within the Oak Openings region.

“This is really different geology, this is really different soil,” she said. “In the Oak Openings, the typical mitigations may not be enough. These soils are very stratified, they’re very distinct. While what they do may work at other places, I don’t know that it will work here.”

Unfortunately, said Walker, the pipeline companies don’t care about landowners’ rights, and have the financial resources to trample them. “I don’t have the money to hire lawyers and politicians to fight the battle for me, but they do,” she said.

Swingholm isn’t as ready to concede defeat.

“When the residents join forces these projects can be stopped. We’ve seen it in other places,” she said. “I do not think it’s a done deal.”

No federal, state certification necessary

By David J. Coehrs

[email protected]

David J. Coehrs can be reached at 419-335-2010.

David J. Coehrs can be reached at 419-335-2010.