What lies on the landscape?

For a landowner to accept 'common' solar energy or wind turbine contract terms and provisions provided in a developer's agreement is a comforting place when in negotiations. But this is the equivalent of driving southbound on Highway 281 at great speed without headlights on a moonless night. I will here add my spin on a thought of Thomas Paine:

A habit of not thinking a thing might be wrong gives the matter a superficial appearance of being right until the chickens come home to roost.

The following points are for consideration of the wary (weary?) landowner.

Energy projects involve three key parties: developers, landowners, and government agencies. Effective oversight of infrastructure by government agencies is just as crucial as securing fair agreements with landowners but is the hardest to accomplish.

Some local counties, like Butte County, lack ordinances to address wind farm construction, while others like Pennington County have insufficient requirements for insurance coverage and financial surety during wind farm operation.

South Dakota's agricultural land tax formula lacks consideration of energy infrastructure which may affect the landowners tax benefits once legally spelled out in the future.

Landowners need to individually evaluate how turbines, solar panels or related infrastructure may affect agricultural productivity, whether in terms of row crops or grazing access.

Does the developer have adequate insurance coverage, as South Dakota law doesn't mandate project-wide general liability insurance, unlike North Dakota and Wisconsin.

Landowners should ensure that setback distances from residences or operating buildings are clearly defined, even if local ordinances state otherwise.

In cases where county ordinances don't address road haul agreements, landowners should demand liability coverage for potential road damage and financial assurances for repairs.

Developers should provide landowners with site plans and engineering drawings to ensure transparency and proper planning.

Landowners should require a written decommissioning plan approved by them, detailing how the energy project will be dismantled. These are quite technical and require good advice.

Landowners should require a surety bond from the developer to protect against potential issues during the project, even though South Dakota doesn't require it.

Preserving property rights is crucial in any energy contract, easement or agreement. These contracts can have long-lasting implications and should be treated like prenuptial agreements, with careful consideration of their impact on future generations.

Beware of the NDA. Confidentiality clauses may require landowners to sign confidentiality agreements before seeing a lease. Such clauses can hinder landowners' ability to assess fair market terms and give an advantage to developers.

Beware of what God has wrought or that which he/she may wrought. Events considered as "act of God" can vary depending on the specific contract. These events are defined within the contract and can cover a wide range of unforeseen circumstances, such as natural disasters, strikes, government interventions, and more.

South Dakota adopted an anti-wind severance statute that prevents landowners from severing wind energy rights from the surface estate. This prevents transferring them to third parties. Obviously this law limits property rights related to wind energy.

The surface owner has the exclusive right to all wind on their property. However, are mentioned in this piece, the ownership cannot be transferred to non-developer third parties or provided to heirs in a will in a manner that separates it from the land, as per the anti-wind severance law.

Development companies that initiate projects often sell or assign them to other companies or utilities once the projects are operating. This can result in landowners dealing with a new business entity as their next of kin.

David Ganje is an attorney who practices natural resources, environmental and commercial law. The website is lexenergy.net