One of our commissioners has asked me to look into whether a gas production company can construct a pipeline somewhere in the ROW of county roads.

It is my understanding that the County can allow entities with eminent domain power to use County property to construct facilities, such as utility lines, etc. NAT. RES. CODE sec. 111.019 gives common carriers the right of eminent domain, but it appears to me that only oil pipelines, and not gas pipelines qualify under that section to be a common carrier. The Utility Code appears to give gas utilities eminent domain powers, but the company involved here is not a utility.

However, NAT. RES. CODE sec. 111.020 states that any person who is willing to file a written acceptance with the Railroad Commission of the provisions of Chap. 111 can become a common carrier and run a pipeline along, accross, or under a public highway. This section does not seem to restrict the type of pipeline, because it allows anyone willing to abide by RR commission rules to become a common carrier.

Thus, I think that the County can allow the company in question to run its pipeline along, across, or under County ROW if the company takes the steps necessary to come under Sec. 111.020.

Am I on the right track?

Has anyone else dealt with this?

Dear Jim,
While I haven't had to deal with it, I think that you are on the correct track. Having worked with several other companies who got to "play" in county ROW, be sure that you have a strong policy in place in case they decide to cross the road. Their tracks are considerably harder to cover than those of the proverbial chicken....

We haven't dealt a great deal with gas pipelines, but it seems we're constantly dealing with SBC on phone lines in the ROWs. Unless every county road you have is paved, you'll want to ride herd to make sure they get their pipes buried well below the 24 inches that the Utilities Code requires for phone lines. Otherwise, you can almost guarantee that one of your graders is going to cut a line, sooner or later. Cut a phone line, and a some folks are mad because they can't call grandma or Home Shopping Network. Cut a gas line ...

Your responses made me think about the fact that we already have some policies in place for laying irrigation lines across county ROW. I probably should look at that also. As many claims as SBC turns in for cut phone lines, this whole gas line in the ditch thing makes me a little nervous.

Make sure to look at chapter 181 of the utilities code.

Given that I think that the gas pipeline company has the statutory right to locate its pipeline in County ROW, does the Commissioners Court have to give approval, or is it just a matter of the pipeline company giving notice to the County that they are laying a pipeline?

We have guidelines for laying irrigation lines (or I guess any other sort of line) across County ROW, and they require that the person laying the line indemnify the County up to $500,000 or the current limit in the Tort Claims Act, whichever is less. Obviously, I would like to exert as much control as possible over the pipeline company.

I believe that the pipeline gets to pretty much pick the place, but that the county gets to regulate the depth, indemnification, repair to road and the like.

Our road engineers like to keep all utility facilities in the bar ditch and out from under the road bed. You might want to take a look at the road and determine if it will be widened in the near future. If so, consider acquiring additional ROW now and asking the pipeline company to locate their line where you would want it after you widen the road. We have had good luck with this approach. Both you and the pipeline company want to avoid construction of a pipeline followed in the next few years (or months) by a plan to widen the road.

Now that Utilities Code Sec. 181.005 has been expanded to allow gas corporations to maintain lines "along" public roads have any of you seen an increase in that type of activity or was that something that was already being done and this is just a clarification?

Also, what is the significance of the lege. using the term "gas corporation" instead of utility? Would any gas corporation qualify or would it need to be a utility?

Before this change in the legislation the rationale for gas company ROW activity was their role as a common carrier. This required the gas companies to share the booty with a gas company that had a common carrier license. After all the purpose of the ROW is for public use.

So without knowing the details I suspect some "big gas corporations" decided they did not wish to share.