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By Elizabeth Dietzmann
Obtaining easements for a wastewater project has traditionally been a straightforward if sometimes tedious process. A typical gravity sewer collection system is owned by a governmental entity and the actual mains are either located in the right-of-way or along the edge of the customer’s property. If the mains are located along the edge of the customer’s property, an easement is needed for that strip of land where the actual mains will run. The actual service line that runs from the main to the customer’s house is owned by the customer and, so, no easement is needed.
Now along come STEP/STEG collection systems---which, for the sake of brevity, I will refer to as STEP systems---and all bets are off. I am seeing more and more STEP systems---either used with decentralized treatment or used as part of a hybridized system to supplement gravity sewer in hard-to-serve areas. There are many aspects of STEP systems as they relate to easements, which have not really been considered. STEP easements require a new kind of easement language. Traditional easement language will not cover the complexity of a STEP system and new easement language that is tailored to STEP systems must be utilized. A thorough analysis of STEP easements may also lead to reconsideration of the ownership of the on-lot STEP components on replacement projects and the requirements of developers to include necessary easement language on new projects.
Perhaps the easiest way to discuss the new language requirements for STEP systems is to discuss the language in traditional easements. Keeping in mind that people from all 50 states may read this and that in many respects easements are a creature of state law, I will make some broad distinctions.
Basically there are three types of easements. The oldest and least used today is called a blanket easement. This is an easement that technically covers the entire piece of property, so that the government entity can run the pipe, electric line, road, or railroad track wherever it wants. More importantly, wherever that line is run becomes the de facto location and description of the easement.
You almost never see this type of easement today. I don’t know of any property owner in his or her right mind who would sign one. I see them most often in old deed records from the 1800s and early 1900s when railroads, electric cooperatives, and water districts were trying to get organized, and tracts of land were much larger. In today’s world, with land being increasingly divided into smaller and smaller parcels, these easements would make land worthless. Some jurisdictions will not even accept blanket easements because they impose too great a potential cloud on the title of the real estate.
More recently, centerline easements are most commonly used. Many state and federal public project funding agencies have required this type of easement for many years, so most local governments are accustomed to using centerline easement language. A centerline easement is pretty self-descriptive; it is described as an easement of a certain width lying along the centerline of the pipe as constructed. Providing that the property-owner has some idea---based on the plans and specifications of the project---of where the actual pipe will run, these are not terribly controversial.
Of course, if the situation calls for it, and there are economic development reasons, or the parcel has too may other existing structures located on it, the property owner may insist on a deeded easement. This third type of easement is the most precise, but also the most expensive. For all intents and purposes it is cost-prohibitive on most public projects that involve existing homes, but it is possible to have a registered land surveyor work with an engineer to draft the actual meets and bounds legal description, down to the foot, of where the easement will run. This is done commonly today on new development, such as subdivisions or shopping centers, where all the utility easements are marked on the original plat.
STEP easements will most likely be centerline easements, but the tricky part comes in the detail and the complexity of that easement. If you think about the components of a STEP system, you will get a sense of what the easement needs to contain. First you have the collection main along the front or possibly the back of the property. This is analogous to a gravity sewer main. Then think about the on-lot components of a STEP system: the service line leading from the collection main, the actual STEP tank itself, the control panel---if separate from the STEP tank, and a power supply from either the house or a power pole. Add to that the temporary construction easements for all elements and you have quite a complicated document.
I would like to point out that after I opened my big mouth on a rural development project and whined because the accepted easement form did not address any of these issues, and I had to get special approval from the regional counsel’s office to add any language about STEP easements, I received a notice that all future project easements had to address STEP systems if they were being used. No mention of how that should look, of course, just that we had to include it. So I took the hint and wrote my own, which have been picked up on several RD projects. Hey, I like those guys. All they had to do was ask and I would have done it for them anyway!
So based on the projects I have worked on, this is what a STEP easement description is going to have to look like. The easement sizes are not written in stone, but a number of engineers have felt comfortable with them.
- A perpetual 20-foot-wide easement with the right to erect, construct, install, and lay and thereafter use, operate, inspect, repair, maintain, and remove a wastewater collection main along the front of the property to be served, said easement to be centered on the line as installed;
- A perpetual 15-foot-wide easement with the right to erect, construct, install, and lay and thereafter use, operate, inspect, repair, maintain, and remove a service line on the property to be served, said easement to be centered on the line as installed;
- A perpetual easement 7.5 feet around the perimeter with the right to erect, construct, install, and lay and thereafter use, operate, inspect, repair, maintain, and remove an effluent tank and control panel and any other necessary wastewater collection system appurtenances on the property to be served, said easement to be centered on the effluent tank as installed;
- A 15 foot-wide easement with the right to erect, construct, install, and lay and thereafter use, operate, inspect, repair, maintain, and remove an electrical line or junction box on the residence or structure to be served or electric pole for the operation of the effluent pump and any other necessary wastewater collection system appurtenances on the property to be served, said easement to be centered on the electrical components as installed;
- A 30-foot-wide temporary construction easement for the above-described perpetual easements, which will terminate upon the completion of the construction and/or installation of the wastewater collection line, effluent tank, electrical components, and service line on the previously described easements.
The fun continues if the project is replacing existing septic systems or gravity sewer. Then you will also have to determine if the new STEP tank is going to be located in the same place as the old septic tank, or if you need an additional temporary easement to either remove or crush the old tank in place.
Once all these issues are taken into consideration, you still have to decide who is going to own the STEP system. Maybe the governmental entity has decided to build it itself for the sake of engineering and construction consistency. Then you would need only temporary easements. Maybe the homeowner is going to own the STEP components, so you don’t need any easements at all. Or maybe the governmental entity is determined to build, own, and maintain the STEP components.
The complexity of STEP easements that really do the job have to be weighed against the compelling desire of management entities to have consistent maintenance and billing procedures. Is owning and controlling the STEP systems worth the up-front work, which will require the engineers and attorneys to really think about the details of the projects, prepare STEP easements properly, and force the government entity to do quite a bit of project PR and homeowner education? I feel that it is, because the benefits more than outweigh the inconveniences. Not only do you maintain control of the STEP systems, but you end up with a truly informed public that is more likely to support many other even less popular aspects of the project, such as rate-setting. It is short-sighted of the governmental entity to opt out of owning the STEP systems because obtaining STEP easements is too hard or they don’t want to be bothered with managing the STEP systems.
Dealing with new construction is much simpler. The key is that the developer must include STEP easement language in his deed restrictions and on his plats. It has to be made crystal clear that no matter who installs the STEP components, they are the property of the governmental entity and that entity has the right to enter the property for repairs, etc. If you fail to insist that the developer include this language then you may be forced to go back to new homeowners and get easements from them, as like I outlined above.
Keep in mind that most developers are either reusing the same deed restrictions and restrictive covenant language from their last project, or one that they copied from someone else. Developers hate spending money on attorneys fees.
The governmental entitiy should be prepared to “step” up (I couldn’t resist) with draft language that spells out the easement language and to make sure that it is included in the plat, restrictive covenant, and deed restrictions. Usually, as long as it won’t cost too much, developers are so delighted to get wastewater service without spending a fortune sewer up on gravity front that they’ll gladly comply with these requests.
So, we’ve unraveled the complexities of STEP easements. We have a good, tight easement that describes exactly what it needs to describe. The really interesting question then is, after all the work is done to create the perfect STEP easement, what does a government entity do if a homeowner refuses to sign it? Beg? Plead? Use the power of eminent domain? That topic is what I will discuss in Part 2 of this article. The Supreme Court opinion in Kelo v City of New London---which held that local governments can seize private property for economic development---has sent shockwaves through property-rights advocates groups. What does that case mean for the ability of governmental entities to use the power of eminenent domain to enforce STEP easements? We’ll look at that in the next issue with “Some Thoughts on Obtaining Easements for STEP Systems.”
ELIZABETH M. DIETZMANN is an attorney in Rolla, MO.
OW - November/December 2005
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