Mike Irvin is Director of the Kansas Farm Bureau Legal Foundation

A number of landowners around our state have been approached by wind energy representatives who are proposing to develop commercial-scale wind projects.  These large wind developers are looking for landowners to sign a lease or easement agreement granting these companies access to their land. 

In a case like this, the landowner would sign an agreement granting the developer the right to use their land for wind development, and in return, the landowner would receive compensation from the developer.  Typically, the developer would own the turbines that are placed upon the land and would do all of the work of developing the project.  

Wind leases and easements are often written to cover extremely long periods of time - 20 to 60 years is typical, and in some cases as long as 150 years.  Because of the long-term ramifications of wind leases and easements, and because they are often complicated documents full of technical and legal terms, it is important for landowners to seek assistance in assessing any offer made to them.  

When negotiating a wind energy agreement, it is important to consider a number of issues that are critical to the creation of an equitable agreement.  We recommend that any landowner considering signing a lease or easement consult a lawyer.  Just some of the key provisions that require careful attention include the following: 

• Is the agreement a lease or an easement?  If an easement is involved, usually it will include turbines sites, substations, vegetation restrictions, building restrictions, transmissions and other restrictions, such as air space. 
   
• If it is a lease, normally it will run 20 years or longer for the developer to recoup their investment.  Be careful of longer term commitments.
   
• Legal description – should be limited to only that portion that is needed.
   
• Compensation – define if revenue is to be an annual payment per tower, a percentage of gross proceeds, a percentage of kilowatt hours generated annually, or a flat amount annually.
   
• Inflationary factor – for longer agreements is an inflationary factor built into the agreement.
   
• Intentions of the developer concerning the use of the land?  It should be limited to construction of wind energy structure uses only.
   
• Termination – Require removal of improvements if the agreement (by design) or developer terminates the contract.
   
• Insure the agreement does not violate any USDA land-use restrictions, such as CRP.

For more information, contact me at (785) 587-6621.