By Debi Brazzale, COLORADO NEWS AGENCY
With the governor nudging the state ever further toward reliance on renewable energy, some lawmakers at the Capitol are proposing to break ground by writing “wind rights” into law so landowners can be assured of their standing. Although a legislative committee today stalled a bill that would accomplish that, saying more study is needed before moving ahead, the foray into uncharted legal territory represents the first of its kind in the nation.
“Wind energy is a growing industry here in Colorado, especially in the Eastern Plains,” said Yuma Republican Rep. Cory Gardner, the bill’s sponsor. “Colorado should be a welcoming place for wind energy, but we also need to keep in mind the rights of property owners.”
His House Bill 1158 seeks to do just that. Under current law, space above land and water belongs to the surface owner, but the owner can sell mineral rights, giving access and rights to, for example, drill for oil–called severed rights. However, the law does not specify whether wind is part of the space above land and water and remains unclear on whether the property owner may sell or transfer “wind rights” to another while retaining ownership of the surface land.
Some Colorado landowners are already forging ahead, separating wind rights from their property, and they are using voluntary agreements to determine the right of a developer to install wind turbines on their land.
Gardner is concerned that in the absence of clear and defined wind rights, property owners may be entering into agreements that may or may not be upheld in a dispute.
“Right now, landowners are already severing their wind rights without any guarantees that their contracts will hold up in court,” said Gardner.
House Agriculture, Livestock and Natural Resources Committee chair Rep. Randy Fischer, D-Fort Collins, agreed on the need to clarify the parameters of the ad-hoc agreements, citing his concern that a developer, who had negotiated wind rights with a previous landowner, could come in and set up wind turbines without a new owner being aware of the prior agreement. However, he said he was hesitant to support the measure until the issue was more thoroughly vetted in light of the precedent the measure would set.
“We need to be a little more thoughtful on how we approach this very complicated issue with a clear understanding of rights and responsibility regarding wind as a renewable resource,” said Fischer. “There definitely needs to be clarity if people are starting to do this sort of thing.”
After some discussion, the committee decided to lay the bill over until after the session–effectively tabling it for this year–so that a comprehensive study could be done on the wind rights issue by the legislature’s research staff.
“It’s important to understand that this was the first bill of it’s kind in the nation, so hopefully this study will give us more guidance as we move forward,” said Gardner.
Last week, Gov. Bill Ritter, made a rare appearance before another legislative committee to testify on behalf of a bill to raise the minimum amount of renewable energy that investor-owned utilities in Colorado must use in generating power–from the current standard of 20 percent by 2020 to 30 percent by that year. The proposal, House Bill 1001, accelerates a key component of Ritter’s signature New Energy Economy but is drawing criticism from minority Republicans, who say it’s a potentially costly and overreaching policy that ignores the advantages of cheap and reliable coal power.