July 2011

A Polsinelli Shughart Update

Kansas Wind and Solar Developers Subject to New Requirements

Effective July 1, 2011, wind and solar project developers in the state of Kansas are subject to a number of new requirements. These new requirements were proposed in Kansas Senate Bill 227, which was introduced by the Senate Committee on Ways and Means, chaired by Senator Carolyn McGinn. The Bill passed through Committee and the Kansas House and Senate in a mere three weeks, and was signed by Governor Brownback on April 13, 2011. Though this new law introduces a number of new requirements for wind and solar project developers in the state of Kansas, the most notable changes relate to the sale, lease or easement of property related to solar or wind energy projects.

What This Means To You

The new requirements fall into the following three categories:

1. Severance of Wind and Solar Rights -- The statute states that no person other than the surface owner of a tract of land shall have the right to use the land for the production of wind or solar generated energy unless granted such right by the lawful owner of the surface estate by lease or easement for a definite period. This decision is in-line with a national trend against severance of wind and solar rights, and effectively prohibits a landowner from selling the wind or solar rights to a project developer, while retaining the ownership of the underlying property.
      
2. Solar Leases and Easements -- Prior to this statute, Kansas had enacted K.S.A. 58-2272, which set forth requirements related to descriptions and terms that had to be included in wind leases and easements. Under the newly enacted Senate Bill 227, these requirements have been expanded to also encompass solar leases and easements. Specifically, under the new standards, every lease and easement involving solar resources and technologies to produce and generate energy must include (among certain other things) the following information:
   
             a. a description of the real property subject to the
                 easement and a description of the real property
                 benefitting from the solar lease or easement
   
             b. a description of the vertical and horizontal
                 angels, expressed in degrees, and distances
                 from the site of the solar power system in which
                 an obstruction to the solar system is prohibited
                 or limited
      
3. Marking of Anemometer Towers -- Anemometer towers that are at least 50 feet high shall be marked so as to be recognizable in clean air during daylight hours. These markings include painting the top third of the tower in equal, alternating bands of aviation orange and white, attaching two marker balls on each of the outside guy wires, and attaching one or more seven-foot safety sleeves at each anchor point.

These new requirements have a significant impact on how all future sales, leases and easements involving wind and solar rights will be viewed by courts, and thus wind and solar developers with projects in the state of Kansas should review their existing and future agreements to ensure that they remain in full compliance with the new law.

For More Information

If you have additional questions about the new requirements, please contact:

• Frank A. Caro Jr. | 913.234.7409 | fcaro@polsinelli.com
• Alan Claus Anderson | 913.234.7464 | aanderson@polsinelli.com
• J. Britton Gibson | 913.234.7465 | bgibson@polsinelli.com
• Steven C. Willman | 913.234.7424 | swillman@polsinelli.com
• Luke A. Hagedorn | 913.234.7416 | lhagedorn@polsinelli.com

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