II 111th CONGRESS 1st Session S. 1856 IN THE SENATE OF THE UNITED STATES October 22, 2009 Mr. Barrasso introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources A BILL To amend the Energy Policy Act of 2005 to clarify policies regarding ownership of pore space.

1.

Pore space ownership

Subtitle F of title IX of the Energy Policy Act of 2005 (42 U.S.C. 16291 et seq.) is amended by inserting after section 963 (42 U.S.C. 16293) the following:

963A.

Pore space ownership

(a)

Definition of pore space

In this section, the term pore space means a subsurface space of any size that can be used as storage space for carbon dioxide or other substances injected into the space for storage. (b)

Ownership

The ownership of any subsurface pore space located below a Federal surface estate shall be vested in the Federal Government. (c)

Conveyance

(1)

In general

A conveyance of the surface ownership of Federal land shall include the conveyance of the Federal pore space in all strata below the surface of the Federal land (other than previously reserved mineral rights) unless the ownership interest in the pore space has previously been severed from the surface ownership. (2)

Limitation

Subject to subsections (d) and (e), no agreement conveying Federal mineral interests or other interests underlying the surface of the land shall convey ownership of any Federal pore space in the stratum unless the agreement explicitly conveys the interest in pore space. (3)

Conveyance instruments

(A)

In general

Any instrument that conveys the rights to use Federal pore space under this section shall describe the scope of any right to use the surface estate. (B)

Use of pore space

The holder of any pore space right conveyed under this section shall have no right to use the surface estate except for the uses, if any, described in a properly recorded instrument. (C)

Applicable law

All conveyances of Federal land executed before the date of enactment of this section shall be construed in accordance with the provisions of this section unless a person claiming ownership interest contrary to the provisions of this section establishes ownership by a preponderance of the evidence in an action to establish ownership of the interest. (d)

Priority

For the purpose of determining the priority of subsurface uses between a mineral estate and pore space, the mineral estate is dominant. (e)

Dominance of mineral estate

Nothing in this section alters any laws or case law in existence on the date of enactment of this section relating to the rights belonging to, or the dominance of, the mineral estate. (f)

Notification requirements

No provision of law (including regulations) that requires notice to be given to a surface owner, an owner of the mineral interest, or both shall be construed to require notice to persons holding ownership interest in any pore space in the underlying strata unless the law specifically provides that notice to those persons is required.

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