II 

111TH CONGRESS 

1ST SESSION S. 1856 

To amend the Energy Policy Act of 2005 to clarify policies regarding 

ownership of pore space. 

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 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. PORE SPACE OWNERSHIP. 

4 Subtitle F of title IX of the Energy Policy Act of 

5 2005 (42 U.S.C. 16291 et seq.) is amended by inserting 

6 after section 963 (42 U.S.C. 16293) the following: 

7 ‘‘SEC. 963A. PORE SPACE OWNERSHIP. 

8 ‘‘(a) DEFINITION OF PORE SPACE.—In this section, 

9 the term ‘pore space’ means a subsurface space of any 


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1 size that can be used as storage space for carbon dioxide 

2 or other substances injected into the space for storage. 

3 ‘‘(b) OWNERSHIP.—The ownership of any subsurface 

4 pore space located below a Federal surface estate shall be 

5 vested in the Federal Government. 

6 ‘‘(c) CONVEYANCE.— 

7 ‘‘(1) IN GENERAL.—A conveyance of the sur8 face ownership of Federal land shall include the con9 veyance of the Federal pore space in all strata below 

10 the surface of the Federal land (other than pre11 viously reserved mineral rights) unless the ownership 

12 interest in the pore space has previously been sev13 ered from the surface ownership. 

14 ‘‘(2) LIMITATION.—Subject to subsections (d) 

15 and (e), no agreement conveying Federal mineral in16 terests or other interests underlying the surface of 

17 the land shall convey ownership of any Federal pore 

18 space in the stratum unless the agreement explicitly 

19 conveys the interest in pore space. 

20 ‘‘(3) CONVEYANCE INSTRUMENTS.— 

21 ‘‘(A) IN GENERAL.—Any instrument that 

22 conveys the rights to use Federal pore space 

23 under this section shall describe the scope of 

24 any right to use the surface estate. 


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1 ‘‘(B) USE OF PORE SPACE.—The holder of 

2 any pore space right conveyed under this sec3 tion shall have no right to use the surface es4 tate except for the uses, if any, described in a 

5 properly recorded instrument. 

6 ‘‘(C) APPLICABLE LAW.—All conveyances 

7 of Federal land executed before the date of en8 actment of this section shall be construed in ac9 cordance with the provisions of this section un10 less a person claiming ownership interest con11 trary to the provisions of this section estab12 lishes ownership by a preponderance of the evi13 dence in an action to establish ownership of the 

14 interest. 

15 ‘‘(d) PRIORITY.—For the purpose of determining the 

16 priority of subsurface uses between a mineral estate and 

17 pore space, the mineral estate is dominant. 

18 ‘‘(e) DOMINANCE OF MINERAL ESTATE.—Nothing in 

19 this section alters any laws or case law in existence on 

20 the date of enactment of this section relating to the rights 

21 belonging to, or the dominance of, the mineral estate. 

22 ‘‘(f) NOTIFICATION REQUIREMENTS.—No provision 

23 of law (including regulations) that requires notice to be 

24 given to a surface owner, an owner of the mineral interest, 

25 or both shall be construed to require notice to persons 


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1 holding ownership interest in any pore space in the under2 lying strata unless the law specifically provides that notice 

3 to those persons is required.’’. 

Æ 


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