Swapping Easements

This Dominion map submitted to the VOF shows the location of conservation easements in the Augusta-Bath-Highland area (parcels outlined in red), and the location of the Hayfield Farm where Dominion would create an easement and turn over to the VOF. (Click for larger image.)
This Dominion map submitted to the VOF shows the location of conservation easements in the Augusta-Bath-Highland area (parcels outlined in red), and the location of the Hayfield Farm where Dominion would create an easement and turn over to the VOF. (Click for larger image.)

by James A. Bacon

Dominion Transmission, managing partner of the proposed Atlantic Coast Pipeline, has proposed to donate two parcels totaling nearly 1,200 acres to offset the intrusion of its proposed 600-mile pipeline onto lands protected by conservation easements.

In a proposal made to the Virginia Outdoor Foundation (VOF), which holds the conservation easements, Dominion would donate the land and easements for a 1,100-acre parcel and and 85-acre parcel to offset the conversion of 68 acres of protected open space on ten different easement-protected parcels in Bath, Highland and Nelson Counties. The donations would create a “mitigation ratio” of 16 to 1 in one case and 20 to in the other, according to Robert Hare, senior business development manager with Dominion.

Dominion presented its proposals Thursday to VOF’s Energy & Infrastructure Committee. The Mountain Valley Pipeline, which proposes to build an interstate transmission line through Virginia, also described a plan to offset an easement in Montgomery County that it wants to route its pipeline through. The ACP proposals are expected to be reviewed by the full VOF board next month.

The stakes are potentially momentous for the governance of conservation easements in Virginia. In its entire 50-year history, VOF has received only 14 “conversion-diversion” requests to alter easements, which landowners grant in order to protect scenic, environmental, cultural or historical resources on their property in perpetuity. Most conversions involved slivers of land needed for public purposes such as widening a road, adding a turning lane for a school or extending water-sewer lines. In every case, the requests were supported by the local governments involved. The pipeline cases are very different. They are proposed by for-profit utilities, they would be far more intrusive, and they are all opposed by the respective local governments.

Conservation easements are protected by state law, and they are hard to bust using eminent domain under state law. But Dominion’s interstate pipeline is regulated by the Federal Energy Regulatory Commission (FERC). In the event of a conflict, it is unknown whether federal or state law would prevail because no case has been tested in the courts.

VOF board members find themselves between a rock and a hard place, said Tom Slater, chairman of the energy and infrastructure committee. A Richmond attorney, he spends weekends tending to 110 Angus cows on a Loudoun County farm that his family has owned since the 1840s. Board members are passionate about conservation and sympathetic to landowners who entrusted their easements to the VOF, he said. “We want to enforce state law.” At the same time, he added, they are cognizant that state law could be “pre-empted” by federal law.

Under FERC guidelines, pipeline companies must go through an exhaustive process of working with state agencies to avoid or mitigate intrusions upon historical, cultural and environmental resources. Virginia is unique in having an entity like the Virginia Outdoors Foundation, which holds 3,835 easements totaling more than 750,000 acres. While VOF’s mission is to conserve viewsheds, wildlife habitat and other resources, it is also enjoined by state law to work with railroads, utilities, the Virginia Department of Transportation and other entities citing a public-need justification for infringing on the easements.

Dominion has made literally hundreds of adjustments to its proposed route. The resulting zigs and zags around residential areas and land with historical, cultural or environmental value have increased the pipeline length from an estimated 550 miles to 600 miles.

An early version of the route had managed to avoid 23 VOF easements, Hare told the VOF committee. However, when the U.S. Forest Service wrote a letter to FERC in January stating that the pipeline would be “incompatible” with the protection of rare salamanders and other species in Virginia and West Virginia national forests, Dominion had to re-route 95 miles of the line. With severely constrained options, the new route ran through 10 VOF-protected parcels.

The Mountain Valley Pipeline (MVP) hasn’t faced the same routing challenges as ACP, but it still found itself unable to avoid one easement. The company has asked the VOF if it could mitigate the impact of crossing that parcel, as well as allowing a temporary construction-access road, by purchasing land elsewhere and turning over the easement to VOF. In the meantime, MVP is working on a work-around that may allow it to withdraw its request, said Lindsey Hesch, senior environmental specialist.

Dominion and MVP have shown “good faith” in trying to route their pipelines around conservation easements, said Slater, the committee chair. “But these land swaps are a first — on a scale way beyond anything we’ve experienced before.”

While state law allows for land swaps as an “appropriate remedy” for conflicts, the law also says incursions upon conservation easements should advance “the orderly development of the locality” and be consistent with the locality’s comprehensive plan. But several localities in the path of the ACP have stated their opposition to the pipeline.

The Bath County Planning Commission declared that the pipeline does not meet the Bath comprehensive plan, said Chuck Burke with Normandy Capital, owner of land under easement that the ACP would cross. “The number one industry in Bath is tourism,” he said. “A year- to eighteen-month-long pipeline construction is not in the best interests of the county.”

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7 responses to “Swapping Easements”

  1. LarrytheG Avatar

    there’s a fairly detailed environmental impact process involved and if the impacted resources are deemed to be “4f” or equivalent – the threshold for approval requires the applicant to demonstrate there are no reasonable and prudent alternatives.

    that’s a high bar because money alone won’t win the argument.

    I have a feeling that if the opponents can find enough money that Dominion is going to be in for a long and expensive fight.


  2. LarrytheG Avatar

    I think Virginia’s approach to Conservation easements is an abomination and a de-facto CF.

    Here’s why.

    Normally when land is “preserved” – it has “significance” – something out of the ordinary in a historical, cultural, recreational way AND it’s something the public can benefit from -and have access to.

    Just setting aside land that cannot be used – for any purpose – forever – that is not particularly significant and for which – often – the public does not have any access to – is dumb – especially when it ends up being obstructive to needed future infrastructure.

    And it DOES make a difference from a Federal perspective because current Federal Rules called 4f – are accorded to lands that have been “officially” designated… and that would include these de-facto private preserves that exist not to benefit the public but the property owner – who uses that designation to lower their property and income taxes.

    The basic premise of setting aside ANY undeveloped land is misguided in my view unless that land has significance AND it does benefit the public directly in some way that can be quantified beyond the fuzzy notion than any land set aside is “good”.

    So perhaps at this juncture – we ought to re-visit this concept … because if not now – at some point – we’re going to need a highway or a powerline or some kind of infrastructure to serve the public and it’s going to be up against a de-facto private preserve that the state has essentially given to the property owner for no good reason.

  3. Here is yet another conundrum. Who is the arbiter of whether the project or the route is in the public interest? For example, according to Virginia’s threshold for granting eminent domain, a project like the ACP or the MVP might not qualify because it could be shown that those projects are for private gain rather than public need. According to the federal standards judged by FERC, merely having customers whether real or not is enough to allow the taking of property against the will of the landowner.

    Must the owner of the original conservation easement give up the tax benefits for their property since it is no longer “conserved” or does a swap with a larger but perhaps much less worthy property for conservation fit the bill?

    Larry has a point, often these easements are obtained to reduce taxes and then conveniently swapped when money is to be made. And it can go both ways as happened when developers of a large parcel in Charlottesville cut their losses when they were able to trade it for a state park and tax credits.

    The spirit of conserving property with unique value seems particularly malleable to the rules of commerce.

    The NEPA process as administered by FERC is much less rigorous than that performed by most other agencies, especially regarding the need for a project. It could be ripe for significant challenges.

  4. LarrytheG Avatar

    but as long as come company make a bogus claim for public necessity to take private land for profit, why not also allow bogus claims for Conserved land to block?

    there’s a certain “symmetry”.. you gotta admit!

    Transco – by the way – seems to be in the thick of this -and in a position where less land is involved to connect from the shale gas to it’s existing pipes…. If they end up acquiring most of their right-of-way via willing buyer/willing seller – it will further undercut Dominion’s claims that they cannot do the same.

  5. The 68 acres and the 16:1 ratio seem to be PR created numbers. All of the looping of the route in Pocohantas/Highland/Bath/Augusta counties in order to come back and hit the same special spot to cross the Appalachian Trail has added almost 95 miles to the pipeline. It is hard to imagine with all of these newly affected properties only 68 acres of conservation easements are affected. There is probably one easement that is at least that large. Dominion is probably only counting the acreage in the right-of-way. This is certainly misleading and intended to make their “trade” look good by comparison. Let’s say a 100 acre parcel is under a conservation easement. As little as a few acres might actually be occupied by the right-of-way. But construction activities and the need to keep the right-of-way open will permanently alter the property. The whole property has been changed from the original state that was intended to be conserved. Restrictions for use and equipment passage has limited the use of the entire property from the way it could originally be used not just that portion in the right-of-way.

    It is disingenuous methods such as this that puts the entire justification for the project in question. We found working with other major utility projects that being open and honest about what was really happening made it easier to work out issues with affected landowners.

    1. Tom, you are correct, Dominion is counting only the acreage directly consumed by the right-of-way — not the easement acreage around it. Dominion was quite clear about that, and I think that’s the reason why the company went for a 16:1 ratio rather than a 1:1 ratio.

  6. LarrytheG Avatar

    Then why doesn’t Dominion say that up front and proffer a one for one for the entire parcel with an equal or better replacement?

    I agree with TomH. This is not about meeting the thresholds that Dominion believes is right. It’s about meeting thresholds that those affected think are right.

    and it doesn’t mean Dominion has to get jerked around but it does mean if the majority of satisfied – that Dominion has made a good faith effort – and again -not in Dominion’s view but in the view of others and stakeholders.

    Dominion seems to think it gets to decide what the “right” thing is here and then from there on – it’s a PR effort to be “handled”.

    Again- they do not need to roll over and do whatever any opponent wants them to do – but on the other hand – they DO need to seek an 80% approval of the the affected… rather than carry a big stick and pat themselves on the back for “trying”.

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