Putting Easements to the Test

As gas and electric companies propose dozens of pipeline and transmission-line projects in Virginia, landowners are finding their conservation easements don’t provide as much protection as they thought.

Elizabeth Terry Reynolds (left) and her sister Grace Terry show a map of family land in Roanoke County. The current iteration of the proposed Mountain Valley Pipeline route would cut through family land, and a construction access road would run through land held in a conservation easement (seen in blue).

Elizabeth Terry Reynolds (left) and Grace Terry show a map of family land in Roanoke County. The current iteration of the route for the proposed Mountain Valley Pipeline would run through family property, and a construction access road would cut through land held in a conservation easement (seen in blue). The sisters traveled to Warrenton yesterday to speak before a subcommittee of the Virginia Outdoor Foundation.

by James A. Bacon

As a surge of proposals for gas pipelines and electric transmission lines in Virginia works through the regulatory process, a backlash by grantors of conservation easements is brewing. In letters and in public hearings, landowners are openly questioning whether conservation easements provide the protections they were thought to provide, and some are pressuring the Virginia Outdoors Foundation (VOF), which holds most of the easements, to work more aggressively to safeguard them, even to the extent of getting more actively involved in cases before the State Corporation Commission (SCC).

“The process we’ve used for the past 100 years in Virginia is no longer working,” said Chris Miller, president of the Piedmont Environmental Council (PEC), at a VOF committee hearing yesterday in Warrenton. The PEC’s membership includes dozens if not hundreds of conservation easement grantors.

In Virginia, the SCC approves electric transmission line routes, Miller said. The SCC uses an “adversarial” process, in which power companies, environmental groups and other interests present their evidence and their arguments. Rather than conducting its own investigations, the SCC relies upon the material that is submitted. Typically, VOF has not taken sides in these hearings. Given the increasing collision of interests, Miller said, “There is distrust now in the landowner community whether the VOF has the capacity to protect their values.”

The VOF, a publicly funded entity, promotes the preservation of open-space lands and administers roughly 4,000 easements covering more than 750,000 acres of land, an area about the size of the state of Rhode Island. The foundation recently created an Energy and Infrastructure Committee to address the incursion of big infrastructure projects on land protected by easements.

Brett Glymph, VOF executive director, said she will take Miller’s proposal under advisement, consult with legal counsel, and make a recommendation to the full board of directors. Unless a special meeting is called, the earliest the board could take up the issue would be in March, she said.

Conflicts between utilities and landowners have sharpened as the number of easements and energy projects have increased in recent years. Successive Virginia governors have made it a priority to bolster the amount of scenic, historic and environmentally valuable land either owned by the public or protected by conservation easements. As an incentive, state law allows landowners to claim up to $75 million in state tax credits each year for land grants and easements. The result has been a dramatic increase in the acreage of protected land in Virginia over the past decade.

At the same time, a transformation of the energy economy has put Virginia in the path of major energy projects. The development of the Marcellus shale fields in West Virginia and Ohio has created a boom in natural gas production. There are four active proposals to build or upgrade gas pipelines through the state to serve growing markets in Virginia and North Carolina. Meanwhile, electric utilities, compelled by Environmental Protection Agency rules to reduce pollution and carbon-dioxide emissions, are closing coal-fired power plants, building gas-fired plants and swapping more electricity between each other, all of which requires the rerouting of electricity flows and the construction of new transmission lines.

Four energy companies — Dominion Virginia Power, Appalachian Power, the Atlantic Coast Pipeline, and the Mountain Valley Pipeline — briefed the VOF committee about their individual projects. None of their representatives addressed Miller’s comments, but they did describe the challenges of devising routes for pipelines and transmission lines while also trying to protect wildlife habitat, rivers and streams, historic areas, cultural artifacts, view sheds and conservation easements. Routing pipelines, said Brian Wilson with the Atlantic Coast Pipeline, is “very much an exercise in competing constraints.”

SCC spokesman Ken Schrad responded in an interview today that “any interested party” can participate in an SCC transmission-line proceeding. The commission is required by law to weigh the environmental impact of a project along with its effect on rate payers and electric-system reliability. Staff members do some research, but because staffers are not environmental experts, the commission also hires consultants. Further, Schrad said, the SCC works with the state Department of Environmental Quality (DEQ) to solicit input from a myriad of state agencies, including the VOF, about environmental impacts.

“The commission certainly gets environmental testimony,” Schrad said. “A conservation easement would have to be taken into consideration in an environmental review.”

An Elaborate Process for Protecting Easements

The root of VOF policies and procedures go back 20 years, largely molded by the Foundation’s interaction with the Virginia Department of Transportation (VDOT), said Leslie Grayson, deputy director of policy, at the hearing. When accepting an easement, the VOF had to consider whether it would conflict with a planned public works project — typically a road or highway project. The VOF does not accept easements that might be used solely for the purpose of blocking a project.

“Every single road project in Virginia” comes through VOF as part of the transportation planning process, Grayson said. The process that evolved from the interaction with VDOT provides the template for dealing with the utilities. If a road, pipeline or transmission line threatens a conservation easement, VOF’s first strategy is to work to fine a way to route around it, Grayson said. If that proves impossible, VOF attempts to reduce or mitigate the impact on the easement holder’s property.

VOF is not accustomed to energy mega-projects, she said. “We’re not pros at this.”

In presentations to VOF and in interviews with Bacon’s Rebellion, utility executives detailed the lengths they go to in order to avoid conservation easements. Dominion’s mapping group starts by drawing a line between critical junctures and then following the path of least resistance between two points. In the “desktop” phase, mappers consult publicly available databases supplying topography, rivers, streams and other terrain features; roads and highways; environmentally sensitive lands; Civil War battlefields and other historical heritage sites; view sheds, other rights of way, and conservation easements. The goal is to disrupt the fewest such sites possible.

Then the project moves to the “land” phase, in which individual property owners along the route are contacted. Dominion, which is the managing partner for the Atlantic Coast Pipeline (ACP), requests permission for surveying teams to enter their property and take a detailed assessment. Surveyors look for rare plants and animals, streams and wetlands, and cultural resources such as family cemeteries or archaeological sites that can’t be found on maps. If such features are identified, the mappers try to find a route around them. Most landowners — about 88% — cooperate, said Robert M. Bisha, director of environmental business support for Dominion. If cooperation is not forthcoming, the utility takes the landowner to court for the right to enter their land.

During its mapping process, ACP has made some major route changes, said James Norvelle, director-media relations for Dominion. A week ago, the company announced route changes to avoid impacting habitat for two different species of mountain salamander, a wetlands mitigation project in Buckingham County and the Great Dismal Swamp National Wildlife Refuge.

Making matters exceptionally difficult for pipeline companies in mountainous terrain is the need to follow ridge lines whenever possible. Digging pipe trenches on the mountainside creates major erosion issues, and, as a practical matter, it is difficult to run pipelines up mountainsides and down into valleys. These cost issues often limit the available options.

As Wilson with the Atlantic Coast Pipeline told the VOF committee: “We like to avoid easements when we can.”

But sometimes that’s just not practical.

Landowners Fight Back

The gas pipeline projects have stirred up a hornet’s nest of opposition along their routes, especially in mountain terrain where route alternatives are limited. Grace Terry and her sister Elizabeth Terry Reynolds belong to the sixth generation of a family that has owned a large tract of land in Roanoke County since the 1800s. The land has been subdivided among family members but the family still thinks of it as a cohesive whole.

Although Terry grew up in the city of Roanoke, she and her siblings visited the family farm every weekend. Their father gave them lots of work to do — raking leaves, repairing fences, and cleaning up the cemetery. She remembers fun moments, too, like playing in the creek and driving a stick shift. She also appreciates the efforts her father made to “hold it all together.”

Terry inherited a 500-acres parcel of land, for which, at considerable expense, which she obtained a conservation easement. The property partially lies upon Poor Mountain, which, though not the highest peak in Virginia, is notable for having the greatest change in elevation from top to bottom. The easement protects drainage into Big Laurel Creek and other pristine headwater streams.

Terry told the VOF she is distressed that the Mountain Valley Pipeline (MVP) would run through family property as close as 200 yards to the houses where her two brothers live. While that land is not under easement, MVP also proposes running a construction access road through her property, which is. If the pipeline company can do that, she asked the committee, what’s the purpose of having a conservation easement? “If a pipeline company can do what it wants,” she said, “people would think twice about donating conservation easements.”

Others are asking the same question. The greatest animosity comes from landowners and easement owners impacted by a recent upgrade to the Dooms-Lexington transmission line in the Shenandoah Valley.

Dominion originally put the 500 kV line into service in 1966. After forty years in operation, the structures were approaching the end of their service life, and Dominion needed to upgrade in order to meet reliability standards set by the North American Electric Reliability Council. In 2013, the SCC granted approval to replace the — all in existing right of way — with a 230 kV line.

The result was an aesthetic disaster, according to landowners. While the old rust-colored towers blended into the landscape, the new galvanized towers were an eyesore. Gregg Amonette, who donated a 181-acre easement in Rockbridge County and serves as co-president of the Rockbridge Area Conservation Council, called upon VOF to join the conservationists’ case in an SCC hearing. His goal: “Train Dominion to build infrastructure that’s as good as it can be.”

Chris Bowman, another Shenandoah Valley landowner, joined Amonette in calling for the VOF to get more involved. Recognizing that joining SCC hearings as a participating party would require added resources, Bowman urged VOF to solicit the legislature for funds to pay for a couple of new staff positions. If that doesn’t work, he said, “a lot of [easement] grantors will he happy to step forward and help pay for it.”

The Coming Battle

A similar battle likely will be fought over the Remington-Gordonsville Transmission Line proposed by Dominion, which entails rebuilding the single- circuit 115kV structures within the right of way corridor as a double circuit 230kV/115kV transmission line. The original line was built in the 1920s. Construction standards have changed considerably since then, however, and Dominion needs to widen the right of way from 70 feet to 100 fee, said Greg Baka, a Dominion spokesman at the hearing.

Finding a solution acceptable to the rural community for the scenic corridor paralleling Rt. 15 in the northern Piedmont will involve making trade-offs between safety, reliability and visibility. Dominion could limit itself to the same number of towers, but the towers would have to be taller. Taller towers require wider rights of way because long power cables have greater sway in high winds. Other issues revolve around the color of the towers. An industrial process gives the steel a “rusted” look that blends better into the background but galvanized steel is less expensive.

The Remington-Gordonsville line would be located on the Piedmont Environmental Council’s home turf, and Miller indicated he’s not happy with the proposal. Dominion, he asserts, wants to build the line in order to sell more of its cheap electricity to wholesale energy markets to the north at higher prices. Dominion and northern electricity consumers would get the benefit; Virginian landowners would suffer a loss of property values from the harm to their view shed.

For their part, Dominion officials said they are eager to work with the community in order to minimize the impact. Said Baka: “We want to start the conversation.”

What’s Next?

Glymph, the VOF executive director, said she had two provisional recommendations to take to the full board: (1) streamline the haphazard notification for engaging stakeholders as early as possible in the process, and (2) improve outreach and education on the issues. There is no money in the budget this year to participate more actively in SCC hearings, she said. But she did not rule out asking for funding in the future.

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14 responses to “Putting Easements to the Test

  1. I have proposed an alternative to FERC that provides 100 % more gas than the Atlantic Coast Pipeline, is cheaper and requires no new pipeline in Virginia and just three miles of new construction in West Virginia. Doesn’t solve the transmission issue though. Here’s are summary of the issues:

    Studies funded by Dominion show that traditional uses of natural gas in Virginia will grow just 0.1% each year between 2014 and 2035, thus the need for new gas supply to Virginia is entirely for new gas-fired power plants.

    All three of Dominion’s gas-fired power plants going into service from 2014-2019 have firm long-term contracts with existing pipelines.

    The first new gas-fired plant requiring additional gas supply to Virginia is proposed for 2022; the second in 2030.

    Advances in energy efficiency and the rapidly declining cost of renewable generation might postpone or erase the need for one or both of these plants.

    The Atlantic Coast Pipeline, the Mountain Valley Pipeline, and the Appalachian Connector are similar proposals to provide additional supplies of natural gas to Virginia and North Carolina. Since they address the same need, not all are required.

    The Atlantic Sunrise project will connect to the highest gas production area in the Marcellus (northeastern Pennsylvania) and travel 177 miles to southeastern Pennsylvania and connect to the Transco Pipeline serving a corridor from New York to the Gulf Coast, including Virginia and North Carolina.

    WB XPress involves a new compressor station and just 3 miles of new pipeline construction to add 1.3 Bcf/d of new capacity to the Columbia Gas pipeline system serving West Virginia and Virginia.

    The Atlantic Sunrise/WB XPress option provides 50%-100% more capacity than the other alternatives at a lower cost with considerably less disruption of new right-of-way.

    Pipeline development in North Carolina could be exactly as proposed with the Atlantic pipeline – or something better.

    The Sunrise/XPress option provides 3.0 billion cubic feet of additional capacity added to the Transco and Columbia Gas pipelines (the pipelines that serve a majority of Virginia). This gives flexibility for development throughout Virginia rather than just from a single source (as with the Atlantic pipeline).

    No new gas transmission pipeline is required in Virginia to serve the needs of the state. Just three miles of new pipeline construction would be required in West Virginia.

    Those in need of additional gas supply can make commitments for the Atlantic Sunrise/WB XPress supply rather than from the more expensive and far more disruptive Atlantic Coast Pipeline. If they truly need it, they can get it.

    FERC should accept the Atlantic Sunrise/WB XPress option as the one best suited to meet the needs for new gas supply in Virginia and North Carolina. The Atlantic Coast Pipeline, Mountain Valley Pipeline, and the Appalachian Connector proposals should be denied. Duke Energy and Piedmont Natural Gas should file a new application for the development of appropriate pipelines to serve North Carolina.

  2. interesting. it appears that Conservation easements in Va are not really permanent… if the govt needs/wants the land.

    Federal Highway in a NEPA action would give significant deference to any land that has a formal preservation designation… and would require the least practical damaging alternative.

    that has had the consequence of changing highway routes or even derailing a project like US 460.

    apparently that is not the process with pipelines – even if 3 or 4 more than are really needed – are proposed.

    I don’t truly know if the gas is needed in the future. TomH argument, one would think, at the least ought to be considered by any agency State or Federal – faced with a choice between taking land from property owners and the need to do so.

    Imagine if VDOT just drew lines on a map – and each line meant the use of Eminent Domain… with little or no justification of actual need.

  3. It is interesting that in the case of the Atlantic Coast Pipeline that Dominion Resources and Dominion Transmission, the owner and developer of the pipeline, are neither government agencies nor utilities – they are simply for-profit companies.

    Issuing a Certificate of Public Convenience and Necessity confers upon the applicant the right to develop their project on the property of an unwilling landowner. Larry has made the point in another discussion that if they could find willing landowners to grant them easements, they should be able to develop a right-of-way for their project. That goes back to the willing buyer and willing seller concept of our markets.

    Virginia’s eminent domain law was recently buttressed to establish a higher threshold for projects that were proposed merely for the economic gain of the developer, which seems to be the case with the Atlantic pipeline. However, FERC’s requirements for granting federal rights for eminent domain are much more lax. Whether this has to do with FERC’s conflicting charge to develop natural gas infrastructure as well as regulate it is anyone’s guess.

    I have run companies of my own and several for others, so I understand Dominion’s desire for economic gain. But I have also led a department whose job it was to gain approval for multi-billion dollar utility projects at the state and federal level. We felt the best way to do this was by engaging the public, understanding their concerns and working collaboratively with them and the regulators to resolve the issues and build a compelling case for why the project served the greatest public good.

    For the Atlantic pipeline, Dominion has recently asked FERC to forego their normal procedures and fast track the approval of their application, essentially ignoring the concerns raised by a multitude of landowner’s, historic preservationists, forest service experts, geologists, town councils concerned about their water supplies, etc.

    With so many important issues at stake: conservation easements, environmental impacts, the rights of private landowners, higher costs to ratepayers, the true need for the project, the selection of the best alternative, etc. It is necessary to shine a greater light on the process to discover the highest public good, not less. How our energy system evolves and affects our land and economy involves all of us and a small group should not declare how it should be done just to serve their private advantage.

    • “With so many important issues at stake: conservation easements, environmental impacts, the rights of private landowners, higher costs to ratepayers, the true need for the project, the selection of the best alternative, etc. It is necessary to shine a greater light on the process to discover the highest public good, not less.”

      So true.

      Perhaps some of the bloggers on this site can use FOIA requests for documents from the SCC to see what’s really happening.

      Oh … yeah … Virginia’s SCC is exempt from compliance with FOIA requests.

      http://www.richmond.com/news/virginia/government-politics/article_cf0e2028-2ddd-5518-ad10-8b679f9dd860.html

      “The SCC is the most powerful branch of state government that nobody’s ever heard of,” Surovell said. “If there ever was an entity that FOIA ought to apply to, it’s the SCC.”

      Right you are State Senator-elect Surovell. Right you are.

      • Virginia’s FOIA law is a joke, riddled with so many special exclusions. The contract for constructing Dulles Rail Phase I was exempt from disclosure, while a school division’s lease of its radio spectrum license was not.

      • DonR, the SCC is not involved in any way whatsoever with the interstate gas pipelines that TomH is discussing; jurisdiction over these projects rests entirely with the FERC.

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  5. FOIA or not – what is funny is the folks here who more often than not hammer the govt both State and Federal for imposing regulations and cost on citizens but seem to have no such qualms with the govt forcing property owners to give up easements to for-profit ventures.

    suddenly the “free-market’ and “libertarian type principles” go out the door…

    it’s not so much that the deliberations of the SCC might not be FOIAable – it’s the mere fact that they don’t stand up for the rights of the property owners and instead defer to FERC while raising all sorts of hell with the EPA.

    Apparently it’s okay if private owners of property are forced to turn over land to for-profit companies ….

    and not a peep from the folks here who normally point out the sins of Govt.

  6. as I recall – both… Jim – can you imagine “liberals” supporting big business screwing over property owners and more or less than GOP folks wanting “business friendly” policies like using govt to get what they want?

    but this is not really about liberal or conservative as much as it is what you think the proper role of govt is when it comes to private sector for-profit ventures…

    you rail about the govt and crony capitalism … what is more that way that using govt to take land from others for a private venture?

    not a peep from you on that issue.. in fact …support…. like the opposite of what Conservatives actually say they support… less govt – more private sector – free market.. til it comes to this.. then crickets…

  7. At the risk of “opening a can of worms,” I wish that conservation easements were focused in areas most susceptible to development, in high growth areas. It is true that easements have been used to marvelous effect in places like Fauquier and Albemarle Counties, but why so few in Fairfax, Prince William, Henrico, and Chesterfield Counties, where they are most needed? There should be a process for rating properties that includes their susceptibility to development, and score higher truly threatened properties. $75 million in tax credits is a lot of money to lay out each year, why not make sure that we’re getting “the most bang for our buck”, instead of just sheltering taxes for properties in remote areas where growth might actually help some?

  8. Many, but not all, Conservation easements in the U.S. are viewable at this site. As a for instance of what is not included: Howard County, Maryland’s county-held agricultural easements. Notice the huge number in Fauquier and (western) Loudoun Counties. http://www.conservationregistry.org/browse/map

  9. I actually oppose Conservation Easements as a tool to affect development.

    I think their most appropriate use – is to preserve something that has significance – natural, cultural, historical ….

    Arbitrary and unplanned setting aside of land actually can be counter-productive to good planning for infrastructure..needed…

    and there are abuses – land set aside that the public cannot use – it’s purely a way for some folks to reduce their taxes and the land is closed to the public …. vice providing benefit to the public.

    I think any land granted Conservation status should have to justify the reasons why it should be set aside – i.e. show how it provides benefits to the public.

  10. Dear LarrytheG, I don’t mean in “high growth areas” to go against a comprehensive plan, i.e. put under easement a parcel zoned for townhouses, to forestall development, but rather, a 100-acre property zoned for say, 1 house per five acres, to keep a farm intact, in a COUNTY that is experiencing rapid growth. I don’t favor “total build-out” of counties, except their public parks. As an example outside of Virginia of this targeted use of easements to preserve farms in a partially suburban county, I would cite Bucks County, Pennsylvania that is next to Philadelphia: http://www.buckscounty.org/government/CommunityServices/PlanningCommission/OS/AgriculturalPreservation In Virginia, it seems to me, we are either for “total preservation” (Fauquier) or “total development” (Fairfax) rather than some of both. I think we would have fewer “Armageddon” battles over growth if both sides admitted the other’s view. Bucks does that it seems to me. Mannicheism is a heresy in religion and destructive in land-use and public policy.

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