Bacon's Rebellion

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 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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