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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