Virginia Outdoors Foundation Approves Easement Swaps

Meeting in Richmond on October 16, 2017, the Virginia Outdoors Foundation (VOF) voted to approve Dominion’s application for 11 land conversions of open-space easements on the route of the proposed Atlantic Coast Pipeline through southern Highland, northern Bath, Augusta and Nelson counties, and approved a single swap for the proposed Mountain Valley Pipeline near Roanoke.

The VOF Web page discusses the vote:

“In the resolutions approving the applications, the trustees said that, while the developers failed to demonstrate the projects are “essential to the orderly development and growth of the locality” under section 1704 of the Virginia Open-space Land Act, this requirement is superseded and preempted by the federal Natural Gas Act that authorizes FERC’s certificate process. The Natural Gas Act does not, however, strip VOF’s authority to review the projects and require substitute land of greater conservation value under Virginia law.

“The two resolutions, which were adopted 5-0 and 7-0 (two trustees abstained during the ACP vote for personal reasons), included several conditions. Among them are restrictions on the footprint of the pipelines and access roads, the conveyance to VOF of more than 1,100 acres of substitute land in Highland, Nelson, and Roanoke counties, and the transfer of $4.075 million in stewardship funding for the properties’ long-term care and maintenance.

“The staff reports describing the substitute lands can be found here: Hayfields report (ACP); Rockfish River report (ACP); Poor Mountain report (MVP).

“As a result of these approvals, the VOF easements will remain in place on the properties with overlaying permanent rights-of-way for the pipeline developers.

“‘After three years of exhaustive review, several public meetings, and hundreds of comments from the public, our board felt that utilizing the long-established conversion process in state law was preferable to forcing the developers to condemn our easements through eminent domain,’ says VOF Executive Director Brett Glymph. ‘Their decision was a difficult one, but they firmly believe this outcome is in the best interests of both the public and the long-term sustainability of Virginia’s open-space conservation program.'”

According to coverage in The Recorder, “During the two-hour closed session preceding the approval, the board grappled with the question of whether VOF can defend the easements through a federal process and whether the land swap proposal was subject to the state law allowing for easement swaps. In the end, the board found the proposal did not qualify under the section 1704 law permitting the swap but nonetheless ruled FERC’s certificate preempts ‘any authority of VOF to evaluate the project,’ the substitute land at Hayfields Farm in Highland is of greater value and the swaps will result in a net gain of open space.”

The speakers opposing the swaps said they would show a lack of stewardship, would redefine “in perpetuity,” and that VOF’s approval would negatively affect future conservation easements.

It remains to be seen how many future landowners will be unwilling to put their property in conservation easements because they no longer trust VOF to keep its promises.