At a meeting in Henrico County on February 9, the Virginia Outdoors Foundation’s board of trustees voted to defer a decision on applications presented by Dominion to convert open space on 10 easements that lie in the path of the proposed Atlantic Coast Pipeline.

The board also directed staff to “provide the Federal Energy Regulatory Commission with the staff reports on the ACP applications … to ensure that FERC has the benefit of the staff’s conclusions and findings.” FERC is the agency that is ultimately responsible for approval of the pipeline and is accepting comments on its Draft Environmental Impact Statement through April 6.

More than 100 people attended the meeting representing Dominion, easement owners, environmental groups, community leaders and pipeline supporters from across the state. Nearly four dozen people spoke in opposition or support of the applications during an extended public comment period, with most speaking in opposition.

Five of the 10 landowners whose easements are the focus of the applications also provided comments, four by video. Three of the landowners spoke in support of the conversion applications and two spoke in opposition. Videos can be viewed here.

Dominion presented its applications in the afternoon, making its case for why the proposals meet the requirements for conversion under 10.1-1704 of Virginia law. (Links: Powerpoint Presentation | Accompanying Video) The company also presented detailed information about the proposed substitute land that would be required by the conversion process. VOF staff followed with detailed presentations of the potential impacts of the pipeline on the easements, as well as the conservation values of the proposed substitute land.

Copies of the applications, staff reports and other materials can be found here.

“We received a great deal of information in the days leading up to the meeting, as well as through the presentations, and we feel that we need to keep the process open to allow more time for input,” says VOF board chair Stephanie Ridder. “We acknowledge that our power may be limited due to federal oversight, but we are committed to getting the best protection for the Commonwealth’s interest in our easements as we move through this process.”

Dominion Resources today submitted revised applications for conversion of open space on 10 Virginia Outdoors Foundation easements in Highland, Bath, Augusta and Nelson counties that lie in the path of the proposed Atlantic Coast Pipeline.

The applications will be considered by the VOF board of trustees at its next meeting in Richmond on February 9, 2017. They can be downloaded here.

Dominion first submitted draft applications in May 2016 to VOF’s Energy and Infrastructure Committee. Since then, the applications have been adjusted based on route revisions, input from multiple stakeholders and agencies, VOF requests, and issues raised during the Federal Energy Regulatory Commission (FERC) review process, which determines siting and approval of the pipeline.

In its revised applications, Dominion is seeking a permanent right-of-way within which to construct the underground pipeline. VOF staff have worked with both Dominion and the affected landowners throughout the process to ensure minimal impact to the easements and maximum protection of the public’s interest in the conservation values being affected. This includes reducing the requested right-of-way from 75 feet in the draft applications to 50 feet. It also includes prohibiting above-ground structures, prohibiting future additional pipelines, and restoring the surface area with native grasses and pollinator habitat. Other restrictions in the VOF easements will also remain in effect.

In addition, VOF staff provided significant input on the substitute land included in the applications to ensure that it would provide maximum benefit to the public if the easement conversions occur.

In the fall of 2016, VOF learned that an 11th easement in Nelson County could be impacted by a proposed alternate route, and voiced its opposition to FERC. In its draft Environmental Impact Statement issued on December 30, FERC wrote that it does not recommend that route.

VOF’s trustees will, on February 9, determine whether the applications meet the requirements of § 10.1-1704 of the Code of Virginia, which says, “No open-space land, the title to or interest or right in which has been acquired under this chapter and which has been designated as open-space land under the authority of this chapter, shall be converted or diverted from open-space land use unless (i) the conversion or diversion is determined by the public body to be (a) essential to the orderly development and growth of the locality and (b) in accordance with the official comprehensive plan for the locality in effect at the time of conversion or diversion and (ii) there is substituted other real property which is (a) of at least equal fair market value, (b) of greater value as permanent open-space land than the land converted or diverted and (c) of as nearly as feasible equivalent usefulness and location for use as permanent open-space land as is the land converted or diverted.”

“While our preference is to avoid VOF easements entirely, we believe that the requirements under section 1704 of the Open Space Land Act ensure that the public’s interest in our easements remains fully protected,” says VOF Executive Director Brett Glymph. “The key question our board will consider in February is does the Atlantic Coast Pipeline satisfy the requirements of the law.”

The Virginia Outdoors Foundation yesterday responded to recent exchanges of information between the Federal Energy Regulatory Commission (FERC) and the Atlantic Coast Pipeline (ACP) related to the possible crossing of 10 VOF easements by the current proposed pipeline route.

FERC sought input from ACP about the proposed crossings in a letter to the developers on October 26. ACP responded on November 9. In its response, ACP wrote, “After a series of consultations with VOF, Atlantic filed ten applications with VOF in May 2016 for minor conversions under Va. Code §10.1-1704.…” It also stated, “Atlantic believes that it will have met all relevant state statutory criteria for VOF approval of the crossings if they are deemed to be conversions….”

In its December 5 response, VOF wrote, “It is VOF’s position that the proposed ‘conversions’ under this code section are not minor and, in fact, would represent the largest conversion of open space land in VOF’s 50-year history.”

Regarding ACP’s second statement, VOF clarified its position that any crossing of its easements would constitute a conversion of open space. “It is not a question at this time of whether the crossing will be deemed to be a conversion but rather whether Atlantic will have met the statutory requirements of Va. Code § 10.1-1704.”

The Virginia Outdoors Foundation has asked Mountain Valley Pipeline and Atlantic Coast Pipeline developers to present applications for conversion of open space land under the Open Space Land Act at its February 9, 2017 board meeting if the current alignments and project schedules remain unchanged.

Upon consideration, it was decided that the February meeting is the appropriate time to hear the applications because the Federal Energy Regulatory Commission (FERC) has already issued a Draft Environmental Impact Statement for the Mountain Valley Pipeline (MVP) and expects to issue a Draft Environmental Impact Statement for the Atlantic Coast Pipeline (ACP) as early as December.

Trustees want to ensure that VOF has an opportunity to submit formal comments to FERC before a certificate of public convenience and necessity is issued. VOF believes this timing is important to protect the public’s interest in its easements through the FERC process.

VOF has been working with the pipeline developers for more than two years to determine what impacts may occur to VOF-protected lands. The foundation has emphasized its preference to avoid all protected lands. If avoidance is not possible, VOF has informed the developers that it considers the construction, operation and maintenance of large-scale gas pipelines a violation of existing easements. This would trigger a process in Virginia law known as “conversion of open space.” This process, spelled out in the Open Space Land Act (Virginia Code 10.1-1704), outlines requirements that are designed to protect the public’s interest in open-space lands when a violation is unavoidable.

As shown in the Draft EIS, the proposed route for MVP crosses two VOF easements in Montgomery County. Company officials are hopeful that they can still avoid all VOF easements; however, VOF is exercising what it feels is a prudent approach by asking MVP to move through the conversion process as a precaution.

The proposed ACP route crosses 10 VOF easements in Bath, Highland, Augusta and Nelson counties, and a variation known as the Spruce Creek Route crosses an 11th easement in Nelson County. VOF has asked ACP to initiate the conversion process for all 11 easements. VOF recently sent updated comments to FERC summarizing the impacts of these crossings.

ACP and MVP submitted draft applications to VOF’s Energy & Infrastructure Committee in May. Since then VOF has been gathering more input on the projects, as well as input from affected landowners and other interested parties. It has also asked the companies to refine their applications based on new information in the FERC process.

VOF will post the applications on its website as soon as they become available. Anyone who wishes to comment on this process may submit written comments addressed to the board through the Warrenton office, electronically to bcabibbo@vofonline.org, or in person during the public comment portion of the February 9 meeting—the location and time of which is yet to be determined.

Note: Please read an update to this story here.

Two natural gas pipeline projects in Virginia — Atlantic Coast Pipeline (ACP) and Mountain Valley Pipeline (MVP) — are planning to present applications for conversion of protected open space on 11 Virginia Outdoors Foundation easements at VOF’s board meeting on September 29. The companies behind the projects had previously planned to present the applications for consideration at the June 30 board meeting, but they requested deferral in early June.

The applications, which were first shared with VOF’s Energy and Infrastructure Committee at a May 26 public meeting in Richmond, were submitted by the companies as part of a process related to requirements under § 10.1-1704 of the Code of Virginia. The law states that open space shall not be converted or diverted from open-space land use unless “(i) the conversion or diversion is determined by the public body to be (a) essential to the orderly development and growth of the locality and (b) in accordance with the official comprehensive plan for the locality in effect at the time of conversion or diversion and (ii) there is substituted other real property which is (a) of at least equal fair market value, (b) of greater value as permanent open-space land than the land converted or diverted and (c) of as nearly as feasible equivalent usefulness and location for use as permanent open-space land as is the land converted or diverted.”

This conversion-diversion process, as it’s known in Virginia’s land conservation community, has been utilized only 14 times in VOF’s 50-year history, usually for public infrastructure projects initiated by state agencies or county governments.

The ACP and MVP applications are unprecedented in both their number and size for a single project. In order to build the ACP pipeline, representatives from Dominion, one of the project partners, says it must permanently convert 68 acres of protected open space spread across 10 easements. Representatives for the MVP pipeline have said their project may convert 2.1 acres for pipeline construction on a 62-acre VOF easement in Montgomery County, although at the May 26 meeting they informed VOF that they are still looking for ways to avoid VOF easements entirely.

VOF first learned about the projects in 2014. At that time, ACP had proposed a route that circumvented all but one VOF easement. In February 2016, however, in response to concerns from the U.S. Forest Service and environmentalists about routing the pipeline through sensitive habitat in the George Washington National Forest, the proposed ACP route was adjusted and would now intersect nine additional VOF easements. However, final approval for both projects, including route siting, will be determined by the Federal Energy Regulatory Commission (FERC).

Typically, VOF easements place restrictions on the construction or expansion of utilities on properties. Utilities that serve the property are generally permitted without approval, whereas utilities that serve other properties must get approval from VOF before being constructed. Approval is granted only when VOF determines that the construction and maintenance of the utilities will cause no more than minimal impairment to the conservation values.

Because of the scope and scale of these projects, VOF determined early on that the pipelines would be inconsistent with its easements and would trigger the conversion-diversion process. VOF informed both companies of the process, and they decided to submit the applications now rather than waiting for FERC to finish the federal process.

ACP is seeking to convert 68 acres of open space in four counties, and is offering approximately 1,200 acres of open space between two properties as substitute land to satisfy the requirements under § 10.1-1704. MVP has not yet decided what it would offer as substitute land to meet the legal requirements.

The applications can be found among the background materials for the May 26 Energy and Infrastructure Committee meeting.

The primary considerations for VOF’s board will be whether the requests meet the essentiality and substitute land requirements under § 10.1-1704, and whether federal laws have any bearing on those requirements. VOF board meetings are open to the public, and anyone is welcome to either speak in person during the public comment period or submit their comments in writing at any point during the process. Written comments may be submitted to bcabibbo@vofonline.org and addressed to the VOF Board of Trustees.

“Conversion-diversion of open space is a process that we take very seriously,” says Executive Director Brett Christina Glymph. “Each easement protects conservation values that represent a fulfillment of public policy and an investment of public dollars. We are doing everything we can to protect the public’s interest in these agreements within the scope of our authority. Although our legal interests are separate from the landowner’s legal interests in an easement contract, we are mindful that landowners give up a tremendous amount of financial value in their land when they restrict development rights through easements, and we must ensure that the conservation values embodied by those restrictions remain protected through the conversion-diversion process.”

Glymph adds, “Throughout this process, VOF has done its very best to maintain transparency, accountability and open lines of communications with everyone involved. We are confident in the integrity of our board and staff to adhere to the process and the law and make certain that the Commonwealth’s interests are not compromised.”