‘I just didn’t want it there’

© 2018-The Record Delta

Landowners discuss pipeline leasing process

BUCKHANNON — The day seemed just like any other when Rick White went out to bow hunt two falls ago on his property on the Light Chapel Road.

White and his wife, Anita, own six acres that they one day hope to build a house on.

But on that day, something out of the ordinary caught his eye, something he hadn’t seen before and didn’t put there himself – survey ribbons.

Having worked in the oil and natural gas industry for almost 35 years, White figured it was likely that a natural gas company had begun the surveying process for laying an underground pipeline, and that the pipeline was going through his property. He later learned that pipeline, the Atlantic Coast Pipeline, would cross about 300-600 feet of his land. But neither the company, which he later learned was Dominion Energy/ACP, nor its subcontractor land agency had contacted White before coming on his property, and they didn’t have permission to do so.

“Well, I took their ribbons down and put them in a pile and contacted them and told them that they didn’t have permission to be on my property and if they needed to enter it, in the future, they were to contact me,” White told The Record Delta during an interview in January.

A year went by before White heard from the land agency again. They were apologetic about coming on White’s property without permission, and informed him they were prepared to make him an offer that would allow Dominion Energy/ACP to lease his land.

This put White in a precarious position. He’s employed by a natural gas company headquartered in Charleston, so he’s sympathetic to the industry and its development of West Virginia’s natural gas resources. But now, things looked a little different. This time, it was his property.

“I just didn’t want it there,” White said. “People have said to me, ‘It’s kind of being hypocritical because you do make your living in the oil and gas industry and you have for quite awhile,’ and it was kind of like, ‘Well, yes, but you know, I didn’t buy that property so a private company could install a 42-inch line on it.’”

White, of course, is talking about the 42-inch wide Atlantic Coast Pipeline, which will span 600 miles and run through three states, originating in Harrison County and running southeast through Virginia before continuing south into eastern North Carolina, where it will terminate in Robeson County.

Although ACP is a joint venture involving three energy giants — Dominion Energy, Duke Energy, Piedmont Natural Gas and Southern Company Gas — Dominion is the primary owner and operator of the ACP.

As Dominion Energy and ACP clears hurdle after hurdle necessary to begin construction of the pipeline in early spring, The Record Delta talked with individuals who own property the pipeline will cross about their experiences working with ACP/Dominion and its subcontractors. While two of these property owners have signed easement agreements with ACP, one is a holdout. Easement agreements between the energy company and the property owner allow the company to build and operate the pipeline on the landowner’s property and stipulate what the compensation to the landowner will be.

The Whites ultimately agreed to sign an easement agreement because they believe the project will benefit north central West Virginia.

“We decided, ‘We’ll do it.’ We don’t want to do it, but we’ll do it, simply because I think it will be good for the area,” White said. “I’m a free market capitalist, and while I lean a little bit more toward landowner rights, I think if you want to be able to sell something, you should be able to sell it, and if you don’t want to sell something you shouldn’t have to sell it.”

“It’s going to happen now”

Roy and Patty Wager had turned down natural gas companies before. When they’d been approached by a company that wanted to lease their property so a pipeline, significantly smaller than ACP, could run through it, they said no, the Upshur County Schools superintendent said in a recent interview.

“I’m not crazy about this going through,” Roy Wager said. “We actually said no to a smaller pipeline that was going to go through the front of our house, but this project is much bigger.”

The Wagers own 5 acres off the Buckhannon Mountain Road, and they only recently — Dec. 23, 2017 — agreed to sign an easement agreement with ACP. They’d been hesitant.

“We’ve been holding out,” Wager said. “Patty had a lot of questions and worries, and the first guy we dealt with was not very helpful … but the agent we’ve been dealing with is Doyle Land Services (a subcontractor for ACP). The new person has been a lot better to work with and has been very aware of our concerns.

“We sent the contract back twice with changes,” he added. “It’s going to happen now.”

Ultimately, the Wagers were able to get ACP to agree to limit the size of trucks it will drive up an access road near their house.

“We’re not going to have tractor trailers of pipeline coming up our driveway,” Wager said, “so the contract limits the size of trucks to two-and-a-half-ton trucks. We don’t want anything bigger than that.”

The Wagers had also been worried about how travel on that road would affect their water well, which is located about three feet from the road.

“We were concerned that they could damage the well or it would collapse,” Wager said, “so they agreed to repair the well or supply us with an alternative water source.”

Finally, they were concerned about the effect cutting down trees would have on the soil.

“We own 5 acres, and it’s in the woods, so we were concerned about what happens if you remove a lot of trees and it starts erosion,” Wager said. “We got them to agree that they would remedy that if it becomes a problem.”

Patty Wager said the process with Doyle Land Services had been smooth.

“They’ve been very professional to work with,” she said.

“Not interested”

From the beginning, there was no changing Mike Choban’s mind.

Choban and his wife, Kathy Glenney, own a 62-acre farm in Hinkleville with several pastures, a meadow, an old barn and couple outbuildings.

Like White, he first found out about the pipeline when he spotted survey flags.

“One day, I was driving along the road, and I see these flags going through a pasture into my woods, and I had heard some talk about there was a pipeline coming, and I thought, ‘Well, that’s my property and I don’t want them on my property,’” Choban recalled during an interview in early January. “They had not asked permission to come on my property.

“I just sat back and waited,” he continued. “What I did do, was it was raining, so I got my raincoat on and pulled all the flags out and chucked them in the trash can. From the beginning, I said ‘not interested.’ I did not respond to any of the requests that they made, but I’m not naïve.”

Some time later, Choban saw several sets of tracks in the snow, and it was apparent to him that the owners of those tracks had hopped his fence where the gate was locked. He found flags tied on branches of bushes and trees that — as he would later learn — marked out a pipeline access road.

“At that point, I did the same thing,” Choban recalled. “I took the flags out and threw them away, but I did make a call that time, and I said, ‘What’s going on? I gave no permission.’ I’m not sure who I was talking to.”

Choban contacted a lawyer and had the lawyer send a letter, but several weeks later, when he peered out his window, he saw a crew of people setting up equipment to survey.

“I look out the window, and there’s a crew – maybe two or three guys — and they’re setting up tripods,” he said. “They’re surveying right by my pond across from the house. I walked over, and I said, ‘What are you guys doing here? Who are you?’”

The crew told Choban they were with Dominion and they were doing some surveying.

When Choban told them they didn’t have permission to be on his land, they said they didn’t know and immediately left.

Eventually, Choban was contacted by someone who was actually negotiating easement agreement contracts. Choban agreed to meet with him, but when the person presented an amount ACP was willing to compensate Choban for leasing the land, Choban wasn’t wavering.

“He started throwing out some numbers, and I said, ‘I’ll tell you what, if you doubled those numbers, I’m still not interested,’” he said. The person left two proposed contracts for Choban to look over, one that would allow ACP to build and maintain the gas pipeline and another that would permit the use of Choban’s property for an access road.

The agent called back to ask Choban if he’d had time to look over the paperwork.

“I said, ‘Your contract’s no good,’ and he said, ‘Make a list [of what you want] and mark it up,’” Choban said, “and so that’s what I did. I went through, and I said, ‘This is no good, no good, unacceptable, this is fine, I want this and this and this and this’ and I sent that back.”

It’s been months, and although the same subcontractor has checked in with Choban multiple times, Choban says he hasn’t received a clear answer about whether ACP will make all the modifications he’s requested. As of Feb. 1, the agent he’s been negotiating with told him he thought ACP was willing to compromise on the access road.

“It’s all very iffy,” Choban said. “They seemed as much in the dark as I am.”

Choban still hasn’t signed anything, and he won’t unless the easement agreement specifically states that there will never be an access road built on his property.

Eminent domain, the environment and public safety

If Choban doesn’t eventually sign an easement agreement, Dominion/ACP could eventually try to secure the use of his land through eminent domain.

But that’s an absolute last resort, Dominion spokesman Aaron Ruby told The Record Delta. Noting that ACP had secured mutual agreements with over 80 percent of affected landowners in West Virginia, Virginia and North Carolina, Ruby says the company has been very accommodating to property owners and sensitive to environmental resources.

“We’ve made hundreds of adjustments on the route,” Ruby said. “We’ve been working cooperatively with the land owners. We want to find the best route that has the least possible impact not only on environmental resources, but on their lands.” 

ACP’s website and press releases emphasize that three years’ worth of comprehensive study have been conducted, and that ACP staff has made more than 300 route changes to “avoid environmentally sensitive areas and address individual landowner concerns.”

“At every stage of the project, we’ve gone above and beyond regulatory requirements and adopted some of the most protective measures every used by the industry,” one ACP press release states.

Most recently, environmental safeguarding agencies in two of the three affected states — West Virginia and North Carolina — granted permits to ACP. On Friday, Jan. 26, the North Carolina Department of Environmental Quality approved a state water quality certification permit, while the W.Va. DEP on the same day announced it had approved the state’s erosion and sediment permit, technically known as the stormwater associated with oil and gas-related construction general permit.

In addition, many people are confused about what eminent domain actually means, Ruby said. What cleared the way for eminent domain proceedings — the right of a government or one of its agencies to take private land for public use — was the Federal Energy Regulatory Commission’s Oct. 13, 2017 issuance of a Certificate of Public Convenience and Necessity. That certificate allows ACP/Dominion to file eminent domain claims in federal district court.

“With that, the federal government determined that there was a vital public need for this pipeline to provide electricity and home heating in Virginia and North Carolina and to power local industries,” Ruby said.

But ACP/Dominion doesn’t want to have to exercise eminent domain, he said.

“Obviously, that’s not our preference,” Ruby said. “We take that route only after exhausting every other option.”

Ruby said ACP makes “final good faith” attempts to negotiate contracts with holdout owners, offering compensation well above the property’s appraised value.

“Unfortunately, we couldn’t reach an agreement [with all the landowners],” Ruby said. In December, ACP began filing eminent domain proceedings in federal district court, Ruby said.

Ruby also disputed the notion that ACP is ‘taking’ private land through eminent domain, explaining that the pipeline does not actually claim ownership of the land.

“We have an easement agreement with the landowner, but the landowner always retains ownership of the land,” Ruby said. “In general, once construction is complete, the landowner is able to go back to using their property as they always have for a variety of purposes.”

Although each piece of property is different, the two general exceptions to that, Ruby said, are that land owners can’t plant trees or construct buildings on the 50-foot right-of-way ACP needs to operate and maintain the pipeline.

“The only part of their property that we have access to is that 50-foot right-of-way and the access roads,” Ruby said. “They can grow crops, pasture livestock, have fencing, basically every other most typical use of the land. After construction, we restore the land back to its original condition.”

“When to say when”

Because of the possibility of eminent domain filings, Wager and White were careful not to push too far.

“They can fight you with eminent domain,” Roy Wager said.

White, the natural gas industry worker, also decided to settle with ACP voluntarily.

“When push comes to shove, within reason, they will deal with you,” he said, “but they have the full weight of the government standing behind them and there’s going to be a time when they’re going to utilize that, so you have to know when to say when.

“I guarantee you, if I had fought those people, I would have ended up with the original settlement and they would have still went through,” he said. “I think there has to be a balance. I still am a free market capitalist, and I think if you’re adamantly opposed to that pipeline, then you should be able to stop them, you should be able to say no.”

It’s not the environment or public safety White is concerned about. As an industry insider, he believes ACP will adhere to industry standards.

“I know they can walk and chew gum at the same time,” he said. “They can put this pipeline in there and it’ll be absolutely safe, absolutely environmentally sound. I have no issues with that at all. That line will be bullet-proof.”

White also thinks the pipeline could be an economic boon for the area, which he describes as depressed.

“Whether we like it or not, we’re on a sea of oil and gas anyway, and I think it would spur our economic development here,” White said. “I have a son that graduated from college and now he’s in Maryland because there are no — well, there are a few decent-paying jobs here, but not a lot. Who knows, maybe with that line being through here, somebody’s kids can stay.”

White’s reluctance to sign the agreement, he said, stemmed from the fact that he hadn’t purchased the land so a for-profit company could run a pipeline through it.

Ruby, the Dominion spokesman, says the ACP project is enabling property owners to make a very valuable contribution to the United States’ infrastructure. But White isn’t convinced a natural gas pipeline is the same as a road.

“You either own land, and it’s yours, or you don’t,” he said. “And it’s a fine line in this country. That is a for-profit corporation. It’s not like it’s a school or a road or a water line or whatever. They’re going to make a profit and fully expect to share profits with their shareholders.”

Short-term and long-term economic development

Like White, Choban believes in individual property rights, but he’s also concerned about public health and the Mountain State’s environment and future. He thinks the pipeline is a quick fix rather than a long-term solution to West Virginia’s lagging economy.

“People are easily persuaded by money,” he said. “You wave a little [change] in front of their face and people are jumping for it. I understand, people need the money and look, it’s like losing weight — people go for the candy bar, even though they say everyday they want to lose weight. They jump for that short-term gain and shut out everything else.”

Choban also questions motives of energy industry companies, which he feels care more about money than safety and have lobbied for deregulation.

“Primarily, what I’m saying is look, West Virginia is being exploited terribly,” he said. “That gas, it’s coming from West Virginia, but it ain’t going to West Virginia. You got to step back and ask yourself, ‘What are the motives here?’ And the movies are to make money, to get it out of the ground as quick as you can before renewable energy gains momentum, and the value of those fossil fuels go down.”

Ruby pushed back against Choban’s characterizations of the energy industry, maintaining that ACP/Dominion prioritizes public safety.

“We are a safety-first company,” Ruby said. “We prioritize safety so much that the regulatory requirements weren’t enough for us; we’ve gone above and beyond them.”

But Choban isn’t buying it – or selling, at least not right now.

He says he might hold out until eminent domain proceedings are filed. He’s willing to lose some money on his land for the principle of protecting future generations of West Virginians.

“I willing to go down that road,” he said. “If it turns out I could have gotten ‘x’ dollars from them, and I can only get ‘x-y’ after eminent domain, I’m willing to take a loss.”

Locally, the ACP itself will traverse 23 miles in Upshur County, and according to its website, once tree felling is finished at the end of March, the company will begin readying the right-of-way areas for construction that’s scheduled to take place in 2018.

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