Written by: Dan Radmacher
May 23, 2011
A proposed settlement of a water pollution case negotiated with Massey Energy by the Appalachian Center on behalf of the Sierra Club, the West Virginia Highlands Conservancy, the Ohio Valley Environmental Coalition and Coal River Mountain Watch would help preserve environmentally sensitive land.
If the settlement is approved, Massey would pay $400,000 to the West Virginia Land Trust. WVLT would use the money to partner with West Virginia College of Law’s Land Use and Sustainable Development Clinic, which was established after a prior settlement with CONSOL over similar issues.
WVLT and the land protection clinic would work together on a riparian area preservation project to help protect the Coal, Elk and Gauley watersheds. They would identify areas crucial to the preservation of ground and surface water and work with property owners, local governments and other interested parties to protect and preserve the most important land through permanent conservation easements.
“It will be a game-changer for us in terms of land conservation,” said Chap Donovan, president of the WVLT. “These watersheds comprise about 16 percent of the state’s land area. It’s a very big opportunity.”
The money will be used for outreach activities to landowners, watershed preservation organizations, real estate appraisers and others to help generate interest and identify opportunities for conservation. The settlement would also help pay for transaction costs and monitoring expenses, which can add up. Before setting up an easement, the land trust conducts a baseline survey that documents the conservation values of the property at the time the easement is donated. This is used as a basis for enforcing the terms of the easement in perpetuity.
“We have an affirmative obligation to monitor the property and enforce the terms of the easement,” Donovan said.
The Land Use and Sustainable Development Clinic itself is also very important, Donovan said. Though West Virginia has had a conservation easement law on the books for many years, the state has lagged behind others in putting it to use.
“We’re very much a new kid on the block in terms of easements,” Donovan said. The clinic is helping the state build expertise and capacity, exposing law school students to a very complex area of the law.
“The requirements are unique,” Donovan said. “There are income tax implications, estate tax implications, state law, rights-of-way, mineral rights issues. These things can become very complex.”
The clinic will help the state develop more resources and more expertise that can be applied to preserving land through conservation easements.
Any further violations in the next two years will result in significant additional payments to this project. “It’s very positive that the funds will go back into the watershed where the damage was done,” Donovan said.
If this latest settlement is approved, more than $2 million will be devoted to conservation easements as a result of cases brought by Center attorneys.