Conservationists Use Variety of Legal Strategies to Preserve Virginia Ecology

October 20, 2004
Ridge Schuyler spoke on behalf of the Nature Conservancy.

With hard surfaces like roads and parking lots increasingly becoming part of Virginia's landscape, the damage of water runoff to the state's watersheds could cost taxpayers more if they fail to act now, said participants at a Virginia Environmental Law Forum talk Oct. 19. Ridge Schuyler '87, director of the Piedmont Program of the Nature Conservancy, and Jenna Carter, a volunteer for the Virginia Forever Campaign, discussed their organizations' legal and lobbying strategies for preserving Virginia's environment.

Schuyler, who worked for 10 years on Capitol Hill before taking his current position, said the Nature Conservancy's original strategy was to buy land around rare and endangered plant species, but realized in order to meet their mission of protecting biodiversity, whole communities needed protection. Because the Piedmont has been cleared for agriculture for 10,000 years, there are not many rare species left to protect. "There are natural communities that are worthy of protection, like forested communities and river communities that don't exist anywhere else in the world," he said.

The Piedmont represents 39 percent of Virginia's land, including five watersheds and 16 forested areas. The Piedmont Program seeks to preserve communities that best represent the southeastern United States, including the Rivanna River watershed, which surrounds Charlottesville, and large areas of fairly intact Piedmont hardwood forests such as the eastern slope of the Blue Ridge. Threats to these systems include conversion of forested land to agricultural land, which can lead to sedimentation of rivers, and Schuyler's primary focus-"incompatible development." Hardening the landscape with roofs and roads leads to higher water velocity when it rains, which in turn leads to erosion, sediment build-up in water systems, and loss of plant and animal life in those waters.

Jenna Carter
Jenna Carter spoke for Virginia Forever.

The Rivanna watershed covers 492,000 acres, much of it privately owned, so Schuyler consulted with scientists to determine which areas needed protecting most. They mapped a number of factors to narrow down the acreage, including forested areas near watersheds, nearness of hardened surfaces such as roads, the potential for erosion, and the potential and likelihood for development. The Program was also concerned about the locations of the endangered James River spiny mussel. They found that the most threatened areas often were those with population booms, such as Crozet, Rt. 29 North, and the Lake Monticello and Glenmore home developments.

"There is obviously a link between land use, the development that is occurring, and the harm it is having on the landscape," he said.

Schuyler said there were two strategies to protect privately owned land-use the police powers of the government to tell owners what to do, and inducing action, usually through money. The first strategy may be accomplished through zoning, special-use permits, and site development plans. To induce cooperation, the government can purchase land or development rights to the land, that latter of which is now accomplished through Albemarle County's acquisition of conservation easements program. Farmers are "faced with the dangling of the cash by developers [and the farmer isn't sure he can afford to leave the money on the table.] What Albemarle does is it has taxpayers buy those development rights from the farmers, so the farmer gets to liquidate some of the value of the property that they own in exchange for a permanent protection of that farm so it will not be developed." There are also tax breaks for those who farm on their land, to encourage owners not to develop.

Schuyler said the least favorable step was to purchase land outright because prices are so high in the area. He recently bought a Greene County mountaintop for $1.8 million that was going to sell as a second home development for Washington, D.C., vacationers. Fortunately, the park service likely will buy the land from them to extend the Appalachian Trail.

The Nature Conservancy also takes easement donations, which are a tax write-off for owners, or buys land and then sells it with restrictions to limit development of the land. A man in western Albemarle County had recently sold a 20-acre parcel for $1.2 million and donated the value of his easement rights from other sections of his land to the Conservancy to get a tax break. Other lands are donated upon the death of the owner.

The Piedmont Program also looks to establish timber easements to promote old growth. Finding forests with old growth is rare, he added. Montpelier has some, but "very few of those trees are greater than 60 years old."

Maintaining preserved forests by watersheds can prevent erosion-a costlier problem than many realize, he said. The south fork of the Rivanna River-a water reservoir in the region-is filling with sediment at a rate of 1 percent a year. One plan under consideration involves building a pipeline from the James River, at a cost of $190 million.

The Program also lobbied to create a river basin commission so districts can work together and communicate about their watershed plans. He pointed to northern Virginia, where Fairfax had decided its western border would be protected, while the county to the west, Loudoun, planned its eastern border as its growth area. "There was no coordination," he said. "The same thing is happening in the Rivanna watershed."

Seven localities around the Rivanna watershed, the primary players being Charlottesville and Albemarle, Greene, and Fluvanna counties, may make up the proposed river basin commission the General Assembly approved last year.

"You really need to have a watershed-focused decision-making authority," he said.

In response to a question about The Washington Post's recent reputation-damaging reporting on the Nature Conservancy's practices, Schuyler said the reporters "missed the mark on a lot of what they said." The Conservancy has instituted a number of rule changes since the reports-they can no longer buy or sell land to members of their board of trustees, for example-but as a result they may be more liable for inflated tax filings. If someone donates to the Salvation Army, they can claim on their taxes that the value of a shirt is $100, but the Salvation Army is not held responsible for such exaggerations. Similarly, before the rule changes, the Conservancy was not involved in how a land owner valued their donation. Now the Conservancy has to agree with the owner's appraisal of donated land or easements. "If the IRS finds that it is, in fact, improper, then we are now legally liable," he said.

Allowing an owner to build one house on an easement may prevent a whole development from going up, but the media could look at it and wonder whether the taxpayer should be paying for it, he added. The press coverage "subjects my deals to a large amount of scrutiny and makes it a lot more difficult for me to do what I need to do because of this kind of fear of anybody being able to turn it into something negative."

Virginia Forever volunteer Jenna Carter explained her group's lobbying efforts to preserve the state's environment, and noted that Virginia is dead last among states in conservation spending according to the 2000 census, with only $53.8 million spent annually toward that goal. Virginia Forever suggests the state should spend $250 million to preserve land and $600 million for water over the next five years.

Virginia has a long way to go in meeting its end of an agreement made with Maryland and Pennsylvania to protect the Chesapeake Bay, Carter suggested. The agreement required preserving 20 percent of the land area in that watershed and reducing nitrogen pollution by 20 percent. Nitrogen and other pollutants have caused algae blooms, creating "dead zones" that have no life, covering as much as 40 percent of the Bay. Carter said if Virginia's sewage treatment plants and industrial sources of nutrient pollution were upgraded with modern technology, which would require a $120 million annual investment, nitrogen pollution could be reduced by 70 percent; $22 million has already been allocated by the General Assembly to begin modernizing such plants. The Chesapeake Bay Foundation will likely propose a new monthly tax of $4 for residents and $100 for industries to generate $160 million annually to preserve the Bay. "Conservation is stated in our constitution as a core goal of the government," she said. "Yet the state allocates less than a penny of every dollar on conservation."

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