For Northern Pass Crossing Conservation Land Would Mean A Long And Rocky Legal Road

May 17, 2013

In 2003 state and federal officials, a private land owner and conservation groups created a conservation easement to protect about 146,000 acres in northern Coos County from development.

It is called the Connecticut Lakes Headwaters and some opponents of Northern Pass fear the utility hopes to cross it to send hydro-electric power south from its partner – Hydro-Quebec.

But getting permission to do that would be a complicated procedure with so many hurdles it would be the longest of long shots, according to those familiar with such easements.

Northern Pass officials won’t comment on their plans nor will they provide any details of what they say is a new route.

But even the idea of trying to cross the headwaters would be such a startling and unusual move that the possibility has the attention of conservation groups around the country, says Paul Doscher, an official with The Society for the Protection of New Hampshire Forests.

“Many would look at any attempt to cross that easement as a violation of the provisions of the easement and pose a substantial threat to not only that easement but to the integrity of all conservation easements,” says Doscher.

The 44-page easement that governs the headwaters states goals including environmental education, maintaining open space, conservation and public recreation.

Page five has a key prohibition.

“It says without any residential, industrial or commercial activities," says Amy Manzelli, a Concord lawyer and part owner of BCM Environmental & Land Law.

The exception is sustainable forestry practiced by The Forestland Group, which owns the land.

But not everything is set in stone.

“There are provisions to change this easement. The easement itself says the parties to the easement can agree to change the easement,” says Manzelli.

However an amendment would have to justify having transmission towers cross the land with the conservation goals in the easement.

As an alternative to erecting towers on the headwaters tract, Northern Pass could propose trading a corridor for land it owns nearby. But there’s a legal argument to be made that a land swap is not amending the conservation easement, it is removing land from the easement.

For Northern Pass to cross the headwaters two things would have to happen.

First Northern Pass would have to convince the land’s North-Carolina-based owners – Forestland Group- to go along with it.

Then, it would have to persuade the state’s Department of Resources and Economic Development it is a good idea.

Because federal dollars helped fund the project, DRED alone controls the conservation easement.

And some Northern Pass opponents are worried about the new head of DRED, Jeffrey Rose,

During a public hearing in February before the Executive Council Rose was questioned by some councilors about newspaper stories suggesting he favored Northern Pass.

He said was not the case. There were some misunderstandings.

“I pledge to you that I do not have a position on the Northern Pass, councilor,” he said.

The executive council unanimously approved his appointment.

To move the amendment ahead DRED and Forestland would each have to agree it was a good idea.

Officials at Forestland didn’t return several calls from NHPR.

And it is not clear what DRED would do.

A spokeswoman for the agency had no comment, saying it would be speculation since such a request hasn’t been received.

If DRED rejected an amendment the proposal would be dead.

However, if DRED and Forestland agreed there would still plenty of obstacles.

The state might consider such a change to be “high-risk, says Manzelli, the environmental lawyer.

“And high-risk changes are very hard to get approved.”

Such changes have to be reviewed by the Attorney General’s Charitable Trust unit and its guidelines indicate that could be a long process.

There’s a good chance the unit would send the case to probate court in Lancaster, perhaps with a recommendation.

Another layer to this is that – because some federal funds were used fund the headwaters– the U.S. Forest service has to sign off on any deal.

Pulling all that off would be close to impossible, says Patrick Parenteau, environmental law professor at Vermont Law School.

“There is nothing in the four corners of the document that would suggest that a utility, power line crossing would comport with the terms of the easement or the intent.”

And even if Northern Pass got permission it is possible groups involved in the original deal would sue.

It’s a whole lot of conjecture at the moment and so far no request involving the headwaters has been made, according to a spokesman for Governor Hassan.

And all Northern Pass officials will say is that they have a new route but they won’t identify it until July – at the earliest.