Pipeline project pits Union Co. family against state

A natural gas pipeline project in Marysville has many wondering about the future of farmland preservation in Ohio.

Don Bailey runs a family farm in Union County that was put into preservation by Don’s uncle nearly 20 years ago. Twice before, the Ohio Department of Agriculture defended the preserved land from underground utilities.

When Columbia Gas of Ohio announced its intention, in late 2019, to put a 12-inch gas distribution line through the Baileys’ fields, Bailey assumed the Ohio Department of Agriculture would again go to bat for them.

“I was quite confident we had nothing to worry about,” Bailey said. “It totally blindsided us when they did nothing.”

The Ohio Department of Agriculture stood by as the Ohio Power Siting Board approved the Marysville Connector Pipeline Project to go through the preserved land, citing a new, broader interpretation of the Baileys’ agricultural easement.

“You can’t say they did anything wrong because they didn’t do anything,” Bailey said.

Family history

Bailey’s uncle, Arno Renner, donated the agricultural easement to his 231-acre farm in 2003 to the department of agriculture, through its farmland preservation program. The land has been in the family since the 1860s, he said. Bailey’s son, Patrick, who helps him run the farm and also lives on the Renner farm, is the sixth generation on that farm.

“It had a commercial value of $3 million, but he donated the development rights,” Bailey said.

The farm is slowly being surrounded by industrial parks. Just down the road is the Scotts Miracle-Gro corporate headquarters. Renner saw the development pressure coming, his nephew said. He wanted to make sure the farm stayed a farm. Renner died in 2007, and Bailey took over the land as the trustee of the Arno Renner Trust.

Bailey felt so good about the program after he saw how the department of agriculture defended his uncles farm that he donated more than 300 acres of his own land to be preserved.

“I believe in it. I want the farms to remain a farm,” he said.

Ohio’s farmland preservation program began in 2002 after a third of the state’s prime agricultural land was lost to development in the previous 50 years. Now, there are more than 540 farms representing 85,000 acres in 61 counties in the program that keeps the land in agricultural use and prohibits non-agricultural development.

Prior battles

The Renner farmland, in Union County, has twice before faced the threat of utility development. The first time was in 2005. The city of Marysville wanted to put a 72-inch sanitary sewer line through the farm, Bailey said.

The state director of agriculture at the time, Fred Dailey, wrote a letter to the mayor of Marysville asking if the line could be rerouted. Dailey pointed out that the easement is clear in that any water or sewer lines installed on the property are for improvements to the farm only. 

But he went even further than that. He came out to visit the farm and talked to Renner. He met with the contractor and deputy mayor to explore different options and looped in the Union Soil and Water Conservation District and Ohio Department of Natural Resources to determine the impact such a project would have on the farm. They all agreed the installation of the line would cause irreparable harm.

“If an agricultural easement is threatened or violated, it is my duty to act to protect it,” he wrote. “After reviewing all of the information provided to me, I must inform you that ODA plans to oppose any attempt to take an easement of this property by eminent domain.”

In the end, Marysville found an alternative route for the sewer line. Dailey’s actions set a precedent for the Baileys about how the ODA would enforce the easement.

The second time was in 2008, when a private developer wanted to put a 36-inch water line on the Renner property. That time, the ODA asked the Ohio Attorney General at the time, Nancy Rogers, to write a letter on its behalf. In it, Rogers discusses the term of the easement that Dailey pointed to in his letter.

“This term allows the farmland owner to make utility improvements and granting easements for such only if the improvement solely serves the protected farmland and permitted structure thereon,” Rogers wrote. “In this instance, the proposed water line would not solely serve the Bailey property.”

The new threat

Bailey said last fall they saw survey crews out on the farm working for Columbia Gas of Ohio. The Baileys were told they were exploring routes for a new gas distribution line.

The line, called the Marysville Connector Pipeline Project, will be 12 inches in diameter and stretch nearly 5 miles. It would feed the industrial park near the farm, as well as a nearby residential development. 

The Union County Community Improvement Corporation commissioned a natural gas capacity study that showed the area is impacted by natural gas supply constraints and has missed out on potential business because of it, according to records submitted to the Ohio Power Siting Board.

The route that was chosen to be presented to the Ohio Power Siting Board was the one that runs through the Renner farm. Construction is slated to begin late 2021, with the line being put in service by late 2022.

Columbia Gas of Ohio put a public notice in the Marysville Journal Tribune and sent out letters to affected landowners in December 2019, inviting comment on the project.

Bailey sent a letter to the Ohio Power Siting Board on behalf of the Arno Renner Trust, dated Dec. 31, 2019, asking that Columbia consider alternative routes. Bailey also informed the ODA about the project. 

In the past, what happens next is the easement holder, in this case ODA, looks at the language of the easement to see if the proposed use is allowed, said Krista Magaw, executive director of the Tecumseh Land Trust, which serves Greene and Clark counties. The Tecumseh Land Trust is coholder for about 80 easements with the ODA.

The easement holder would then discuss with the third party, in this case Columbia Gas, other ways the project could be handled so as not to go through a preserved farm.

This is where things went differently than they had in the past. The back-and-forth discussion part didn’t seem to happen, Magaw said. This may have been because the pandemic broke out as the project moved forward. In-person meetings stopped. Open communication was stymied. 

But it also appeared the ODA was interpreting the Renner easement more broadly than it had in the past.

ODA response

Bailey sent a letter to Gov. Mike DeWine March 3 when it became clear that the ODA was still not defending the easement. That letter was passed from DeWine’s office to the ODA’s Office of Farmland Preservation, and Bailey received a response from Sarah Huffman, executive director of the office.

Huffman wrote that the ODA was monitoring the situation with Columbia Gas and that they hoped to help protect the farmland or minimize disruption should the pipeline be permitted.

There was no mention of the terms in the easement Dailey and Rogers both referenced in their letters. The part about how any utilities that go in on the property must be for the benefit of the farm only.

Instead, ODA focused on how the pipeline would impact the agricultural use of the property.

“In both the past situations and this one, ODA took the position that a utility easement was in fact permitted so long as the agricultural use of the property was preserved,” the department said in a statement.

In the past, it was determined the agricultural use of the farm would be irreparably harmed by the projects. But that’s not the case with the Marysville Connector. The affected part of the Renner property will be returned to agricultural use and the department will keep an eye on things to ensure that happens, the ODA said. They’ve also offered the Baileys help in negotiating terms of the forthcoming easement with Columbia.

What’s also different this time is the Ohio Power Siting Board is involved. The power siting board concluded the project doesn’t violate the terms of the ODA’s agricultural easement, ODA said. ODA’s designee on the power siting board, Huffman, recused herself from voting on the Marysville Connector Pipeline Project when it came before the board for approval in August.

“ODA has a property interest in land impacted by the project,” the department said in a statement. Huffman recused to prevent the “perception of impropriety.”

Dangerous precedent

Because the Baileys still expected the ODA to defend their easement, they didn’t elect to become formal interveners in the power siting board case. This would have allowed them to participate in the hearing, file for a rehearing or appeal the board decision to the Ohio Supreme Court.

Now, they’re left with little recourse. Union Soil and Water Conservation District stepped up on their behalf, after it became aware of the issue, which was after the power siting board decision.

Brent Nickel, district administrator, said the board of supervisors passed a resolution in September in support of the Baileys, encouraging the ODA to reconsider its position. That resolution was distributed statewide.

The board of supervisors expressed concern about the viability of the farmland preservation program as a whole “if easement language is not consistently interpreted or enforced, and preserved farmland is allowed to be used as a utility corridor to support industrial activities.”

Nickel said they’ve also appealed in late October to the Union County commissioners, who are listed as interveners in the power siting board case, to file a motion of rehearing with the Ohio Power Siting Board.

DeWine could, if he chose to, intervene. The Baileys could also fight the decision in court, but they can’t afford a lengthy legal battle.

Magaw, who is also chair of the steering committee for the Coalition of Ohio Land Trusts, worries this situation could scare off other people from putting their land into preservation. She’s reached out to the ODA to discuss the situation, but hasn’t heard much back yet.

“I’ve got huge concerns about what this says to landowners who want to preserve their land,” Magaw said. “We’re saying to the ODA, let’s talk about this. We want to figure out how to approach this situation if it comes up again. How do we handle it better?”

Farmland preservation is based, in large part, on mutual trust. The farmers who put land into the program trust that the easement holders will stand up for them when challenges come. The easement holders trust that the farmers will continue taking care of the land.

“Now, I have no trust that the state will ever live up to their end of the obligation,” Bailey said. “If someone else asked me about the program, I’d say right now there’s no teeth to it. Your hands are tied as a donor, but the state has no obligation to protect it.”

(Reporter Rachel Wagoner can be contacted at 800-837-3419 or rachel@farmanddairy.com.)