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(1) Pursuant to ยงยง 56-46.1 and 56-580 D of the Code of Virginia, and subject to the requirements discussed above and ordered herein, Highland Wind is granted authority and a certificate of public convenience and necessity to construct and to operate the wind energy generating facility and its associated facilities in Highland County as described in this proceeding.
(2) Highland Wind shall comply with the conditions recommended in the DEQ's report as set forth above.
(3) Highland Wind shall acquire all environmental and other approvals and permits necessary to construct and to operate the proposed wind energy facility and shall provide a complete list of said approvals and permits to the Director of the Commission's Division of Energy Regulation prior to operation of the facility.
(4) Highland Wind shall comply with the monitoring and mitigation plan as set forth herein and as attached to this Final Order as Attachment A.
(5) Highland Wind shall provide access to the project site as set forth herein.
(6) Highland Citizens' Motion for Stay is denied.
(7) The certificate of public convenience and necessity granted herein shall expire two (2) years from the date of this Final Order if construction of the wind energy generating facility approved herein has not commenced. Highland Wind may petition the commission for an extension of this sunset provision for good cause shown.
(8) The case is dismissed.
JAGDMANN, Commissioner, Dissents in part:
I dissent to that part of the majority Order, and to the rationale therefor, adopting the following provision in the monitoring and mitigation plan required therein:
At any time after year three, DGIF and/or the Applicant may petition this
Commission for modifications to the mitigation cost caps, which could include raising, lowering, or reallocating funds among mitigation and monitoring.
I dissent because this provision in effect establishes no cost cap on mitigation activities for the life of the project and, further, allows the mitigation requirements of the plan to become a perpetual moving target.
The environmental concerns addressed by the monitoring and mitigation plan have not risen to a level that necessitates a permit from a federal, state, or local governmental agency specifically charged with protecting the environment. Indeed, if such a permit were required, the required, the Commission is to consider the environmental impacts of the facility (in this instance, impacts on birds and bats) and "establish such conditions as may be desirable or necessary to minimize adverse environmental impact."71 This requires the Commission to exercise its discretion, just as we must regarding other requirements in the applicable statutes.
Accordingly, the Commission is to be cognizant of environmental concerns, just as it is required to be cognizant of service reliability, effects on economic development, and the other statutory standards that we must apply.
Applying these statutory obligations, I find that the monitoring and mitigation cost cap established by the majority should be adopted without the majority's additional conclusion that such cap is not really a cap - but may be increased without limit based on some undefined proceeding at one or more undefined points in the future. Moreover, by keeping this matter subject to further modification pursuant to the Final Order issued today, the majority adopts a condition that invites the very core of the mitigation requirements to be re-written, over and over again, at subsequent points in the future. An applicant before this Commission, requesting a certificate of public convenience and necessity under Virginia statutes, deserves a more definitive ruling on the requirements that will be attached to such certificate.
The Hearing Examiner found that his recommended cost cap satisfies our statutory mandate above. Furthermore, DGIF - the expert agency relied upon by the majority and which the majority finds "credible and persuasive" - expressly "supports the recommendations contained in the [Hearing Examiner's] Report and urges the Commission to adopt the findings set forth therein. The Nature Conservancy also comments that the Commission and its Hearing Examiner have "provided every reasonable opportunity for both the parties and the general public to be heard," and that it "considers the [Hearing Examiner's monitoring and mitigation] plan to be a thoughtful and reasonable response to the Commission's charge."
The majority, however, apparently believes that there should be no real cost cap on the monitoring and mitigation plan because "[t]he mitigation cost cap could prove insufficient if the cap is routinely met, yet the bird and bat carnage continues to exceed target levels." I do not share in this finding. We do not have to conclude, under the statute, that the monitoring and mitigation plan will, without exception or question, result in a specific number of bird and bat kills. Rather, we must find that the monitoring and mitigation plan is "desirable or necessary to minimize adverse environmental impact." Based on the evidence in this proceeding, I find - as did the Hearing Examiner and DGIF - that a specific cost cap can be established, as part of a comprehensive monitoring and mitigation plan, that adequately and reasonably addresses the risk to birds and bats and that, accordingly, is "desirable or necessary to minimize adverse environmental impact."
In addition, after the third year of operation, I find it reasonable to allow DGIF to allocate the total funds, under the cap, between monitoring and mitigation activities based on previous years' results. Contrary to the majority's suggestion, a new and separate proceeding is not needed to make this finding. There is sufficient evidence, right now, for the Commission to allow DGIF to allocate future funds under the total cap based on actual results.
Finally, the philosophical approach reflected in the majority opinion, if extended to future applications of this nature, could put an end to the construction of generating facilities in the Commonwealth, renewable or otherwise. That is, the provision to which I dissent could create untenable financial uncertainty. As repeatedly explained by Highland Wind throughout this proceeding, construction of generating facilities obviously requires investment decisions based on analyses as to the financial viability of the proposed project. By not establishing a definable cost cap for mitigation and by leaving the plan wide open for future modifications, the majority has created a situation where potential investors simply will not know the limits to which operation of the project may be curtailed, pursuant to Commission order, throughout its expected life.
With the exceptions discussed herein, I agree with the remainder of the majority order approving Highland Wind's Application subject to the specific requirements set forth therein.
AN ATTESTED COPY hereof shall be sent by the Clerk of the Commission to all persons on the official Service List in this matter. The Service List is available from the Clerk of the State Corporation Commission, c/o Document Control Center, 1300 East Main Street, First Floor, Tyler Building, Richmond, Virginia 23219.
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