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Highland New Wind Development submitted a site plan, and things are moving in earnest on several fronts in anticipation of securing a date for construction.
The company hoping to install the industrial facility on Allegheny Mountain turned in an erosion and sediment control plan, site maps, a storm water management plan, technical diagrams, and a letter to county supervisors asking them for a building permit by July 15.
Whether HNWD has met all the conditions attached to county and state permits will be determined by a Technical Review Committee appointed by the board of supervisors; it consists of building official Jim Whitelaw and county administrator Roberta Lambert. When the TRC concludes all conditions have been met, it can issue a building permit for construction.
County supervisors indicate the committee will consult with them often, and they intend to stay informed as the review evolves. In addition, the county has retained the engineering firm of Mattern & Craig to examine the E&S and storm water management plans.
Over the last several years, this controversial project has generated much debate, not only about the merits of commercial wind in general, but about whether the environmentally sensitive site, at about 4,000 feet, is a suitable place for it. That debate is expected to continue, as officials and citizens pour over the plans and reach conclusions about whether the information satisfactorily fulfills obligations under the permits.
What did HNWD submit?
A cover letter with the E&S plan, from HNWD attorney John Flora, said the site plan contained all the information required by the county's conditional use permit under section "m." That section reads: "The permittee shall submit a detailed site plan addressing turbine structure, substation and accessory building locations, height of structures, setbacks, screening and color of all structures, fencing, and other security measures, erosion and sediment control measures, signage and location and construction standards for access roads.
"The site plan shall be designed to mitigate the impact of the permitted use on nearby property owners and the natural environment and shall include computer simulations or other visual representations of each wind turbine at its proposed location.
"The location of the turbine structures shall be shown on the site plan based on minimizing the overall visual impact on nearby property owners and the area to the extent reasonably practicable. For example, where multiple location options for turbine structures exist, the least visually obtrusive location, but operationally efficient location will be selected.
"The site plan shall be reviewed and approved by the Technical Review Committee comprised of the county administrator and the zoning administrator. The TRC shall approve the site plan based on compliance with the requirements of these conditions. No building permits shall be issued and no construction or installation of any turbine or substation shall commence on the property nor shall any equipment be stored on the property until the site plan has been approved by the TRC." In his letter, Flora said a lighting permit application has been submitted to the Federal Aviation
Administration and approval is expected within 30 days.
Also, he said, road entrance permits granted by the Virginia Department of Transportation, "will likely need to be extended."
"The archaeological assessment that was requested, but not required," by the Virginia Department of Historic Resources was also submitted, he wrote.
"If you reach a decision that you will not be able to approve the site plan and issue the building permit on or before July 15," Flora told the TRC, "we hereby request that the board of supervisors grant an extension of time."
He described the E&S and storm water plans as "substantially the same as those previously submitted and tentatively approved."
Flora told the TRC, "To facilitate your review of the subjective conditions, which are the turbine color, adequate screening and the turbine locations, we would be happy to facilitate a meeting with your independent experts with our advisors to review those particular items, as well as any other concerns you may have.
"Please approve the attached site plan and issue a building permit for the 19 turbine sites," he continued. "And additional building permit requests will be forthcoming for both substations."
The letter was copied to Michael Murphy of the Department of Environmental Quality. Flora said some permit conditions would be met after construction, and the bond required by the county for removal would be available within 30 days.
As for the county's requirement the project meet all state and federal approvals, Flora says after getting permits for its E&S plan, storm water plan, and a building permit from the county and
FAA, "all permits will be received."
State permit conditions met?
HNWD got a permit from the State Corporation Commission in December 2007. A number of environmental conditions were attached for mitigating and monitoring environmental damage.
The SCC required HNWD to work individually with state and federal agencies to comply with those conditions.
One agency, the Department of Historic Resources, repeatedly insisted on an archaeology review of the site, and a visual view shed analysis to compare with a detailed site plan, before its review could be completed.
The archaeology assessment submitted by HNWD last week consists of a one-page letter from an archaeologist who walked the property and did four "shovel tests." She concluded no further assessment was needed.
This week, Roger Kirchen of the DHR said he had not received copies yet from HNWD, but said his agency would look at the materials and site plan carefully when they arrive. DHR toured the site last fall, and refined some of its recommendations. DHR's requests for a good visual analysis, he said this week, is unchanged. "We'll compare that with the site plan," he said, and with information DHR gathered from other groups, including the West Virginia State Historic Preservation Office, which is interested in how the 400-foot turbines will affect views from Camp Allegheny, a protected Civil War battlefield within a mile of the site. "We're interested in what we'll see," Kirchen said. "A site plan is not enough without a visual impact study; it's not good on its own ... We'll compare (a viewshed analysis) to the site plan to see if that's acceptable. If not, we'll have specific recommendations to make. We'll have to pour over the plans, and it may be we'll be able to concur no further recommendations are needed."
Will E&S plan satisfy neighbors?
Laurel Fork, a native trout stream, and its tributaries, cross the property owned by the McBride family, HNWD owners, that will be leased for the project. Two landowners downstream from the site have asked supervisors for time to have their own experts review the E&S plans.
Lucile Miller and McChesney Goodall own and manage large tracts of land downhill; both families have spent years protecting the stream. Supervisors said they would try to give them enough time to review details, but said much of the technical information would come from the engineering plans, which the county has 45 days to review.
By Wednesday this week, neither Miller nor Goodall had seen the E&S plans, but expect to have independent experts review them.
How will supervisors stay involved?
By press time this week, supervisors David Blanchard, Jerry Rexrode, and Robin Sullenberger said they, too, will review the plans, and intend to stay informed by the board's technical committee.
Blanchard and Sullenberger met separately with Tal McBride at the site last week, and reviewed maps on his computer to help them get oriented as to where each turbine would be located.
"What I saw on Tal's laptop were various layouts and site-type topo maps with the locations on them," Sullerberger explained Monday. "It was very helpful in trying to put things in perspective."
He said HNWD "seems to be willing to do what we (county) request."
Sullenberger did not know whether the TRC would be able to issue a building permit by the July 15 deadline requested, however. "It's possible," he said, "but without having looked at the details, I wouldn't want to speculate ... We would try to be expedient with any request, but the magnitude of this one is more than typical requests."
HNWD asked that supervisors extend its conditional use permit, which expires Sept. 13, if the TRC cannot issue a building permit by July 15.
Sullenberger said the board might have to extend it, even if it didn't want to, under new state legislation that becomes effective July 1. The new law was designed to extend all special use permits throughout Virginia in order to ease the burden on construction projects stalled by the economic downfall. "Indications are, that process (for extending permits) may be automatic based on that legislation," Sullenberger explained.
Blanchard said he did not feel compelled to meet the July 15 timeframe. "I can appreciate that some will want more time on this, and some will not. But it's going to take the time it takes," he said.
Personally, Blanchard said, "I'm going to take my time on it. I'm planning to look at it (site plan) and I'm going to follow proper channels ... It's interesting because even with simple permits people request, everybody is attached to a timeline. I don't operate that way. On the one hand, we're told this (project) is no different than a request for a turkey house, but on the other hand, it's much bigger. I'm not going to be tied to that date (July 15)."
"We're not going to hesitate to do what's necessary," Sullenberger added. "The Technical Review Committee has the final sign-off on this. The board isn't required to take any other action, but we will be an active part of the review process. Roberta is sharing information with us daily."
Rexrode felt confident in Mattern & Craig, the firm reviewing plans for the county. "They are a very reputable firm," he said, "and it's a good set of site drawings." As for issuing a building permit by July 15, "that I don't know," he said. "That's up to Mattern & Craig, and our (TRC).
They're making the decisions from here on; it's out of the supervisors' hands.
"Nobody wants streams damaged, and that's not going to happen," he stressed.
How will citizens stay informed?
Though the TRC has the authority to issue a building permit without further action from supervisors, the board has said it would consider some kind of forum to allow citizens another chance to learn more about the project, or express concerns, before a building permit is issued.
Neither committed to that idea, however. Sullenberger and Blanchard said this week they feel that would be important, but supervisor Jerry Rexrode disagrees.
"I didn't understand that. That was Robin's thing," Rexrode said.
"There's no question there are a lot of people vested in this," Sullenberger said, "and we can't eliminate (public input) as part of the process, although we're under no obligation to do that ...
The TRC will consult the board and I'm sure we'll have a series of conversations, some privately and certainly some publicly, too. We haven't gone this far just to bar public input now, though that's not required. It's clear those with specific concerns will want to be involved."
He emphasized citizens are free to view all the documents submitted to the county now, as they are public information. Plans are available in Whitelaw's office.
"Any public input is good, and this (site plan) is going to generate a flurry of activity," Blanchard added, though he had not decided whether he would push for a forum for citizens.
Rexrode said the review process should be left up to the engineering firm and TRC at this point.
"That's what you're paying them for," he said, "and we should just let the professionals handle it.
That's what needs to happen, and they can do that easily."
What is the role of TRC?
The county's Technical Review Committee, Whitelaw and Lambert, is charged with reviewing the permit conditions, and making sure they have been fulfilled by HNWD before issuing a building permit. The TRC was created by supervisors in the resolution that outlined permit conditions, and as such, is a public body subject to Freedom of Information Act laws. When they meet about this task, or speak on the phone about the review, they are holding a public meeting and must notify the public ahead of time. All of the committee's documents, notes, and correspondence related to its review are open to the public.
Sullenberger said the TRC will find it challenging to follow those laws because Whitelaw and Lambert are "in and out of each other's offices all the time," and there are "elements of practicality involved," but felt confident they would notify the public before discussing the plans.
"I assure you that will happen," he said, "but I don't know how."
Blanchard remains concerned about the TRC's expertise and objectivity. About a year ago, he said that since Lambert had publicly expressed her support of HNWD's project, he felt the county needed an outside, independent expert to help review the plan. "From the county's standpoint and all the potential litigation, I still support that idea," he said this week. "Anybody outside the county could be helpful to us ... I will think about it some more, but of course the problem is, can you find the most open-minded person to do this?"
Sullenberger, on the other hand, has expressed confidence Lambert and Whitelaw are up to the job, and is assured that Mattern & Craig understand the scrutiny required.
Blanchard says given the pressure attached to the wind proposal, it's unfair for the county to put that kind of burden on the committee, although he, too, feels confident Mattern & Craig will provide a good review of the E&S plan.
"I really have to just operate on what's in the best interest of the county," he said. "I think it's wrong to put all this on the committee, though I know the board felt they (Lambert and Whitelaw) could do this."
Lawsuits against the county remain a threat
Citizens, represented by attorney James Jennings Jr. of Woods Rogers in Roanoke, threatened legal action against the county in July 2005.
Concerned about the detrimental effects turbines could have on the environment and wildlife, especially endangered species, Jennings issued a letter of intent to sue if the county did not take proper cautions against violating the federal Endangered Species Act.
In January, Jennings again reminded the board it could be held liable for violations in federal court, saying that since the first notice, the Department of the Interior advised Highland that compliance with the ESA is mandatory, "and there have been proceedings in the Virginia State Corporation Commission that show HNWD's proposed activities are, to a reasonable certainty, going to violate the ESA unless an incidental take permit is procured," Jennings wrote Feb. 27.
"It's still a great concern for me," Blanchard said this week about potential lawsuits. Blanchard supported asking HNWD to get a federal incidental take permit and habitat conservation plan until county attorney Melissa Dowd said the board could not do that.
This week, Jennings said had not had time to review HNWD's documents, but plans to consult his clients, and determine how they might proceed.
Does HNWD have financial backers in hand?
About a year ago, HNWD announced it was close to securing investors for the utility, and unnamed backers signed two letters of intent. However, those potential investors backed out, partially because of the nationwide economic crisis. Most recently, HNWD said thanks to a federal push for supporting renewable energy, investors and turbine equipment suppliers have a renewed interest, and negotiations are under way once more.
"That part of the process is proprietary," Sullenberger said, "but my intuition says, if that part of the process was settled they (HNWD) would have made that known, and they haven't. I have a feeling it's still ongoing but that they're closer to settlement. I think they would not be moving this far now if they weren't comfortable and confident about that part."
What happens next?
Last Friday, Whitelaw drove a copy of HNWD's plans to Mattern & Craig. Sullenberger spoke with the engineering firm this week, and its staff is not backed up, and will proceed apace to review plans, and provide an assessment to the county. He said Whitelaw and Lambert will probably wait for that before conducting meetings of the committee.
Asked whether the county would notify the National Radio Astronomy Observatory in Green Bank, W.Va., Sullenberger said the county would probably do that, as a courtesy, but did not expect the observatory to have any issues with the turbines interfering with the NRAO's large array of dishes, used to "listen" to outer space for research purposes.
Three citizens so far have requested state agencies review the new documents from HNWD, and assess that information.
"We will move forward expeditiously," Sullenberger said. "HNWD, in asking for an extension now, is probably assuming we can't give a definite answer on the building permit, and that's true.
We can't answer that yet. So they are covering all their bases ... but we (the county) intend to be inclusive rather than exclusive about all this."
HNWD spokesman Frank Maisano could not be reached for comment this week. HNWD owner Tal McBride did not respond to requests from The Recorder for more information.
Mustoe resident Rick Webb, a longtime proponent of strict environmental controls on the project, issued a statement about Maisano's nationwide press release, which he called "misleading."
"The press release was seemingly designed to help the developer obtain or retain the investors needed to finance the 19-turbine, $65-million project proposed for a remote and exceptionally wild area in the northwest corner of Virginia's highest elevation and least populated county," he said. "Despite Mr. Maisano's statement, the wind project developer does not have a building permit, does not have an Erosion and Sediment Control permit, does not have approval from the FAA, has not met conditions imposed by the State Corporation Commission, and has not obtained an Endangered Species Act permit.
"Highland New Wind has faced a series of legal and environmental challenges since losing its first development partner in 2003," he added. "Virginia's wildlife management agency has concluded that the project may result in the highest mortality of birds and bats for wind projects in the eastern United States. Virginia's historic resources agency has raised concerns about impacts to the adjacent Camp Allegheny, listed on the Federal Register of Historic Places and recognized as the most pristine among the remaining undeveloped Civil War battlefields.
"Following the death of thousands of bats flying into turbine blades during the first weeks of a West Virginia wind project, and given the location of the proposed Highland project within the range of endangered bat species, the U.S. Fish and Wildlife Service has repeatedly recommended that Highland New Wind obtain a permit under the Endangered Species Act, and both Highland New Wind and the Highland County supervisors have been served a notice-of-intent to sue if the project goes forward without the permit. A federal suit has been brought against a West Virginia developer over the same issue, and earlier this year the U.S. Forest Service blocked plans for a wind turbine project in the George Washington National Forest in part because of the risk to the endangered bats that inhabit Virginia's mountain ridges.
"The developer of the proposed Highland New Wind project has complained that investors would be scared away by strict wildlife monitoring requirements imposed on the project by the SCC," Webb continued. "To date, no investors have been publicly identified, and Mr. Maisano made no reference to investors in his press release."
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