As Highland New Wind Development pushes to get roads installed and fields leveled for foundations, efforts to build its 38-megawatt wind-generating utility here aren't proceeding smoothly.

Obstacles abound, in the form of legal challenges, allegations of not meeting state requirements, and an Erosion and Sediment control plan state officials have found lacking.

All of that is coupled with an ongoing assertion from West Virginia officials who say Virginia, and Highland County, had no right to approve a facility
that crosses state lines.

Virginia's Department of Historic Resources contends the developer is not meeting the condition set forth by the State Corporation Commission to provide the agency with information it needs to assess the project's impact on historic resources, particularly the Camp Allegheny battlefield nearby.The SCC has opened a case to hear testimony from DHR and HNWD on Sept. 23 in Richmond, as reported last week.

A day after the SCC issued its order for a hearing, U.S. Congressman Nick Rahall supported DHR's contention in a letter to the SCC (see related story).

By Sept. 14, both DHR and HNWD will provide legal briefs to the SCC outlining their arguments.Highland County supervisor David Blanchard asked his board colleagues about the allegation Tuesday. Supervisors Robin Sullenberger and Jerry Rexrode, along with county attorney Melissa Dowd, said the board should wait to find out what the SCC decides, because HNWD is required to meet all necessary state and federal approvals in order to be in compliance with the countyissued conditional use permit for the project.

Dowd said that if the SCC concludes DHR is right, and finds the developer out of compliance at the state level, then a stop-work order could be issued. "They (SCC) trump us. If they withdraw their permit, then our conditional use permit conditions are not being met," she said.

At Red Oak, site work is under way to prepare the ground for turbine towers and a substation. This view was captured from the driveway of neighbor
Pen Goodall.

Sullenberger said there are ongoing discussions about the matter behind the scenes with HNWD.

"I have no idea of the context of those," he said, "but they (HNWD) are scurrying."

"So, currently they're not meeting state conditions?" Blanchard asked. "That determination hasn't been made," Dowd replied. "Cur- rently, they are."
Lucile Miller and McChesney Goodall, both of whom own protected property downstream from the project, had threatened legal action if HNWD's E&S control plan did not meet state regulations. By press time this week, they had not decided whether to pursue the matter in court, and were encouraged by one of the latest site inspections conducted by the state's Department of Conservation and Recreation.

The inspection resulted in a long list of recommendations HNWD must meet by mid-October (see related story). Many of those addressed the landowners' concerns.

West Virginia officials, prompted by the Pocahontas County Commission, are still trying to determine the best way to settle a boundary dispute. After seeing final site plans last month, commissioners voted to enlist the support of a top West Virginia University law professor to untangle the knotty question of exactly where the project falls on the Virginia-West Virginia border.

The company says the official U.S. Geological Survey boundary is slightly off, and one of its turbines on the line actually would lie in Virginia, but West Virginia has laws on the books that indicate any change from the USGS line must be officially adopted through its legislature.

According to the established USGS boundary, the tower of one turbine, and most of its foundation, would be in West Virginia.

This week, Pocahontas commission president Martin Saffer says consultants are still working on the boundary dispute, and he expects high-level state authorities to take up the matter. Tuesday, the commission voted to send letters to the West Virginia Pubic Service Commission, the Department of Environmental Protection, the State Historic Preservation Office, and a reply to Rahall.

In addition to the controversy over the border, West Virginia may also assert its standing with regard to run-off from the project which will enter that state, and blades from one tower that will spin in its air space.

It's possible, authorities have noted, the PSC may need to review that tower, and decide whether a permit for its use is required from the agency.

Virginia's DCR had made it clear it has no authority over discharge into West Virginia, and has told HNWD it must seek the guidance of West Virginia agencies for the section of a drainage basin that crosses state lines.

Tuesday, Highland supervisors discussed DCR's inspection report. Blanchard said it seemed so extensive, that the E&S plan might need to be approved again, but Rexrode said it was not unusual for plans to change. Dowd said there was nothing in HNWD's conditional use permit that required ongoing review by the county.

At this point, any number of these issues could affect the project's construction sometime in the next couple of months.