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Attorneys for HNWD, the Virginia Department of Historic Resources, and the State Corporation Commission argued for an hour before SCC hearing examiner Alexander Skirpan in Richmond. Skirpan denied HNWD's motion, and rescheduled the original hearing on DHR's allegations against the developer for Tuesday, Oct. 13.
DHR asserts the company is not meeting its obligations under conditions set by the SCC attached to HNWD's state permit. SCC had set a hearing on the matter for this week, but when HNWD filed last Friday's motion, Skirpan agreed to limit this week's hearing to only arguments on that issue.
John Flora and Sen. Mark Obenshain of Lenhart- Obenshain represented the developer. Flora argued that since Highland County had already considered viewshed issues when it approved HNWD's local conditional use permit, the SCC could not, by law, consider viewshed in its own review.
Flora's motion asserted any testimony or evidence about "viewshed" or Camp Allegheny, was "cumulative, irrelevant and immaterial."
At Wednesday's hearing, he argued that in its report to the SCC, the Virginia Department of Environmental Quality said HNWD must conduct archaeological and architectural surveys, but made no mention of "viewshed" studies. And, he said, Skirpan had concluded "viewshed" was properly considered by Highland County, and due to code that says the agency cannot duplicate efforts of another.
Therefore, he said, the SCC could not consider "viewshed" in the hearing related to DHR's allegations. Flora recounted the times HNWD's 38-megawatt utility had been considered as it pertained to viewshed issues. He went all the way back to 2003, when Congressman Bob Goodlatte, he said, encouraged HNWD to apply for United States Department of Agriculture grant. When the company applied, scoping letters were sent to state agencies, including DHR. DHR, at that time, said it did not find any historic resources near the project.
However, Flora said, it's also true that DHR sent letters to West Virginia agencies then, which had identified Camp Allegheny as a concern. He also noted HNWD owners, the McBride family, had consistently listed viewshed and the Endangered Species Act as two key issues to consider.
"We let everyone know that," he said.
The first letter to the company from DHR, Flora said, listed the three studies the agency requested - archaeological studies, architectural surveys, and a viewshed analysis. When the DEQ suspended its review of HNWD's state application, he said, it did so because there were 22 different requests for more information. "If we had to deal with all those, we'd still be dealing with those today, quite frankly," Flora said.
But when DEQ completed its report, there were six required permits and 14 recommendations included. "Only six recommendations survived," Flora said. "Eight of them did not." Viewshed studies, he argued, was one that did not, only archaeological and architectural surveys.
Nevertheless, he said, DHR continued asking for all three studies. By February 2008, "there was no change in their position after four years," Flora said. "They still wanted those three surveys, and they wanted them done by a qualified professional.
"It was not a great start to a cooperative consultation after all that time." Skirpan said he saw a difference between HNWD being required to do a visual analysis, and looking at information on viewshed.
Highland County "felt strongly it could handle viewshed," Flora countered, noting Highland included permit conditions for color, screening, and setback distances to address visual impacts.
"The 1,600-foot setback greatly limited our ability to move turbines around," Flora said. "It's very tight."
"That's a different issue," Skirpan said. "We're dealing with whether we consider viewshed in any way."
Assistant Attorney General Steven Owens represented DHR Wednesday. He said from the agency's perspective, the commission intended its order to have some meaning.
"Viewshed does not equal visual impact," he said, explaining "viewshed" only refers to the points from which the 400-foot turbines can be seen.
"Visual impact is assessing adverse impact - that's the issue DHR is concerned with. DHR is not asking for further analysis of the viewshed ... we really don't care from where else the towers can be seen. But Camp Allegheny is the significant historic resource" requiring visual impact
assessment, he said. "What we want is compliance with the order."
Owens read from the SCC's order, which says to coordinate with DHR about the potential need for "archaeological and architectural surveys, recommended studies, and field surveys to evaluate the project's impacts to historic resources."
"We've identified a historic resource," he said. "Now, DHR needs a viewshed study."
An architectural survey, he explained, is designed to limit the scope of the next analysis. "And we've refined that down to Camp Allegheny," Owens argued. "What impact will this project have on Camp Allegheny? If all the visual impact issues were resolved, then there would be no need for that provision in the order. We don't think the commission intended that to be
meaningless ... We don't identify them just so we can ignore them later. We identify them, and then consult with DHR and determine what steps can be taken to mitigate the impacts. That's the sensible, reasonable and typical approach."
Further, Owens stressed, "We don't want (HNWD) to duplicate what they've already done ... we just want them to follow the final order and we need to be able to introduce evidence at the hearing about the steps they have taken, or what they've done to comply with the order. It's appropriate to introduce viewshed."
SCC chief counsel William Chambliss represented SCC staff in arguments. The issue, he said, is whether the hearing can include additional evidence regarding viewshed issues. "The staff believes that encompasses visual impacts," he said, noting visual impacts can be the only ones on Camp Allegheny.
Chambliss reminded Skirpan that both he, and the commission, had concluded they could not require anything further of HNWD that had already been considered by Highland County. "The commission - and you - did not recommend a further visual study," he told Skirpan, "because a local agency had already done that."
"The proper remedy (for DHR) would have been to appeal to the Supreme Court of Virginia, but no party took this case to (the Court)," he said.
Instead of appealing, DHR "seems to have decided to impose, on its own, a requirement that the commission did not impose ... it does not seem to staff to be appropriate," he said.
"The question is, what did Highland County do with regard to viewshed, and what affect does that have on the commission?" Chambliss noted again the commission's authority is limited by not being able to duplicate efforts.
Chambliss said the record does not reflect whether Highland County conducted a visual impact analysis that properly considers Camp Allegheny. "I don't know that the record reflects whether that's the case or not," he said.
However, he noted, county attorney Melissa Dowd appeared before the SCC and had made the statement that Highland County did not consider environmental impacts or consider the public interests of the commonwealth. "They considered impacts on Highland County, but not on West Virginia," Chambliss said, adding, "Mr. Flora's point is well taken, though perhaps not for the reasons he states."
Again, Skirpan said, there is a distinction between requiring additional viewshed studies and whether there should be any limitation on presenting evidence about the impacts to Camp Allegheny. "We're not dealing with whether we're going to do anymore additional studies," he said. Consulting with DHR on visual impacts, he said, was in the final order.
Chambliss said the focus of the complaint from DHR seems to be that "HNWD is just not cooperating." If there are other, non-visual things DHR wants HNWD to do, that can be heard.
"But if we're talking about visual impacts, that seems to be settled," he said.
Flora agreed, saying there are two tasks - archaeological and architectural surveys - and the architectural survey has been accepted by DHR already. "What's left is an archaeological survey," he said, "and that's restricted to the project site. But it's not a visual study."
Owens rebutted those arguments. First, he said, DHR did not appeal the final order because the language in it was "substantially the same" as in other SCC orders the agency has seen before, he said, and that had resulted in the kind of studies DHR expected. "There was no reason for them
to appeal," he said, explaining again that a visual impact study can only be done after a viewshed study that identifies the historic resources in an area. And a visual impact study has not been done. "That's where we are now," Owens said. "This seems pretty straightforward ... they simply haven't done that work."
The work involves gathering details about the towers' impacts to the Civil War site and determining what can be done to mitigate them.
"That's the whole point," he said. "(HNWD) believes the viewshed study is the end of the game. We say we need more consultation. We need the commission to tell them to get back in there and consult with us."
Further, Owens said, there is no mention of Camp Allegheny in the county's conditional use permit resolution. "The county attorney said, 'We did not consider the interests of the commonwealth.' So the interests of the commonwealth have yet to be considered, and we ask we be allowed to show the commonwealth has interests that have not been addressed."
Flora said Highland County did not simply ask HNWD to take photo-simulations from the battlefield. "The county asked us what can be done to mitigate impacts ... we talked about moving one turbine, and we said we cannot," he said.
"But have you worked with DHR on that?" Skirpan asked.
"No," Flora said, explaining that was the point at which HNWD did not agree that DHR's request for a visual impact study were required.
"The motion before us is whether or not we talk about visual impacts, not whether you perform more studies," Skirpan said.
With that, Skirpan denied HNWD's motion. "We will be free in the hearing to look at evidence on visual impacts, and how you worked with them (DHR) on that. That will be able to be discussed," he said.
A hearing on DHR's assertion that HNWD is not meeting its obligations under the state permit has been set for Tuesday, Oct. 13, at 10 a.m. in Richmond.
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