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Wind company, state disagree on view study

Is it too expensive to survey historic resources before Virginia's first wind energy plant is constructed? Highland New Wind Development says it would have to fork over between $50,000-$75,000, or more, to do what state officials have been steadily requesting for two years. ...DHR archeologist Roger Kirchen, however, told The Recorder his agency needs the results of these surveys before a review of the project is completed. "The final SCC order directs the applicant to work toward providing us with information," Kirchen said Monday. "The SCC order has the authority. We've exchanged some documents (with HNWD) ... but none of these issues have been resolved. At this point, we're just trying to identify the potential effects."

Is it too expensive to survey historic resources before Virginia's first wind energy plant is constructed? Highland New Wind Development says it would have to fork over between $50,000-$75,000, or more, to do what state officials have been steadily requesting for two years.

Beginning in 2006, Virginia's Department of Historic Resources asked HNWD several times for an archaeological study, architectural survey, a view-shed analysis, and comprehensive site plan.

HNWD argues they aren't required, except for an archaeological study, which it has agreed to do. A 147-year-old landmark is likely to play a key role.

A meeting and tour of the utility site is tentatively planned for the end of this month. DHR officials have been invited to see where the turbines are to be erected, and HNWD hopes they will change their minds about a view-shed study.

Attorneys for HNWD have gone around and around with DHR about whether the company should have to spend thousands of dollars to determine how its 400-foot turbine towers impact historic sites within 1.5 miles of their location.

DHR says with enough information, it will help the company figure out what, if anything can be done to soften the impact on... more [truncated due to possible copyright]  

Is it too expensive to survey historic resources before Virginia's first wind energy plant is constructed? Highland New Wind Development says it would have to fork over between $50,000-$75,000, or more, to do what state officials have been steadily requesting for two years.

Beginning in 2006, Virginia's Department of Historic Resources asked HNWD several times for an archaeological study, architectural survey, a view-shed analysis, and comprehensive site plan.

HNWD argues they aren't required, except for an archaeological study, which it has agreed to do. A 147-year-old landmark is likely to play a key role.

A meeting and tour of the utility site is tentatively planned for the end of this month. DHR officials have been invited to see where the turbines are to be erected, and HNWD hopes they will change their minds about a view-shed study.

Attorneys for HNWD have gone around and around with DHR about whether the company should have to spend thousands of dollars to determine how its 400-foot turbine towers impact historic sites within 1.5 miles of their location.

DHR says with enough information, it will help the company figure out what, if anything can be done to soften the impact on Allegheny Mountain and surrounding sites.

It's been eight months since HNWD got a permit from the State Corporation Commission, and among a host of permit conditions attached is a directive for the developer to work with DHR on these issues.

The Lenhart Obenshain law firm of Harrisonburg has corresponded with DHR's director Kathleen Kilpatrick since February, insisting such studies are unwarranted.

DHR archeologist Roger Kirchen, however, told The Recorder his agency needs the results of these surveys before a review of the project is completed. "The final SCC order directs the applicant to work toward providing us with information," Kirchen said Monday. "The SCC order has the authority. We've exchanged some documents (with HNWD) ... but none of these issues have been resolved. At this point, we're just trying to identify the potential effects."

HNWD, he said, has expressed a "willingness" to work with DHR. "Of course, they'd prefer if we said we don't want these things done," Kirchen added, "but I don't expect our recommendations will change. I hope the site visit will help clarify some of these issues."

DHR and HNWD are trying to arrange a visit near the end of September, Kirchen and Kilpatrick plan to attend.

Civil War battlefield at issue

Of special concern is the impact the towers will have on Camp Allegheny, a Civil War battlefield atop Allegheny Mountain less than a mile from the site where the 18-20 turbines are proposed. In December 1861, just a few months before the May 1862 Battle of McDowell, Confederate forces under Col. Edward Johnson occupied the summit to defend the Staunton-Parkersburg Turnpike, now U.S. 250. Union soldiers, under Brig. Gen. Robert Milroy, attacked Johnson Dec. 13. An estimated 300 were killed. The property is now partially in private hands, and partially held by the U.S. Forest Service, which nominated it successfully to the National Register of Historic Places in 1990. Camp Allegheny is extremely well preserved, according to the forest service, which says, "The locale today looks much as it did in 1861, consisting primarily of open sheep pasture. The forest service administers and protects that portion of the camp north of the Staunton-Parkersburg pike. This area includes three rows of stone piles and surface depressions representing the remains of at least 35 cabins ... South of the turnpike, on private property, lay extensive earth and stone breastworks on the summit of Buffalo Ridge enclosing well-defined battery emplacements, stone piles representing more cabin locations and a prominent oval earthen enclosure on the ridge crest often referred to as a command post."

The Civil War site, however, is located in West Virginia, just across the state line, in Pocahontas County. The agency that oversees its historic protection is the West Virginia State Historic Preservation Office, which related concerns about the utility to the SCC before the state permit was issued.

"We would still like to participate," says Lora Lamarre, a senior archaeologist with the WV SHPO. "It's a project we're familiar with, and my office gets involved with projects if there is any federal funding or permitting involved."

Lamarre's office sent three letters to agencies in 2006 - the Army Corps of Engineers, Virginia's utility services department, and the SCC. "We never heard back from any of them," she said.

The West Virginia Public Service Commission, the equivalent of the SCC in Virginia, is insisting wind companies go through the process of federal historic reviews, Lamarre said. "But I don't know yet how it's going to work, since this project is technically in Virginia ... we'd like to be a consulting party; we're interested and concerned about the visual impact to Camp Allegheny."

Kirchen is aware of West Virginia's concerns, and says he hopes Lamarre's office will be involved.

How Camp Allegheny and its view shed might be preserved will be a dilemma, though. "I'm not sure how we'll do that," Kirchen said. "One of our early recommendations was to drop the turbines down slope a little bit to minimize visibility." But, he said, HNWD's own preliminary simulation "clearly demonstrates how visible they are. It's a difficult question. If it's determined the turbines have a negative effect on Camp Allegheny, how could we mitigate that, minimize that? The first step is to identify the effects."

DHR agreed to a 1.5-mile radius survey because that's the distance the state typically uses for studies around cell towers. Kirchen said there was some discussion about extending the distance, but ultimately, DHR told HNWD it would use 1.5 miles.

Lamarre thinks it's possible the towers can be sited such that few, if any of them would be seen from the encampment. If given the opportunity, she said, "We would work with (HNWD) on this, get a view-shed analysis. We might have an array of options, like moving the towers." Kirchen has seen a view shed analysis prepared by Highland County resident John Sweet that "seems very well prepared," he said. "We haven't fully analyzed it, but I expect it will be of tremendous use."

An archaeological survey would help identify other historic sites or artifacts, and neighboring landowners adjacent to the site say there's plenty of evidence the area was occupied by Native Americans. Some have also pointed to what they believe are Civil War breastworks right at the knob where the turbines are planned. "That's all very interesting," Kirchen said. "We had no knowledge of that, and any Native American sites would be of interest ... we would like a systematic survey. We would like to identify sensitive areas, and help amend (HNWD's) plan. That's why we wanted that information earlier, rather than later. We fully expect the towers could be moved if necessary, but we have not received a final site plan."

In any case, neither the DHR nor the WV SHPO has much in the way of legal teeth, they say. If one or both of them are notified about federal involvement, they can move forward with a formal review conducted under the auspices of the National Historic Preservation Act. "If there's no federal involvement, it will depend on Virginia state laws," Lamarre said.

HNWD disagrees with state agency

Sen. Mark Obenshain, head of HNWD's law firm, stepped in with a letter to DHR's Kilpatrick in March. Speaking on behalf of his client, and not as a state senator, Obenshain told her that DHR's repeated requests for surveys did not take "important subsequent events" into consideration, and that only one, an archaeological survey, "remains appropriate and necessary" to accomplish.

"HNWD hopes and expects to have a final site plan submitted to DEQ, and then to your department, as early as late spring," Obenshain said then.

So far, no final site plan has been completed; HNWD has told county supervisors that securing equipment has been a challenge, and a site plan can't be finished until it knows which kinds of towers will be used.

Obenshain told Kilpatrick that Highland supervisors considered a view-shed analysis when they issued HNWD's local conditional-use permit. "The final SCC order," he explained, "specifically declined to impose conditions otherwise considered by Highland County."

Highland supervisors did not specifically call for a viewshed analysis per se, but one of the conditions they attached to HNWD's county permit was that the company provide a detailed site plan. In the resolution approving the permit, it says, "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."

The county will not issue HNWD a building permit without a completed site plan.

A survey of structures age 50 and older was done twice, Obenshain told Kilpatrick. "In 2003 and again in 2005, HNWD reimbursed the cost incurred by your department DHR) to conduct an archives search to identify historic resources in the vicinity," he wrote. "The turbines will not be seen from any of the reported sites - Bridge No. 1019 and the two Jacob Hevener stores in Hightown."

As for effects on historic resources listed in, or eligible for, the National Register of Historic Places, Obenshain told Kilpatrick the utility is not a federal project, and therefore a survey wasn't needed. "As stated above, there was nothing reported in your database of historic significance in the vicinity other than the three sites mentioned previously," he wrote.

Camp Allegheny, however, is located within that range, and has been on the National Register for 18 years.

Kilpatrick responded to Obenshain on March 20, reiterating DHR's need for the studies. "We are of the opinion that our requests are consistent with the conditions placed upon this project by Highland County and the SCC," she said. "Although the resolution adopted by the Highland County Board of Supervisors ... never uses the term view shed,' it is clear from the conditions placed on the applicant ... that the board has some concern regarding the impacts of the project on nearby property owners and the natural environment. This same resolution directs HNWD to minimize 'overall visual impact ... to the extent reasonably practicable' and to prepare computer simulations demonstrating their plan.

This sentiment is echoed in the SCC's final order, which requires HNWD to comply with the recommendations of the DEQ report and to 'minimize adverse environmental impact." Kilpatrick says DHR's goal "has always been to fully understand the necessary components of the proposal and to work with HNWD to develop a project that is sensitive to historic resources.

I can assure that we are not aware of any significant effects at this time, but are simply seeking standard information ..." She notes the archives search previously conducted is "by no means comprehensive" and that no comprehensive survey has been done. "Our intention is not to impede or delay HNWD," she said.

Once the studies are done, Kilpatrick said HNWD should give the results to DHR for comment. "Once a reasonable final design has been completed, we would like an opportunity to review the plans and simulations as requested by Highland County," she added.

HNWD attorney John Flora wrote another letter to Kilpatrick May 30, saying an archaeological survey larger than the one already conducted might cost between $55,000 and $75,000, or more, depending on what it takes to analyze Camp Allegheny. "The small size of this project (under 40 megawatts), the location of the site itself and the lack of any legal requirement upon which to base your demands does not justify the expenditure of such a significant amount of money," he said.

DHR already accepted HNWD's statement there would be no effect on archaeological or architectural resources, said Flora. "HNWD believes it is entitled to the same 'scaled back' or 'streamlined' treatment by your department ... Quite frankly, what I would like is for you to visit the site and take the tour with Mr. McBride, so you can see for yourself that spending in excess of $50,000 is not a good use of resources," he concluded.

Kilpatrick, however, responded July 10 saying DHR's position was firm. "It is certainly our opinion that this provision of the order serves as sufficient basis for our professional recommendations. These are not 'demands,' as you state, but our efforts to assist your client in meeting the SCC order. Furthermore, I believe that DHR has been reasonable in scaling recommendations to the specifics of this project."

Kirchen agrees with Kilpatrick that the SCC's final order on the project reflects the state's intention of having HNWD comply with his agency's request for more information. But, as with other project reviews, Kirchen says, "Success lies mostly with the cooperation of the applicant ... and a lot depends on the level of public attention."

Lamarre said the WV SHPO, too, hopes her office will have a chance to weigh in. "So much relies on public persistence," she said.

Federal review would be better, experts say

So far, there is one federal permit required for the utility, from the Federal Aviation Administration. But whether FAA's review would result in a federal historical study is unclear, according to the WV SHPO. "Sometimes our (state) opinions are not the same as on the federal level," Lamarre said. "It depends ... if we get notification from the FAA, then it would be the role of the lead agency to ask us if we're interested in participating ... we have no authority to insert ourselves though, even at the federal level. (HNWD) wouldn't have to do anything we recommend."

The National Trust for Historic Preservation, an independent group that works closely with federal agencies on historic resources, agrees studies are needed. "It's standard practice to do a view-shed analysis," says Elizabeth Merritt, the Trust's deputy general counsel. "The only way around that is to acknowledge there's going to be an impact, then (the state) can work with you to avoid or minimize impacts, but a professional analysis can provide refined information for mitigation. We would strongly disagree that a study is not warranted."

Merritt noted HNWD could go back to the SCC and say, "With or without an analysis, we acknowledge the visual impact will be dramatic and irreparable," and then agencies could help recommend relocating the turbines.

Trying to avoid a good study, Merritt said, is "typical developer behavior," and the National Trust "would strongly support the insistence of the DHR for a visual analysis. It's normal procedure ... it would make sense to arrange something like floating balloons up 400 feet to see where they can be seen."

She believes a federal "106 review" is the best way to go, and the project's need for a federal FAA permit should trigger one. Under a federal review, she says, there are better mechanisms for studying potential impacts. "Even under agencies like the Army Corps of Engineers, (HNWD) wouldn't be able to avoid a federal study."

The Army Corps of Engineers determined it would not require a permit for the project yet, but if the way Laurel Fork, its tributaries or wetlands are affected during construction changes, the Corps said a permit might be necessary.

Mishon Washington, a federal preservation officer for the FAA, said a federal review of historic resources is standard for any structure taller than 200 feet. The FAA has regional offices, "and whatever office has to issue the permit is the office that will do the 106 (historic resources) compliance review," she said. "We have regulations that provide guidance and it's in FAA's environmental order. We go through a checklist. There are certain things you look at ... and then one of those might trigger doing a 106."

Permitting, Washington said, is considered a federal action. "That would trigger a review." Sometimes a 106 review is triggered when a National Environmental Protection Act review is part of the process, but Washington said a 106 review might be required even if no NEPA review is conducted.

The National Park Service manages the National Register of Historic Places. Patty Henry, who helps oversee national landmarks, says she, too, believes a federal historic review is warranted in this case since the wind project needs an FAA permit. "Technically, (the FAA) should have to consider it, even though their focus is on safety issues. But when I think about the National Historic Preservation Act, to my mind, yes, they need the federal review."

Those reviews, she explained, are conducted by an advisory council on historic preservation - an independent agency of the federal government. The council, she said, "can make recommendations about how this is going to affect sites negatively."

What next?

Whether HNWD will be forced to do the studies DHR requests will be discussed when state officials see the site. But even if a federal review were not conducted, DHR would like HNWD to provide what it asked for.

The agency says getting the results of the studies is the first step, and then it can determine what will be impacted, and how best to minimize the towers' effects.

If HNWD fails to provide the information, Kirchen said, the agency will go back to the SCC for guidance.


Source: http://www.therecorderonlin...

SEP 4 2008
http://www.windaction.org/posts/16937-wind-company-state-disagree-on-view-study
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