Citizens threaten board over wind project again

HNWD claims it intends to get federal permit for endangered species

MONTEREY - Highland citizens, bolstered by the recent wind energy injunction in West Virginia, sent county officials their third, and perhaps final, warning. In a letter sent Wednesday, Dec. 30, 2009, attorney James Jennings Jr. told Highland's board of supervisors it must require Highland New Wind Development LLC to obtain a federal incidental take permit to avoid legal action.

The Dec. 8, 2009 decision by a U.S. District Court judge in the case against Beech Ridge Energy, he said, "not only confirms Highland citizens' position by clearly stating that a wind turbine project located near HNWD's proposed project cannot proceed unless and until the developer obtains an incidental take permit under the Endangered Species Act, it also points out the pitfalls those who ignore this requirement face."

Beech Ridge was told by the judge it must get the permit in order to finish construction on its 119-turbine project in Greenbrier County, W.Va., because the facility was likely to cause harm to the endangered Indiana bat.

"HNWD's project impacts the Indiana bat in an identical manner," Jennings said, "and it will impact three other protected species, thereby increasing the need for action. We state once again that Highland County, under the rulings of the State Corporation Commission, its own conditional use permit issued to HNWD, and the applicable laws, must require HNWD to obtain an ITP or face the consequences faced by the defendants in Beech Ridge Energy."

Jennings said his clients believe the Beech Ridge case "answers fully any questions that may have existed whether Highland County has to enforce the ESA."

Further, he told the board, "We point out that all Highland County has to do is require HNWD to obtain an ITP. This is not a draconian step or a burden on the county. Failure to act most certainly can lead to an enforcement action as was done in Beech Ridge."

Jennings explained the Beech Ridge case, and said much of the same circumstances exist in Highland, calling the facts of the case "remarkably similar" to those Highland faces with HNWD.

Two groups and an individual had filed suit against Beech Ridge Energy LLC, asking for an injunction to stop the project's construction. The project was already under way along the Appalachian ridges in Greenbrier County; foundations for 67 turbines were poured, turbines were being delivered, and transmission lines were being installed, Jennings noted. Another 55 turbines were to be added. "Much like HNWD's project, the Beech Ridge project had been through the permitting process (in West Virginia)," he noted, and the West Virginia Public Service Commission, like Virginia's SCC, had approved the project despite concerns about endangered species from the U.S. Fish and Wildlife Service.

Before the suit was filed, there was no evidence an Indiana bat had been harmed, but the judge was convinced the potential for harm was enough. The laws enacted to protected endangered species, the judge said, did not require a species to be harmed before an action could take place, as that would make no sense under the purpose of the Endangered Species Act.

In light of that decision, Jennings said, Highland County must act accordingly "by prohibiting HNWD from proceeding without an ITP."

Both projects are within migratory range of the Indiana bat, he explained, but HNWD's project is also within range of other protected species like the Virginia big-eared bat, golden eagles, and bald eagles. "Any injury or fatality to either the Indiana bat or the Virginia big-eared bat without an ITP in place will result in a violation of the ESA," Jennings said. "By simply requiring HNWD to engage in consultation with (U.S. Fish and Wildlife Service) and obtain an ITP prior to the construction of the turbines, the county
would protect itself against any future enforcement actions or citizen suits."

Jennings noted that golden and bald eagles are also protected by the Migratory Bird Treaty Act. "While there is no ITP yet available under the MBTA, one is currently being developed by the USFWS," he said.

Both Beech Ridge Energy and HNWD "have ignored repeated warnings from FWS to obtain an ITP prior to construction," he added. "HNWD has received at least three formal communications from FWS advising it of its concerns related to the ESA. Much like the developer in Beech Ridge Energy ... HNWD has decided to ignore FWS ...HNWD has ignored those warnings at its own risk."

It does not matter that both projects got state approval, he said. "The ESA is a separate law with its own enforcement mechanisms. The fact that the SCC has permitted the HNWD project should not deter the county from taking the appropriate action here."

Furthermore, Jennings said, the same expert who testified about the likelihood of the Indiana bat being harmed at Beech Ridge also testified before the SCC about HNWD's project, and said the chance that Indiana bats would be killed at HNWD's project were extremely high.

"Our clients expect that the county will heed the clear and unequivocal message of Beech Ridge Energy LLC, and enforce the terms of its conditional use permit prohibiting HNWD from proceeding until they have applied for an incidental take permit.

"If they do not, then our clients will follow the example set by the plaintiffs in (the Beech Ridge case) and seek an injunction under the ESA in the U.S. District Court for the Western District of Virginia," Jennings concluded.

But unlike the case in Beech Ridge, Highland County will be a defendant in a suit because it is allowing or authorizing acts that will result in harm to endangered species and it may be held liable under the ESA, he said, citing case law.

We submit that the only reasonable course at this point is to require HNWD to procure an incidental take permit prior to construction," Jennings said.
Supervisor David Blanchard said he's always believed HNWD should get an incidental take permit, and still does.

Months ago, he said he believed Highland County should ask the developer to get one, but county attorney Melissa Dowd had advised supervisors they could not add such a requirement now.

While Blanchard maintained an ITP was needed according to the county's conditional use permit, where the resolution states HNWD must have "all state and federal approvals," Dowd said if the SCC didn't require one, Highland County couldn't either.

The SCC, in its final order granting a state permit to HNWD, noted the company was assuming a business risk by not obtaining an ITP, and it might not get the financial backing it needs without one.

SCC hearing examiner Alexander Skirpan had said that without an ITP, "Highland Wind risks costly shutdowns and penalties," and that "Highland Wind's failure to enter into a habitat conservation plan and seek an incidental take permit is likely to make it more difficult to finance the project. Highland Wind apparently has chosen to accept the business risks attendant to not entering into a habitat conservation plan and not seeking an incidental take permit. This is a business risk voluntarily assumed by Highland Wind, which may impact the viability of the project. We do not find, however, that the statutory criteria applicable ... requires us to order Highland Wind not to undertake the financial and operating risks associated with eschewing a (plan and ITP)."

Highland citizens, during proceedings at the SCC, noted the commission cannot authorize the taking of endangered species or waive the provisions of the ESA. "We agree," commissioners said. "Obviously this commission has no authority to sanction the take of endangered species, or to waive provisions of the Endangered Species Act."

Supervisor Robin Sullenberger during the board's closed session Tuesday, county attorney Melissa Dowd updated them on the nature of the letter from Jennings, and supervisors asked her to study it further. "We're looking at the legitimacy and vulnerability," he said. "There are a lot of questions ... we have to analyze."

John Flora, attorney for HNWD, sent the board a letter Monday asking that it take no action in response to the letter from Jennings.

"First, those ‘Highland citizens' are presumably some of the same concerned citizens that cost you $275,000 or so in legal fees in challenging every decision made by Highland County in 2005 related to the wind farm," he said.

"These individuals simply want to stop this project. If they were truly concerned about bats, they would be spending significant resources on solving white nose syndrome, which is an enormous threat to Indiana bats. Instead, they choose to spend their money with lawyers trying to stop this wind farm."

Also, Flora said, Highland "consistently stated that environmental concerns for which it had little experience" would be handled by the SCC. "As we all know, the commission, for two years, considered environmental impacts from this project and most specifically, the constant complaint by the Highland citizens that the project be required to obtain an incidental take permit."

Since the SCC chose not to require HNWD to get the ITP, Flora said, those citizens "have had their day in court," he wrote.

"Instead of requiring an incidental take permit, the SCC imposed what we still believe to be the most stringing post construction mitigation and monitoring plan in this country for birds and bats."

Flora explained HNWD will meet with officials from the Department of Game and Inland Fisheries about that plan on Friday morning.

"The possibility that the (HNWD) project will harm an Indiana bat is greatly diminished since the bat population is declining so rapidly due to white nose syndrome," Flora added. The very bats that Woods Rogers purports to be so concerned about are dying in droves from this disease and still as of this date, not a single Indiana bat has been reported killed by a wind turbine," he told supervisors.

Flora also pointed to what he called "continued, robust post construction studies" in New York and Pennsylvania, saying they have "further confirmed the effectiveness of curtailment efforts, or what has been described as ‘feathering' of the turbines during the fall migration season during low wind speed nights."

HNWD, he said, intends to work with DGIF "to review and refine the post construction mitigation and monitoring plan, and submit a habitat conservation plan with the U.S. Fish and Wildlife Service in order to obtain an incidental take permit."

Flora said there were three "very important factual distinctions" between the Beech Ridge project and HNWD's plans. "The leading bat expert utilized by Beech Ridge, according to the court, apparently withheld key acoustical data information that troubled the court," he said. "HNWD conducted more robust preconstruction bat surveys than Beech Ridge and HNWD firmly believes that its bat expert, Dr. Scott Reynolds, was and will be, in any court setting, deemed to be a very credible expert."

Flora also said the closest cave with Indiana bats is within 6.7 miles of the Beech Ridge project, but the closest one to HNWD's project is 11.2 miles. "This distinction is very significant," Flora said.

And, Flora said, while the SCC imposed stringent requirements on HNWD, the West Virginia PSC "did not impose any specific condition or requirement."

Flora pointed to the difference between how the Beech Ridge project was approved, and how HNWD's project was approved. "You clearly and consistently explained to all involved that you did not have the environmental expertise and that you would handle the appropriate local land use and zoning issues but would defer all environmental and wildlife issues to the State Corporation Commission, who would coordinate with the Department of Environmental Quality and others," Flora told the board. "That in fact occurred, and the (SCC) stated in its final order that it would not require an incidental take permit.

The time to decide whether to require an ITP as part of Highland's conditional use permit, Flora said, has expired. "Depending on our efforts on Friday, and efforts by the wind industry nationally, we expect to be in a position to provide additional, useful information to you before you issue a building permit.

"I certainly hope you will not feel threatened by this repeated effort to stop the wind project, which will soon be of great benefit to the county and its citizens," he concluded.