SCC sets wind plan hearings

The 400-foot high turbines, 18-20 of them in two groups, would be the state’s first such facility, a fact not lost on local leaders nor the majority of residents and landowners who stand opposed to the project.

Highland New Wind Development LLC applied in November for a state permit to build and operate its proposed 38-megawatt wind energy utility, and last month found itself in court side by side with the county of Highland defending itself against a lawsuit that challenges the local conditional use permit issued last summer by supervisors. A trial is set for June.

As attorneys gear up for their day in court, the State Corporation Commission is moving along in its review of HNWD’s state application, and has scheduled public hearings on the matter for this March. Seven area residents and landowners have filed a motion to dismiss that application as being incomplete.

There’s no way to predict how things may play out, but the stage is set for major turning points on what has become one of the most significant issues with which Virginia’s smallest county has ever grappled.

SCC announced part of its schedule for HNWD’s application review last week. Four hearings have been scheduled, sandwiched between the two weekends of Highland’s 2006 Maple Festival. The hearings will be held at Highland Elementary School’s gymnasium March 13 and 14, in two sessions on each of those days (see related story on how to participate).

Following those, SCC will conduct evidentiary proceedings in Richmond for formal participants in the case. A date for those has not yet been scheduled.

Tuesday, SCC information resources officer Ken Schrad explained the difference between the two types of hearings.

‘Public witnesses’ and ‘respondents’

In March, SCC hearing examiner Alexander F. Skirpan will conduct public hearings at which any citizen (“public witness”) may provide a statement and/or opinion to the SCC concerning HNWD’s application.

“This gives the people in the affected area who may not choose to be formal respondents an opportunity to make comment,” says Schrad.

“Public hearings are an opportunity for anyone to advise the commission on (an application).” Schrad says comments are not likely to be restricted, as requested by HNWD.

In a Nov. 23 letter from HNWD to the SCC, the developer’s attorney John Flora said he wished to clarify HNWD’s position on holding a public hearing. “Public opposition is a given in this matter,” he said, “and we respectfully request that the commission schedule a public hearing … However, as stated previously, given the repeated opportunity already provided to the public to address any and all issues in this matter over the past two years in Highland County … we remain hopeful that the hearing process will be limited in scope to the relevant environmental issues.”

The SCC has not received a formal motion from HNWD to do so, Schrad said, and commissioners rarely limit citizens’ comments. “It is the commission’s practice to develop a full and complete record,” he said.

However, HNWD representatives may choose to raise an objection at the hearing to comments from citizens the company feels are irrelevant. If it does, the examiner would rule on the request at that point.

Those who wish to make a statement will be asked to arrive early enough to sign in with an SCC bailiff. They will be sworn in to give statements, and respondents will have an opportunity to ask a question of those statements for the record.

A transcript of the hearings will become part of the case record for the three SCC commissioners to consider.

“The commission is coming to Highland County as a matter of convenience (for Highland citizens),” Schrad says. The hearings are held in the school gym, but commission officials will conduct them much like courtroom proceedings. There is no limit on the number of people who can speak, and no limit on the amount of time for each speaker.

However, Schrad says, citizens should be mindful of repetitive testimony.

Most of the time, speakers are not asked anything following statements, but Schrad says they are subject to cross-examination.

“The commission doesn’t want them to feel intimidated,” he said, but citizens should know formal respondents and HNWD representatives involved have the right to ask questions of speakers if they choose to have a statement clarified. For example, Schrad explained, a speaker who might address potential noise problems from the turbines could be asked to describe where he or she lives in proximity to the project site.

Though the hearings fall between the weekends of the county’s most popular annual tourism event, Highland chamber director Carolyn Pohowsky says she had been contacted about the hearing schedule before Christmas. After the festival’s first weekend, she said, volunteers and vendors are usually settled with their plans and she does not expect the hearings to disrupt the festival. Vendors who set up in the gym always take down booths between weekends anyway since the gym is used by the school during the week.

Schrad emphasizes that only public hearings have been scheduled, not evidentiary hearings. “The SCC is trying to balance the company’s request for a streamlined process with the citizens’ right to comment on the application,” he said. One of the main differences between “public witnesses” who make statements at the hearings and “respondents” involved in the evidentiary portion is that public witnesses cannot later appeal the SCC’s decision to the Supreme Court. Respondents, on the other hand, have that option following SCC’s decision.

All public comments and all evidence presented by respondents become a formal part of the record, Schrad explained.

Unfortunately, it is not yet known whether all the environmental reviews requested by the Virginia Department of Environmental Quality will be completed by the time the hearings are held in March. If they aren’t, citizens will not have a complete record on which to comment.

Asked about this situation, Schrad said, “That could potentially be a problem, but a person could reappear as a respondent to make their concerns (on those issues) known.”

However, becoming a respondent requires notifying the SCC to that effect by Feb. 10, long before the hearings, and meeting more complicated requirements.

Who is a respondent?

Formal “respondents” are those individuals or groups providing the SCC with expert testimony — information or evidence — about HNWD’s application. As opposed to “public witnesses” speaking at the March hearings, “respondents” must notify the SCC in advance of their desire to participate in the case, and are required to be represented by legal counsel. Two groups have already signed on as respondents.

The first consists of seven residents and landowners near the project site, all of whom are suing the county for its permitting decision in a case going to trial this summer. They include Ralph and Chris Swecker, Pen, McChesney, William and Wayne Goodall, and Gregory Warnock.

Collectively dubbed “Highland citizens,” the group is represented by attorney Anthony Gambardella of Woods Rogers in Richmond; James Jennings Jr. and Daniel C. Summerlin of Woods Rogers, Roanoke; and Chris Singleton of Warm Springs.

They notified the SCC they seek to provide testimony and evidence, conduct discovery, cross-examination, and provide legal briefings and arguments.

The group also made a Dec. 2 motion to dismiss HNWD’s application altogether until more information is provided.

HNWD says its application is complete, or nearly so, and the motion should be denied.

The SCC has turned that motion over to its examiner for a decision at a later date in order to give all respondents a chance to comment on it (see related story for details).

As to whether the citizens’ charges or HNWD’s responses are legitimate, Schrad says he can’t say. “That’s treading into legal interpretation of the rules, and I can’t answer that.”

Most recently, The Nature Conservancy notified the SCC of its desire to be a respondent. A Dec. 22 letter from TNC’s attorney Wiley Mitchell Jr. of Willcox Savage in Norfolk made the request on behalf of TNC’s Virginia group, headquartered in Charlottesville.

Its notice states the conservancy is “one of the leading environmental organizations in the world and, consistent with the conservancy’s international mission to preserve the plants, animals and natural communities that represent the diversity of life on Earth by protecting the lands and waters they need to survive, its Virginia operating unit has been actively involved for several decades in a broad array of projects to protect and enhance the quality of wildlife habitat in Virginia.”

By becoming a respondent, the letter explains, the conservancy seeks to insure the SCC is made aware of the potential environmental threats the project poses to birds, bats and other wildlife in the site area, and wants the SCC to have all the information it needs to evaluate those threats and mitigate damage.

TNC wants to participate, it says, because this is the first application for a utility of its kind in Virginia and what the SCC does is “likely to have significant precedential effect on future applications of the same type.”

TNC hopes to contribute “in a meaningful and substantive way to the development of those procedures and protocols, with the overall objective of making certain that the commission is afforded a full opportunity to consider all of the legitimate environmental concerns this application raises,” it says.

TNC director of government relations Nikki Rovner will be the point person in the case, though the conservancy will be represented legally by Mitchell, who serves on the TNC board.

Rovner says TNC does not intend to weigh in on the question of whether or not HNWD should get a permit. “Our position is that this is the first case the SCC will have (of its kind) in Virginia, and the SCC has the authority to impose environmental conditions. We will encourage them to do that.” Specifically, the conservancy will ask for pre- and post-construction studies at the project site. “There just isn’t a lot of data about the environmental impacts (from wind turbines),” she said. “If the permit is issued, we would like them to conduct studies so the state has good information to make decisions on any future applications … The lack of data is really the main problem here.”

TNC has participated as a respondent in a wind energy case in only one other state — Vermont — and Rovner said she was not familiar with details there.

This will be the first time the conservancy has participated as a respondent in a utility case. “We see this as precedent-setting (for the state),” she said, “and we have a policy recommendation to make.” Rovner explained the conservancy was involved in introducing a legislative study of impacts during last year’s General Assembly session but the proposal was not supported. She does not believe TNC will re-introduce the idea this year.

While she declined to be more specific about the kinds of studies or length of studies the conservancy feels is appropriate, she said they were consistent with previously stated U.S. Fish and Wildlife Service guidelines on environmental impact studies. “We will make more specific recommendations when the time comes,” she said.

It’s possible the conservancy will participate in the public hearings held here in March, but Rovner said the board has not yet decided.

The local grassroots group, Highlanders for Responsible Development, has not yet decided whether it will participate as a respondent. The group was formed in response to the county’s consideration of the project more than a year ago, and has since become a non-profit organization. It has been soliciting donations to help offset legal fees associated with lawsuits against the county.

President Charlotte Stephenson said this week the HRD board will meet Thursday afternoon (Jan. 5) and discuss whether it can hire an attorney and get involved. “At this point,” she said, “I don’t know for sure because we don’t know fully what’s involved yet. But I hope we’ll decide this week and I hope to get cracking.”

Environmental review

Virginia’s Department of Environmental Quality has not received everything it needs to complete its review of HNWD’s proposal. SCC will defer to DEQ on those issues, Schrad says.

DEQ is coordinating all state and federal agency environmental reviews, and will ultimately give SCC a recommendation on the application.

At the end of November, DEQ told the SCC it did not yet have sufficient information to begin its review. The department said it needed a bird study, bat study, radar study, and site plan. HNWD told the agency all those studies were ongoing; the bird study was submitted before the end of December.

DEQ says it needs 60 days after all the information is submitted to complete its review, though Schrad said SCC has not given the agency a deadline.

The avian risk assessment report submitted by HNWD last month was compiled by Curry & Kerlinger LLC of New Jersey. It concludes the project will not have a significant detrimental impact on area birds and flight paths.

Curry & Kerlinger are wind energy consultants specializing in birds and other wildlife. Its team conducted two site visits to the McBride family property where the project is to be located — one on Sept. 7-8 last year, and one on July 23-24 in the year 2000. From those visits and available research, the consultants said there appears to be “little likelihood” that grassland birds would nest at the site. And though no endangered or threatened species are likely, they said, there are some “special-concern” species likely to occur there.

Red-tail hawks and American kestrels are the most likely to nest on Red Oak Knob and Tamarack, according to the report. Because there is no open-water habitat or wetlands there, they said, it isn’t likely migratory waterfowl would be attracted to the site.

Furthermore, the project site is surrounded by 2 million acres of national forest with extensive woodland habitat. “From the point of view of avian risk, the birds and habitats occurring at the project site are reasonably secure, enjoying considerable protection as federal land,” the report states.

Curry & Kerlinger made the following recommendations for HNWD:
• Put power lines underground between the turbines. Any new above-ground lines to substations and transmission lines should follow special guidelines for insulation and spacing.

• Any permanent meteorological towers should be free standing (no guy wires) to reduce bird collisions.

• The size of roads and turbine pads should be minimized to disturb as little habitat as possible.

• Lighting on turbines and other buildings should be minimal to reduce the chance of attracting night migrating songbirds. FAA lighting should be flashing lights, red or white, with the longest permissible off-cycle on as few turbines as possible. No steady burning FAA lights should be used.

• A fall radar study conducted on the site should be analyzed to determine the flight characteristics of night migrating birds.

As for grassland and woodland nesting birds and raptors, the report concludes, some of the birds will likely be displaced. “The degree of this displacement cannot be predicted, nor is it known if these birds will eventually habituate to the turbines, because detailed impact studies have not yet been conducted in similar habitat in the eastern United States,” the report says. “The level of impact to these birds is not likely to be significant at the regional or global level. As a result, the project will not threaten or jeopardize the overall populations or stability of these species.”

Consultants concluded, “There is no indication that the Highland New Wind Development project will result in biologically significant collision impacts to birds.”

What happens next?

SCC’s examiner will coordinate all proceedings in HNWD’s case, Schrad says. The only thing the examiner does not do is make the final decision. Whether the developer’s application is approved for construction is solely up to the three appointed commissioners.

However, Schrad says, the examiner will provide commissioners with a recommendation on the application. Schrad says there’s no way to predict how commissioners will consider the examiner’s report. “I’ve seen (the commissioners) adopt one in full, completely reject it, or accept only part of one,” he said, declining to speculate on how the commissioners will ultimately handle the decision.

Commissioners are free to decide for themselves what information they consider relevant in their decision.

Highland County supervisors met in regular session Tuesday, but made no mention of the hearings. The board did convene in closed session to continue with legal discussions on its strategy involved in the lawsuits.

No action was taken.