Agency says wind company's permit expired

RICHMOND - Is Highland New Wind Development is still allowed to build Virginia's first wind energy utility? Virginia's Department of Historic Resources says no, and that question is now before the State Corporation Commission.

In its complaint that HNWD isn't meeting conditions required under its state permit, DHR says HNWD's permit expired Dec. 20, 2009, and HNWD had not started construction. The SCC put a two-year sunset provision in its final order when it granted HNWD's permit on Dec. 20, 2007. The company was required to begin construction within two years - by Dec. 20, 2009 - or ask for an extension.

DHR believed HNWD was not working with the agency on mitigating visual impacts from the proposed 400-foot turbines, particularly on the Civil War battlefield nearby in Pocahontas County, W.Va., and complained to the SCC that the company was violating its permit condition.

HNWD and DHR set out their arguments on that point in legal briefs filed Monday. Steven Owens of the Attorney General's office, who represents the DHR, argued HNWD had a permit for grading, but had not yet received a building permit from Highland County or asked the SCC for an extension. "While grading is a form of construction that involves moving earth, it does not involve the construction of any buildings, structures or other facilities," Owens said, citing case law. "The facility approved by the commission includes towers, turbines and other structures permanently affixed to the real estate. Consequently, HNWD is in violation of the sunset provision in the (permit) and is no longer entitled to pursue this project."

The Recorder asked the SCC Dec. 15 and again Dec. 22 whether the commission considered the project to be "under construction." The SCC was checking case history, but this week, the SCC said it could not provide further insight on the quesion.

DHR's complaint

In DHR's brief, Owens says the law recognizes that a party cannot keep suing another party on the same question over and over. In the years leading up to the SCC's final order, HNWD said it already addressed the towers' visual impacts under the local conditional use permit issued by Highland County, Owens wrote, and "that all actions that could be undertaken with respect to historic resources impacted by the project had been accomplished, and that the requirement to coordinate with DHR should be deleted from the final order."

But, Owens says, "The commission specifically rejected that position and specifically required HNWD to coordinate with DHR. These are the same arguments that HNWD has been making throughout the course of its objections to DHR's complaint."

HNWD had argued it "could not and should not take any further actions with respect to Camp Allegheny because it would not be adversely impacted as far as they were concerned, and that placing any further requirements on HNWD would cause unacceptable financial impacts," Owens said. Those arguments have already been considered and rejected by the SCC, and "HNWD is now asking for second, third, and in some cases fourth bites at the apple," he added.

Most recently, HNWD argued DHR's complaint should be dismissed because the agency has no authority over sites in West Virginia, which are out of its jurisdiction.

DHR says HNWD can't raise that argument now, when the company didn't do that before. HNWD "has never, throughout the four years that they have been pursuing this project, alleged that Camp Allegheny should not be considered because it is in West Virginia ... HNWD is attempting to raise a collateral issue in connection with this proceeding because they failed to raise it during the proceedings in chief. They are not allowed to do that," Owens said.

Even if HNWD is allowed to raise the same issues, there is another legal principle that does not allow parties in a suit to take successive positions "in reference to the same fact or state of facts, which are inconsistent with each other or mutually contradictory," Owens argued.

This suit refers to the same set of facts, he said. "All of HNWD's actions were consistent with Camp Allegheny being a legitimate issue to be considered by Highland County and by the (SCC). It would be inconsistent to now allow HNWD to state that Camp Allegheny should not be considered at all," he said.

Owens said it has taken years to get HNWD to provide enough information to determine what might be impacted by the towers, but it must still work with DHR on ways to minimize those impacts.

"HNWD refused to consult with DHR for advice regarding a scope of work that would resolve the agency's issues, refused to discuss ... what its concerns were, and rather pointedly refused to pay any attention to anything that DHR put in its correspondence about what its expectations or concerns were," Owens said.

"The parties agree that HNWD has finally done enough to satisfy the requirements of the final order that would identify the resources impacted ... HNWD has now taken the position that, although it should not be required to do anything, it is certainly not required to do anything else but identify the affected assets. Again, to have any meaning at all, the final order would not require the identification of impacted historic resources without requiring the fulfillment of the final part of the process, i.e., to determine what could be done to minimize and mitigate the impacts ... Again HNWD has simply stated that they have done everything that can be done without following the
processes and procedures required by (DHR)."

HNWD's claim that impacts to the Civil War site cannot be considered because Camp Allegheny is in West Virginia don't make sense in the context of Virginia policies, Owens said.