Who will protect Laurel Fork?

Jacob and Carol Hevener's Dividing Waters Farms in Hightown marks the general location of headwaters for the south-flowing James and the north flowing Potomac Rivers. Jacob says the barn (right, built in 1906) sits on the divide where the land slopes down to the south and north from that point. To get a better view of the barn and to see the Blue Grass Valley from its geographic high point (about 3,150 feet), go west from Monterey on U.S. 250 about five miles to Route 640 (Blue Grass Road) and turn right. The barn is on the left or west side of Route 640. The farm has been in the Hevener family since the 1790s. (Recorder photo by James Jacenich) MONTEREY — Landowners downstream from where Highland New Wind Development LLC hopes to construct an industrial wind energy utility are not satisfied with the county's response to their concerns about erosion and sediment control.

In January, Lucile Miller and McChesney Goodall, both of whom own large tracts below the McBride property where HNWD plans its facility, asked the county to provide more information on how the development might affect their properties, and in particular, the Laurel Fork trout stream which runs from the HNWD site to theirs below. They asked for enough time to evaluate any E&S and site plan provided by HNWD before the county issues the company a permit for construction. The board agreed to do so in December when first asked.

Miller and Goodall sent supervisors a follow-up letter Jan. 27. "We are pleased that the (board of supervisors) shares our concerns about the possible negative impacts to the stream and other environmental resources," they wrote. "We also appreciate the wording of the conditional use permit that you issued, which specifies that the detailed site plan required for the project 'shall be designed to mitigate the impact of the permitted use on nearby property owners and the natural environment.' Since we have nearly three miles of frontage on Laurel Fork, we are the ones who would suffer the greatest impact from degradation of this pristine trout stream. Having repeatedly demonstrated our commitment to permanently protecting Laurel Fork for future generations, it is incumbent on the board to involve us in the process, providing assurances that the proposed wind project, if built, will not cause irreparable harm to the stream."

Miller and Goodall outlined what they needed to know, saying HNWD is responsible for the original analysis, "but the burden of determining whether or not the (erosion and sediment control) plan and site plan meet the requirements of the conditional use permit falls to the (board) and those who will be impacted … We trust that the project will not go forward until all are satisfied that the impacts to the nearby property owners and natural environment have been mitigated to the fullest extent possible."

At the time, supervisor David Blanchard said Miller and Goodall appeared to ask for pretty much what any good erosion and sediment control plan would provide.

However, on Feb. 20, county attorney Melissa Dowd responded to their request on behalf of the board, saying there was little more the county was responsible for providing them. The county, she said, deferred to the State Corporation Commission on environmental issues. "Highland County simply does not have the ability to analyze the specific data you are requesting; nor does the county have any obligation to create the data you are requesting."

Dowd said it appeared Miller and Goodall were asking the county to be a "go-between" between them and HNWD about transferring information. "The county is not prepared to be in that position," she wrote, adding the county isn't obligated to create data that's not provided by HNWD or other government agencies. She noted the county has hired Ronaoke engineers to help review HNWD's erosion and sediment control plan, "which is specifically within the jurisdiction of Highland County for approval," and it will have 45 days to approve the plan after receiving a final version, which would include a complete site plan.

Miller and Goodall disagreed. In a reply to Dowd March 5, they said it seemed the county was deferring to the SCC on the issues, but the SCC has relied on the county to enforce the terms of its conditional use permith. "The SCC clearly deferred to the county with respect to environmental issues other than wildlife impacts," the said.

They cited the SCC's state permit language, which lists the issues the SCC would not consider because Highland County already had. Those included erosion and sediment control.

"Virginia counties are, according to state code, supposed to survey and study natural resources, ground water, surface water, geologic factors, and potential impacts to downstream properties in preparation of their comprehensive plans," Miller and Goodall stated. "Comprehensive plans are largely about permitting different types of land use, yet here the county seems to be saying it doesn't need to or can't address such issues in a major land use decision — despite making project design to achieve environmental impact avoidance an explicit condition of the CUP issued to HNWD.

"You write that the county doesn't have the 'ability to analyze' or 'obligation to create data,' but we are not asking the county to do that," they continued. "We are asking the county to conduct, or have conducted, a thorough and detailed review of the HNWD E&S plan and site plan, as specified in the conditional use permit, and to provide us with the plans and data so we can evaluate the potential impacts of the project independently."

Miller and Goodall assert the county's obligation to provide the information is not only clear, but critical, if the county is to require HNWD to mitigate impacts on nearby property owners and the environment.

"We're not asking the county to be a 'go between' or 'conduit between HNWD and us,'" they wrote. "Instead, it is the county's responsibility to obtain and evaluate the information needed … We are requesting that the county share this information with us as soon as it is obtained. Working together we can avoid future lawsuits and legal intervention and most importantly protect the integrity of the stream … If we can't ask our elected officials, who represent the citizens and landowners of Highland County, to uphold the county code and their own promises and stand up for its people, then whom can we ask?"

Miller and Goodall reminded Dowd of the supervisors' assurances last December in making all information available and to "honestly and forthrightly work with us to make sure this project, if built, strictly follows" the permit requirements.

"Is the county now absolving itself of this responsibility?" they asked.

Time is a factor

Further, Goodall said, "The board of supervisors has said that it has only 45 days to 'approve' the permit once the building permit application is submitted. My understanding is that they have 45 days to review the permit application and supporting material before approving or not approving an application. Given the specific requirements of the (permit), which includes significant conditions that are not required as part of a typical building permit application, it should be clear that 45 days will not be enough time to conduct a careful review of the material associated with site plan design and (permit) requirements."

The landowners ask Dowd to advise the board that 45 days is not going to be enough time for an effective review, and to ask HNWD to provide data "well in advance" of applying for a building permit. "There is nothing in the conditional use permit that implies that a detailed site plan and related information should only be provided with, or is tied to, the building permit application," they said.

Miller and Goodall are putting a team of experts together to advise them, and ask that HNWD provide information such as:

• The location of all streams, wetlands, and springs;

• Soil and geological maps;

• Information on existing land use and land cover like forest ages and types, and areas used for agriculture or under timber management;

• Location of drainage systems on existing roads;

• An assessment of past land use impacts on water in the Laurel Fork watershed; and

• An assessment of how the blasting and drilling for the project construction might affect the hydrology of the area.

Further, they asked for access to the site property if needed, to evaluate conditions that might impact Laurel Fork.

Laurel Fork, they explain, is an exemplary, high-elevation cold water stream and one of the state's most highly valued wild trout streams.

The Goodall family has made a concerted effort to protect Laurel Fork on their land since 1949, most recently entering into an agreement with The Nature Conservancy for a conservation easement which keeps all logging and livestock out of the stream, and leaves trees untouched as buffers within 200 feet of Laurel Fork and its tributaries.

The Miller family has made erosion and sediment control a priority on their property for 15 years and also manages the land to protect Laurel Fork.