Wind project draws doubt from county officials

MONTEREY — Officials and citizens have been reeling over what most call a poor performance by Highland New Wind Development last week.

The company hoping to erect 19 towers for wind generation submitted what was touted to be a final site plan June 11. Last Wednesday, July 1, the county's Technical Review Committee had its first meeting about the plans, and since then, letters criticizing the content of those documents have poured in to the county administrator's office.

"What they've presented is completely unacceptable," said supervisor David Blanchard Monday.

HNWD gave the county its erosion and sediment control plan, a site map, and several diagrams, but some information was incorrect, and much of it, critics say, was inadequate for a project of this magnitude.

After a grilling from the TRC last week, company engineers admitted property lines were off; at least one of the towers appeared to be situated in West Virginia, not Virginia. Building official Jim Whitelaw, county administrator Roberta Lambert, and county attorney Melissa Dowd expressed concerns about the inaccuracies. HNWD assured officials it would provide maps and diagrams that made sense.

"What they gave us wasn't a complete and comprehensive packet of information," Blanchard said. "It did not fulfill the conditional use permit … I was not trying to place any expectations on the final plans, but I would think the project would have been complete, especially given the amount of time they've had."

Supervisor Robin Sullenberger agreed. "My general impression is, we have a ways to go. The applicant has their perspective on things they need to do to be compliant, and the county has another perspective … We're looking to be diligent in our review process," he said. "I was a little surprised, given the amount of time they've had to do it, at the lack of thoroughness."

Mustoe resident Rick Webb, who had attended last week's TRC meeting, said, "It was remarkable how little the engineers seemed to know about the site or the project. The developer apparently wanted a low-bid E&S plan, and that's what he got. The plan is mostly generic material related to minimum design standards, and where it does provide detail it includes a lot of error and poor analysis. Some of that came out at the meeting.

"It's clear that Highland New Wind is trying awfully hard to avoid meaningful review, but I'm not sure they are getting away with it. I'd recommend they spend more on planning and environmental assessment and less on lawyers and public relations specialists. But I understand their dilemma. This project has real environmental problems that aren't going away. I'd be surprised to learn they have actually found an investor who is willing to get involved in this catastrophe."

Tuesday afternoon, Tom Austin of Mattern & Craig, the engineering firm hired by the county to review HNWD's erosion and sediment control plan, gave the county a list of 19 items he felt needed to be addressed more completely. "Based on our review," Austin said, "we believe that the plans and narratives are incomplete and lack sufficient detail needed to perform a final review."

Even statewide group Trout Unlimited chimed in with concerns about an insufficient E&S plan to avoid dumping to much sediment into the Laurel Fork native trout stream (see related story).

Tuesday night, supervisors discussed HNWD's request for an extension on its conditional use permit if the county could not provide a building permit by July 15. Officials spent nearly an hour trying to figure out whether it should do so, ultimately deciding to table any action until next month. By the end of the debate, all supervisors appeared to agree that HWND was not going to get a building permit by the time its permit expires, even though it has had since 2005 to meet its obligations.

Supervisors unsettled

"I've had great concerns over the last meeting of the TRC," Blanchard told his colleagues at the board's meeting Tuesday. "(HNWD) submitted information to the county with the intent of receiving a building permit by July 15, but they were completely unprepared. They had an insufficient site plan. They had an insufficient E&S plan — and this will be the third time with an E&S. How many chances to they get to get it right? And they're using our engineers. Why don't they have their own engineers doing this right?

"I've been really distressed over this," Blanchard continued. "They show contempt, a lack of respect for this county. We opened the door to wind energy, to a good project … and in my first demonstration of their project they show an unwillingness to even meet the most minimum requirements. I don't know when the county gets to say enough is enough."

Blanchard said he saw another site plan this week, and there was still a question about whether one of the turbine coordinates is in Virginia or West Virginia. He recommended the county ask HNWD to get a letter from West Virginia officials stating they agree with the location of the state line. "I don't want the State of West Virginia, or a property owner, coming back to us saying the state line is running right through a turbine," he said.

Dowd interjected that, in her opinion, the supervisors could not make any deter- minations about whether HNWD's plans pass muster. "Only the TRC can determine whether the plan is right; that (duty) has been delegated by the board," she said.

The Technical Review Committee consists of Lambert and Whitelaw.

Supervisor Jerry Rexrode agreed the TRC should handle the review. "That's what they're there for," he said, adding the board's only decision was whether to grant an extension on the permit. "We need to submit our issues to the TRC … There's 15 reasons there you can deny the (E&S plan) right now," he said, referring to Mattern & Craig's list. "You can deny it, and move on with the process."

The number of issues raised by Mattern & Craig, said Blanchard, "seems pretty extensive to me." He did not believe fixing those a little at a time was a good process.

Rexrode said those kinds of issues often arise in large development projects, and fixing them here and there is typical when E&S plans are involved. However, he added, "I firmly think what they submitted was premature … I see a lot of things wrong with it."

"They're piece-mealing incorrect information to us … they don't even have a project planner," Blanchard continued.

Dowd noted HNWD attorney John Flora was trying to serve in that role, having all information funneled through him, "but that hasn't quite worked that well." She said she told Flora about the board's frustrations.

"I'm trying to follow a process here," Blanchard added. "I expect a package of information that's so comprehensive that you'd get lost in it … What they seem to be doing is forcing the county to do their home work for them. They're using county resources, and this is a $70 million project. I don't understand why they're not funding it the way it should be funded … We (the board) have been criticized on a conditional use permit, that it's minimal, and they're reluctant, it appears, to even meet those."

Rexrode said the county would not get a good project if it kept pushing HNWD.

"But they had a minimum of two years to get this site plan; eight years ago they should have had it," Blanchard replied.

Rexrode and Sullenberger both agreed HNWD should have submitted something more complete.

"So what's the problem now?" Blanchard said. "At this point, I'm at my wit's end … The point is, why was the initial site plan with such an error ever submitted? It took eight years, or two years, to get it right?"

Should HNWD's permit be extended?

Supervisors asked Dowd to explain the schedules and deadlines involved in reviewing HNWD's plans, and she said there are two deadlines involved — one for the E&S plan review, and one for the conditional use permit.

The county has an ordinance to address E&S plans, which is separate from how officials consider HNWD's conditional use permit.

An E&S plan, once submitted, must be approved or denied by Whitelaw within 45 days. If Whitelaw takes no action at all, the E&S is deemed approved.

Dowd calculated Whitelaw must approve or deny HNWD's E&S plan by July 27. If Whitelaw rejects the plan, he must provide HNWD with information about how to bring it into compliance for approval. Mattern & Craign's concerns would be included, and have already been sent to HNWD's engineers. The county tentatively approved the E&S plan twice before, in 2007 and 2008, conditioned on receiving an accurate site plan.

If Whitelaw denies the E&S plan, there is no deadline in the ordinance for fixing it, and getting it approved. "It becomes a negotiation process at that point," Dowd said.

However, an E&S plan is a condition of HNWD's county permit, and as such, an approved E&S plan must be in hand by the time the permit expires.

Exactly when the permit expires is complicated to figure out. Dowd received a calculation from another HNWD attorney, Brian Brake, who concluded the conditional use permit expires on Aug. 17. She had figured the date in mid-September, but had not added up the days in between when the permit was granted and the day the first lawsuit was filed against the county. She told supervisors she had not checked Brake's conclusions, but had no reason to believe he was wrong.

"It appears to me to be premature to grant an extension at this point," she told the board. "You will have another meeting in August."

HNWD asked the county to extend the deadline if it could not issue a building permit by July 15. "John Flora indicated that date was picked as a convenience for them … In my opinion we need to be conservative. There's no sense of urgency for the county to grant an extension in advance."

She explained the county could grant more than one extension, and extensions could be for any length of time.

Sullenberger asked about a new state law, effective July 1, that grants automatic extensions to all special use permits statewide.

HNWD believes that law applies to its project, Dowd said.

"So why ask for an extension?" Blanchard said.

"I think they're hedging their bets," Dowd said, adding the request for a building permit by July 15 was not a "magic number," but HNWD was preparing in advance. "They have no right to have something by July 15," she said. "There is no obligation on this board to grant any extension, but that (state) statute may apply."

The new law, she explained, was intended to give extensions to developments stalled by the economic crisis, and probably not intended to cover wind energy developments, but utilities are not specifically excluded by the law.

"The point is, we don't want to be the test case for what it applies to," Sullenberger said.

"You're likely to be the test case no matter what you do," Dowd replied.

Rexrode favored granting a limited extension to HNWD's permit, about 30-60 days. "Now is not the time to rush people if you want to get it right," he said, adding he didn't think there was any way the county could issue a building permit by July 15. He also said he didn't believe HNWD could meet its permit conditions before the permit expired. "It's not going to happen," he said.

"Is that your fault?" Dowd asked.

"If we grant an extension, they really need to show a willingness to provide correct information," Blanchard said. "I don't think this process of it trickling in is good. They've had enough time."

Dowd reiterated her opinion the board should table any vote on an extension until next month because whatever action the board takes "gives someone a reason to sue us," and the county should put that off as long as possible.

Blanchard made a motion to have Dowd determine whether the Aug. 17 date is correct for when the permit expires, and supervisors should table a decision on extending the permit until the board's meeting next month. "I don't think you need to put people under this kind of pressure," Rexrode said.

Dowd explained that, practically speaking, if the board waited to make that decision until next month, it might have more information, and "a more realistic idea of what you're granting an extension for."

Finally, supervisors voted unanimously to table a decision on extensions until Aug. 4.

Also, Lambert set the next meeting of the TRC for Monday, July 13, at 4 p.m.