Is wind company missing a permit?

Highland New Wind submitted a new set of plans this week, but some residents believe the developer shows a transmission line underground through a wetlands area that has not been properly depicted on its maps. If the developer is installing such a power line, it might need a permit from the Army Corps of Engineers. (Recorder photo by Anne Adams) MONTEREY — The developer planning to erect a 38-megawatt wind energy plant atop Allegheny Mountain says it needs only eight permits for the utility.

Others are not so sure.

Highland New Wind Development's county and state permits both contain a condition it must get all state and federal approvals before it can build 19 towers standing some 400 feet above the ridgeline.

But this week, Highland residents approached the Army Corps of Engineers about a potential problem with transmission lines under a wetlands area — a place where federal approval may be necessary, but for which HNWD has not applied.

Rick Webb, Lucile Miller and McChesney Goodall wrote a letter to ACE, asking the Corps to take another look at the site and revisit its previous determination no permit would be needed. The letter was also sent to county officials and other state agencies, including the Department of Conservation and Recreation, which oversees erosion and sediment control measures.

"We are asking the Army Corps and other agencies with waterrelated permitting responsibilities to re-open their review of the Highland New Wind Development project based on both the apparent presence of wetlands that will be impacted by the project, and on the recent availability of a site plan," they said. "Based on these new plans and other information, it ap- pears that the limited information previously reviewed by the agencies with permitting responsibilities included significant errors and was insufficient in scope to allow accurate and informed evaluation of the impact of the proposed project on waters and wetlands."

After the Corps got the letter, Webb got a call from Vincent Pero, an environmental scientist with the regulatory office of ACE in Charlottesville. Webb said that initially, Pero was interested in re-opening the Corps' review. "He seems like a serious scientist, and he understands the issues and the process," Webb said.

In subsequent correspondence Wednesday, Webb learned Pero had contacted McBride and asked for a site visit. McBride did not allow it, and told Pero HNWD would call him once construction was under way.

In an email to county administrator Roberta Lambert, a member of Highland's Technical Review Committee, Pero said McBride told him HNWD was not doing any work yet. "I asked if I could come take a look, and they did not want me to at this time," Pero said. "They told me before they start doing the trench work they would call me and I could come up to double check the area."

Further, Pero wrote, "I informed (HNWD) that if they impacted any wetlands without a permit they would be in violation and I could stop the project. They understood … They have done nothing wrong currently. If you suspect a violation, please let me know."

Wednesday, Goodall said, "I find it very irresponsible of the ACE to say they cannot re-evaluate HNWD's wetland delineation because they already approved the permit, when in fact, the wetlands evaluation was based on flawed and incomplete information. Does this mean I could purposely and fraudulently submit erroneous information in an effort to make sure it is approved, and once approved, regardless of how bad the information is, know that ACE will look the other way? Is the ACE even interested in protecting wetlands — one of their mandates — or are they more interested in avoiding problems and thereby pushing the paper off their desks? I have absolutely no faith that they are even remotely interested to corroborating our recent findings."

Contacted by The Recorder Wednesday, supervisor David Blanchard said the board would address any issue that surfaces. "Trust, but verify," he said. "All these permits need to be verified … this could potentially be stopping the project."

The problem, he said, is getting people on the ground. "You operate so much on good faith, but at times, you have to put your feet on the ground and see for yourself."

Blanchard said all the agency approvals and potential permit reviews should be verified, "due to the fact there is a site plan now in existence."

Webb said Pero told him he'd consulted with regulatory chief Bob Hume, who said nothing could be done yet. After further discussion, however, Webb said Pero agreed that while HNWD has a required approval for the stream crossing and directional drilling, the company does not have approval for burying a new power line through the large wetlands area east of Laurel Fork. HNWD has never applied for that approval, and additional stream crossings. "That's what the TRC and board of supervisors need to know now; Highland New Wind does not have all the required permits and approvals."

The State Corporation Commission requires HNWD to provide a final site plan to reviewing agencies "that includes maps showing locations of wetlands along stream channels, avoidance of direct and indirect impacts to wetlands and streams, and compliance with recommendations of listed Virginia agencies to protect natural resources during construction," the landowners wrote, in a separate letter to the DCR.

"Accordingly, we request that the Department of Conservation and Recreation conduct a review of the HNWD project and provide recommendations concerning avoidance of impacts to streams and wetlands during construction."

Their letter to the ACE explains that Michael Schwinn, chief of the Corps' western regulatory division, advised McBride that no Section 404 Clean Water Act permit would be required. Schwinn determined no jurisdictional waters would be impacted, based on information supplied by HNWD.

"We request that the ACE reopen its review of the HNWD project based on new information that is now available, and that the ACE carefully reconsider its determination that permits will not be required," the landowners wrote.

They argue that when the Corps first reviewed the project, no final site map or erosion and sediment control plan was available and, therefore, "the full scope and footprint of the proposed HNWD project was unknown. Based on these new plans and other information it appears that the limited information previously reviewed by the (Corps) included significant errors and was insufficient in scope to allow accurate and informed evaluation of the impact of the proposed project on waters and wetlands," they said.

Webb, Miller and Goodall made the following points about the wetlands issues involved:

• HNWD submitted maps to ACE in 2006 that delineated wetland areas related to the location of buried transmission lines and directional drilling for crossing streams and wetland areas. Based on 2006 aerial photography of Laurel Fork in that area, the wetland delineations provided "appear to greatly under represent the actual extent of wetland areas," they said. They provided a photograph that appears to show a large area of wetlands HNWD did not indicate. "Given the distribution and extent of wetlands, it does not appear possible for HNWD to conduct a directional drilling operation without direct and indirect impact to wetlands," they said.

• Based on HNWD's site plans, all new power lines will be underground. The route of the new underground line west from the substation to Laurel Fork will cross the extensive wetland area, they wrote, and apparently cross other smaller wetlands and more streams draining toward Laurel Fork from the east. "This will necessarily involve excavation through wetlands and through streams," they said. "Wetlands in the Laurel Fork watershed have exceptional biodiversity significance, as documented in Ecological Land Units of the Laurel Fork Area, Highland County, Virginia by Gary P. Fleming and William H. Moorehead, Virginia Department of Conservation and Recreation, Division of Natural Heritage, 1996. Wetlands that have been studied in the Laurel Fork area support a number of rare fauna and flora, as well as rare community types. The specific wetlands in the HNWD project area should be individually studied for the presence of protected species or species of conservations concern."

Further, they wrote, "It should be recognized that the presence of wetlands in the Highland New Wind project area has only been admitted incrementally by the developer." They list evidence to that effect, noting:

• In 2005, HNWD told the Department of Environmental Quality there were no wetlands impacted by the planned utility.

• The Joint Permit Application from HNWD, submitted by Malcolm Pirnie, Inc. to the Virginia Marine Resources Commission in 2005, described stream crossings by directional drilling, but made no reference to wetlands.

• Information to the ACE, in March 2006, indicated the only wetlands associated with the project were roughly 0.1 acre of wetlands adjacent the Laurel Fork crossing and a slightly larger wetlands area at a tributary crossing.

• In response to a request from the Corps for detailed maps, HNWD provided some prepared by a local land surveyor which "greatly underestimate the actual extent of wetlands in the project area."

Webb, Miller and Goodall said subsequent correspondence in 2006 from Schwinn stated that based on information submitted by HNWD, the stream crossings and drilling sites are to be entered and exited outside any jurisdictional water, thereby circumventing any potential impact to jurisdictional waters, and that the project will therefore not require a permit. "As we have indicated, the information submitted to the ACE by HNWD included significant errors and omissions … Note that time is critical, as HNWD proposes to start construction in one month or possibly sooner. We regret submitting our information and request without more lead time, but as we indicated above, HNWD's site plans were not available prior to June 12, 2009," they concluded.