Wetlands, or no?

By Anne Adams • Staff Writer

MONTEREY — As a microcosm of the wind plant controversy, the wetlands issue seems to be typical of the level of scrutiny applied to the plans for turbines on Allegheny Mountain.

Highland New Wind's plans for a utility in the Laurel Fork watershed has garnered strong opposition from residents and landowners since 2002, and the current debate about wetlands on the project site is a tug of war between those deeply concerned about how the environment would be damaged, and those eager to erect their towers.

Recently, three Highlanders submitted a letter to a number of state agencies and county officials, asserting there appears to be a wetlands area under which HNWD will bury a transmission line, and that HNWD has not applied for a federal permit to do that.

Rick Webb, of VaWind. org, and Lucile Miller and Mc- Chesney Goodall, who both own large tracts downstream from the site, submitted an aerial photo of the wetlands area in question.

Vincent Pero, an environmental scientist with the Army Corps of Engineers, western regional section, saw their letter, and asked HNWD owner Henry T. "Mac" McBride if he could come for a site visit. McBride told him no, not until construction was under way.

"I've seen the aerial photo," Pero told The Recorder last Friday, "but I couldn't say more about it for sure because it's not 'ground truth.' I contacted Mr. McBride to say if the project was impacting wetlands, they needed a permit. I asked if I could make a visit, but he said no. And I cannot go on their property without their permission."

Pero said if he gets a call from anyone, even an individual, saying HNWD is impacting the wetlands, "then I'd begin organizing an investigation, and I'd need to come take a look."

At that point, Pero said, if HNWD still does not allow him access to the property, "then it gets into more legal issues and attorneys get involved."

When the county's Technical Review Committee met Tuesday, HNWD engineer Ed Blackwell presented a letter Pero wrote to Tal McBride, and a letter from a consultant HNWD hired to walk the property and look at wetlands areas. "We are not missing any permits," Blackwell told the TRC.

HNWD hired Dr. John Simmers, with Environmental Innovations and Logistics of Harrisonburg, to walk the project site. "Simmers worked with the Corps for 30 years," Blackwell said. "He wrote the book on determining wetlands."

Simmers said some areas were borderline but they did not change the previous 2006 Corps conclusion that no federal permit was needed, Blackwell asserted. He said there were "little feeders," streams entering Laurel Fork, that did not fall under the Corps' jurisdiction, and he had added notes to the E&S plans to show these "minor streamlets."

"We're staying out of any wet areas," Blackwell said.

The "streamlets" are about six to eight inches wide, he said, and contractors would put half-inch steel plates over them where equipment needed to cross.

Further, he said, HNWD will have Simmers return to flag the limits of the wet areas so contractors "won't get in the wet spots where the little plants and animals live." He said Simmers told him because there were so few wet areas, HNWD could actually dig one large trench if it chose. "It's a credit to my client that he doesn't want to touch the wetlands," Blackwell said. "I think we've addressed this."

County attorney Melissa Dowd asked him whether the areas HNWD plans to disturb had changed in any material way since 2006. Blackwell said no.

"So you don't need to go back to the Corps?" Dowd asked.

Blackwell said no. Pero confirmed Simmers' conclusions there would be no impacts to wetlands, he said. "He's confirmed (the Corps') letter?" Dowd asked. Blackwell said yes.

HNWD attorney John Flora called the areas "very minor wetlands" that were "not significant."

The Recorder obtained a copy of the letters from Pero and Simmers; both were submitted to the TRC as evidence wetlands weren't impacted, but neither letter said that. Both Pero and Simmers simply told HNWD that if wetlands were to be impacted, a permit was needed from the Corps.

Pero's letter was an e-mail to Tal McBride dated July 21. It said, "Just to clarify, if there are no impacts to waters under the Corps of Engineers' jurisdiction, then the Corps will not need to look at historic properties or endangered species. You will have to check with any other agencies to ensure nothing else is needed from them."

Simmers letter, also of July 21, was to Blackwell. It said, "This letter is a summary of several personal e-mail discussions between Vincent Pero … and Environmental Innovations and Logistics … Mr. Pero's opinion is that if there are no anticipate impacts to waters jurisdictional under the Clean Water Act as planned, no permit is needed. This reiterates the 2006 opinion of James Brogdon, Corps of Engineers. When there is no permit required, it is not necessary to address either historic properties or the Endangered Species Act. These issues are addressed only when there is an intention to impact a CWA jurisdictional water and a permit is requested."

Blackwell told the TRC that wetland areas shown previously on federal maps have since been removed. He said he hoped the additional note on his E&S plan, in addition to Simmers' involvement, would truly protect the wetlands. He also noted the wetland areas had been flagged before, but "the cattle ate the flags," and HNWD will have the areas re-marked.

The issue sparked a letter from Bath County attorney Chris Singleton to county officials this week. Singleton represents Highland citizens and landowners concerned about how HNWD's plans will affect them, and especially the sensitive environment of the Laurel Fork watershed; he has attended the last two TRC meetings. He asked the county to deny HNWD's erosion and sediment control plan as currently structured, and deny HNWD a building permit. "As you know," he wrote, "there are several wetlands issues that, if not ignored thus far, have been sorely neglected in the review process. For example, the county conditional use permit requires HNWD to bury the new transmission lines between Red Oak and Tamarack, along the route of the existing Allegheny/ Monongahela line, yet HNWD has not addressed the fact that they will need to cross about 200 feet of obvious wetlands along Laurel Fork, a project for which they have no Army Corps of Engineers approval or determinations."

Pero explained that to be considered a wetland under federal definitions, an area would have more than 50 percent hydrophytic plants (those growing in water, like cattails), have hydric (wet) soil, and have water.

If someone applies for an Army Corps permit to impact wetlands, Pero said typically they hire a consultant who does some groundwork, like setting flags to mark boundaries and checking soils and vegetation. Then, the Corps would come verify that information and make sure it's correct.

Wetlands, he said, "serve a great ecological function. They serve has habitat for aquatic life like salamanders and other amphibians, they are big breeding areas, and they provide water quality by filtering … They can provide a huge diversity and in some cases, contain plant species not found anywhere else."

The Corps, he said, has authority over all wetlands on any property, whether publicly or privately owned. The type of permit needed to impact them depends on the scope of a project. The permitting process accounts for environmental issues, consulting with agencies such as the Department of Environmental Quality, and others. Depending on the permit needed, the process can take from 60 days to two years.

Also, he stressed, "The Corps really tries to balance the environment with the economy. We have to."

Tuesday, Webb, who drafted the letter, said HNWD is trying to "confuse and mislead" Highland officials. "When the county attorney brought up the issue of wetland impacts raised by Ches Goodall, Lucile Miller, and me, Mr. Blackwell cited e-mails from a Dr. John Simmers and the Army Corps that supposedly dismissed concern about the wetlands we identified. In fact, these e-mails say nothing about the large wetland area on the east side of Laurel Fork. That is where Highland New Wind will need both state and federal permits to bury its transmission line," he said. "Instead of dealing with the real issue, Mr. Blackwell and Mr. Flora changed the subject to the smaller wetlands and the stream crossings for which Highland New Wind has obtained approvals rather than the wetlands and stream crossings for which it has not. If our county officials really want the facts, they will need to request that an independent wetlands experts go on site and take a look. The state and federal environmental agencies can do this if asked. It's time to stop simply taking the unverified word of Highland New Wind and its hired spokesmen. Red flags should have gone up when the Army Corps was denied access to the site."

Contacted again Wednesday, Pero confirmed he did not tell HNWD it did not need a permit. "I rarely give a flat yes or no on that," he said. "They're telling me they're not going to impact wetlands, and I have to believe them unless I know otherwise."

Pero said he was familiar with Simmers, and had exchanged emails with him on this issue. Simmers, Pero said, asked him whether directional drilling was considered an impact under Corps regulations. "I said that no, it's not considered an impact, although that's not in our regulations. If they do it correctly, it's not an impact."

Pero said he'd also received an inquiry on the matter from DEQ, and Pero told the DEQ the same thing.

In the State Corporation Commission's final order for HNWD's state permit, the commissioners wrote, "We find that the site must be accessible to state and federal agencies operating within the scope of their authority."

SCC chief counsel William Chambliss declined to give a legal opinion about the Army Corps authority, but told The Recorder this week, "That language is in the order. If the Corps believes the order is being ignored, it can ask the commission to enforce it … The Army Corps can look at that order and decide whether it has that authority."

Pero said though McBride did not allow him access to the site, Simmers did invite him, anytime.

"It seems to me the issue is that line they're burying, and whether or not it's going through wetlands. I told Mr. McBride I would talk to Dr. Simmers. It seems the best thing for me is to go out there," Pero said.

He said he would call Simmers and McBride immediately and ask them if he could visit the site next week. "That might put an end to some of this," he said.

Again, he emphasized that unless HNWD does something wrong, the Corps has no issue with the project. And again, he stressed, "But if there are wetlands there, they're going to need a permit."

He added the aerial photo is not definitive without a ground inspection, and wetlands still must meet the three main criteria of having particular soils, water, and plants. "Just because it looks like a wetlands doesn't mean it meets those criteria," he said, "but it's a possibility."

Jim Echols of the Department of Conservation and Recreation also responded to the citizens' concerns, in a letter this week, after being asked to review the situation before an E&S and storm water management plan is approved. "We need and appreciate citizen concern to ensure protection of Virginia's natural resources," Echols wrote. "We are aware that the proposed project is above Laurel Fork, a Tier III stream."

He explained his office been asked by Highland officials for technical assistance on HNWD's erosion and sediment control plan. After DCR's initial review, DCR staff returned for a meeting with Highland officials and HNWD.

"We were able to spend about three hours on site. DCR was able to provide direct feedback to the owner and his engineer about areas of concern on the project. While on site, DCR staff was able to discuss with the project owner and his engineer the critical importance of compliance with all erosion and sediment control measures should this project go to construction. Protection of this resource is our highest priority," Echols said.

"The SWPPP is required to be developed prior to submission of the registration staff," Echols said. "The SWPPP is reviewed on-site during DCR staff inspection. Should this project be issued a general permit DCR staff will be performing on site inspections at the commencement of construction and throughout the project to ensure compliance with the permit and protection of Laurel Fork."