Wind utility headed into construction

By Anne Adams • Staff Writer

Tal McBride sets up photography equipment at the home of Pen and Leslie Goodall. McBride took photos there last week to create simulations of how his company's 400-foot towers will look from the house after they are installed on the ridge above the home. McBride was accompanied by supervisor David Blanchard and Highland deputy Ronald Wimer. (Photo courtesy Pen Goodall)

MONTEREY — It was a big victory for the owners of Highland New Wind Development LLC Monday.

A site plan for its 38-megawatt wind energy utility was approved by county officials — what many saw as the last, largest hurdle for the company planning to erect a 19-tower elecricity facility on Allegheny Mountain.

Highland's Technical Review Committee of Roberta Lambert and Jim Whitelaw met for the last time Monday, and in a well-scripted reading of HNWD's conditional use permit requirements, checked off nearly everything the developer was required to accomplish.

After moving through each item one by one, the TRC declared the site plan approved, pending easements being recorded and bonds posted.

The McBride family applauded, and shook hands with county officials to thank them for their work and approval.

A last-minute visit to the site by the Army Corps of Engineers, prompted by assertions HNWD had failed to delineate all the wetlands areas that could be affected, resulted in one more survey HNWD needed for the site plan. The TRC approved the site plan pending the Corps' final determination about whether a federal permit from is required.

Though supervisor David Blanchard was unable to attend, he wrote to the TRC Friday, asking Lambert and Whitelaw whether they had received any environmental reviews from HNWD. An item in the conditional use permit resolution, he notes, says HNWD shall file copies of any environmental impact statements or environmental assessments that were filed with any federal or state agency. "Has the county/ TRC received any statement?" he wrote. "If mentioned filings are not required, the TRC needs a letter from agencies listed in the State Corporation Commission ruling … that no environmental impact statement or assessment is or was required." (See related story).

The conditions attached to HNWD's state permit, however, were not considered. County attorney Melissa Dowd advised the TRC that it had no right or authority to question the SCC's permitting requirements.

However, on July 26, Lambert asked HNWD to provide a progress report, including an update on meeting requirements from the State Corporation Commission. HNWD attorney John Flora's responses were addressed in the TRC meeting as Lambert and Whitelaw explained each condition.

Progress on state

requirements

n Submit final site plan to reviewing state agencies — Flora gave Lambert a copy of his June 12 e-mail to the Department of Environmental Quality. DEQ agreed to distribute the site plan to all agencies that reviewed HNWD's proposal when it applied for a state permit. Flora told Lambert the final version of the plan was sent to DEQ again on July 28 for a "second and final distribution."

By Monday evening, page 2 of the site plan had been added to the web site, depicting the wetlands areas found by the Army Corps.

n Conduct archaeological and architectural surveys if necessary; coordinate with the Department of Historic Resources — Flora explained the two years' worth of back and forth with DHR over this issue. He said the McBrides attempted to contact an archaeologist at James Madison University, at DHR's suggestion, but couldn't reach one, and hired a different one to do the survey. "By letter dated July 15," he told Lambert, "our office sent a final communication to DHR, including the photosimulation from Camp Allegheny completing our cooperation and consultation with DHR."

As of Wednesday this week, DHR had not corresponded further with the company.

n Avoid direct and indirect impacts to wetlands; provide infor- mation on the actions to be taken to meet this condition — Flora said the only potential impact to small wetland areas is in the area close to Laurel Fork and the two unnamed tributaries of Laurel Fork. "None of the road construction or turbine sites impact wetlands," he said. "The underground transmission line connecting the Red Oak Ranch turbine array to the Tamarack turbine array is the only project construction that could possibly impact wetlands." He noted the 2006 survey by the Army Corps confirmed this, and concluded no federal permit would be needed. Further, he said, "There is no 'large wetland area' on the east side of Laurel Fork anywhere near the vicinity of the existing transmission line. That claim made by Mr. (Rick) Webb, Mr. (McChesney) Goodall and Ms. (Lucile) Miller is much like most of the claims and misleading information they have provided since this project commenced. That claim is simply not true. The small wetland areas near the transmission line were delineated on the maps by (the Corps). Nothing of any significance has changed since that time."

However, Vincent Pero of the Army Corps visited the site last week and said there are, indeed, additional wetlands that need to be surveyed. Monday, he told The Recorder he found part of them in the place those citizens asserted they existed, and some elsewhere. He saw the locations where each of the towers is proposed, and drove the length of the proposed transmission line, he said. "It's too early to tell yet" whether HNWD will need a federal permit, he said. He asked HNWD to get the other wetlands areas surveyed and create a new map for him. "Then I will determine whether they need a permit," Pero said.

DCR's Jim Echols said HNWD "must stay in compliance with state and federal permit requirements related to streams to stay in compliance with an approved E&S plan," and that plan revisions are not unusual after plan approval.

Monday, Lambert read a letter from Pero, which explained he met with HNWD's consultants on site. "I looked at where the turbines would be placed as well as where any lines would need to be buried or cross streams. I did observe some additional wetlands areas on the site, determined through soil samples, plant identification, and hydrology, that were not on the original delineation. I am currently waiting for a new wetland map to be submitted to me for verification."

Pero said the consultants told him they believe they can do directional or horizontal drilling under the wetlands and stream crossings. "If they can do this and have no other wetland impacts, the Department of the Army Corps of Engineers authorization will not be required. My final determination will be made once all maps and plans are submitted to this office," he said.

n Protect natural resources during construction; explain how HNWD will adopt the recommendations from DEQ, the Department of Game and Inland Fisheries, and the Department of Conservation and Recreation — Flora said DCR visited the site twice, and has consulted with Mattern & Craig, the county's engineering firm, on the erosion an sediment control plans and storm water management. "DCR will continue to monitor and periodically inspect the project during its construction phase to protect natural resources," he wrote.

"DGIF and DEQ have both received the final site plan and DEQ has identified various agency officials who may want to visit the site during construction. DGIF has been contacted to arrange a meeting to discuss the protection of natural resources during construction, as well as the post construction requirements imposed." Flora said Lambert's question about how HNWD will protect species on the site is also answered in its contact with these agencies. Flora said the McBrides have been in contact with the new DGIF director to arrange a meeting to discuss protected species.

Monday, Flora reiterated the company's intent to work with these state agencies.

n Coordinate transportation safety issues — Flora said Spruce Hill Excavating has been "engaged to handle the Route 250 road work and he is a certified Virginia Department of Transportation contractor. The McBrides will remain in contact with VDOT about safety, he said.

n Performance bond — Flora had given county attorney Melissa Dowd a draft bond security agreement, which needs to be in place before building permits are issued. "At the present time," he said, "we anticipate undertaking about four weeks of site plan development work before any building permit is requested," he wrote. Dowd said Monday she found few weaknesses in the bond agreement, and was working with Greg Haley, a consulting attorney for the county, on the draft. "We have number of issues with it," she told the TRC. Two issues of concern, she said, are that HNWD owner Mac McBride could die tomorrow and the security offered is owned by him, and that Flora's draft is focused more on the short-term, and she felt it was more complicated than it needed to be.

At this point, she said, the TRC can be satisfied a bond will be in place, but since supervisors gave her the responsibility for reviewing it, "it's a negotiation between Greg Haley, John Flora, and me."

Flora said he believed it could be worked out; Dowd agreed. "There's just some language in there that I don't think is strong enough to protect the county," she said.

• Legal filings — Flora said the conditional use permit and setback waiver would be recorded this week. They had not been recorded by Wednesday afternoon, according to the court clerk's office.

n Identifying special construction inspectors — Flora said its firm, Blackwell Engineering, will have a list of inspectors for excavation and site work available Aug. 3, and other inspectors for other tasks "will be identified later."

n Visual simulations — Last week, Tal McBride took photos from Bear Mountain Farm and Retreat and the Goodall home to create visual simulations. Also, he sent Lambert a example image of a 1.5-megawatt turbine in Kansas to explain his calculations on the simulation from Ronnie Moyers' home. Moyers had said he did not believe McBride's simulation of how the towers would look from his place was accurate. McBride told Lambert it was 3,458 feet from one of the turbines depicted to where his camera was in front of Moyers' house. "It's 7,000 feet from the camera to the Wheat Field Wind farm turbines in this simulation," he said, referring to the Kansas example. "Note the site of the GE 1.5 MW turbines is 389 feet to the tip of the blades in this photo-simulation."

Monday, the TRC agreed it had a photo-simulation of each tower, and ones from Camp Allegheny it requested.

Dan Foster, however, noted the significant depiction he requested from the battlefield area was not created, and mentioned that to supervisor Robin Sullenberger. Sullenberger told him just because he requested it did not mean the TRC had to ask for it.

Lambert asked HNWD to pro- vide information about whether other suitable but efficient locations had been considered to mitigate the impact on nearby landowners.

She cited a letter from project manager Heidi Lestyan of Antares Group Inc., which explained that although it was possible to move some of the turbines back along Tamarack Ridge, it would not change the impact much. Lestyan had provided a photo-simulation to show the difference, and the TRC agreed it would not make a great deal of difference (see related story).

The turbine close to the border — July 28, supervisor David Blanchard told the TRC, "It is in the best interest of the county and HNWD to have no turbine or any part of a turbine, blade or foundation, crossing into West Virginia territory. Having the turbines completely located in Virginia eliminates any questions and potential legal implications now or in the future."

The TRC did not respond to Blanchard's concern, but Dowd said she consulted state code and Highland's ordinances and believed the location of that tower to be a "non-issue." She said even though one turbine's blades will technically spin across the border in West Virginia's air space, Highland has no authority to regulate anything that happens beyond its own borders.

Federal Aviation Administration approval — The FAA issued a "determination of no hazard to air navigation" for each of the towers proposed. Each stated the aeronautical study revealed the structures do not exceed obstruction standards and would not be a hazard as long as each is painted white and nine of them are marked with synchronized red lights. HNWD must file a notice of actual construction with the FAA within five days after construction reaches its greatest height, or if the project is abandoned. "While the structure does not constitute a hazard to air navigation," the FAA said, "it would be located within or near a military training area and/or route." The determinations expire July 28, 2011 unless they are extended by the FAA; a request for extension must be given at least 15 days before the expiration date.

The county's requirements

Lambert outlined each of the conditions attached to HNWD's local permit, noting the status of each. Most had already been addressed to the TRC's satisfaction. These included conditions for height, the number of turbines, using the existing transmission line, set back requirements, lighting, color, fencing, screening, signs, access roads, and an approved erosion and sediment control plan.

Erosion and sediment control

HNWD's Erosion and Sediment Control and storm water management plans were approved by Whitelaw July 27, following further revisions by Blackwell Engineering.

Monday, Whitelaw said the county's firm, Mattern & Craig, gave its nod to Blackwell's changes, which included expanding the disturbed land area from about 40 to 76 acres and adding the two additional wetlands found by the Corps' engineer last week.

HNWD has applied for a landdisturbing permit, but Dowd said it could not be finalized until the comp any gets approval for its E&S and storm water management plans. Blackwell had filed for that approval July 23, and confirmed it had been received by Eric Capps at the Department of Conservation and Recreation. Dowd said HNWD needed written authorization the plans had been approved by the Department of Conservation and Recreation, a "Notification of Coverage," before it could proceed.

By Monday, the storm water permit had been issued by Capps, effective July 29.

HNWD must finalize an E&S performance bond before a landdisturbing permit can be issued, Dowd said.

Whitelaw said the bond could be as much as 10 percent of the total E&S estimate, which would amount to roughly $50,000.

Tuesday, Dowd explained she and HNWD were still negotiating the bond and it had not been posted yet, but Blackwell had told HNWD it should "now be free to start site grading once the bond/letter of credit for erosion is posted. Jim (Whitelaw) may want a pre-construction meeting with your contractor to certify him as the registered land disturber; at present, I am listed as the (land disturber) but this can be switched over to your contractor once construction starts."

State and federal approvals

The county had contacted the federal National Radio Astronomy Observatory in Green Bank, W.Va. to see whether it needed information about the project. NRAO gave the TRC what it called an "initial review" of the radio frequency interference potential.

NRAO said, "Preliminary evaluation of the proposed wind turbine 'farm' indicates that there is no foreseeable interference. The full impact of the energy source, however, is unknown at this time. The NRAO specifically requests a site visit of a working turbine for the purpose of obtaining an 'emission footprint' of the generator and associated control electronics."

NRAO said it would provide HNWD and the county with a summary of data from a "footprint" evaluation, and provide additional comments after the project was completed.

HNWD indicated it had no problem allowing NRAO to do the study.

Lambert noted the list of permits HNWD compiled was complete save for a building permit. Those included getting the SCC's certificate to build and operate.

Dowd explained as far as the county was concerned, that condition had been met. "As I've said at prior TRC meetings, it is my opinion that the SCC did a specific review … under its own guidelines, and issued a final order and permit. Highland County has no right or authority to enforce (it)," she said. "They (HNWD) appear to have gotten all the required permits and approvals."

Supervisor Robin Sullenberger noted Blanchard's concerns about getting evidence from the state reviewing agencies that they had approved the project. Dowd said again the state permit had been issued, adding, "If the SCC has a problem, they will direct their concerns to the applicant, not Highland County."

Flora noted HNWD's excavator wanted to do 3-4 days of work, and then DCR officials would be invited to inspect; DEQ officials had also been invited, he said, adding HNWD had been in touch with state officials "a good bit, since I got a long list of SCC people who want to come out."

Dowd pointed to the SCC's final order language, and again described it as vague. "You can review and review and review and review … but you will always get different opinions. The bottom line is, under the state statute, what has to be gotten has been gotten," she said. "The board of supervisors did not reserve any authority to second guess the state agencies; you have no right to go back and revisit whether DHR is happy."

Sullenberger agreed, saying if the agencies involved had significant concerns, he would expect them to be more actively involved.

Dowd asked HNWD to confirm the site plan submitted Monday was indeed the final version. "Each time the TRC meets it seems like we get a new page," she said.

HNWD confirmed it was the final site plan, and it had been sent to reviewing agencies.

Site plan finally approved

Following the review of conditions, Lambert said there were two things left to do related to a building permit — recording the resolution attached to the conditional use permit, and recording a performance bond.

Also, there were three things left related to the TRC's review — recording an easement with Scott Timberland which allows HNWD to encroach on the required 1,600- foot setback; getting the storm water permit notification; and recording an E&S bond.

By Tuesday, the storm water permit was received, but the other items had not been put in place by Wednesday afternoon.

The TRC declared all the conditions for the site plan had been met, and determined it was approved pending final approval from DCR and the Army Corps, and recorded easements.

Visibly relieved, Flora thanked Lambert and Whitelaw. "We very much appreciate all the hard work you all have done on a challenging and difficult task," he said.

Dowd added that since the TRC's function was only administrative power delegated by supervisors, no vote by either it or the board was required, and that ended the TRC's responsibilities.

At Tuesday's supervisors' meeting, Sullenberger asked Dowd to repeat that message. "Under the conditional use permit, the board did not reserve any powers to itself," said Dowd. "It delegated administrative review powers to the TRC, which was comprised of the county administrator and building and zoning administrator, so there is no legal requirement whatsoever for you to take a vote, to approve what they did, or disapprove what they did. You did not reserve any powers, so what they did is, for all intents and purposes, a done deal."

The McBride family and its representatives took a few moments to express again their appreciation for the site plan approval. "I'm going to go up and touch them on the shoulder affectionately," McBride said as he made his way to Lambert and Whitelaw.