Pocahontas, W.Va., considers legal action on border question

Pocahontas, West Va. considers legal action

By Anne Adams • Staff Writer

MARLINTON, W.Va. — Where is the state line? Pocahontas officials would like to know.
The Pocahontas County Commission met Thursday and in an occasionally heated discussion, agreed Highland New Wind Development’s planned wind energy utility in Highland County, Va., might be infringing on West Virginia property.
The commissioners decided to talk about it again Tuesday, when they will vote on whether to take legal action to settle the matter.
Pocahontas Times writer Suzanne Stewart reported that at Thursday’s meeting, commission president Martin Saffer vehemently argued HNWD had re-drawn the state line to suit its needs. “Saffer explained that Pocahontas County needs to take immediate action to finally decide where the state line lies,” the Times reported yesterday, noting Saffer said, “The exact delineation of the border between Virginia and West Virginia at this juncture is in dispute … The Highland wind turbine project has asserted a property line based on the survey by their person which is opposed to and different than the survey of the United States Geological Survey. It is different to the extent that the line proposed increases the size of the state of Virginia and diminishes the size of the state of West Virginia and there by situates two of its turbines, in their estimation, in the state of Virginia. However, if the USGS line is accepted as the true line, and it is I assume, the federal line between the two states, those turbines are within the state of West Virginia.”
Saffer recommended the commission file a declaratory judgment in circuit court.
“We need a declaratory judgment to declare and establish officially and unequivocally the line between Virginia and West Virginia,” he told The Recorder Friday. “To me, it’s an issue in which Pocahontas not only has standing, but has due diligence.”
Saffer contacted Robert Bastress, a constitutional law professor at West Virginia University, who has agreed to represent the county pro bono.
Commissioner Reta Griffith “expressed her concern that the border dispute had already been remedied by the developer,” the Times noted. “I spoke with Mr. (John) Flora Wednesday morning and he said there was an internal dispute between two of their own engineers and that has been resolved,” she explained. “The base of every single turbine that is proposed lies entirely in the state of Virginia. There is one that is very close to West Virginia, but the base of the turbine is entirely in the state of Virginia.”
The first draft of HNWD’s site plan showed one tower entirely in West Virginia. Highland County officials questioned its location, so HNWD had Jeff Hiner, a surveyor licensed in both states, take another look. Hiner determined the state boundary was incorrect on USGS maps, and used his technology and research to show where the line should be. A new site plan was submitted to Highland officials, along with Hiner’s explanation, and they were satisfied the tower would be entirely in Virginia, although its blades would still spin across the “new” border. Highland approved HNWD’s site plan Aug. 3.
Right before the commission meeting Thursday, Highland County Attorney Melissa Dowd sent an email to Saffer explaining the turbines were in Virginia, not West Virginia.
HNWD also sent a drawing of one tower to Pocahontas officials, but they did not receive it in time for their meeting. The drawing indicates the “old” state line goes directly through the foundation of the tower in question, but the “new” state line, as determined by Hiner, is about 11 feet to the west of its foundation.
According to the Times, Dowd told Saffer, “The answer is, all turbines will be in Virginia, as I have said to you repeatedly … A field survey trumps aerial information from USGS, which is what you are relying on.”
But that isn’t enough to re-draw the state boundary, Saffer told The Recorder, because West Virginia law requires changes to state lines be authorized by the West Virginia legislature.
“It’s a very complicated and exacting process,” he said. “The statute in West Virginia says we must have a boundary commission, convened by our governor, in concert with legislation to make an official determination in cooperating with an adjoining state. Right now, there is a question … All we want is to answer the question and we need to go through that process.”
Asked whether the matter could be settled more informally between Pocahontas and Highland counties, Saffer said, “I don’t think so. Once a boundary is in dispute, it has to go through the lawful commission to establish it with certainty.
“I don’t know what Virginia can do,” he added. “I can’t understand why this property line hasn’t given (Virginia officials) more pause. This is a very important matter.”
According to the Times, commissioner David Fleming told his colleagues, “I have mixed feelings about this wind turbine project … We haven’t been given a sincere chance to learn about or be a part of this dialogue and when I think more about this issue, private property rights need to be protected, but the Allegheny ridgeline, it’s unique, one of a kind. It’s a long, graceful spine supporting diverse and deciduous forests and this line, essentially, divides West Virginia and Virginia, so we have property owners on both sides of the line who stand to be affected by anything going on here. So my feeling is, any project that would impact this, what I call a geological and ecological gift, needs to be considered by all bordering counties and the states of West Virginia and Virginia.”

Supervisor reaches out to Pocahontas
Dowd instructed Highland County officials not to speak to anyone in Pocahontas, but supervisor David Blanchard called Saffer Friday and said he would come to the commission’s Tuesday meeting to listen to the concerns about the boundary.
Blanchard told his board before the final site plan was approved that he believed Highland officials owed Pocahontas the courtesy of understanding what had been redrawn. He and supervisor Robin Sullenberger were willing to meeting with the Pocahontas commission when Saffer asked, and three possible dates were proposed for the boards to get together, but Dowd believes now that Pocahontas is considering legal action, such a meeting is not a good idea.
In an email to Saffer, Dowd said because he had threatened litigation against Highland County, “I have directed the board of supervisors and the county administrator not to talk with you or anyone else from Pocahontas County.”
Further, she told him Virginia’s Freedom of Information Act does not cover requests for information from non-residents. “Once you have changed your tune about suing us and truly want an informational meeting without accusations and threats of litigation, let me know and we’ll pull something together. Your approach to this non-issue has done nothing to further cordial relations between adjoining counties.”
Blanchard disagreed with cutting off commumications, and told his fellow board members and county administrator Roberta Lambert he intended to go to the commission’s meeting Tuesday and invited them to join him.
Friday, The Recorder asked Blanchard and Sullenberger to grant Dowd permission to explain the legalities of the boundary question, but Sullenberger said she was swamped and could not answer questions from The Recorder until Monday.
HNWD had hoped to start construction this week, but Friday afternoon, Dowd told Saffer no erosion and sediment control permit had been issued. “The developer is here today trying to get such a permit, but I am not satisfied with the amount of the bond they are proposing, so no permit will be issued today, as far as I know,” she wrote.
Sullenberger also said Friday that absolutely no blasting was taking place at the project site, as reported in Thursday’s Recorder. He said assertions by neighbors about that were mistaken, and that county building official Jim Whitelaw had gone to the site to verify there was no blasting.

Landowners file notice
Because HNWD is close to construction, downstream landowners Lucile Miller and McChesney Goodall have given notice to the county, as E&S plan authority, and to HNWD, that they believe the E&S plan does not meet state regulations.
The county and HNWD now have 15 days to correct the E&S plan; if it is not changed to the landowners’ satisfaction, they can take legal action.
Their letter, sent Aug. 12, said that pursuant to state code, “this is a formal notification to you that the E&S plan approved by Mr. Jim Whitelaw of Highland County does not meet Virginia’s minimal requirements for an Erosion and Sediment Control Plan and to make you aware that the program authority or Highland New Wind Development, LLC has 15 days to take corrective action before we apply for injunctive relief. 
“Highland New Wind Development LLC is poised to begin construction,” they wrote “and because the Erosion and Sediment plan, as approved, does not meet minimal state standards and because of the extent of the planned ground disturbance, our properties, which include frontage on and riparian rights to Laurel Fork are in imminent danger of being damaged by inadequately controlled stormwater runoff and sediment.  Rifle Ridge Farm, the Goodall property, adjoins the McBride property; and Laurel Fork LLC, the Miller Property, is downstream from the Goodall property.”
In order to avoid legal action, they said, certain corrections must be made to the plan. “These concerns are shared by Mark Chambers, Virginia Stormwater Compliance Specialist for the Virginia Department of Conservation and Recreation, who by memorandum dated July 16, 2009, noted his concerns to Jim Echols, Staunton Regional Office Manager,” they said.
Miller and Goodall listed the following issues in the plan:
• The E&S plan must provide a level of detail to meet requirements of state E&S regulations, they said. “Specifically, the plan scale of 1 inch = 500 feet and the 40-foot contour interval does not describe the existing site conditions in enough detail to determine the scope of work that will be required to complete the project. The lack of information and detail makes it impossible to provide comprehensive or detailed comments about the plan. It is impossible to determine the amount and nature of the land disturbance it will take to complete the project or the types, sizes and location of erosion and sediment control measures that will be required for this project.”
The landowners list examples and the regulations that apply to them, including the grading involved; road ditches and culverts, receiving channels, outlet protections, the level of erosion and sediment control measures, the steepness of cut and fill slopes, and a grade design. All of those things, they said, cannot be determined without more detail on the plans.
• Further, they said, there were other issues unclear on the plan. Those included how vehicles will cross the streams, if they will; the limits of land disturbance; a detail for brush barrier; and information on three sediment traps proposed.
• They said Chambers agreed there is “no description of the equally (if not predominantly) Macove series soils onsite which encompass the drainage areas and these soils must be used in the stormwater calculations.”