Landowners file notice of legal action on wind plans

MONTEREY — Landowners in the Laurel Fork watershed have filed a 15-day notice to Highland New Wind Development LLC, saying they will take legal action if the company does not comply with Erosion and Sediment Control regulations.

Lucile Miller and McChesney Goodall gave notice to the county, as E&S plan authority, that they must correct the E&S plan, and if it's not changed to the landowners' satisfaction, they intend to take legal action.

Their letter was sent Aug. 12, 48 hours before HNWD got a landdisturbing permit to begin work. "This is a formal notification to you that the E&S plan approved by Mr. Jim Whitelaw of Highland County (building official) 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," they wrote. "Highland New Wind Development LLC is poised to begin construction, 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, 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.

Highland supervisor Robin Sullenberger said the county Tuesday agreed to have county attorney Melissa Dowd draft a letter in reply. "We want to make sure Lucile and Ches understand that we share their concerns about Laurel Fork," he said. "And we want them to understand that DCR is now very engaged and will continue to be engaged. We are in the beginning states of all this … the county has never shied away from asking DCR for guidance and that comfort level on both sides has ramped up. They realize and we realize they need to be more actively engaged. We clearly need advice and assistance."

Miller and Goodall listed the following issues to be addressed by Highland and the developer:

• 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."

Supervisors expect to send their letter in response this week after it has been drafted and approved.