Highland citizens ask SCC to halt wind project

RICHMOND — As earth is moved this week on Allegheny Mountain to erect 19, 400-foot wind turbines, citizens are claiming the developer has not met some of the requirements in its state permit.

Highlanders represented by attorney James Jennings at Woods Rogers sent a letter to State Corporation Commission chief counsel William Chambliss Monday, asking the SCC to investigate and, if appropriate, file a motion to show cause requiring Highland New Wind Development to "explain the reason for its violation of the (SCC) order" and have the SCC prohibit construction "until the violations are remedied."

Jennings represents Ralph Swecker, Christopher T. Swecker, Pendleton Goodall, McChesney Goodall, William Stokes Goodall, Wayne Stokes Goodall, and Gregory Warnock, all of whom were collectively represented as formal respondents when the SCC was evaluating HNWD's application for a state permit to build the wind utility.

"The information available to us indicates HNWD has failed to comply with several important conditions set forth in the SCC Final Order," Jennings wrote. If HNWD begins construction, he said, it will be in violation of three of the six conditions — submitting a final site plan to reviewing agencies; conducting archeological and architectural surveys; and protecting natural resources during construction.

"HNWD's intent to begin construction is consistent with its pattern of defiance of the SCC order and the recommendations of the state agencies," Jennings said.

The developer began work over the weekend after obtaining a land-disturbing permit and posting a bond.

Site plans reviewed?

Jennings argued the agencies charged with reviewing HNWD's project did not get access to a final, detailed site plan with a reasonable opportunity to review it before construction. "This failure applies specifically to the first condition and to additional conditions directing HNWD to coordinate with, consult with, and adopt the recommendations of reviewing agencies," he said. "HNWD did not provide a site plan to the Virginia Department of Environmental Quality for distribution to reviewing agencies until June 12. A revised site plan was provided to the DEQ July 28. It showed twice the amount of land would be disturbed, and substantial changes in road development, runoff control measures, and wetlands delineation. This new site plan was distributed by the DEQ to reviewing agencies on Aug. 3, and approved by Highland County the same day."

Jennings stressed other conditions attached to HNWD's permit cannot be met unless there is a "realistic" chance for agencies to review the plans before work starts.

No cooperation on archaeological

surveys

Jennings further asserted HNWD had not cooperated with the Department of Historical Resources, "and has made it clear that it does not intend to provide what the DHR requested."

The SCC's order outlined that as a condition of the permit as well, but HNWD has resisted providing the level of information DHR asked for.

Jennings explained that on Feb. 20, 2008, DHR submitted a letter to HNWD requesting information needed to evaluate effects of the project on historic resources, including a viewshed analysis to determine from where the turbines will be seen and establish the project's "Area of Potential Effect"; an archaeological survey of areas to be directly impacted; and an evaluation of the effects of the project on historic resources listed in or eligible for the National Register of Historic Places.

"On July 10, 2008, following objections from HNWD, DHR submitted a response stating the SCC order provided sufficient basis for DHR's recommendations, and that DHR had been reasonable in scaling recommendations to the project," Jennings said.

Most recently, on July 9, DHR submitted a letter to HNWD, stating an archaeological analysis submitted by the company did not meet DHR's minimum standards. "In addition the letter expressed interest in reviewing digital simulations of the turbines on the land scape prepared by Highland New Wind," he said.

HNWD responded, saying it is not required to obtain any type of permit from DHR. "The letter included a set of computer simulation photos, including one picture from a Civil War site characterized as probably the only picture of interest to DHR. The letter unilaterally declared that consultation by HNWD with DHR was finished, other than the possibility of monitoring by DHR during excavation," he added.

Protecting natural resources

"HNWD's most glaring deficiency is its failure to meet the requirements of the fourth condition," Jennings said, noting the SCC's condition says HNWD must "protect water quality, habitat, and aquatic resources from construction impacts by adopting recommendations from the DEQ, DGIF, and DCR."

Jennings said the company "has not engaged in substantive consultation with DEQ, DGIF, and DCR about avoiding impacts to water quality, habitat, and aquatic resources during construction. Moreover, the plans submitted to these agencies fail to meet the appropriate standards thereby preventing the agencies from providing explicit or informed recommendations to HNWD about protecting natural resources during construction."

Further, he argues, "HNWD has apparently chosen to interpret this condition to mean consultation is only required during construction, and not before. This interpretation ensures that recommendations for hydrologic and ecologic studies and the need for mitigation measures could not be provided and incorporated in the project Erosion and Sediment Control Plan or the Stormwater Pollution Prevention Plan, which are the practicable mechanisms whereby water quality, habitat, and aquatic resources are protected from construction impacts in the commonwealth."

Jennings said HNWD's intent to consult with those agencies only after work has started was indicated by HNWD in a statement at an Aug. 3 Highland supervisors' meeting. "It was further stated that some limited consultation had occurred with DCR at an earlier site visit. This site visit took place after Highland County officials asked DCR for technical assistance with the review of the Erosion and Sediment Control Plan," he said.

Jennings pointed out a July 16 DCR letter to Highland officials which said the company's E&S plan didn't provide enough detail to meet E&S standards. "Nevertheless, Highland County subsequently approved the E&S plan on July 27 without further review from DCR staff," Jennings explained.

He attached the review of HNWD's E&S plan conducted by Dr. Pamela Dodds, who was hired by downstream landowners. Dodds' report concluded the E&S plan did not comply with state laws. Jennings said the revised E&S plan did not fix the problems Dodds pointed out. And, he said, neither DCR, DGIF, nor DEQ have reviewed the final E&S plan.

"We contend if the HNWD project is permitted to go forward at this time, the requirements and intent of the SCC final order will be effectively circumvented," Jennings said. "Accordingly we request the SCC take steps to prevent further construction activities by HNWD and to obtain confirmation from reviewing agencies that HNWD has complied with conditions of the SCC final order before allowing the project to proceed."