Wind project unlikely to involve federal oversight

An in-depth look at how Virginia's first wind energy utility has avoided federal agencies — so far
By Anne Adams • Staff Writer

MONTEREY — Frustration spreads.

Virginia's first industrial wind utility has been a lightning rod for criticism for more than seven years. But once final site plans were approved last month, deeply held concerns spilled over, including into another state, that Highland New Wind Development LLC would continue what many call a "pattern" of avoiding the federal assessments required of some major industries, from subdivisions to logging operations.

What surprises and outrages critics is that HNWD's project has not, so far, needed any federal historic or environmental oversight.

The project area, at some 4,400 feet on the Allegheny ridgeline in westernmost Highland, directly and indirectly affects or encompasses a protected native trout stream, endangered and special species and habitats, a nationally recognized Civil War site on federal land, a military operations area, and a quiet zone for observatory research. Not to mention it's being constructed in or near an ecologic haven for those who enjoy a designated birding trail, a large Nature Conservancy conservation area, and the darkest skies on the East Coast for amateur and professional astronomers. And not to mention that, once its site plans were approved, Pocahontas County, W.Va., was alarmed to discover part of the project crossed the established state line, and drained into one of that state's protected rivers on a national forest.

HNWD has received the goahead for its substation, 19, 400- foot towers, transmission lines, concrete plant, and substantial earth disturbance without any look from the federal level at impacts to one of the most well-preserved areas straddling two states.

What's disturbing, some say, is that federal and state processes leave a gap — one in which HNWD can forge ahead without federal assessments that ensure industries comply with laws like the Endangered Species Act, National Historic Preservation Act, National Environmental Protection Act, Clean Water Act, and others. Federal laws are evolving, usually through citizens, courts, and lawmakers, but their overall mission has not changed. Federal agencies delegate some of their authority to states. In turn, states delegate some to local governments. For businesses and industries manufacturing goods and services, or producing energy, permits can be daunting. Companies can spend fortunes on attorneys, consultants, and engineers to help them operate effectively without harming the environment. Government agencies not only enforce the laws, but also act as advisors to help companies comply with them.

What bothers opponents of HNWD's project is that the state and local laws governing the finer details have not, in their opinion, adequately assessed all the impacts. A federal review would, they believe, give HNWD a better idea of how to avoid damage.

Though it had opportunities, and was even urged by officials, to get some federal permits, HNWD chose not to, in spite of risking an even costlier shut-down later if the project violates federal laws.

One of the ways a federal review of HNWD's work might be triggered is through a project-specific permit, one related to water quality and preventing pollution. Here's a place where the Environmental Protection Agency has delegated responsibilities to states. EPA gives states the authority to issue permits for construction, industrial activities, and water protection. States can get a "general permit" from the EPA. They can also issue individual permits. Both are overseen in Virginia by the Department of Conservation and Recreation, and the Department of Environmental Quality.

HNWD did not apply for any permits from DEQ. DEQ is looking into whether HNWD a permit for the cement plant to make the enormous foundations anchoring each of its 400-foot towers, but more information is needed first.

HNWD did need general permit coverage for stormwater management from DCR, and was issued coverage before it began construction. HNWD had to develop an Erosion and Sediment control plan, and a Stormwater Pollution Prevention Plan (SWPPP) for its facility. DCR, when it gets a registration application, looks to make sure a company has those if required, but does not review them. DCR depends on the authorities charged with approving those. Nothing about E&S plan approval calls for federal involvement.

In this case, the only thing that might have required a federal permit was wetland areas at the project site. Impacts to wetlands can require a permit from the federal Army Corps of Engineers. HNWD plans to use specialized "horizontal" drilling under wetlands at the site to avoid impacting them, so the Corps determined no permit was needed from that agency.

HNWD's E&S plan has been criticized as out of compliance by downstream landowners, two of whom gave notice they would take legal action if the plan did not adhere to regulations. Dr. Pamela Dodds, a consultant, reviewed the E&S plan on their behalf. She concluded key elements were not meeting state regulations, and her findings were supported later after a stormwater permit inspection by DCR's Mark Chambers. Though the county is responsible for the E&S plan, DCR is responsible for the SWPPP. When Chambers inspected the SWPPP Aug. 25, many of the concerns raised by Dodds were raised in his report. Chambers gave HNWD until mid-October to make changes. Officials have explained both E&S and stormwater management plans often change during construction, and are updated accordingly. The problem, Dodds says, is that in some cases, officials charged with on-site inspections don't visit always see ongoing construction often enough to prevent problems before damage occurs. HNWD's E&S plan, Dodds says, is still not fixed. For one thing, she says, stormwater runoff calculations are wrong because the soil types were not properly identified. At the HNWD site, more than 76 acres will be disturbed. "This greatly exceeds the area encompassed by most construction sites," Dodds said.

In any case, when DCR grants coverage under a general permit, there is no federal action.

What about the battlefield?

The National Historic Preservation Act is intended to help protect historic sites from negative impacts and guide approaches and solutions toward that end. The Advisory Council on Historic Preservation helps guide projects under the act.

Bruce Milhans, communication coordinator with ACHP, notes, "NHPA advocates preservation, but it does not mandate any preservation outcome ... even if an undertaking would destroy such a property, after the Section 106 process is properly followed, the decision on whether to proceed rests with the federal entity involved."

Section 106 is the part of the act that says any federal "undertaking" requires a review of historic resources and how they might be mitigated or avoided. Milhans said the council is not aware of any federal action related to HNWD. "However, the agency is certainly aware of this particular project," he said. "There may be requirements for federal actions later in the process that would directly involve federal agencies. We will remain alert for such developments."

If a federal agency "undertakes" actions, it must take into account how those actions affect historic properties, and give the council a chance to comment on them. State historic preservation officers, like officials in Virginia's Department of Historic Resources and West Virginia's State Historic Preservation Office, participate in the Section 106 consultation process, representing the interests of the people in their state, and providing assistance to the federal agency. But there must be a federal action involved to trigger the process.

What constitutes a federal action, however, isn't always clear. In the case of HNWD's project, some believe because the developer is permitted for stormwater run-off under the national permit program, it constituted a federal action.

Until 2004, the definition of "federal undertakings" included Section 106 reviews when there was, indirectly, involvement of a federal program that had been delegated to states for issuing permits. "The 1992 amendments to NHPA specifically defined the term undertaking as 'a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a federal agency, including ... those subject to state or local regulation administered pursuant to a delegation or approval by a federal agency," ACHP explains. But current regulations leave that part out of the definition, and now define "undertaking" as: "any project, activity, or program that can result in changes in the character or use of historic properties ... under the direct or indirect jurisdiction of a federal agency, or licensed or assisted by a federal agency."

When asked about the issue of how Section 106 applies to the Virginia general permits, Roger Kirchen at DHR explained, in a joint DHR-DCR response. "The issue of federally authorized state permits and compliance with Section 106 is complex and bound by legal precedent," he said. "Although individual permits, including this specific General Permit coverage, issued by state agencies under federal authority may not be subject to Section 106, the ACHP established in 2004 its opinion that the actual delegation of that authority from the federal to the state level is subject to Section 106," he said.

When HNWD applied for a state certificate for its utility, preventing impacts to wildlife was a central issue in the review process at the SCC. Virginia's Department of Game and Inland Fisheries told SCC this project would likely have serious, cumulative effects, on endangered bats and migratory birds particularly. DGIF outlined a monitoring and mitigation plan HNWD should follow to gauge impacts, and help mitigate damage.

The SCC concluded, however, that since no damage had been done yet, it could not require studies before construction, or a cumulative impact study. Neither could it require HNWD to get a federal incidental take permit and habitat conservation plan — both of which might have meant federal review by the U.S. Fish and Wildlife Service. The SCC did say, however, that HNWD runs a business risk by not getting that permit, one it's apparently willing to take. The SCC did not require a permit of this kind, and investigation by the DCR's Natural Heritage Division will not result in one because there will be no federal action. The division will not survey for federally protected species.

Ray Fernald at the Department of Game and Inland Fisheries, said, "DGIF has conducted on-site surveys related to Laurel Fork, and related to the endangered or threatened wildlife resources under our jurisdiction (e.g., northern flying squirrel, water shrew, and rock vole)," he said. "Provided the project is developed in accordance with our recommendations, we do not anticipate significant impacts to those species from the HNWD project. Protection of other endangered or threatened species under our jurisdiction such as bald eagles, peregrine falcons, Indiana bats, and Virginia big-eared bats is provided through the long-term mitigation and monitoring protocols to be implemented when the project becomes operational. Unfortunately, though, the applicant has declined to pursue consultation with the U.S. Fish and Wildlife Service regarding potential impacts on federally listed species such as the Indiana bat and Virginia big-eared bat."

If HNWD had been required to get an individual permit of some kind for stormwater management or pollution prevention, that may have resulted in federal involvement in another area — crossing state lines. EPA must review permit applications in which stormwater drainage originating in one state goes to another. Its regulations stipulate that while the EPA regional administrator or a state may agree to waive certain classes or categories of permits, none may be waived for discharges of one state affecting another. HNWD does have coverage under Virginia's general permit for stormwater management issued by DCR; that does not, however, cover drainage in West Virginia. DCR made this clear to the company in its recent inspection.

Pocahontas, W.Va., officials were not given an opportunity to review HNWD's final plans before they were approved. During Highland's review of the site plans, officials were concerned about one turbine situated across the accepted U.S. Geological Survey line, in Pocahontas. But HNWD said the USGS line was off, and had its surveyor explain why. The company submitted a second map to show the USGS state boundary compared to where the surveyor plotted the line. The "new" state line still crosses the foundation of that turbine, and its blades will spin in Pocahontas. That satisfied Highland officials, but when Pocahontas officials saw the plans, they cried foul. The SCC told Pocahontas that it did not issue a permit for any part of the project in West Virginia, but Pocahontas points out, the SCC did not have final site plans to review when it issued HNWD a certificate.

These issues are unresolved, and it's unknown whether they might result in federal involvement, either at the legal level or through EPA processes.

Another federal permit might have applied but didn't, due to the project's proximity to the National Radio Astronomy Observatory in Green Bank, W.Va., a federallysupported research station.

The observatory uses enormous, sophisticated satellite dishes, and there is an established "quiet zone" around the area in which no new "noise" or radio interference is allowed without licenses — federal permits. Highland County consulted NRAO about the wind utility, and observatory officials said no permit or license would be required unless the turbines created interference. That can't be determined until they are up and running, however, and NRAO asked for the opportunity to establish a noise "footprint" of the turbines later, which HNWD agreed to.

One federal agency had direct involvement in reviewing HNWD's tower locations — the Federal Aviation Administration.

Nationwide, structures exceeding a certain height must get a determination from the FAA as to whether they pose a hazard to commercial or military flight radar, or the planes flying over them. HNWD's project lies in the Evers Military Operations Area — a section of sky used by the Air Force and the Navy for training. As residents in the area can attest, low-flying military aircraft zip through with regularity, using the mountains and terrain for pilot training. HNWD applied to the FAA for a determination on each of its 19 towers; the FAA alerted the military authorities for review as well. Each tower, they determined, caused no hazard, although some would require lighting. This review, critics felt, should also have resulted in a Section 106 review or some other federal assessment. But determinations of no hazards, But FAA holds that the process for reviewing tower height is administrative, not a permit or approval process, and federal action does not make a project under that determination process subject to a Section 106 review.

Of a dozen local and state review processes that might have resulted in federal involvement, none has triggered the "undertaking" that might provide the in-depth review of HNWD's utility some citizens hope for.

Even if a federal agency becomes involved, that does not necessarily require historic or environmental assessments at that level. There are different levels of these reviews, as well; some aren't as intense or lengthy as others. Not all projects require a full-blown Environmental Impact Statement, for example. Some need a less comprehensive Environmental Assessment review. Further, while federal reviews can result in a heavy investment in time and money, they do not prevent development, and aren't designed to. They are created to make sure developments avoid damage to people, wildlife, and natural resources. There are plenty of industries that argue otherwise, of course, and lament the layers of red tape some projects require for this purpose.

There are things in play that may result in federal level review:

• SCC has opened a case to hear testimony about allegations from the DHR that HNWD is not providing the archaeological surveys and viewshed analyses it needs to adequately assess impacts. Next week, the agency and the developer present evidence on their positions. Depending on the SCC's decision, HNWD might be required to provide that information. If so, that could result in an "area of potential effects" that includes the Civil War battlefield. In that case, either the DHR or the West Virginia SHPO might be asked to assess impacts on the site more closely, and determine whether they can be mitigated. Recommendations can be offered, but again, those agencies would be advising, not enforcing the National Historic Preservation Act. Nevertheless, if there is no federal action that makes the project subject to a Section 106 review, the ACHP cannot request one. Either a federal agency will have an action related to the project making it subject to Section 106, or it won't.

Milhans explained, "The ACHP encourages early consultation and consideration of possible adverse effects to historic resources from the outset of a project. While Section 106 may not be an issue in this case at this time, the ACHP would certainly advise project proponents to work with National Park Service experts and other relevant federal, state, tribal, local, and private organizations and individuals to understand any heritage preservation issues involved in project development. Early consultation and wise planning often can eliminate or mitigate any historic preservation issues before they arise."

• Virginia's DCR will conduct a survey of special state species and habitats in the project area, and suggest ways the project can be designed to reduce impacts to those. DCR officials say this is not just "advisory," in HNWD's case; it is mandated in SCC's final order.

• West Virginia agencies might determine HNWD needs a permit to discharge into Pocahontas County; that could result in EPA's involvement, though not necessarily a federal permit.

• State agencies still reviewing details of HNWD's plans might require further permits for water protection and stormwater runoff, though neither would necessarily require a federal permit. For example, DEQ water permits manager Keith Fowler contacted HNWD about its cement batch plant. HNWD engineers explained the plant will be several thousand feet from Laurel Fork, and rainwater that falls on it will be directed to a sediment filtering pond; the concrete "wash area" will have a containment and filtering feature. DCR asked engineers to update the SWPPP to describe chemicals associated with the plant. Engineers explain that a water truck will get water from a spring adjacent to Laurel Fork or a spring-fed pond on the property, but not directly out of the stream itself. Fowler told HNWD that DCR's stormwater discharge permit might cover the concrete plant, but HNWD might need an air emissions permit for it. Also, Fowler told the engineer, water withdrawals from springs or streams usually need to be authorized by a DEQ Virginia Water Protection permit. He asked the engineer to provide details indicating the exact location of the proposed water withdrawal, the expected withdrawal rate, duration of each withdrawal, frequency, total volume per day, per week, and per month, and beginning and end dates for when water withdrawals will occur, so that could be determined.

Dodds said that information is important. "A critical point is that groundwater and surface (stream) water are an integral unit: in times of low precipitation or drought, groundwater supplies water to the streams," she said.

If citizens feel strongly enough this project needs federal oversight of some kind, there are limited options, and most require legal action or a petition to agencies; they include:

• Petition the DEQ's oversight board to require an individual industrial permit related to stormwater management under its miscellaneous category for industries. Note, however, that to inspectors' recent memory, the board has never been petitioned to require a development to get a permit in this category.

• Petition the DCR to require an individual stormwater pollution prevention plan permit, instead of general permit coverage. DCR says it has not been petitioned for an individual permit since DCR took over the program in January 2005. Under federal regulations, "interested persons" can petition a permit writer (DCR or DEQ in Virginia) to require an individual permit.

• Petition the EPA to get involved on some aspect — endangered species, water quality issues, state boundary crossings — and ask it to review the project.

• Take the developer and Highland County to court for failure to provide or approve an E&S plan that follows state regulations. Two downstream landowners have already provided notice of their intent to do this if they believe the regulations are not being followed.