Border issue must be resolved, citizens say

By Anne Adams • Staff Writer

MONTEREY — Highland County is not under fire from the West Virginia governor, said supervisor Robin Sullenberger Tuesday.

Sullenberger, in response to questions from residents, explained Highland has not received any correspondence from West Virginia Gov. Joe Manchin about the boundary dispute that arose related to the wind facility under construction in western Highland.

Highland New Wind Development gave the county a survey that showed all the bases of the towers for the 38-megawatt utility would be located in Virginia, he said.

When HNWD provided the survey, done by Jeff Hiner of Monterey, it showed a different boundary line than the one established by the U.S. Geological Survey. Hiner's line bisects the foundation of one tower; the base of the tower would be just inside the line and the turbine's blades and part of the foundation would be across the line, in West Virginia.

When Pocahontas County Commissioners learned of Hiner's survey, they contacted Highland County attorney Melissa Dowd about it, saying the county should not have approved a site plan with the new line. PCC president Martin Saffer explained that West Virginia has laws that indicate the USGS lines are the established boundaries, and adjustments to those boundaries must be made through a Boundary Commission appointed by the governor and adopted by the West Virginia legislature.

PCC asked Manchin to appoint a Boundary Commission, which he did. Then the PCC asked the governor to get the commission to settle the dispute. Manchin did that Sept. 25.

"I write to request an investigation of the West Virginia Boundary Commission to settle a dispute involving the boundary of Pocahontas County, W.Va., and Highland County, Va.," Gov. Manchin wrote. "The dispute concerns a wind turbine project permitted for construction in Highland County, Va. The developer of the project is a company named Highland New Wind Development LLC. The Pocahontas County Commission believes that a portion of the project, as presently engineered, encroaches upon the territory of this state … If, indeed, a portion of the project is constructed in West Virginia, certain state regulatory action is required. Therefore, I respectfully request … that the commission investigate this boundary dispute. I further request that the commission take all actions that are necessary and appropriate to identify the location of the boundary line in question including, but not limited to, seeking the assistance of the West Virginia Geological and Economic Survey, contacting similar commissions or bodies in the Commonwealth of Virginia, or recommending appropriate legislation to the legislature."

Sullenberger said he spoke to Virginia Gov. Tim Kaine about the issue recently, and Kaine said he as not heard anything from Gov. Manchin about the matter.

Manchin's letter had been copied to Kaine.

"This is not an egregious act," Sullenberger said about the border survey.

As to a comment that Highland was ignoring Pocahontas County's concerns, Sullenberger explained how the situation unfolded. When Saffer contacted Dowd to learn more about Hiner's survey and the HNWD project, he acted in an "accusatory and threatening manner," Sullenberger said. Highland officials, at first, agreed to meet with the Pocahontas County Commission, but then, "we were told basically their intent was to sue us," he said. So, Highland declined to hold a discussion with the commission at that point. Dowd, he said, told supervisors such a discussion was not advisable.

Sullenberger said he'd done a huge amount of research on Saffer, and believes Saffer "is just grandstanding for personal attention."

"We have no disrespect for the people of Pocahontas County or the people of West Virginia," he said. "I personally invited the Pocahontas County Commission" to hear more about the project in 2003, he added, "and at least one of them did that."

Sullenberger also said he did not believe Pocahontas County was truly concerned about the impacts to Camp Allegheny, noting the battlefield near the site was not even promoted on its web site. "It's never been important to them," he said, and Saffer's remarks on the battlefield "appear to me an act of pure grand-standing."

Supervisor David Blanchard disagreed. "You say it's grandstanding, but the difficulty I have is that … notification is always a good thing to do. They (Pocahontas) weren't sent a site plan, and it was impacting the battlefield." That, he said, would have been a good, neighborly step to take for Highland. Blanchard has maintained since before the site plan was approved that Highland officials should show it to Pocahontas officials, and while the county's Technical Review Committee at one time indicated it would do that, it never did.

Contacted by The Recorder Wednesday, Saffer said there was no "grand-standing" going on. "The issue about the boundary is a very focused, legal issue. It's a real issue. It's one which I think needs to be addressed. It's one the governor of West Virginia thinks needs to be addressed. These are matters of jurisdiction and territorial authority," he said.

Saffer said that perhaps Highland supervisors did not understand the importance of the jurisdictional boundaries of a state, "and how they apply to every square inch."

He used an example: If someone commits a crime, knowing exactly where the crime took place is important because that is how one knows which state's laws apply, where to pick a jury, and other jurisdictional issues. "These are important matters," he said. Which agencies have authority over which parts of the project depends on where the boundary is related to the towers. "First," Saffer said, "let's determine where the line is. That's really important. Then we can carry on discussions about wildlife, the environment, or drainage issues."

Saffer said it won't be just West Virginia deciding where the line should be. The Boundary Commission will work with appropriate agencies in Virginia. "Good fences made good neighbors," he said. "I think (Highland officials) misunderstand the notion of state jurisdiction. Property in a state is subject to laws of that state. It doesn't matter if the (property) may have the same owner."

"They knew this construction was going on," said supervisor Jerry Rexrode of Pocahontas officials, adding they made no objections, and never made any comment on the plans when the project was under discussion years ago. "The review board (TRC) asked HNWD to make sure the project was in Virginia. Jeff Hiner surveyed the line. Pocahontas didn't agree with that, but Hiner did what HNWD asked him to do. Maybe there will be turbine blades turning in West Virginia, but if they do, it's on property HNWD owns," Rexrode said.

He said before the project was approved, he went to the battlefield and decided that seeing some of the turbines did not matter. "That battlefield is probably a mile away, and when you look, you're going to see wind turbines. But it's also going to draw people … that battlefield is rarely ever visited. It is an important site, but what harm is it going to do if you can see 4-5 turbines?"

Asked about Hiner's survey, Tal McBride said Hiner moved the state boundary less than 40 feet.

"The watershed in the area is the state line," Rexrode added.

"If we've got a border issue, that sounds pretty serious. It seems you should ask (HNWD) to wait," said resident Laurie Berman.

"I don't think we have a border issue," Rexrode replied.

Dowd said that, consistently, "the board has stated to Mr. Saffer, and anyone from Pocahontas, that this board believes it can only regulate something with the boundaries of Virginia." The issue of the state line, she said, is an issue between the developer and the state of West Virginia.

"Don't we have a responsibility here? It's a big red flag to me," Berman said.

"It's a political position, not a legal position," Dowd said.

"We are willing to discuss this with our counterparts at any time," Sullenberger added, but not under the threat of a lawsuit.

Asked whether there was a drainage basin entering West Virginia, Tal McBride said there is none. He explained the turbines would be built in a way that all drainage stays in Virginia. He said a representative from the West Virginia Department of Environmental Protection visited the site. "If the turbines are in Virginia, the drainage is on the Virginia side, and it goes into Virginia. There will be no construction activities on the other side," he said.

Saffer says he disagrees with that conclusion, but says the question about where the border is must be settled first.

Thursday, the West Virginia governor’s office agreed. According to Matt Turner, spokesman for Gov. Manchin, the boundary commission must evaluate the way the state line was surveyed by Hiner. “This is important,” Turner said. “It has to be established so we can determine whether West Virginia has any regulatory authority. The Public Service Commission needs to look at this … The PSC is waiting to see where the line is, so it can determine it’s role (about the HNWD project). These are separate processes, and there has to be a resolution on this first. We can’t let it happen without determining where the boundary is. It’s a local concern, yes, but it’s also an important state concern. Wildlife and other issues, the way the electrical power is taxed … the Governor is seeking resolution. This is a concern that will be addressed by him, and the Boundary Commission will take the appropriate steps.”