Group says wind project impacts need review

MONTEREY — Laurel Fork, the protected stream in western Highland, might be seriously affected by the industrial wind facility planned on Allegheny Mountain, county citizens contend.

They have asked the state Department of Conservation and Recreation to take another look at the potential impacts, and include public participation in a more thorough review.

Highland New Wind Development LLC was required to get a Stormwater Pollution Prevention Plan (SWPPP) before it began site work for the 38-megawatt utility it intends to build this spring. DCR is the agency that approves those plans under a “general permit” issued to the state as a whole by the federal Environmental Protection Agency.

As outlined by The Recorder last fall, the general permit process is what states use to put applications for projects under one umbrella — every company that must have a SWPPP can apply for coverage under the state’s general permit, instead of applying for an individual permit.

Highlanders for Responsible Development, the loose-knit group of county residents and landowners first formed in opposition to HNWD’s plans, has asked the DCR to consider issuing an individual permit instead, to provide a greater level of protection for the Laurel Fork stream and its tributaries on the project site and below it.

HRD president Laurie Berman wrote to DCR general permit manager Eric Capps on Dec. 21, on behalf of the group. “HRD generally opposes the siting of industrialscale wind projects on Appalachian ridges in Highland County,” she said. “We are submitting this letter because we are concerned about the effects of the project on the health of Laurel Fork, and believe that DCR’s process to date under the general permit has not generated the analysis and information necessary to judge whether the project will adversely affect Laurel Fork. HRD is asking the DCR to take the steps necessary to ensure that stormwater discharges from this project will not adversely affect Laurel Fork. We believe that these steps are not only appropriate in light of Laurel Fork’s status, but also that they are required by the Clean Water Act.”

HRD prepared its request with help from the Environmental Law and Conservation Clinic at the University of Virginia School of Law in Charlottesville.

Virginia has designated Laurel Fork as a high-quality “Tier 2” stream. About three miles downstream from the project site, a segment of the stream has even higher “Tier 3” status, meaning it’s considered an “exceptional state water.” That portion is about four miles, and runs from the George Washington National Forest boundary to the West Virginia state line.

The Clean Water Act, a federal law, contains provisions to prevent degrading such waters, HRD said. “We ask that the current authorization be withdrawn, and that this antidegradation review be conducted before the authorization is reissued after process that complies with EPA regulations and Virginia’s antidegradation program,” the group said.

“The pristine and ecologically valuable nature of Laurel Fork makes it one of Virginia’s true aquatic treasures,” HRD contin- ued. “The commonwealth has recognized it as such by designating a portion of Laurel Fork downstream of the HNWD project as a tier 3 Exceptional State Water, the highest quality designation under the Clean Water Act. The goal of HRD in making this request is to ensure both that DCR follow all procedures required under the Clean Water Act to protect such waters, and that HNWD take all steps needed to protect Laurel Fork from stormwater pollution in connection with building this project.”

Since HNWD’s project site is larger than one acre, HRD says, it qualifies as a “point source” that must have a permit under the Clean Water Act. The state’s general permit authorizes discharging pollutants; since the general permit falls under the act, the permit must comply with Virginia’s antidegradation program under the act, the group says.

“The antidegradation program’s purpose is to protect water bodies that meet or exceed water quality standards from degradation from new discharges,” HRD said.

Since HNWD’s project is located along portions of Laurel Fork and its tributaries that qualify for Tier 2 status, and aren’t far from the stream’s section designated Tier 3, regulations require “a higher level of public participation and site-specific review prior to approval than is currently provided by the general permit process,” according to regulations under the EPA and the state Department of Environmental Quality, HRD wrote.

HRD pointed to DCR inspector Mark Chambers’ Aug. 18 inspection of the site, in which he found “numerous deficiencies” in the company’s SWPPP. “These inadequacies in the SWPPP could have been identified and corrected in advance of construction had DCR reviewed the SWPPP and conducted the necessary antidegradation process before authorizing the project,” HRD said. “It is impossible to evaluate the potential effects of the project on Laurel Fork until HNWD finalizes the SWPPP.”

Though that kind of review should have taken place before DCR authorized the project, doing it now “will go a long way to minimize pollution from the project,” HRD said. “Our understanding is that HNWD has suspended construction for the winter, and that DCR is in active communication with HNWD about correcting deficiencies in the SWPPP. These events provide an excellent opportunity to conduct antidegradation review using the revised SWPPP as a basis, with sufficient time to do so in advance of the spring and summer construction seasons.”

HRD cited regulations, including that Tier 3 streams are to be “maintained and protected” under the Clean Water Act, and EPA’s handbook interprets this to mean there can be no “new or increased discharges” to streams and their tributaries, that would cause degradation.

“The bare terms of the regulation would prohibit DCR’s authorization of the discharges from HNWD’s construction site,” HRD said. EPA says any time the state allows temporary degradation, after public participation, “all practical means of minimizing” that should be implemented.

HRD said the general permit process did not give DCR a chance to confirm whether any degradation would be temporary. “The process also did not include any public participation in the decision, and DCR never made a finding regarding whether HNWD was implementing all practical means of minimizing degradation of Laurel Fork,” HRD said. “To comply with these requirements, DCR either must initiate an individual permit proceeding, or suspend the current authorization until it has conducted some process to make the needed findings and involve the public in that decision.”

Further, HRD said, DEQ’s guidance on Tier 3 streams requires a case-by-case analysis before temporary impacts can be authorized, and what HNWD provided under the general permit application didn’t include that.

“Although much of this information may be contained in a SWPPP, DCR does not typically review SWPPPs before authorization under the general permit and, in fact, DCR did not review the HNWD SWPPP until the August inspection, conducted after authorization and after construction began,” HRD said. “DCR could, however, conduct such analysis now based on HNWD’s revised SWPPP.”

“In general,” the letter concluded, “EPA and DEQ regulations prohibit new discharges that may affect Tier 3 waterbodies. These discharges upstream of the Tier 3 segment of Laurel Fork may deposit sediment in Laurel Fork and harm its aquatic health. DCR has not made any of the findings … required by EPA and DEQ regulations before authorizing a discharge into a tributary of a Tier 3 stream. DCR must either require an individual permit for the site, or engage in analysis, including public comment, that satisfies EPA and DEQ antidegradation regulations.”

The group said DCR should suspend HNWD’s current authorization under the general permit, and not reissue it until the developer revises its SWPPP sufficiently and DCR allows the public to comment on the revisions and antidegradation review.

“We are confident that these steps will ensure that pollution control measures at the site will better protect Laurel Fork and that the public participation phase will increase both transparency and public confidence in the process,” HRD wrote.

As of this week, Capps had not responded to HRD’s request.

“We hope and expect that the DCR will respond appropriately and in a timely fashion to satisfy the Clean Water Act requirements,” Berman told The Recorder this week. “If the DCR disagrees or chooses to ignore our request, we will look for help with other agencies and find other options available to ensure that Laurel Fork is protected by the (act). It is premature to discuss further legal action, but because Laurel Fork is widely recognized as pristine, unique and thereby ecologically valuable, we must make certain that the intent of the law is followed for its continual preservation for generations to come.”

Protecting the stream, she said, is “certainly worth fighting for.”