SCC examiner says agency’s complaint against wind company should be dismissed

RICHMOND — Highland New Wind Development has said for months it does not have to do anything about its proposed 400-foot towers’ visual impacts on a nearby Civil War battlefield. This week, the State Corporation Commission hearing examiner agreed.

Virginia’s Department of Historic Resources had complained the company was not meeting a condition of its permit for the industrial wind energy utility planned in Highland County.

SCC hearing examiner Alexander Skirpan issued a report Monday supporting the developer’s position, and recommending DHR’s complaint be dismissed.

Whether HNWD’s permit expired last month, however, is still an open question.

In August, DHR told the SCC the developer wasn’t cooperating in providing archaeological surveys and viewshed studies DHR needed to evaluate the project’s impacts on historic resources. After months of negotiation, with HNWD providing more information to the agency, DHR and HNWD agreed the visual impacts to Camp Allegheny, a Civil War battlefield on the National Register of Historic Resources, was the central remaining issue.

But HNWD argued the agency had no authority over the site because it’s located in Pocahontas County, W.Va., not Virginia. Skirpan agreed.

The permit condition in question required HNWD to “coordinate with DHR for guidance regarding the potential need for archaeological and architectural surveys, recommended studies and field surveys to evaluate the project’s impacts to historic resources.”

DHR’s complaint, filed Aug. 19, argued HNWD had not identified such studies, nor had it made reasonable efforts to address negative impacts. DHR said the company “has not demonstrated a willingness to consider and minimize” impacts to the battlefield.

Since August, as Skirpan noted, DHR and HNWD have been discussing the issues involved, and resolved most everything except the visual impact on the battlefield, and how to mitigate it. “In this regard,” Skirpan wrote, “DHR seeks between $125,000 and $250,000 to fund activities such as interpretive materials, updated National Historic Registry application for Camp Allegheny, land or easement acquisition, and a tourism plan.”

Even if the commission agreed the visual impacts must be mitigated, Skirpan said, those kinds of efforts would not do it.

Skirpan described three main issues involved — whether the impacts from the project were already considered by Highland County in the local permit process; whether Camp Allegheny is beyond DHR’s authority; and, if DHR and the SCC do have authority over the site, whether HNWD has complied with the state permit condition.

Highland considered viewshed already

In the permitting process, by law, the SCC cannot duplicate the work of another agency or governing body. In this case, Skirpan concluded Highland County had already considered the visual impacts of HNWD’s proposed towers, so the SCC cannot consider them again.

Highland County required HNWD to submit a site plan and include visual representations of each wind turbine at its proposed location. Those locations were to be shown “based on minimizing the overall visual impact on nearby property owners and the area to the extent reasonably practicable.”

HNWD gave the county photo-simulations created by one of its owners, Tal McBride, last summer. Several citizens in both states said those were inadequate for determining visual impacts, but county officials accepted them, and did not require anything further.

Skirpan noted witnesses presented evidence on the negative impacts of Camp Allegheny while the SCC considered the state permit application, but no specific conditions about visual impacts were required by the commission. Since the SCC declined to add any conditions about visual impacts on Camp Allegheny, but did require HNWD to coordinate with DHR on architectural and archaeological studies, HNWD has met its condition, Skirpan said. “These two holdings must be read together to continue Highland Wind’s obligation to coordinate with DHR regarding mitigation of the project’s impacts to historic resources discovered through field studies and surveys, but to exclude visual impacts on historic resources such as Camp Allegheny,” he concluded.

Since HNWD finally provided archaeological studies, “Highland Wind actually coordinated with DHR concerning nonviewshed issues,” he said.

Does agency have

authority over W.Va. site?

Skirpan said even if the SCC commissioners determine HNWD must coordinate with DHR on visual impacts, they should consider whether DHR has authority over sites affected in another state.

SCC authority in issuing permits is “generally limited to the commonwealth,” he said. When a project crosses state lines, a company is required to get approval in each state. Mitigating visual impacts “would be limited to actions that occur within the borders of the commonwealth,” Skirpan said. “Because DHR seeks funds from Highland Wind to purchase additional lands and make improvements to Camp Allegheny outside the commonwealth, I find that DHR has exceeded the scope of any condition adopted by the (SCC).”

Dawn Barrett, who lives in Pocahontas near the battlefield and has been actively working to protect it, says county officials are to blame for the situation.

“It simply does not make sense that the SCC would require HNWD to cooperate with DHR in conducting studies to evaluate the impact of HNWD on historic resources but not require the developer to take any action to mitigate that impact,” she said Wednesday. “Assistant Attorney General Steve Owens argued that this is illogical and robs the final order of meaning where DHR is concerned. I fully agree. Illogical though it may be, it is important to realize that (Skirpan) based his decision largely on a single point of Virginia law. Since the Highland County Board of Supervisors claimed, in issuing the conditional use permit to HNWD, that viewshed had been fully considered, the SCC is prohibited from re-addressing it.” But that, she said, didn’t happen.

“It is a matter of record that the board of supervisors did not, in fact, fully evaluate or consider the impact of the wind development on the viewshed at Camp Allegheny,” Barrett said. “The supervisors were provided a single snapshot of Camp Allegheny by the developer. They did not bother to visit the site themselves. When the developer claimed that the turbines would not be visible from the parking lot at Camp Allegheny, the supervisors apparently accepted this statement as proof that the turbines would not impact the site and dropped the subject.

“As far as I can tell, this constitutes gross negligence. In point of fact, the supervisors did not do their job,” she said.

“In their rush to usher in the first industrial wind utility in Virginia, the board of supervisors overlooked more than a few details about the impact of the utility on the environment. Perhaps they assumed that if they weren’t exactly detail-oriented, other agency experts would catch their oversights later. Perhaps the supervisors were simply ignorant of Virginia law, and did not understand that if they claimed in the conditional use permit to have considered a particular impact, such as viewshed or erosion and sediment control, the law barred it from being brought up again. If so, ignorance is no excuse.”

Highland supervisors, she said, failed all citizens. “In their haste to accommodate HNWD, the supervisors did not use due diligence in evaluating the negative impacts of the wind utility — period. As a direct result of their negligence, an incredibly beautiful Civil War battlefield on the National Register of Historic places will be changed forever. In this, the supervisors must be held accountable — not just by the citizens of Highland County, but by every American who values representative government.”

Is HNWD’s permit expired?

In its Jan. 4 legal brief, DHR also contended the developer did not get its project under construction in time. The SCC included a “sunset provision” in its final order that required the company to begin construction within two years — by Dec. 20, 2009.

DHR argued that although HNWD did some limited site work and grading, it had not even applied for a county building permit yet, and had not started building the facility.

“This issue was not raised in DHR’s (initial) complaint, or in any other pleading in the case,” Skirpan said. “Because the sunset provision in the final order has no bearing on DHR’s complaint, I find that any such objection should be denied. However, as an alternative, the commission could direct staff to investigate and address any sunset issues in a separate proceeding.”

According to code, the SCC can initiate investigative proceedings with a motion from its own staff or the commission itself. The agency declined to comment this week on whether it might look into this question.

What happens next?

HNWD and DHR have 21 days to file briefs about Skirpan’s recommendations. After those are filed, the three commissioners will consider the arguments and recommendations. Commissioners can adopt Skirpan’s recommendations, revise them, or reject them. They are not required to make their final decision by any certain time.

The developer, in the meantime, continues to be plagued by controversy. Those opposed to the project vow to keep up their efforts to ensure the facility does not harm the protected wildlife at the project site, or the pristine Laurel Fork stream on Allegheny Mountain (see related story).

Those opposed to the utility’s location are pursuing every avenue; some are preparing to sue Highland County and the developer if HNWD does not get a federal incidental take permit to protect endangered species that inhabit the area or migrate through it.

West Virginia residents remain opposed to the project’s impacts on the battlefield, and that state’s environment and wildlife.

Pocahontas commissioner David Fleming is scheduled to discuss the project with Highland supervisors Feb. 2.