Wind project remains at standstill

MONTEREY — Construction on the 38-megawatt wind utility planned for Allegheny Mountain has not resumed yet, according to Highland building official Jim Whitelaw.

Whitelaw visited the project site this week for an inspection, and said no work is under way and the developer has not applied for its building permits.

Highland New Wind Development LLC told county supervisors in January it intends to apply for a federal Incidental Take Permit from the U.S. Fish and Wildlife Service, which requires creating a Habitat Conservation Plan to protect endangered species.

According to Kim Smith, a USFWS biologist, the company should get such a permit. “In fact, in all of our letters (to HNWD) we have always said they should get one. We’ve been telling them to do this all along,” she said.

A group of Highland citizens agrees. They have notified county supervisors three times that they intend to file legal action in federal court unless HNWD gets an ITP, and would hold the county board responsible if one is not obtained.

Most recently, another citizen expressed concern again about the need for an ITP. Early this month, Mustoe resident Rick Webb wrote a letter to board chairman David Blanchard. “Recall that Highland New Wind attorney, John Flora, has stated to the Highland County Board of Supervisors that Highland New Wind intends to work with the U.S. Fish and Wildlife Service to obtain an Incidental Take Permit, presumably thereby reducing the board’s concerns about legal liability under the Endangered Species Act,” he wrote. He sent Blanchard an article in which Frank Maisano, HNWD spokesman, said HNWD will pursue getting an ITP after construction starts but “we don’t think we need to.”

Webb said, “The article also includes misinformation from Mr. Flora, who incorrectly says that not a single Indiana bat has been killed at a wind project. It seems, no surprise, that Highland New Wind is reconsidering its earlier statement to the board of supervisors concerning an Incidental Take Permit. As you know, the board of supervisors can avoid further legal jeopardy and substantial cost to the county by waiting for Highland New Wind to obtain an Incidental Take Permit before it grants a building permit and thereby allows the project to go forward.

“Would you, as chairman, explain the board’s current position on this important issue?”

Contacted by The Recorder Wednesday, Blanchard said, “Currently, we are still waiting on legal input. That’s where we stand.”

Supervisor Robin Sullenberger said he had spoken with county attorney Melissa Dowd this week, and Dowd indicated she and the board’s other attorney, Greg Haley, had not yet talked about the potential lawsuit, but will do that as soon as possible.

“No action has been taken by the board on this,” Sullenberger said.

However, he recently had a conversation with HNWD attorney John Flora, and Flora told him the company is still exploring the habitat conservation plan idea. Creating that plan is a major step involved in getting an Incidental Take Permit.

“(HNWD) understands it’s a prerequisite to getting an ITP, and that it’s extensive and costly,” Sullenberger said. “But (Flora) indicated they are still looking at possibilities, and optional ways of addressing it.”

Sullenberger said he believes HNWD will provide the board with more information about the project before it applies for its building permits.

Blanchard believes the issue of an ITP should have been addressed by the county long ago. “It’s one of those checks that should have been in there from the beginning,” he said.

But now, he said, the county is not clear on whether it can require HNWD to get one. “The county doesn’t need to go to court over this project,” he added, and getting the federal permit “makes the project more viable and protects the county and its resources.”

Asked whether he would support requiring HNWD to get the permit now, if the board could do so, Blanchard couldn’t say. “I don’t have enough information yet,” he explained. “But I’d look at doing anything that would secure this project being developed if that’s what the county wants, without threats of litigation … I’m worried about that, and I know other board members are concerned, too.”

Blanchard stressed supervisors take the threat of legal action seriously. “It’s not being ignored by the board. We need to do whatever we can to secure the project and make the developer hold up his end of the deal,” he said.

Smith, who has been involved with reviewing HNWD’s project since it first applied for a USDA federal loan in 2002, said HNWD has contacted the USFWS recently, but only with questions about the process. “We have not received an application,” she said.

HNWD has been reluctant to have its project fall under a federal review because that might cause delays, and cost more money. “I know that’s why they (withdrew) their loan application — so they wouldn’t have a federal nexus,” she said.

An ITP is a permit that allows a landowner some protection if an endangered species or habitat is harmed by a development, she explained. “If they proceed without it, they are not covered. If endangered species are taken, then it’s turned over to law enforcement.”

HNWD consulted with USFWS officials early this year, in a meeting pulled together by the Department of Game and Inland Fisheries. DGIF biologist Rick Reynolds said HNWD asked for the meeting, and was interested in applying for an ITP. Though an ITP is handled primarily by USFWS, Reynolds said DGIF would help “where we can help, and if we’re asked to help.”

He said it sounded like HNWD intends to start the process of developing a habitat conservation plan, but that it could take a long time before one is completed to apply for an ITP. “They (HNWD) were the ones who initiated this,” he added. “They probably see it’s in their best interest to do that.”

In fact, wind energy companies across any mountainous region are more likely to get ITPs following last year’s Beech Ridge legal decision. A federal judge granted an injunction on Beech Ridge Energy’s wind tower project in Greenbrier County, W.Va., because the company failed to get an ITP even though it had been repeatedly urged to do so by the USFWS.

Reynolds said that decision “is going to change the way a lot of these companies for any facility do things,” he said. “For any facility on a mountain, they’ll have to give serious consideration to getting a habitat conservation plan and ITP.” In that case, he noted, the endangered species at issue was the Indiana bat. But here, he said, there are other endangered species, including the Virginia big-eared bat. “That was an incredible decision,” he added.

One of the attorneys involved in the case was Bill Eubanks, with Meyer Glitzenstein and Crystal of Washington, D.C.

Eubanks explained there were legal and practical reasons for a wind energy company to get an ITP before it begins construction. Practically speaking, “if you allow construction and then get a permit, the project is already designed, and you foreclose on alternatives that the Service might recommend.” For example, under an ITP application process, USFWS might suggest moving towers to avoid areas where there is a high concentration of an endangered species or its habitat.

Legally, he said, there is a provision in the Endangered Species Act that says any action before the USFWS should not include an “irretrievable or irreversible commitment of resources.” In other words, any project that would permanently alter the environment should not be undertaken without considering alternatives that might avoid harm to endangered species.

There is some debate about when that section applies, but “in our opinion, it always applies, and the permit is needed before construction,” he said.

Eubanks noted getting an ITP does take some time, perhaps as long as a year, but “project to project, it varies, and the jury is still out on exactly how long it takes.”

A handful of wind projects have applied for ITPs, including a company in Hawaii that got one a few years ago; it took about 12-18 months to obtain it, Eubanks said. There are also two wind developers in Missouri, one in Ohio, and now Beech Ridge in West Virginia, all of which are in the process of applying for ITPs. “It’s becoming more common,” Eubanks noted, but developing habitat conservation plans in the process takes awhile. Some are 50 pages; some can be 200-300 pages long, he said. “The company hires a consulting firm, which does a ‘take’ calculation,” he explained. Then the firm uses the calculation to figure out how many endangered species might be harmed, and develops conservation measures to offset those “takes.” For example, if a firm concluded 25 Indiana bats would be killed by a facility, then it figures out ways to protect the bats’ populations elsewhere, like buying land or putting a conservation easement on property where the bats live in order to help make sure their populations are sustained. Sometimes, a company will mitigate by doing things like donating money to research on endangered species.

Eubanks said he hopes HNWD will obtain an ITP before it builds its facility. Highland residents have already contacted his firm, he said. “I’ve talked with folks there, and told them we will try to help. Maybe we can get the company to think about getting the ITP before it builds … We rarely actually stop a project, but we can help make sure it’s more sustainable,” he said.

Meyer Glitzenstein and Crystal is a major law firm that provides legal services and advocacy to non-profit organizations; it also represents clients in federal and state court litigation on everything from wildlife protection, the environment, and open government laws.

At this point, HNWD’s construction has not resumed and according to Reynolds and Whitelaw, the erosion and sediment control measures in place at the site seem to be working well in spite of the heavy snow this winter.

Whitelaw inspected this week after more than an inch of rain. He noted there were silt fences with snow and wind damage that need repair when construction resumes but there are no sediment problems caused by erosion above them.

Inspector Lew Manhart, hired by the county to assist Whitelaw, also inspected March 15 to monitor those controls. His report notes the diversion ditches are in good shape, and sediment traps seem to be working. About 10 percent of the silt fence was torn down in places from melting snow and plows, but he saw no water moving along them.