Misrepresenting the Status of the Proposed Highland County Wind Energy Project

State and national newspapers, including the Richmond Times Dispatch and USA Today, have reported that Highland New Wind Development is prepared to begin construction by early summer with possible completion by the end of the year.

The source of the reported information is the developer’s public relations spokesman, Frank Maisano, who announced in a press release that the company has filed a site plan, which he characterized as the last step in obtaining a building permit.

The newspapers in question simply repeated the company’s public relations material on the controversial project.

The press release was seemingly designed to help the developer obtain or retain the investors needed to finance the 19-turbine, 65-million-dollar project proposed for a remote and exceptionally wild area in the northwest corner of Virginia’s highest elevation and least populated county.

Despite Mr. Maisano’s statement, the wind project developer:

  • does not have a building permit
  • does not have an Erosion and Sediment Control permit
  • does not have approval from the FAA
  • has not met conditions imposed by the State Corporation Commission
  • has not obtained an Endangered Species Act permit

Highland New Wind has faced a series of legal and environmental challenges since losing its first development partner in 2003.  Virginia’s wildlife management agency has concluded that the project may result in the highest mortality of birds and bats for wind projects in the eastern United States. Virginia’s historic resources agency has raised concerns about impacts to the adjacent Camp Alleghany, listed on the Federal Register of Historic Places and recognized as the most pristine among the remaining undeveloped Civil War battlefields.

Following the death of thousands of bats flying into turbine blades during the first weeks of a West Virginia wind project, and given the location of the proposed Highland project within the range of endangered bat species, the U.S. Fish and Wildlife Service has repeatedly recommended  that Highland New Wind obtain a permit under the Endangered Species Act, and both Highland New Wind and the Highland County supervisors have been served a notice-of-intent to sue if the project goes forward without the permit. A federal suit has been brought against a West Virginia developer over the same issue, and earlier this year the U.S. Forest Service blocked plans for a wind turbine project in the George Washington National Forest in part because of the risk to the endangered bats that inhabit Virginia’s mountain ridges.

The developer of the proposed Highland New Wind project has complained that investors would be scared away by strict wildlife monitoring requirements imposed on the project by the SCC.

To-date no investors have been identified, and Mr. Maisano made no reference to investors in his press release.

Highland New Wind’s Loss of Green Credentials

Highland New Wind Development  (HNWD) declares itself to be the “Greenest Wind Farm in the World.”

A month ago HNWD development made national news when its public relations firm announced that Virginia’s first utility scale wind project was ready to start construction. As indicated here (see entry below), that was a blatant misrepresentation. HNWD does not have a building permit, does not have an Erosion and Sediment Control permit, does not have approval from the FAA, has not satisfied the permit conditions imposed by the State Corporation Commission (SCC), and has not obtained an Endangered Species Act permit.

In fact, June 12, 2009 was the first time that reviewing agencies or anyone else had an opportunity to see an actual site plan for the project.  And HNWD’s conditional use permit expires in August. And the SCC permit expires in December.

So, how has this eleventh hour submission been received?

“What they have presented is completely unacceptable.  .  .  . They show contempt, a lack of respect for the county.”  — Highland Supervisor David Blanchard

“The applicant has their perspective on things they need to do to be compliant, and the county has another perspective.  .  .  . I was a little surprised, given the amount of time they’ve had to do it, at the lack of thoroughness.” – –  Highland Supervisor Robin Sullenberger

“I firmly think what they submitted was premature .  .  .  . I see a lot of things wrong with it.”  – – Highland Supervisor Jerry Rexrode

“Based on our review, we believe that the plans and narratives are incomplete and lack sufficient detail needed to perform a final review. We have identified (at a minimum) the following [17] items which need to be addressed prior to a final review.” – – correspondence from Mattern and Craig, an engineering firm hired by Highland County to review HNWD’s Erosion and Sediment Control plan

“Just this week, all three supervisors expressed concern and surprise that HNWD can’t seem to even put its turbines in the right state on the map.” – – Recorder editorial commenting on a HNWD site plan error that located one or two of the 19 proposed  turbines in West Virginia

” Inadequacies and inaccuracies of the Erosion and Sediment Control Plan and Stormwater Management Calculations by Blackwell Engineering (HNWD’s consultant) have resulted in misleading results provided in the stormwater management calculations,”  – – Dr. Pamela Dodd, a consulting hydrogeologist reviewing the plan for Laurel Fork landowners

“Laurel Fork is a pristine stream populated with wild brook trout . . . . Given the misrepresentations that characterize Highland Wind’s maps and statements it would seem that a review and assessment of those materials by the Department of Game and Inland Fisheries, the Department of Conservation and Recreation and Department of Environmental Quality would protect the county from liability associated with making a decision based on erroneous information.”  – – John Ross, Chair, Virginia Council of Trout Unlimited

“Five of ten turbine locations proposed for Red Oak Knob . . . are either in or at the edge of areas that were forested in 2006 . . . contradicting the findings and basis of the conditional use permit and claims by the developer.” – – Rick Webb, Highland County resident, in correspondence with Highland County officials

“Some of the errors in it are very suspicious . . . . Others simply demonstrate the lack of any real effort to comply with the requirements of the conditional use permit or SCC order.”  – –  Ches Goodall, downstream landowner, in correspondence with Highland County officials

And this list could go on.

So what’s up with HNWD? Why did HNWD seek and submit a low-bid Erosion and Sediment
Control Plan at the last minute?

One theory is that HNWD seeks to demonstrate to potential investors that it has the situation and the decision makers, including Highland County officials and the regulatory agencies, under control. But that doesn’t seem to be the case.

The Legal Fray Begins

As reported by the Associated Press, Highland New Wind Development (HNWD) has begun construction on its controversial wind energy project along the Virginia-West Virginia border in Highland County. The project is apparently going forward without financing and power purchase agreements and without resolution of multiple legal issues.

Construction on the 19-turbine project in the remote Laurel Fork watershed has started despite multiple legal objections, including non-compliance with conditions imposed by the State Corporation Commission (SCC), failure to meet minimum state requirements for Erosion and Sediment (E&S) Control Plans, failure to develop a Habitat Conservation Plan and obtain an Incidental Take Permit under the federal Endangered Species Act, and objections to HNWD’s redrawing of the WV-VA state-boundary line.

A number of Highland County residents and landowners, represented by Woods Rogers, a Roanoke law firm, have petitioned the State Corporation Commission, objecting that HNWD is not in compliance with permit conditions. The petition states that:

  1. State environmental agencies, including the Department of Game and Inland Fisheries (DGIF), the Department of Environmental Quality (DEQ), and the Department of Conservation and Recreation (DCR) were not provided a reasonable opportunity to review a final site plan.
  2. HNWD has terminated consultation with the state Department of Historic Resources concerning impacts to archaeological and cultural resources, including impacts to Camp Allegheny, the most pristine Civil War battlefield in the U.S.
  3. HNWD did not consult with and adopt recommendations of the DGIF, DEQ, and DCR to avoid impacts to streams and wetlands during construction.

An additional legal notice filed by downstream landowners asserts that HNWD’s E&S Plan does not meet minimum state standards, and will therefore not protect Laurel Fork, a high-quality stream with naturally reproducing native brook trout and unique wetlands. The notice states that:

  1. The E&S Plan is non-compliant with respect to runoff calculations and delineation of soils and drainage areas.
  2. The E&S Plan is non-compliant with respect to detail, providing information at a coarse 40-foot contour interval scale rather than the standard 2-foot contour interval.

Despite advice from the U.S. Fish and Wildlife Service and the DGIF, as well a notice of intent to bring suit against both HNWD and Highland County officials by concerned citizens, HNWD has declined to develop a Habitat Conservation Plan and obtain an Incidental Take Permit under the federal Endangered Species Act.

In addition, West Virginia officials are objecting that HNWD has, based solely its own authority, redrawn the Virginia-West Virginia state-boundary line, claiming that the official U.S. Geological Survey map is wrong –thereby avoiding West Virginia involvement in project review and permitting.

It seems that after years of contention, the real legal fray is just beginning.

Virginia Agencies Petition the SCC

The Virginia Department of Historic Resources has written the SCC stating that Highland New Wind “has failed to comply with either the letter or the spirit” of permit conditions in the SCC Final Order authorizing the Highland County wind project.

The Heritage Division of the Virginia Department of Conservation and Recreation has written the SCC concerning permit conditions in the SCC Final Order requiring, among other things, that Highland New Wind adopt recommendations of state environmental agencies to avoid impacts during construction. The letter lists specific types of ecological studies that must be conducted before conservation measures can be recommended.

Highland New Wind has effectively gamed the system, providing minimal project information to reviewing agencies at the last minute prior to construction. Construction has now started, and if allowed to continue, the  SCC permit conditions are rendered unattainable.

A citizens’ petition has been submitted to the SCC asking that the project be stopped until the SCC confirms that its conditions have been met.

It is now up to the SCC to enforce its own permit conditions.

Hearing Scheduled on Highland New Wind Compliance with SCC Order

Highland New Wind Development (HNWD), the self-touted “Greenest Wind Farm in the World,” has initiated clearing, road work, and excavation for its 19-turbine project in the remote Allegheny Mountain, Laurel Fork area along the Highland County-Pocahontas County, Virginia-West Virginia border. Actual construction of turbines and completion of the project, however, remain in question amid escalating controversy, expanding legal issues, and apparent investor uncertainty.

Continuing objections to the project focus on the developer’s failure to meet permit conditions imposed by the Virginia State Corporation Commission (SCC), flawed Erosion and Sediment Control Plans, non-compliance with the federal Endangered Species Act, unauthorized reinterpretation of the Virginia-West Virginia border, and unaddressed impacts to Camp Allegheny, a uniquely pristine Civil War battlefield on the National Register of Historic Places.

The SCC has scheduled a hearing to be convened on 092309 to receive evidence and testimony from the Virginia Department of Historic Resources (DHR) and HNWD concerning the wind energy developer’s  compliance with the SCC’s 122007 order requiring HINWD to coordinate with the DHR for guidance regarding the need for surveys and studies to evaluate the project’s impacts to historic resources. The SCC has also required that HNWD submit an “answer or other responsive pleadings” by 091409.

The DHR has sought an “expedited review and response” from the SCC based on the DHR’s belief that HNWD has “failed to comply with either the letter or the spirit” of the SCC order.

The SCC has also received letters expressing concern about the impact of the project on the Camp Allegheny from the Pocahontas County Commission, WV Congressman Nick Rahall, the National Park Service, and the WV State Historic Preservation Office.

The developer has reportedly dismissed concerns about Camp Allegheny, stating his opinion that the battlefield is insignificant.

Defiance

Highland New Wind has responded to the state Department of Historic Resources’ complaint to the State Corporation Commission, which alledged that the developer “has failed to comply with either the letter or the spirit” of permit conditions in the SCC Final Order authorizing the Highland County wind project.

According to HNWD’s response submitted on 091109:

“HNWD has reached the conclusion that the Complainant and some of its sister State Agencies believe that the words, “coordinate with,” and “work closely with,” mandate that HNWD do whatever the Agency demands, or else HNWD is portrayed as non-cooperative or according to the Complaint, not entering into “constructive consultation.” HNWD admits that it has taken the postion, based on the clear language of the Commission’s Final Order, that it is not required to conduct a viewshed analysis to the satisfaction of the Complainant.”

Pending Tazewell County Gold Rush?

The Dominion-British Petroleum, 60-turbine, 7.5-mile long, wind turbine project proposed for East River Mountain in northeast Tazewell County is on hold as county supervisors consider a ridgeline protection ordinance.

The proposed ordinance has implications for much of the rest of the county.

As reported in the Bluefield Daily Telegraph, a number of other developers with interest in the county are waiting to see what happens with the proposed ordinance.

Among the areas of interest to the developers are the ridges around Burkes Garden, a scenic high-elevation valley bordered on three sides by National Forest, including designated and proposed Wilderness.

Highland New Wind In Wetlands Denial?

Although Highland New Wind Development (HNWD) has started site preparation for its 19-turbine, 39 MW wind project in Highland County’s remote Laurel Fork watershed, additional state and federal permits and review may be required for wetlands disturbance.

Highland New Wind Development (HNWD) has repeatedly revised its acknowledgement and delineation of wetlands. HNWD initially reported that there are no wetlands in the area where it proposes to cross Laurel Fork by directional drilling under the stream channel. Three different maps have since been presented to authorities, all changing the location, extent, and shape of the wetlands. The latest wetlands map is dated Aug. 6, 2009, three days after Highland County approved HNWD’s “final” site plan. The plan approved on Aug. 3 depicted a different wetlands area.

Based on new information and conditions imposed on the project, permits for wetlands disturbance may now be required by the Virginia Department of Environmental Quality, the Virginia Marine Resources Commission, and the U.S. Army Corps of Engineers. Previous determinations that permits are not required should no longer apply.

HNWD’s site plans indicated that equipment excavation pits required for directional drilling would be located about 10 feet from the stream – in locations that would not involve disturbance of a wetland area about 15-20 ft. from the stream. Two state agencies have now recommended setbacks that effectively require excavation in the wetlands area. The excavation pits are about 9 ft. wide, 15 ft. long, and deep enough to allow horizontal drilling 4 ft. below the stream bed.

The Department of Game and Inland Fisheries has recommended setbacks of 30-50 feet to avoid the potential for sedimentation of the stream and impacts to the native brook trout population. The Heritage Division of the Department of Conservation and Recreation has recommended setbacks of 10-20 meters to avoid impacts to state-listed rare plants. The State Corporation Commission previously directed HNWD to consult with and adopt recommendations of these agencies to avoid impacts to aquatic resources during construction.

It remains to be seen whether HNWD will work with the agencies to resolve this issue now or seek to wait until the stream crossing work is underway. By starting construction work on other parts of this large project, HNWD could preclude effective environmental assessment and permit review, which is inconsistent with National Environmental Policy Act requirements, as the viability of the overall project depends on the work that must occur in the streams and wetlands.

Even if the agencies are unable to implement a rational permitting process, the developer should want this resolved before further commitments and investments are made.

Get Rational About Appalachian Wind Energy

It was only a few years ago that habitat loss was front and center among causes for concern about the future well-being of the American ecological landscape. Not much has changed to allay this concern; sprawling development continues, and the alteration and loss of natural habitat is largely unchecked. What has changed is the focus of many mainstream environmental organizations. Concerns about the projected future effects of climate change have taken precedence over the immediate and observable effects of habitat loss. Some who label themselves environmentalists would now allow and even advocate industrial-scale renewable energy development in our remaining wild areas, including national forests and other lands set aside for permanent preservation.

Notable among the evidence for this shift in perspective was the near silence of environmental organizations when environmental review requirements were eliminated from the American Recovery and Reinvestment Act of 2009, an economic stimulus package that will provide grants to large corporations covering as much as 30 percent of the cost of megamillion-dollar industrial-scale wind energy projects. The act explicitly exempts the award program from provisions of the National Environmental Policy Act. It’s fair to say that national environmental organizations simply turned their back on what has apparently become yesterday’s issue.

The assumption seems to be that any trade-off is worth it; that long-held concerns about habitat conservation and the need for careful environmental assessment are now irrelevant in the context of climate change. Perhaps nowhere is the need for objective analysis made more clear than in the forested Appalachian Mountains where the wind industry and its advocates argue that ridgeline wind development can replace coal and other problematic energy sources.

Tennessee Sen. Lamar Alexander addressed this thinking recently in a Wall Street Journal commentary with the title “We’re about to destroy the environment in the name of saving it.”

To put things in perspective, he pointed out that we could line 300 miles of mountaintops from Chattanooga, Tenn., to Bristol with 50-story wind turbines and still produce only one-quarter of the electricity provided by one TVA nuclear power plant.

Similar comparisons can be made even closer to home. For example, it would require more than 300 miles of wind turbines, stretching the entire length of the Blue Ridge Mountain chain in Virginia, from Mount Rogers to Harpers Ferry, to match the August peak-demand period output of Dominion’s controversial new coal-fired power plant in Wise County.

It’s not necessary to deny that climate change is a real problem nor is it necessary to support either coal or nuclear power to conclude that wind energy development on Appalachian ridges is not a realistic alternative.

One can even acknowledge that industrial-scale wind energy development might make sense in other places with perhaps less environmental trade-off. And certainly the better alternative in the eastern U.S. is offshore, where the wind resource is dramatically more reliable, where deforestation and road construction are not required, and where turbines can be arrayed in relatively compact and efficient grids rather than in single-file corridors along ridge crests.

The next time you see wind turbines portrayed on television and in other advertising, notice that the turbines are depicted in treeless landscapes, typically plains and deserts, or in the ocean, and then ask yourself why it is that images of turbines strung out along forested ridge crests are almost never part of the wind industry’s PR campaign. Once enough people ask this question, we will perhaps start to take a more rational and conservation-minded approach to wind energy development and solving the climate change problem.

Tazewell County Stops Wind Project with Ridgeline Protection Ordinance

Tazewell County has adopted a Tall Structure / Ridgeline Protection Ordinance that effectively stops plans by Dominion and British Petroleum to build a 60-turbine wind energy project along 7.5 miles of East River Mountain. The ordinance also protects other areas in the county, including the ridges surrounding Burkes Garden, a scenic high-elevation area bordered on three sides by National Forest, including designated and proposed wilderness.

The ordinance passed by a 3-2 vote following months of intense public debate and a public relations campaign by the would-be developers. According to the local newspaper, a spokesperson for Dominion responded to the vote, stating that:  “. . . the citizens have spoken, and we respect the vote.”