Virginia wind energy proposal’s latest headaches

Originally posted on SNL Energy’s SNLi website.

Call it the onshore version of the Cape Wind Offshore saga.

The 38-MW Highland wind farm in Highland County, Va., has struggled for nearly a decade to become the first project of its kind in the state yet continues to face strong opposition.

In the latest development, the Virginia Department of Historic Resources claimed Jan. 4 in a filing with the Virginia State Corporation Commission that project owner and developer Highland New Wind has failed to comply with a number of conditions stated in the SCC’s Dec. 20, 2007, final order approving the project.


The department said the sunset provision in the SCC’s final order requiring Highland New Wind to begin construction by Dec. 20, 2009, has expired. While grading and earth moving has occurred at the site, the department said that “it does not involve the construction of any buildings, structures or other facilities. … Consequently, HNWD is in violation of the sunset provision in the certificate of public convenience and necessity and is no longer entitled to pursue this project.”

But what really irks the department is the way Highland New Wind has interacted with it over the years. The department said it has repeatedly asked Highland New Wind to conduct studies up to its standards of the historic resources impacted by the project. “The record is clear that HNWD, throughout the permitting process and up to the scheduling of the hearing on this Complaint, only dealt with DFIR in a conclusory manner, telling it what the results should be without engaging in the studies required by the published policies of the Department,” the state agency said. “HNWD refused to consult with DHR for advice regarding a scope of work that would resolve the agency’s issues, refused to discuss with the Department what its concerns were, and rather pointedly refused to pay any attention to anything that DHR put in its correspondence about what its expectations or concerns were.”

Another issue, raised by the historic resources agency and others, is the project site’s proximity to Camp Allegheny, a Civil War battlefield. The wind energy project is to be located about 1.5 miles from the historic site, in neighboring Pocahontas County, W.Va. In August, Pocahontas County officials sent a letter to Highland County, expressing their concerns about the wind project, including how the project might compromise property values and the integrity and pristine landscape of Camp Allegheny, the site of a December 1861 battle.

 SCC general counsel recommends dismissing resources agency’s complaint

Highland New Wind’s attorneys in a Jan. 4 filing with the SCC said the department’s complaint is moot because the decision as to whether the wind project infringes on Camp Allegheny is up to the Highland County Board of Supervisors: “HNWD coordinated with DHR for guidance regarding the potential need for studies and surveys. DHR is not requesting additional surveys or studies, because there is no need. DHR’s Complaint is without merit, and issues pertaining to viewshed, which is the only issue remaining, cannot be considered,” the company said.

SCC General Counsel William Chambliss also filed a letter Jan. 4 recommending that the latest complaint be dismissed. “The sole question for the Examiner is whether HNWD is in compliance with the requirements of the Final Order. Staff submits that HNWD is in such compliance, has fulfilled the requirements of the Final Order, and that this matter should be dismissed,” Chambliss said. “The sole remaining matter at issue between the parties concerns only the visual impact of the project on a site in West Virginia. … The law is quite clear that the Commission has no authority to impose any additional condition in these regards, as the Final Order properly finds. Whether or not one agrees with the wisdom of the legislation that limits the Commission from imposing additional conditions on matters considered by other agencies, the plain fact is that this is unquestionably the state of the law.”

SCC spokesman Ken Schrad said the arguments will be reviewed, but there is no deadline for a ruling on the matter.

Hanging on Highland County and a federal permit

Construction of the wind farm is expected to get under way this spring and be completed by midyear. Those plans may be thwarted by opponents of the project who are threatening once again to sue cash-strapped Highland County.

According to a Jan. 7 report in The (Monterey, Va.) Recorder newspaper, an attorney representing a group of citizens sent a letter to the Highland County Board of Supervisors urging the county to prohibit Highland New Wind from proceeding until it obtains an incidental take permit under the federal Endangered Species Act or it will face legal action. The Endangered Species Act does not ban development that may kill or otherwise harm — “take” — endangered species, but requires developers to get a special permit from the U.S. Fish and Wildlife Service if such “incidental takes” will occur. Indiana bats, which are on the federal endangered species list, do live in proximity to the site.

 The letter cited a federal judge’s order in December 2009 to shut down Invenergy LLC’s Beech Ridge Wind farm in Greenbrier County, W.Va., because of its lack of an incidental take permit. In a Jan. 4 letter to Highland County Administrator Roberta Lambert, John Flora, an attorney for Highland New Wind, said the closest Indiana bat cave to the Highland wind farm is more than 11 miles away — a significant distance compared with the Indiana bats that live 6.7 miles away from the Beech Ridge project. In addition, Flora said the bats are “dying in droves” from a disease called white nose syndrome, which poses the biggest threat to the species. “[N]ot a single Indiana Bat has been reported killed by a wind turbine,” he added.

A Jan. 7 editorial in The Recorder said Highland New Wind has resisted obtaining the permit for at least five years but has had a change of heart due to the Beech Ridge shutdown. At this point, it may be forced to do so in part because of the financial pressure on Highland County to avoid further litigation costs. “If the county gets sued again, there’s no money to pay for that expense,” the editorial said. “Requiring HNWD to get the permit before construction, and getting a commitment to that effect in writing, would be the wisest move our board could take to protect our tax dollars.”

The wind farm developer intends to “work with the Virginia Department of Game and Inland Fisheries to review and refine the Post Construction Mitigation and Monitoring Plan and submit a Habitat Conservation Plan with the United States Fish and Wildlife Service in order to obtain an Incidental Take Permit,” Flora said in his letter to Lambert.

Better get moving.

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Jennifer Zajac has covered the U.S. electric power sector for more than eight years and was founder/editor of SNL Energy's Renewable Energy Week, a newsletter devoted to the utility renewable energy market in North America. Currently, she covers EPA policies that impact the power industry and is working on a masters' degree in Global Energy Management at the University of Colorado-Denver.

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