Wind company, agency fine-tune arguments
By Anne Adams • Staff Writer

RICHMOND — Does a Virginia agency have standing with regard to a West Virginia landmark?

The debate between Highland New Wind Development LLC and the state Department of Historic Resources appears to come down to a handful of legal points. Among those is whether the DHR has any authority to require the company to mitigate the visual impact its 400-foot towers will have on Camp Allegheny, a Civil War battlefield in Pocahontas County, W.Va.

Tuesday, a hearing was scheduled on DHR’s complaint to the State Corporation Commission, first lodged in August. The agency says HNWD is not meeting the SCC’s requirement to work with DHR to minimize the impacts from its 38-megawatt utility on historic resources. That was a condition on the developer’s state permit, granted two years ago by the SCC, that said HNWD is to “coordinate with the DHR for guidance regarding the potential need for archaeological and architectural surveys, recommended studies and field surveys to evaluate the project’s impacts on historic resources.”

Instead of an evidentiary hearing with witness testimony, SCC hearing examiner Alexander Skirpan held a roughly five-minute hearing. A Monday morning conference call among those involved resulted in legal issues being fine-tuned, and agreement about the series of events that led to this point. HNWD and DHR told Skirpan they agree on the chronology, and the communications between them so far.

Mark Obenshain of Lenhart- Obenshain, Harrisonburg, represented HNWD Tuesday morning. “We’re very close,” he told Skirpan. He explained that a sevenpage chronology of events to date had been gathered. More than 50 other supporting documents were still being put together that will be attached to it. William Chambliss, representing SCC staff, said the SCC accepted that chronology as well.

Obenshain explained one other piece of evidence that might be entered is a deposition taken of Kathleen Kilpatrick, DHR director.

Steven Owens of the Attorney General’s office represented DHR at the hearing. He explained the deposition would be taken next Tuesday at 10 a.m., and that HNWD’s attorneys wanted the opportunity to cross-examine her.

Obenshain and Owens agreed they could have briefs to the SCC by Jan. 4. Those are expected to outline the disagreements left to be considered by Skirpan.

“The issues seem to be narrowing,” Skirpan said. He told the attorneys he had a list of remaining issues they might want to address in their briefs. He said he had been reviewing the language in the SCC’s final order on HNWD’s permit, “and I spent some time thinking about it.”

Skirpan referred specifically to a November 2007 document in which HNWD asked the SCC to modify or reject some of the recommendations made to the SCC by the Department of Environmental Quality and Skirpan. HNWD had argued some of them were too costly.

But the commissioners, in the final order, said, “We reject Highland Wind’s request for limitations and/or modifications to the requirements in the DEQ report. Rather, we find that requiring Highland Wind to comply with the above conditions recommended by DEQ is desirable or necessary to minimize adverse environmental impact.”

Tuesday, Skirpan said, “I looked at that as being somewhat relevant.” He did not explain further.

Where do DHR,

HNWD disagree?

In briefs submitted before the hearing, DHR and HNWD explained what they believe are the remaining issues the SCC must resolve.

HNWD had made a motion for summary judgment on Dec. 14. Its attorneys argued that because the SCC is prevented by law from considering issues already considered by a local government, it cannot now consider visual impacts. Highland County officials, HNWD said, already considered those. The SCC’s final order had a condition that required HNWD to coordinate with DHR for guidance, but “it is not clear what, if anything HNWD is to do beyond coordinate with DHR regarding the potential need for surveys and studies,” the company said. “It is clear, however, that it is not subject to additional conditions with respect to viewshed.”

Since DHR’s complaint to the SCC, HNWD said, the company has conducted an archaeological survey “to DHR’s satisfaction, and DHR has confirmed that there are no remaining unresolved archaeological issues. HNWD has also conducted an architectural survey.”

Also, HNWD noted, DHR reviewed the architectural report and “is not requesting any change in the siting, design, or construction of the wind project.”

HNWD contends that since the only impact is visual, and that impact is to a historic resource outside Virginia, DHR cannot ask for mitigation. HNWD said DHR requested the company agree to a mitigation package. “Such a package included the request for a substantial payment from HNWD to DHR,” the company said.

Since DHR has no authority over impacts outside Virginia, and no authority to require monetary payments, the hearing should be dismissed, HNWD argued. “If DHR believed the board of supervisors of Highland County needed to require an additional or more complete visual impact analysis before approving the wind project, then DHR should have sought to appeal the board’s decision to the circuit court of Highland County,” HNWD stated. “DHR’s continued challenge to HNWD, including its demands for further financial commitments based on the wind project’s alleged impact on West Virginia, has a chilling effect on new business inside the commonwealth.”

HNWD attached a Nov. 25 email from Obenshain to Owens. “We continue to believe that HNWD has no further obligation under the SCC order with respect to viewshed … Notwithstanding our position, we are willing to listen to any specific or concrete suggestions DHR may have with respect to steps it might take to mitigate what DHR perceives to be the adverse visual impact upon the Camp Allegheny site,” Obenshain told Owens. “You suggested that DHR might view as reasonable ‘mitigation strategies’ the provision of photographs of the site without turbines or perhaps even the printing of a number of brochures about the site. Any discussion or agreement along these lines would represent an economic decision on the part of the county and my client would not represent a concession that any obligation exists to take such steps. Of course, my client does not agree with the positions taken by DHR in defining the boundaries of the Camp Allegheny site.”

DHR responded to HNWD’s motion, saying it has never said it has independent authority to force HNWD to take actions, only that its authority comes from the requirements of the SCC. “Furthermore,” DHR argued, “the entire SCC order regarding historic resources is meaningless if there was no expectation that (HNWD) would engage in meaningful discussion and undertake some level of mitigation. It is difficult to understand the logic of requiring the identification of historic resources that will be adversely impacted by a project if nothing will be done about the problems.”

As for visual impacts, DHR again says HNWD “fundamentally misunderstands, and even deliberately misstates” the agency’s position. DHR says the term viewshed defines the area of potential impact for visual effects. “It does not define those effects, whether they are adverse or not, and what can or should be done about them. DHR has not asked HNWD to redefine the ‘viewshed’ for these purposes, even though DHR contends that the studies done by (HNWD) were not adequate and are only sufficient because of additional work done by DHR itself … It is apparently (HNWD’s) contention that determining that Camp Allegheny might be impacted is enough, and that there is no reason for them to take the final step to determine what, if anything, can and should be done. Their response is simply that they should not have had to do this much and they refuse to consider any efforts to mitigate.”

DHR also argued that nothing in the SCC’s order says only Virginia historic resources should be considered. “Logic dictates that exercising jurisdiction over a project in one state that has impacts on historic resources in another is the only way to protect those assets. … The location of the project, not the location of the impacted asset, dictates what local, state or federal entity has jurisdiction.”

DHR flatly denies having asked HNWD to pay money for mitigation. The agency said HNWD “has consistently, and, one must again assume, deliberately misrepresented DHR’s request for mitigation as a demand for payment of money to DHR. At best, this must be considered a gross mischaracterization of the facts. DHR has never demanded that any sum be paid to it directly for any mitigation measures nor has it ever suggested that such an action would constitute appropriate mitigation. In fact, DHR has only suggested specific monetary amounts as caps on the potential liability of HNWD as it undertakes certain types of mitigation activities.”

DHR’s focus, it said, has been on preliminary discussions of mitigation, the kinds of things that can be done and whether they directly benefit Camp Allegheny. “HNWD’s only focus has been on money,” the agency said. “In fact, HNWD has gone so far as to say that any amount of money spent on mitigation measures that was not diverted from a previously committed amount would be unacceptable to the project’s finances. This statement must necessarily call into question the financial viability of the project as a whole. In this regard, of course, it must be noted that HNWD has expended substantial resources to resist meeting its consultation obligations under the final order. If resources are available to resist DHR, one wonders why those assets could not have been devoted to working with DHR toward a viable solution.”

DHR asked the SCC to deny the motion for summary judgment.

DHR and HNWD did agree to a timeline of events going from July 2003 through this month. The exhibits it refers to be will be attached and made part of the record.

The SCC will make its ruling after reviewing briefs provided by DHR, HNWD, and SCC staff on Jan. 4.