If you closed your eyes, you could almost hear the groan of the bureaucratic wheel slowly grinding.
Monday marked the opening of the State Corporation Commission’s hearing on Highland New Wind Development’s proposal to construct the state’s first industrial wind facility on Allegheny Mountain in Highland County. If the first day’s proceedings are any indication, the process will take much longer than the three days scheduled.
Seated under a large state seal and presiding over seven representatives, SCC examiner Alexander Skirpan Jr. directed the formal proceedings in front of a fluctuating crowd of 50-100 attending. Several Highland residents were present, two of whom took the stand Monday. Six of the seven allowed to cross-examine witnesses were attorneys, including lawyers representing HNWD, The Nature Conservancy, and a group of Highlanders who were formal respondents in the case. Public comment was not allowed and Skirpan gave no indication when or if citizens would be given an opportunity to address the commission one last time.
Highland residents had to simply listen – a task made difficult by poor acoustics in the courtroom – and watch as evidence surrounding the decision was compiled and rehashed.
About 15 Highlanders opposed to the project sat on the right side of the courtroom, while HNWD owner H.T. McBride and his family sat on the other. Though Highland County attorney Melissa Dowd said in her opening statement that county supervisors had told her not to take a stand on the project, supervisor Jerry Rexrode and county administrator Roberta Lambert sat beside McBride. Supervisor Robin Sullenberger also attended the proceedings.
After opening statements by the respondents, the court heard brief testimony from eight witnesses and allowed respondents to cross-examine. Most were state officials, and the central theme throughout the day was the debate on potential bird and bat mortality that could be caused by the 39-megawatt utility and its 18-20 towers. Biologist Richard Reynolds of the Department of Game and Inland Fisheries, bird migration expert Dr. Sarah Mabey, and Highland residents Patty Reum and Sandy Hevener all discussed the possible effects the project could have on birds and bats.
Led by The Nature Conservancy’s attorney Wiley Mitchell, the main line of questioning was geared toward steps that could be taken to mitigate bird and bat mortality if the project was approved. Both Reynolds and Mabey argued more study was needed to come up with a reasonable model for predicting mortality rates and finding ways to lower the death rates if they are considered excessive. If the project is approved, they endorsed monitoring the site before and after construction.
HNWD attorney John Flora kicked off opening statements with a presentation well-known to those following the case. “There’s not a better place for a wind farm,” Flora said. “If it’s not approved, it’s hard to imagine Virginia will ever have one.”
He said those opposed to the project were mainly concerned about size of the turbines (each of which would stand about 400 feet) and the effect they will have on the view. These opponents have stirred up exaggerated environmental concerns, Flora said. The environmental benefits of the project outweighed the negatives, he argued.
Andrew Gambardella, representing Highland citizens opposed to the project, framed the debate in terms of the public’s interest.
“To simply answer (wind power) is better than other sources is not good enough,” he said. The project will have an adverse impact on the environment and the citizens of Highland County are being asked to shoulder the brunt of those impacts, he said.
“We already have reliable energy,” he said, arguing the project ran contrary to the public interest.
Mitchell said his client, The Nature Conservancy, usually shied away from the courts, but felt compelled to participate in this case in order to strike an environmental balance. The Conservancy generally supports wind power, but is concerned about its development in the Allegheny Mountains due to the high volume of birds and bats living and traveling through the region. If the project is approved, Wiley urged the SCC to place conditions for mitigating bird and bat deaths, and made several suggestions as to how the commission could lessen the impact.
Dowd spoke on behalf of Highland’s supervisors and outlined the year-long process the board undertook before approving HNWD’s application for a local conditional use permit. That permit had been issued with conditions, on a 2-1 vote by the board.
Attorney Wayne Smith spoke briefly on behalf of the SCC staff. It was the staff’s position that HNWD met the requirements for a state permit, Smith said.
State Sen. Frank Wagner (R-Virginia Beach) was the first witness called. He argued the proposed facility fit right in line with the state’s and nation’s recent energy plans, which call for developing renewable energy and greater energy independence. He realized the project’s contribution to the overall needs of the state would be small, but called it an important first step. Virginia has lagged behind other states in renewable energy, he said.
Robert Munson of the Department of Conservation and Recreation recommended HNWD follow the U.S. Forest Service’s scenery management tool if the project is approved. The tool is used to minimize the visual impact on surrounding points of interest.”I think this is a special case for Highland County because it is known as such a scenic place,” Munson said. He also discussed the importance of setting a precedent. The agency wanted to maintain the integrity of its scenic byways, rivers, and other tourist and recreational draws from other wind projects that were sure to arise.
Another state representative spoke on behalf of the conservation and recreation department’s natural heritage wing. In a previous report, his agency addressed concerns about setbacks to Laurel Fork and the project’s impact on butterflies, but said after further review, the DCR didn’t have those concerns anymore. The agency still endorses Virginia Department of Game and Inland Fisheries recommendations for conducting three years of pre- and post-construction studies on birds and bats.
The cross-examination of DGIF biologist Richard Reynolds was the longest of the day. His department concluded that any mortality rate higher than 2.3 birds killed per turbine per year and 2.1 bats per turbine per year, was unacceptable. Though HNWD had conducted its own bird and bat studies, Reynolds said this case was important because of the precedent it would set statewide, and the figures the SCC relied on shouldn’t come from HNWD’s paid consultants. There is not enough information to properly access the impact, he said.
Reynolds testified that three existing wind utilities in the region produced alarming mortality rates and hadn’t been studied thoroughly. The studies had been shut down by wind companies, and the states – West Virginia and Tennessee – hadn’t required the companies to conduct them.
Reynolds agreed with Wiley’s line of questions that steps could be taken to dramatically lower bird and bat deaths – such as shutting turbines down during peak migration periods and raising the turbines’ cut-on speed so they wouldn’t spin in calmer conditions.
Flora questioned where the department had come up with its acceptable mortality rate and asked if the numbers would be considered biologically significant.
Reynolds said the numbers came from research and were in line with a national average. He said not enough was known about most non-game species to determine if the number of birds and bats killed would be biologically significant.
Flora asked how much the years of study would cost and if these conditions would hamper other wind developers from coming to Virginia. Reynolds deferred to Flora on the questions.
Dr. Sarah Mabey, an expert on bird migration, was given an opportunity to comment on HNWD consultant Dr. Paul Kerlinger’s rebuttal to her report on the project’s potential impact on migratory birds. Mabey’s main point was that too little is known to come up with a sound estimate of migratory bird mortality, as Kerlinger had done in his report. The data Kerlinger had used was sound, there just wasn’t enough of it, in her opinion. In order to place turbines in the least detrimental locations, more study was needed, she said.
In cross-examination, HNWD attorney Brian Brake established Kerlinger’s credentials as a bird expert, naming all the work he’d done in the field, and questioned Mabey’s relationship to The Nature Conservancy, which had requested her testimony. Mabey is a former employee of the conservancy and had been given a $120,000 research award by TNC.
Patty Reum, owner and operator of Bear Mountain Retreat adjacent to one of the proposed turbine sites on Red Oak Knob, spoke of the negative impacts the project would have on her and her husband’s eco-tourist business and on the rare birds and raptors in the area. Since last spring Reum had begun to count raptors with the occasional help of expert bird watchers, and in little time had discovered an abundance of birds of prey. It was obvious the area was significant to rare migratory birds and raptors, she said, and more study was needed to learn just how bountiful it was. Reum urged the SCC to deny the application.
Testimony continued Tuesday and Wednesday, with witnesses and cross-examination on everything from northern flying squirrels to the financial viability of the project, most of which has already been put on the record.
By press deadline this week, the hearing had not concluded, and was expected to continue next week. Hearing examiner Skirpan will set the schedule. There is no limit on the SCC’s three commissioners in making a final decision, and they will await a report from Skirpan before reviewing the case.
By Will O’Connor “¢ Staff Writer
Editor’s note: The SCC expects to have a written transcript of the hearing available once the testimony has concluded. See next week’s Recorder for further details about the proceedings.
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