MONTEREY – Now that Highland New Wind Development has the go-ahead for building its 39megawatt commercial wind plant, county supervisors are revisiting the conditions they imposed on the company’s local conditional use permit, and what Highland’s role will be in protecting the county’s interests as things evolve.
One of the issues likely to be at the forefront of board discussions is whether Highland should require the developer to get a federal habitat conservation plan and incidental take permit to protect endangered species.
Three years ago, in July 2005, a group of Highland citizens hired law firm Woods Rogers of Roanoke to represent their concerns about protected wildlife, and attorney James Jennings sent a letter to supervisors, HNWD, and the U.S. Department of Interior to put them on notice a lawsuit would be filed if endangered species were not adequately protected from the spinning blades of the project towers.
This week, Jennings said the Endangered Species Act is still very much in play. “The question is, what are the remedies? We’re exploring options for how to proceed,” he said.
After consulting with his clients, Jennings said he’s not sure what the next step will be. “We think the SCC made all the findings of fact that determine a habitat conservation plan and incidental take permit are required, but the SCC didn’t say it’s going to require them. They did say everyone agrees (HNWD) should have one and that they’re proceeding at their own peril without it.”
What happens next depends in part on what HNWD does, he added, and whether Highland supervisors will require the developer to get the plan and take permit. “The county’s conditional use permit requires HNWD to comply with all state and federal laws,” Jennings said. “It may be appropriate with the SCC’s ruling to see if (the county) should require a plan and permit. To me, that issue is wide open.”
He noted the SCC has required a detailed monitoring program, but said, “The piece that’s missing is the preconstruction studies, which is why (the plan and take permit) are important.”
If HNWD violates the Endangered Species Act, Jennings said, “the federal government says you’re on notice, and if you violate the law, we’re going to act.”
Jennings said he hopes supervisors will tell HNWD it must comply with the ESA, and get the take permit and habitat plan. “At the end of the day, if we have to proceed in federal court, that doesn’t (bode well) for Highland County. They would just be dragged into it, as a party to the case,” he said, adding to the thousands of dollars the county has already spent in legal challenges surrounding the project.
Attorney David Bailey, who has also represented Highland citizens in legal challenges to the project, said if the utility’s operations result in an endangered species being killed, citizens could seek remedy in a federal court. HNWD should have sought a federal habitat conservation plan and incidental take permit, he said, Since it didn’t, he said, HNWD’s project can be shut down under injunctive relief so no more species would be killed, effectively putting the utility out of business. “I guess the only thing (HNWD) could do at that point is apply for a take permit after the fact,” he said.
Supervisor Robin Sullenberger said he’s open to the idea of requiring HNWD to seek a take permit. “I think the Department of Game and Inland Fisheries and others are closely following and suggesting on these things É there must be reasons (a habitat plan and take permit) were not required (by the SCC), but in the best case scenario, we know suggestions are not always followed. Only time will tell if that’s an issue.”
Newly elected supervisor David Blanchard said he believes it’s the county’s responsibility to require the habitat plan and take permit in order to keep the project from getting shut down. “The taking of endangered species is against federal law,” he said. “The SCC did not require an incidental take permit, when it was recommended. Is that sort of shunning the law?” he wondered. “I guess that’s why there are now questions about the (county’s) conditional use permit interpretation. In one section, it clearly says HNWD must comply with all state and federal laws, and it’s against the law to kill endangered species.”
Blanchard stressed that was his personal interpretation, noting he has not consulted with the county attorney. He intends to find out more about the consequences of developers breaking the endangered species laws. But the way he reads Highland’s permit conditions, HNWD should be required to comply with laws protecting species. “It’s a business risk for a private project,” he said, “but it may impact the viability of the project. Is this in the best public interest, to have the project shut down or fined? No, it’s not in the public’s interest, and the board needs to make recommendations (for HNWD to get a plan and permit) even though a habitat conservation plan can take up to 24 months.”
Blanchard said if the county requires the federal permit, he would support granting HNWD an extension on its conditional use permit.
He is also mindful that Highland County could be subject to another lawsuit, this time in federal court, but says that’s not the primary reason he supports asking for the plan and take permit. “In the world of big business there are always lawsuits being threatened, and it’s tough when you can feel shackled in your movements. But the objective of the supervisors is to look out for the best interests of the county … Even if there are no lawsuits, the federal law says you cannot kill endangered species. That’s enough for me. If this project is shut down, Highland County is not going to get any revenue from it. Risk reduction is what it’s all about.”
Blanchard says supervisors will need to discuss the matter, and steer clear of any defensive posturing related to the threat of legal action. He wants to talk to his colleagues about it, “but there’s time to discuss this issue openly. There are still several months before construction … I just think we have to proceed cautiously to minimize risk. It’s not my position that we need to put up barriers, not to get so mired down you get paralyzed, but often, lawsuits are brought up because concerns aren’t being addressed.”
Blanchard said he has not talked to HNWD or the McBride family about this. “I can see being the developer and (having to face) taking two years to develop a habitat conservation plan, two years of money being spent. But if the county is going to incur a lawsuit, and taking endangered species is against the law, then it’s in the best interests of the county and for citizens, to require a take permit before we issue a building permit. The SCC made good recommendations, they’re doing all they can to mitigate problems. I think the county holds the same responsibility.”
Sullenberger said he would need to study the issue further. “I’m certainly open to new information and suggestions, but we have to stick with approved conditions; we can’t arbitrarily modify those. We’ll be looking at every aspect as time goes on … I think we have the authority (to request a take permit) but we can’t change the basics (of the conditions attached to the local permit),” he said.
He emphasized the responsibilities of the technical review committee overseeing HNWD’s progress and making sure permit conditions are met. That committee, he said, “is not limited. They can consult (with any experts) to make sure HNWD adheres to the guidelines to address the issues we feel are important. As with any project, the applicant wants to be moving forward with the least resistance. It’s incumbent on the county to make sure they are, but that it’s not done in an arbitrary fashion … I’m open to suggestions, as long as we don’t violate the basic conditions. I have to look at those.”
The review committee consists of county administrator Roberta Lambert and building official Jim Whitelaw. While Sullenberger has faith in them to keep an eye on the project, Blanchard has some concerns.
Having been publicly supportive of the project, Blanchard said, Lambert’s involvement could be a liability for the county. “I believe (being the committee) puts them in an awkward situation,” Blanchard said. “They are not a very neutral party. I’d like to see an engineering committee of private experts with qualifications and expertise – a third party review committee. Jim and Roberta are capable, but we’re pulling those two into an unfair situation. The developer wants things to go through, and (Lambert and Whitelaw) would be running up against some strong forces. The developer will be trying to sway them their way. This creates a liability issue for the county. If they miss something, it creates an opportunity for another lawsuit. I’d rather it be the county suing a neutral party,” he said. “They are two bright individuals, but I also don’t know if the time is there for them to do this, and do all the homework … We’re sending two county officials to do all this, paying them with taxpayer money for their time … To me, this is something Highland citizens are paying for when it should be the developer … They (HNWD) are making money on the property; I shouldn’t be paying for that. I think he (company owner Mac McBride) can afford it; it shouldn’t be a burden for the county. That’s what it’s about. We don’t have to put up every road block but we need to protect the county.”
Sullenberger feels Lambert and Whitelaw can undertake the job. “They are committed to the county. If their technical expertise is lacking, they have no restrictions on them to call in experts … they’re going to be making decisions but there are not to be restrictions on their research … both are aware this is a technically complicated issue.”
BY ANNE ADAMS • STAFF WRITER
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