Board won't require incidental take permit 

Highland County supervisor Jerry Rexrode asked county attorney Melissa Dowd to give a legal opinion on whether the county should require Highland New Wind Development to get a federal incidental take permit and habitat conservation plan for its industrial wind turbine facility planned for Allegheny Mountian.

Dowd told supervisors at Monday supervisor meeting that incidental take permits apply to the federal Endangered Species Act. The act also requires a habitat plan if a permit is issued. The permit allows the killing of endangered species, or “take,” under certain conditions. “What ITP means is you are not setting out to kill endangered species.”

The county’s conditional use permit for the utility “very specifically did not make environmental findings about what had to be done or not to be done,” she said. “You stated publicly you did not have expertise to make findings on environmental requirements, nor had the funding to do so.”

Under Virginia Code, the State Corporations Commission is obligated to consider environmental impact, she said. “You knew it was already the responsibility of another state agency.”

Dowd said the site plan required by the conditional use permit requires the developer to mitigate the project’s impact on the environment.

“The board required in the conditional use permit that HNWD receive all required state and federal approvals and that it comply with all applicable federal, state, local laws, ordinances and regulations,” said Dowd. “If no federal or state law or regulation requires that HNWD enter into a habitat conservation plan and seek an incidental take permit, then it is my opinion that a reviewing court would most likely find that the Highland County Board of Supervisors cannot impose a new condition on the permittee that is contrary to the conditions already imposed unless there has been some significant change in circumstance or use. There is no evidence of such change in circumstance or change in use.”

She further explained the SCC had found in its final order that no party, including the Department of Game and Inland Fisheries and the United States Forest Service, ever stated it was a requirement under the law to seek an incidental take permit. “Therefore, the SCC did not require HNWD to do that.

“A major issue for us in government is we follow the process and procedures in Virginia code and case law and ordinances and regulations you adopted,” she said. “You have a zoning ordinance to tell you what to do with a conditional use permit. My research led me to a conclusion that at this point in the process, HNWD is vested in the conditional use permit. That is, when the government grants a permit and the applicant spends money, that applicant becomes vested in what the rules and regulations are. I do not find the county has the authority to now tell HNWD, or order in any way, an ITP or habitat plan.

“The courts have told us that so long as the board of supervisors follows process and gives the public an opportunity to participate, we won’t run afoul of the courts. Absent a different set of circumstances not before us, I recommend you do not amend the conditional use permit requiring and ITP and habitat plan.”

She added that she conferred with attorney Greg Haley, who assisted the county in defending legal challenges, and he concurred.

“I’m not sure the board meant to amend the conditional use permit,” said supervisor David Blanchard. “I was hoping to bring it up in conversation. I hope that an ITP and habitat plan will be considered, but I understand it is the developer’s choice.”

“It is HNWD’s risk and reward whether to choose to apply for that,” said supervisor Robin Sullenberger. “When I was asked about this, I wasn’t aware of our options. I am open to questions and comments. This gives total clarity to that.”

“He (McBride) knows about the ITP,” added supervisor Jerry Rexrode. “It’s probably a wise move, but that’s his choice.”

By James Jacenich
Staff Writer

The Recorder

7 February 2008