The well-orchestrated and carefully stated position presented by supervisors Tuesday on Highland New Wind Development’s project requirements is baffling, at best.
Two of three supervisors (Robin Sullenberger and David Blanchard) had considered whether to require the developer to seek a federal incidental take permit and habitat conservation plan to protect the proposed wind energy utility, and its projected tax revenue to the county, from being shut down if endangered species were killed by the spinning blades of the utility’s turbines. Obtaining a take permit is the only legal way to avoid serious federal law enforcement action if endangered species are adversely impacted.
Most reasonable people now accept that the facility is very much at risk for killing federally protected migratory raptors and bats. Its location along a major flyway on the Allegheny Front, and the evidence in hand from similar utilities, indicates the 20-some turbine towers are very likely to do damage. HNWD has, so far, declined to take the one step it can to reduce its risk of breaking federal laws, and protect its $60 million investment in the process. It would take too long, and be too expensive, the company says.
Though the State Corporation Commission declined to require the federal take permit, even its officials noted the company would be better off getting federal approval anyway. And so the question remained: Should Highland County require HNWD to secure the conservation plan and take permit? This week, county attorney Melissa Dowd said in her opinion, the county could not require HNWD to take that action as a “new” condition.
The county’s conditional use permit for HNWD says, “The authority granted by this permit shall be conditioned on the receipt of all required state and federal approvals.” This was written by the county itself. To argue supervisors cannot now interpret their own language in a manner that protects county citizens simply shirks that responsibility.
What’s really at risk here?
• First, the migratory wildlife we know exists at the project site. The eagles and bats that use the area are documented. And we know based on other research that if 400- foot towers are erected there, the chances of one of them getting eviscerated by the blades are pretty good.
• Second, the taxpayers’ money. We know attorneys for those opposed to this project have already warned supervisors, and the developer, that if one of those protected raptors is killed, and the Endangered Species Act laws are broken, they intend to take legal action. This time, in federal court. And the county itself will be named a party to that suit. Are supervisors really prepared to shell out another quarter-million of our tax dollars in legal action?
• Third, the wind utility itself. We know if a federally protected species is killed, federal agencies can take quick action to shut the facility down. So much for the tax revenue Highland County hoped to gain.
If county supervisors require HNWD to obtain a take permit and put a habitat plan in place, what would happen? It’s possible, though unlikely, that HNWD could refuse, or perhaps sue the county over that decision. But even if it legally challenged the county’s condition, the chances of the company prevailing are slim to none. Over the last three years, in several high-profile legal battles on this project, the courts have consistently upheld the local government’s position on every action our officials took, no matter how convoluted, to render decisions about the permit, the process, and the planning and zoning requirements involved. Time and again, our governing bodies have been given the power, authority, and control to make choices that have not been successfully challenged at any level. The consensus each time is: Local governments can do things the way they see fit.
Why, then, would the county say its own permit conditions cannot include a federal take permit? Making HNWD protect this investment – one that affects the entire county – is prudent and responsible. Whether it costs the developer more money or time is irrelevant. Allowing HNWD to proceed without this federal protection puts the county at much greater risk.
Supervisors need to forge ahead and ask HNWD to get the take permit and habitat plan. It’s not a “new” condition. It’s an action that fits strongly with the intent of the permit that already exists.
And it’s the right thing to do.
7 February 2008
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