Highland citizens have once again reminded county supervisors of their intent to sue the board if proper conditions are not met by Highland New Wind Development LLC.
In a Feb. 27 letter addressed to the board, county attorney Melissa Dowd, county administrator Roberta Lambert, and zoning administrator Jim Whitelaw, the law firm of Woods Rogers outlined the citizens’ expectations based on the conditional use permit granted to the developer July 14, 2005.
Attorney James Jennings, writing on behalf of his clients, first contacted the county in July 2005 informing officials that if they granted a building permit to HNWD they could be violating the Endangered Species Act. “Since that notice, the Department of Interior has advised Highland County that compliance with the ESA is mandatory, and there have been proceedings in the Virginia State Corporation Commission that show HNWD’s proposed activities are to a reasonable certainty going to violate the ESA unless an incidental take permit is procured,” Jennings wrote this week.
The conditional use permit issued by Highland County to HNWD for its 39-megawatt wind plant, said Jennings, “requires (HNWD) to comply with federal and state environmental laws and to procure all approvals required by federal and state agencies” as a condition before it can get the building permit to proceed with construction.
Jennings said that in addition to the Endangered Species Act, the Bald and Golden Eagle Protection Act requirements must also be met.
Further, he said, Virginia’s erosion and sediment control laws, which he calls “a significant controlling state law,” must also be applied. “In this connection, Highland County has been found inconsistent in its enforcement of its ordinances under this law by the Virginia Soil and Water Conservation Board. Further laxity in enforcement of erosion and sediment laws can lead to enforcement actions against Highland County,” Jennings wrote.
He said his clients expect the county to take certain actions they believe are mandatory before Highland can issue a building permit to HNWD, and most of them, he added, are “ministerial acts of Highland County not left to any legislative discretion. We realize that we are dealing with complex issues that require the expertise of engineers and scientists as well as counsel to apply the applicable laws and regulations. Highland citizens is prepared to assist Highland County in any manner appropriate to work through the applicable environmental laws.”
Jennings outlined those requirements the citizens believe are “mandatory”; they include:
• Erosion and sediment control – Jennings explained one of the conditions HNWD must meet is providing a detailed site plan that must be approved by a technical review committee. The review committee appointed by the county consists of Lambert and Whitelaw. He quoted the county’s erosion and sediment control ordinance, which says no one can “engage in any land-disturbing activity” unless they have an approved E&S plan. Also, he said, the ordinance stipulates that a “land disturbing permit” is required before any other permits are issued, including a building permit.
“Land disturbing activity is defined very broadly by the ordinance,” Jennings wrote, “to include any ‘land change which may result in soil erosion from water or wind and the movement of sediments into state waters or onto lands in the commonwealth, including clearing, grading, excavating, transporting and filling of land.’ Clearing is further defined to include ‘any activity which removes the vegetative ground cover, including but not limited to the removal (of vegetation), root mat removal and/or topsoil removal’ É it is clear that HNWD cannot begin any type of clearing or grading of the property or obtain a building permit before it obtains a land disturbing permit.”
He said enforcing the ordinance is the county’s responsibility. “Our clients hope and expect that the county will dutifully carry out its obligations. If, however, the county fails to perform its duties, the ordinance and Virginia Code permits private citizens to enforce the provisions of the ordinance through an action filed in Highland County Circuit Court. It is our intention that this letter serve as the written notice,” he states.
• Protection of the natural environment – The county’s permit requires HNWD protect the natural environment including rare and varied wildlife found in Highland County, Jennings explained. “The permit expressly requires that HNWD’s site plan ‘be designed to mitigate the impact of the permitted use on nearby property owners and the natural environment.’
“The conditional use permit further requires that HNWD shall comply with all laws in constructing and operating the turbines,” he wrote.
Jennings noted HNWD’s conditional use permit says the company will build and operate its facility “in compliance with all applicable federal, state and local laws, ordinances and regulations,” and that the permit is conditioned on “the receipt of all required state and federal approvals.” Again, he noted, it’s the county’s responsibility to enforce the permit conditions.
“The county cannot delegate that duty to another state or federal agency,” Jennings wrote. “The discretionary legislative aspect of issuing the (permit) has been completed and what remains is the ministerial review by the Technical Review Committee to see that all approvals and permits have been obtained and that the tendered site plan complies with Highland County ordinances. Discretionary legislative functions cannot be delegated by the board of supervisors to the TRC, so the acts required of TRC have to be ministerial. Highland County’s duty and obligation to its citizens is to ensure that HNWD operates in compliance with the (permit) by complying with all federal, state and local laws including the Endangered Species Act, the Bald and Golden Eagle Protection Act, and the Commonwealth of Virginia’s Endangered Species statutes.”
• Endangered Species Act – Jennings explained the federal ESA is broad in nature, and essentially does not allow anyone, including governing bodies or agencies, to “take” or harm endangered wildlife or their habitats. “The term ‘take’ is defined broadly to include ‘harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect.’
“Moreover, the harm does not have to occur before there can be a cause of action under the ESA,” he noted.
Jennings cited case law to argue that even “future injury” to an endangered or threatened species is “actionable.”
“The essential purpose of the ESA is to conserve and protect endangered species before they are rendered extinct,” he noted. “The emphasis on conservation and the prevention of harm is the logical extension of the ESA and any suggestion that an actual taking must occur before an individual can be compelled to comply with the ESA would directly contradict the primary purpose of the ESA.”
Jennings said HNWD’s facility would result in the “taking” of at least two endangered bats, and noted the evidence presented to the State Corporation Commission to support that conclusions. “The record of the proceedings before the State Corporation Commission is replete with evidence that the project poses an unacceptable risk of a take of these species.” Furthermore, he said, the U.S. Fish and Wildlife Service, which is responsible for enforcing the ESA, also believes there is a risk to these bats and has stated as much on several occasions. USFWS is of the opinion that HWND should seek an incidental take permit, Jennings noted, and Virginia’s Department of Game and Inland Fisheries agrees.
When the SCC’s hearing examiner gave his report to the agency, he, too, “acknowledges that the federal and state wildlife agencies have each stated that the project poses a risk to endangered species and that HNWD should enter into a habitat conservation plan and obtain an incidental take permit,” Jennings said.
With all the evidence presented, Jennings said, “it is reasonably certain that HNWD’s project, if built, will result in a ‘take’ of an endangered species. As a result, the ESA’s prohibition against takings apply, and HNWD is in violation of those statutes if it proceeds with construction. HNWD, therefore, is also in violation of the requirements of the conditional use permit that HNWD comply with all federal, state and local laws.”
The Endangered Species Act, though, provides a “limited exception” to its prohibition against harming endangered species, Jennings explained, permitting the taking of a species where such taking is “incidental to, and not the purpose of, carrying out of an otherwise lawful activi t y . ” Those seeking an incidental take permit, Jennings said, must submit a conservation plan that describes the impacts of the proposed “taking,” procedures an applicant will use to minimize and monitor those impacts. An applicant would also need to explain why there are no alternatives to harming these species.
“Without an incidental take permit, a developer who undertakes activities that result in the take of an endangered species may be subject to criminal and civil federal enforcement actions, as well as civil actions by non-governmental citizens,” Jennings said.
“Our clients expect that Highland County will enforce the terms of its conditional use permit,” he continued. “If they do not, then there are at least two options that our clients will consider. The first is a mandamus action filed in Highland County Circuit Court É The other course of action would be to seek an injunction under the ESA in the United States District Court for the Western District of Virginia, Harrisonburg Division.”
If the county does not enforce the conditional use permit, Jenning said his clients will consider filing a mandamus “seeking a writ ordering the county to fulfill its obligations.” They have standing to do so, he said, because “as neighboring landowners and long established conservationists they have a direct interest in the enforcement of the (permit) that goes well beyond the public at large.”
He argued as well that Highland’s board of supervisors can be “enjoined” from taking endangered species even if that taking is done by HNWD, and could be held liable under the law.
HNWD had told the SCC that bald eagles were not at the wind plant site and therefore would not be impacted by the turbine towers, Jennings said. He noted, however, that an ongoing eagle survey results show the eagles are living in and around the county.
“The Highland County Board of Supervisors was sent a Notice of Intent to Sue letter on behalf of our clients in July, 2005 reciting the foregoing language and stating that if Highland County passed the conditional use permit, the county may be the target of a federal suit,” Jennings continued. “After two years of proceedings before the SCC, it is clear that if the turbines are constructed then an endangered species is likely to be taken. The federal and state agencies charged with protecting the natural resources of Virginia have stated that the project poses a risk to the endangered species.
“We submit that the only reasonable course at this point is to require HNWD to procure an Incidental Take Permit prior to construction.”
“In conclusion,” Jennings wrote, “Highland Citizens remain very concerned about HNWD’s proposed electrical generating project on the ridges of Highland County. We now have a record from proceedings with testimony under oath of takings under ESA; we have sightings of eagles making the Bald and Golden Eagle Protection Act applicable to the conditional use permit; and we have the involvement of soil erosion and sediment statutes and ordinances in a county on notice of its failure to enforce its ordinances. We ask that Highland County enforce the (permit) as issued.”
At Tuesday’s meeting, supervisors did not discuss Jennings’ letter publicly, and said they could not comment on it. The board went into a closed session to review it with the county attorney.
By Anne Adams
6 March 2008
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