MONTEREY – Both county and state permits have been granted to Highland New Wind Development for Virginia’s first industrial wind utility, but there seems to be some confusion about what happens next.
Part of the trouble stems from determining exactly what the company needs to do in order to proceed with construction. There are a number of permits it needs, but there are several other steps HNWD must take to meet requirements set forth by Highland County and the State Corporation Commission. Those include getting approvals on a number of things as recommended by the state Department of Environmental Quality. And some of those will apparently be tough to get without a final site plan of the project.
Last week, Highland supervisor David Blanchard asked about the permits HNWD needs before its 39-megawatt power plant can be given the go-ahead for construction. He wanted to know whether the board of supervisors had a list of those permits.
County attorney Melissa Dowd told him the board did not have a list that she knew of, and that state and federal agencies still needed to negotiate which permits would be required.
HNWD owner H.T. “Mac” McBride told the board he had not received anything on permits, and his son, Tal, said it was up to the Department of Environmental Quality to determine which permits would be required.
But a list compiled by HNWD had actually been submitted to the SCC on Feb. 28, before last week’s board meeting. That list includes:
• Both state and county permits;
• A joint permit application for water quality;
• Entrance permits from the Virginia Department of Transportation;
• An erosion and sediment plan, and one for stormwater management;
• A permit from the Federal Aviation Administration; and
• A building permit from the county.
In addition, HNWD intends to get an open burning permit if that becomes necessary.
At last week’s meeting, Dowd said it was ultimately up to the State Corporation Commission to say which permits were needed.
But the SCC disagrees.
SCC attorney William Chambliss told the Recorder this week that it’s up to HNWD to put together the permit list and meet other requirements. “I am absolutely certain that Ms. Dowd is mistaken in her last statement about it being up to the SCC what permits are required,” he said Wednesday.
“The statutes under which the commission issues construction certificates for generation projects both specifically state that in order ‘to avoid duplication of governmental activities, any valid permit or approval required for an electric generating plant and associated facilities issued or granted by a federal, state or local governmental entity … whether such permit or approval is prior to or after the commission’s decision, shall be deemed to satisfy the requirements of this section … and the commission shall impose no additional conditions with respect to such matters.’
“This is a mighty long-winded way of telling the commission to stay out of matters pertaining primarily to environmental regulation of the effects of generation plants built in the commonwealth,” he said.
Chambliss explained that several years ago, during Virginia’s trial at electricity deregulation, one SCC commissioner said he was concerned about cumulative impacts on the environment stemming from multiple utilities in the state.
“It was – and still is – unclear to what extent DEQ could consider these cumulative impacts when considering issuing air permits,” Chambliss said. “Their practice had been, I believe,to look at each plant in isolation from other planned or announced plants.There was a time when Virginia was seeing lots of activity in independent generation and these project developers were nervous that the commission might reject an application because there was too much pollution potential in the commonwealth, and had this provision written into these sections of the law.
“So now these matters are left primarily to the (state) agencies (and) DEQ and to local bodies like the Highland supervisors, who consider issues like traffic, construction, lighting, etc., in issuing local building permits. If there is a matter that could potentially adversely affect the environment that no other agency takes charge of or issues permits about, the SCC could theoretically impose certificate conditions relating to this matter based on evidence produced in its record. However, the (SCC) staff does not consider itself expert on such matters and does not offer testimony on items such as impact on historical assets or view sheds. Other parties may produce this information.”
SCC’s division of information director Ken Schrad agrees. “I believe the burden falls on the applicant to be sure it obtains all necessary permits,” he told The Recorder Tuesday.
“While a number of potentially needed permits was referenced in the case record by DEQ, which, by law – and an agreement with the SCC – coordinates such an analysis regarding the environmental, cultural and/or historical impact of an electric generation or transmission facility, I do not believe there was ever a finding of the specific permits that are required,” he said. “The certificate to operate and construct granted by the commission in its final order, of course, included a condition that the developer will obtain all required permits.
“Should an interested party contend the developer has failed to obtain a particular permit, it could make such a case in a petition to the commission alleging that the developer has failed to meet one or more of the required conditions of the SCC’s final order,” Schrad added.
Based on the SCC’s conclusions and the conditions attached to the state and local permits, HNWD will be required to get some permits, though it is not yet clear what other approvals will be required or in what order.
The company has already obtained a county conditional use permit and a state certificate. Both are effective for two years. The county permit became effective in September last year following the conclusion of legal challenges at the Supreme Court. The state’s permit became effective last December.
According to the way both permits were written, HNWD will not only be required to get other permits, but must also get certain “approvals” as outlined by the county and the state.
The county’s permit contains a list of conditions as to lighting, buildings, setbacks, and other construction details. It also requires that HNWD get all required state and federal approvals.
One condition is that HNWD submit a final site plan, something also required by the state. According to the county permit, HNWD’s site plan cannot be approved until all the conditions of the permit are met. And it cannot get a building permit until the site plan is approved.
The state permit requires HNWD to meet state approvals and local requirements. Since local requirements include state and federal “approvals,” not just “permits,” HNWD may be required to meet all or most of the recommended approvals as outlined by the DEQ in its final report to the SCC.
So what did the DEQ recommend?
The SCC’s hearing examiner submitted a report to the SCC March 1, in which he referenced DEQ’s list of permits needed, and other recommendations that didn’t necessarily require permits but did need approval.
For example, the examiner said HNWD should “work with certain federal, state or local agencies regarding certain environmental, archeological and transportation matters,” Schrad explained.
In the SCC’s order granting a state permit to HNWD, it noted its examiner recommended HNWD comply with the permitting and approval requirements discussed in a final report submitted by DEQ.
DEQ’s requirements included things like water quality and wetlands, air quality permits, erosion and sediment control, storm water management, solid and hazardous waste, and protected species laws.
The SCC had rejected HNWD’s request to limit the requirements to obtaining three permits related to water protection, open burning, and storm water management.
In its final report to the SCC, the DEQ gave a summary of the permits and approvals HWND might need, but noted there was still not enough information from the company to say with certainty yet what HNWD might have to provide.
“The SCC’s order,” Chambliss explained, “required HNWD to obtain all necessary permits and approvals. If it does not do so, then it’s potentially in violation of the commission’s order and its certificate could be jeopardized, just as its local conditional use permit could, due to noncompliance with that document’s condition.”
The following is a list of the potential permits and approvals DEQ and other state agencies identified, and what they concluded:
• Water Quality and Wetlands Protection or federal Army Corps of Engineer permit – No permit needed, yet.
HNWD said there are no wetlands on the project site that could be affected. In addition, it said water needed during construction and operation would be brought to the site by truck, and there would be no impact to ground water.
DEQ noted there are several headwater tributaries that appear to originate on the property and the project site is bisected by Laurel Fork, a branch of the Potomac River.
DEQ said it appears potential impacts to state waters would be limited to several underground electrical crossings of Laurel Fork. The agency made several recommendations to avoid impacts to waterways, including using directional drilling, keeping vehicles out of stream beds, and constructing trenches a certain way, among others.
After a site review, it was determined no permit from the U.S. Corps of Engineers would be required. However, DEQ noted that if during construction it becomes necessary to discharge dredged or fill material into waters there, HNWD should contact the Corps and apply for its permit under the Clean Water Act.
After application review, the Virginia Marine Resources Commission determined its authority and permit for subaquaeous lands were also not required for the project.
HNWD applied for a joint permit from DEQ, the Virginia Marine Resources Commission and the Army Corps of Engineers, and it was approved July 26, 2006; no permit was deemed necessary.
However, the site plan eventually provided by HNWD could change things. It is possible that a permit from the Army Corps of Engineers would be required, depending on how the company proceeds with construction.
• Open burning permit – Potential permit needed from Highland County according to its own ordinances. If open burning of construction or other wastes might take place, an open burning permit may be needed from DEQ, in addition to permitting for fuel-burning equipment, if used. State regulations provide for counties to adopt an open burning ordinance, but don’t require it. DEQ said HNWD should contact the county to find out whether any local requirements exist. HNWD said it does not anticipate needed a permit for burning, but will apply for one if the need arises.
• Air quality – Recommendations provided by DEQ. The Air Division of DEQ noted the project site is within an ozone attainment area, and recommended HNWD take certain actions like keeping dust down, installing fans and filters to vent or handle dusty materials, and cover open equipment when transporting materials.
• Erosion and sediment control and storm water management permits – Required by the county and state. DEQ recommended HNWD strictly adhere to state and local erosion and sediment control laws. It is this issue that concerned Highland resident and former Mountain Soil and Water Conservation District director Dan Foster last week. Foster expressed his concern to Highland supervisors that since the county’s E&S process had been deemed inadequate, HNWD’s E&S plan and the process for inspection might not be adequate either. Erosion and sedimentation controls, DEQ said, should be designed in accordance with the Virginia Erosion and Sediment Control Handbook. HNWD expects to create and E&S and storm water management plan to be approved by Highland County.
• Hazardous waste – Laws may apply. Any soil suspected of contamination or wastes that are generated must be tested and disposed of in accordance with federal, state, and local laws and regulations, DEQ said. Its Waste Divi- sion staff conducted a cursory review and determined that since the project would be in the vicinity of the Highland County landfill, solid and hazardous waste issues should be handled accordingly.
• The federal Endangered Species Act and Virginia protected species legislation – Permit not required by SCC, but law still applies. HNWD must comply with the laws for protected and endangered species, DEQ said. While a federal habitat conservation plan and incidental take permit were highly recommended by state and federal agencies, the SCC said it had no authority to require them. The concerns of Virginia’s Department of Game and Inland Fisheries, including those for endangered species, were reviewed and discussed extensively during the SCC’s evidentiary hearing process, and addressed in detail in the SCC’s final order on monitoring potential impacts to wildlife. Most of DGIF’s concerns and recommendations were incorporated into the state permit as conditions. HNWD has said it does not intend at this point to seek a federal take permit. DEQ recommended an inventory of suitable habitat, natural heritage resources, and protected species in the study area be conducted by a qualified biologist, as recommended by DGIF. HNWD should work closely with DGIF and the U.S. Fish and Wildlife Service to ensure threatened and endangered species are adequately protected, DEQ said. Citizens in Highland County have twice informed HNWD and the board of supervisors they may take legal action in county and/or federal court if HNWD does not obtain an incidental take permit.
• Site plan – Required by the county and the state. HNWD must provide a detailed site plan with maps showing the location of towers and all other components including but not limited to the location of the three stream crossings, location of wetlands along the three stream channels, and location where the drilling beneath the stream channels will occur. A site plan is one of the conditions HNWD must meet as attached to its local county permit, and Highland was specific as to what the site plan must include. HNWD cannot get a building permit without an approved site plan, and the site plan cannot be approved until the county permit conditions are met.
• View shed analysis – Approval needed by the state. DEQ said HWND should develop, conduct, and report the results of a view shed analysis, based on coordination with Department of Historic Resources and Department of Conservation and Recreation. The DCR is charged with advocating “wise use” of scenic, cultural, recreational, and natural heritage resources, and maintains data on those statewide. “Natural heritage resources” are defined, DEQ said, as the habitat of rare, threatened, or endangered plant and animal species, unique or exemplary natural communities, significant geologic formations, and similar features of scientific interest. After review of HNWD’s application, the DCR concluded HNWD should contact the agency for an update on its data if a significant amount of time passes before it’s used. As for scenic resources, socioeconomic roles and recreational facilities, again DHR said it needed more information, particularly a view shed analysis. Laurel Fork, the agency noted, is a potential Virginia Scenic River, and U.S. 250 is a potential Virginia Scenic Byway. DHR recommended a visual analysis using the U.S. Forest Service’s Landscape Aesthetics Scenery Management Process, and the findings submitted to DHR for further review and recommendations.
• Cumulative impact study – Recommended but not required. DEQ recommended HNWD conduct an environmental impact analysis that considers the cumulative impacts of constructing the project within the Allegheny Mountain physiographic region. This was a recommendation strongly opposed by HNWD, which said the time and money for such a study as too extensive. The state or the county has not required the study.
• Archaeological/architectural surveys – Approval needed from the state. DEQ recommended that, if necessary, HNWD work with DHR on these surveys. DHR concluded it did not have enough information to provide full and final comment on HNWD’s application, and expressed concern about impacts to places like Camp Allegheny, a Civil War site near the project area. DHR asked – several times – that HNWD provide things like a view shed analysis and architectural survey, plus a comprehensive site plan. Further, DHR noted its role in federally licensed or permitted projects under the National Historic Preservation Act. If a federal permit were required, the federal agency involved would need to consult with DHR.
While McBride stated last week he hasn’t heard of anything yet related to permits, he was in fact been contacted by DHR in a letter Feb. 20, again asking for surveys.
Roger Kirchen, of DHR’s office of review and compliance, told McBride, “As you are aware, the SCC approval is conditioned on your continued consultation with our office regarding these surveys and the determination of the effect of this project on identified historic resources. It is important to note that these studies should be completed prior to any construction or construction-related disturbance.”
The DHR again asked for a view shed analysis, a survey of all structures at least 50 years old, plus cultural landscapes and rural historic districts in the area; and the evaluation of the effects of the project on historic resources listed in, or eligible for, the National Register of Historic Places.
“Please inform our office of your intended schedule in meeting these recommendations,” Kirchen concluded.
• Ecotourism impacts – Recommended by the state. DEQ said a look at how the project might affect ecotourism should be considered as part of an overall socioeconomic analysis. The analysis should be conducted through consultations with the Highland County Chamber of Commerce, Virginia Tourism Corporation, and operators of ecotourism companies/ facilities, such as Bear Mountain Farm and Wilderness Retreat, DEQ said.
• Transportation permits – Required by the state. DEQ said HNWD should coordinate with the Virginia Department of Transportation to evaluate and ensure transportation issues are adequately addressed. HNWD reported last week it has already applied for two permits for access roads.
• Federal Aviation Administration permit – Required by the FAA. The Department of Aviation asked that HNWD coordinate further with it and the FAA to make certain the project would not create negative impacts to the safety, utility, and expandability of the state’s air transportation system, including public-use airports and airspace, DEQ said. HNWD expects to apply for this permit.
• Conditional use permit – Required and approved. Highland County granted HNWD a local permit on July 14, 2005.
• Certificate of public convenience and necessity – Required and approved. The SCC granted a state permit Dec. 20, 2007 for the project.
• A building permit – Required by the county. After a final site plan is approved by Highland’s technical review committee and the conditions of HNWD’s local permit have been met, HNWD can get a building permit to begin construction.
By Anne Adams
13 March 2008
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