The Highland New Wind Development wind utility project is moving ahead, H.T. ‘Mac’ McBride told supervisors Tuesday. “We have approval (from VDOT) for both entrances (state line and cattle crossing on Laurel Fork). The power purchase agreement is being worked on by our people in Minnesota.”
Supervisor David Blanchard asked McBride, HNWD owner, if he would comment on the list of required permits recently published in The Recorder. The article was an analysis of the permits the developer might need as the project progressed, based on the local and state permits, and explanations provided by the State Corporation Commission.
“The Recorder is not telling us what to do,” McBride told Blanchard.
“I am looking for some input” Blanchard replied.
“I thought you had on your conditional use permit the conditions we had to meet,” McBride said.
“I am trying to make sure our board is up to speed on what is happening,” Blanchard continued.
McBride did not specify which permits HNWD intends to get, saying only that HNWD was working with the appropriate agencies and complying with the countyís conditional use permit.
Supervisors did not pursue the permit question.
Blanchard later apologized to McBride for asking the questions, assuring him that he was asking only to keep the county informed.
Highland resident Rick Webb told the board, “It has been suggested on multiple occasions that it would be in the countyís best interest to require that HNWD develop a habitat conservation plan and obtain an incidental take permit in compliance with the federal Endangered Species Act. The conditional use permit issued by the previous board of supervisors stipulated that HNWD would be required to obtain all required state and federal approvals before the project is allowed to go forward. Both the U.S. Fish and Wildlife Service and the Virginia Department of Game and Inland Fisheries have recommended that HNWD obtain an incidental take permit in order to avoid penalties and possible project shut down. The State Corporation Commission acknowledged that HNWD was assuming a business risk by not obtaining an ITP.
“It’s one thing, of course, for HNWD to assume risk; but it’s quite another thing for the elected officials of Highland County to assume a risk that affects the citizens of the county,” he continued. “The potential for shutdown and abandonment of an industrial-scale project in a remote, scenic, and historically significantpart of the county clearly poses a high risk to the well-being of the county, and it is a risk that can be easily avoided by requiring that HNWD obtain an ITP.
“The county has received a notice of intent to sue if the project is allowed to go forward without an ITP. And the law firmthat notified the county of its intent to sue cited legal precedent demonstrating that local governments can be held liable for violation of the ESA if they permit activities that create a substantial risk to endangered species. That’s one aspect of the risk that you, the board of supervisors, would choose to accept if you allow HNWD to go forward without an ITP. It’s a risk that you would choose to accept on behalf of the citizens of Highland County,” Webb said. “Another aspect of the risk is the very real possibility that this landscape transforming project will be built and then shut down. But a good question has been raised: Is there precedent for shutdown of projects of any kind due to violation the Endangered Species Act. In other words, is this threat of project shutdown just some kind of bluff – is it just empty talk?”
Webb produced for the board a list of Endangered Species Act cases that led to the shut-down of industrial projects that were either under way in construction or well into the planning stages, where substantial money had already been spent.
Wednesday, Webb elaborated on the issue. “Recall that supervisor Rexrode obtained an opinion from the county attorney concerning the authority of the board of supervisors to impose conditions on Highland New Wind beyond what is in the conditional use permit,” he said. “She concluded they do not have that authority. But that is the wrong question. The right question concerns interpretation of requirements already imposed by the conditional use permit. The permit language states, ‘The authority granted by this permit shall be conditioned on the receipt of all required state and federal approvals.’ Nothing is said about who shall determine what is required. Certainly the board has the authority to make that determination, and in doing so it is reasonable to take the advice of the state and federal wildlife agencies, which recommend that an incidental take permit be obtained.”
By James Jacenich
3 April 2008
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