January 13, 2011
Virginia

Citizens seek resolution with wind company

By Anne Adams, Staff Writer, The Recorder, www.therecorderonline.com 13 January 2011

MONTEREY – A lawsuit could be filed any day, but citizens prepared to sue Highland New Wind Development LLC have made a second attempt to communicate with the company.

In 2002, HNWD proposed to build Virginia’s first industrial wind energy plant here in Highland, but after almost nine years, there are no signs the 38-megawatt facility is close to getting off the ground.

The embattled developer has fought off lawsuits and threatened legal challenges for years, and by all indications, it has not been able to secure financial investors or a buyer for its electricity.

Citizens and environmental groups concerned about the project’s impact on endangered species hired Washington, D.C.-based firm Meyer Glitzenstein and Crystal last year, anticipating if HNWD did not obtain a federal Incidental Take Permit, the company would violate the Endangered Species Act and other federal protection laws. They contend HNWD’s facility will harm Indiana bats and Virginia big-eared bats that live and migrate on and near the Allegheny Mountain project in western Highland.

The firm represents the Animal Welfare Institute, a national non-profit group dedicated to reducing pain inflicted on animals; Highlanders for Responsible Development, Rifle Ridge Farm, a large tract below the site owned by the Goodall family; Rick Webb of vawind.org, Mustoe; and Carol Peterson and Rick Lambert, bat and caving experts.

MGC successfully represented clients in a similar case against Invenergy in 2009, arguing its Beech Ridge wind facility in nearby Greenbrier County, W.Va., had the potential to harm Indiana bats, and the company should have an ITP.

Last May, MGC attorney Bill Eubanks sent a letter to HNWD and Highland supervisors, explaining his clients’ intent to sue in federal court if the company did not obtain an ITP before constructing its utility.

Jan. 4, a second letter was sent to HNWD in hopes of avoiding litigation, according to Eubanks. “The dual purpose of this letter is to supplement the 60-day notice letter dated May 14, 2010 regarding Highland New Wind Development’s ongoing and future violations of the Endangered Species Act … and to make a final attempt to collaboratively resolve this legal matter short of burdening the federal court system with potentially unnecessary litigation,” Eubanks’ letter states.

“We have gotten a little information that there has been equipment back on site, and some sort of activity is taking place,” Eubanks told The Recorder last week. “We wanted to reach out to them one last time to let them know we’re still interested in talking with them.”

Last week’s letter was not another formal notice, he explained. “We have a complaint ready to go; our clients have signed off on it and we could file it any day … We’re just letting them know we’re interested in a collaborative relationship,” Eubanks said.

The letter was sent to the U.S. Fish and Wildlife Service, and Ken Salazar, Secretary of the U.S. Department of the Interior, but not Highland supervisors. Eubanks explained the county is still under notice, however. “We could file suit tomorrow, but we haven’t seen any further action from the county to cause concern.”

The county had replied to last year’s notice, saying concerns about endangered species should be directed to Virginia’s State Corporation Commission, the agency that granted a certificate for the plant, not Highland County. Supervisors have maintained they do not have the authority to force HNWD to get an ITP.

MGC’s clients argued in their notice that HNWD’s project would have adverse impacts to endangered species, and an ITP is the only way to avoid breaking federal law during construction and operation. The ESA provides limited exceptions to “the otherwise strict prohibition against the taking of an endangered species,” they said. Exceptions are only allowed when a developer obtains an ITP, which allows “taking” listed species when those takings are “incidental to, and not the purpose of” carrying out a lawful activity.

“We think the facts are even stronger in this situation (HNWD’s project), based on the science on the ground,” Eubanks said last year. “It’s clear now that when you’re developing a project with impacts to federally listed bat species, you need to get (an ITP) prior to erecting turbines in their migration paths. The ITP needs to be obtained … before construction, and the (Highland) supervisors should not extend HNWD a building permit until it obtains an ITP.”

The Animal Welfare Institute, Eubanks had explained, is a reputable national group, and his clients want to play a collaborative role in developing the project’s habitat conservation plan – a key piece of an ITP application. If HNWD gets an ITP, and his clients are afforded an opportunity to participate, “it cuts the chances of (HNWD) being sued after an ITP is granted,” he had said.

For the first seven years, HNWD argued it did not need an ITP, though USFWS consistently urged the company to obtain one.

On Feb. 22, 2009, HNWD met with USFWS officials to discuss the ITP application process. Following that meeting, HNWD attorney John Flora told county supervisors the company intended to get the permit. But HNWD owners Henry T. “Mac” McBride and his son, Tal, made subsequent statements indicating they no longer planned to pursue the federal permit.

In last week’s letter, Eubanks told HNWD that “the facts necessitating an ITP are actually even stronger here than they were at Beech Ridge, and that is strongly reinforced by conclusions from state wildlife biologists and independent bat experts that this project will almost certainly kill listed bats and thus that the project cannot proceed without an ITP.”

Citing case law and other ITP applications from wind energy developers, Eubanks told HNWD that if it continued to refuse to obtain an ITP, his clients will be “left with little choice” but to pursue federal court action.

“Unfortunately, it appears that HNWD has begun to move forward with at least preliminary construction activities on the project site despite being put on notice of ongoing and future violations of the ESA by the May 14, 2010 letter,” Eubanks wrote. “For example, it is our understanding … that HNWD has engaged in substantial construction activities including grading and other land disturbance on at least three turbine sites; vast road clearing, building, and widening; and by securing bonds (i.e., committing financial resources) for additional environmentally damaging work that HNWD intends to undertake in the very near future. However, construction activities of this kind will have the effect of foreclosing potential siting and other project layout design alternatives, thereby adversely impacting listed wildlife and habitat used by such species.”

HNWD briefly did some basic excavating, road building and site work in 2009. Once that work ceased as winter set in, there was no further activity for about a year until this past November, when the company got a building permit for an estimated $600,000 substation, to include a transformer and circuit breaker, grounding grid, and 14×20-foot control building.

The land-disturbing permit issued in 2009 had a $139,348 performance bond the developer posted that Highland building official Jim Whitelaw had not released. That permit is to cover the construction entrance on Red Oak Knob, the road to the substation, the road between three turbines, clearing and grading for those three turbine sites, and the substation.

Whitelaw explained last fall that HNWD was released from part of its initial bond, and the company rolled the released money back into the new bond. Whitelaw said the company did some grading on a change to one access road curve, but work has been stopped since winter weather set in again in late November. Inspection reports from Whitelaw, and an independent inspector hired by the county, indicate that work to date does not appear to be causing damage or excess run-off in the Laurel Fork watershed.

“We remain interested in working cooperatively with HNWD to resolve these legal violations short of filing unnecessary litigation,” Eubanks told the developer last week. “However, if we do not hear from you in the near future, we will assume that you are not interested in a collaborative resolution and we will consider all available avenues, including litigation, to conserve endangered Indiana bats and Virginia bigeared bats in accordance with the requirements of the ESA.”