Lawsuit seeks to stop proposed wind farm in Botetourt County 

Rocky Forge Wind is approaching another bump in the long road to becoming the first onshore wind farm in Virginia.

An April 21 hearing has been scheduled in a lawsuit filed by opponents, who argue that the state Department of Environmental Quality and Apex Clean Energy cut corners in a permitting process, ignoring the adverse impacts of building wind turbines 624 feet tall atop a Botetourt County ridgeline.

A permit issued by DEQ failed to address the risk that the spinning blades – nearly as long as a football field – will pose to golden eagles that have been spotted soaring above North Mountain, according to one allegation in the lawsuit.

That and other shortcomings “make a powerful case that a well-funded energy company leaned on a state agency to push an error-filled, out of date, and fundamentally incomplete application through an unrefined DEQ fast-track process,” the 45-page document states.

A grassroots group, Virginians for Responsible Energy, and 14 residents of Botetourt and Rockbridge counties filed the lawsuit in December.

In a response, lawyers for Rocky Forge argue that the plaintiffs live too far away from the proposed wind farm to be aggrieved by what they describe as ruined scenic views, devalued private property, noise from the turbines and harm to the environment and wildlife.

“The closest land alleged to be owned by any of the VRE petitioners is over four miles from the Project parcel’s property line, and necessarily much further from any wind turbine,” the filing stated.

In a statement Wednesday, DEQ said it was “confident the application met all the requirements” required by state law for a permit.

An April 21 hearing in Botetourt County Circuit Court has been scheduled on Rocky Forge’s request that the lawsuit be dismissed.

In 2015, Apex Clean Energy proposed building a utility that would generate about 75 megawatts of electricity – enough to power up to 21,000 homes – from the wind that sweeps over an isolated ridgeline about 5 miles northeast of Eagle Rock.

The Charlotteville company received all of the required local, state and federal permits. But its plans were placed on hold while it searched for a customer. In late 2019, the state of Virginia agreed to purchase the wind farm’s total capacity to help it meet its renewable energy goals.

By then, Apex wanted to build fewer turbines, but taller than originally planned, to take advantage of new technology. The company’s latest proposal calls for 15 turbines standing 624 feet tall.

The change required DEQ to amend its earlier approval, what’s called a permit-by-rule that provides a streamlined application process for renewable energy projects.

According to the lawsuit, Apex and DEQ relied on out-of-date studies, prepared for the wind farm in 2015, to support an amended permit.

An avian and raptor survey conducted five years ago observed eight golden eagles close to where the wind farm is proposed. “The number could very well be higher today,” the lawsuit states.

A DEQ official told colleagues that the decision to accept the earlier studies was made by the state Department of Wildlife Resources. “However, if the PBR [permit by rule] gets litigated, it will be our problem,” the official wrote in an email obtained through the Virginia Freedom of Information Act and included in the lawsuit.

In its original application to DEQ, Apex said that the number of eagles spotted was less than in other areas, and that the wind farm “poses a low risk of impact.”

The risk to bats, however, was higher. Apex proposed turning the turbines off from dusk to dawn during the warmer months, when bats foraging for food are most likely to collide with turbine blades. DEQ included that condition in its permit.

The lawsuit asks a judge to vacate DEQ’s permit and to remand it to the agency for the errors to be corrected.

Since the wind farm was first proposed, there has been increased interest in solar and wind energy in Virginia. Last year, the General Assembly passed a law that requires the state’s two largest electric utilities, Dominion Energy and Appalachian Power, to be completely carbon-free by 2050.

“We’re excited that Rocky Forge can be part of a shifting energy landscape here in the Commonwealth,” Apex spokeswoman Natasha Montague said in a statement Wednesday.

Apex has said it plans to begin construction early this year. It will take about a year to complete the wind farm, the company has said.

Jeff Scott of Rockbridge County, one of the plaintiffs in the lawsuit, said Virginians for Responsible Energy is not opposed to renewable sources of electricity such as wind farms, as long as they are built in the right place.

“But unfortunately, the top of North Mountain in Botetourt County is not one of those places,” he said.