From The Pocahontas Times via National Wind Watch:  Virginia agency says wind developer “misstating” facts

Credit: Geoff Hamill, Staff Writer, The Pocahontas Times www.pocahontastimes.com, 31 December 2009

The Virginia Department of Historical Resources (DHR) claimed a wind energy developer has “deliberately misstated” and “deliberately misrepresented” facts as part of its continuing effort to build an industrial wind facility on Tamarack Ridge near Camp Allegheny.

DHR and Highland New Wind Development, LLC (HNWD), are engaged in a legal battle to determine the energy company’s responsibilities with regard to historic Camp Allegheny. The parties filed legal briefs to a Virginia State Corporation Commission (SCC) hearing examiner during the week of December 14, narrowing the issues to be resolved.

HNWD requested summary judgment in the case on December 15 and, the next day, requested a direct hearing before the SCC to resolve the issues.

In response to HNWD’s motion for summary judgment, DHR counsel Senior Assistant Attorney General Steven O. Owens wrote that Highland New Wind Energy, LLC (HNWD), had “deliberately misstated” the DHR’s position on viewshed issues and further claimed that HNWD had “deliberately misrepresented” the DHR’s position on potential mitigation efforts.

With regard to viewshed, Owens wrote, “Defendant fundamentally misunderstands, and even deliberately misstates, the DHR position on the ‘viewshed’ issue.”

DHR claims viewshed analysis must include an analysis of the project’s impact on historic resources, along with mitigation requirements. Otherwise, according to DHR, the viewshed analysis is meaningless. HNWD has “refused to engage in any meaningful or serious discussion regarding the impact of the project on Camp Allegheny,” Owens wrote.

Regarding mitigation, Owens wrote, “Defendant has consistently and, one must again assume, deliberately misrepresented DHR’s request for mitigation as a demand for payment of money to DHR. At best, this must be considered a gross mischaracterization of the facts.”

DHR has never demanded money be paid to the agency for mitigation, the response states.

DHR further claimed that HNWD’s arguments make the wind project appear financially insecure.

“HNWD has gone so far as to say that any amount of money spent on mitigation measures that was not diverted from a previously committed amount would be unacceptable to the projects finances. This statement must necessarily call into question the financial viability of the project as a whole,” Owens wrote.

HNWD counsel argued in their legal briefs that the issue of viewshed was determined by the Highland County Board of Supervisors when it issued a conditional use permit, in July 2005, and by the SCC when it issued a Final Order in July 2007.

Arguing for summary judgment, HNWD’s counsel noted that the SCC Final Order states, “The Hearing Examiner properly found that the following matters were considered by Highland County in issuing Highland New Wind a Conditional Use Permit pursuant to Highland County’s Zoning Ordinance and Comprehensive Plan: property values; tourism; viewshed ; height restrictions ; setbacks; lighting ; color of structures; fencing; security measures; erosion and sediment control; signage; access
roads; and decommissioning.”

DHR countered that the Final Order also required HNWD to “conduct archaeological and architectural surveys, if necessary, by coordinating with DHR for guidance regarding the potential need for archaeological and architectural surveys, recommended studies and field surveys to evaluate the project’s impacts to historic resources.”

DHR claimed authority, by virtue of this condition in the SCC Final Order, to order investigation and implementation of mitigation measures.

HNWD argued DHR does not have authority to order mitigation for historic sites outside of Virginia.

DHR countered that the Final Order states “impact on historic resources,” not “Virginia historic resources only.”

“Although the Camp is in West Virginia, it is within the ‘viewshed’ identified by HNWD and Highland County as being impacted by the project. Logic dictates that exercising jurisdiction over a project in one state that has impacts on historic resources in another is the only way to protect those assets. Officials in West Virginia have no authority to dictate to HNWD how to operate their project in Virginia. The location of the project, not the location of the impacted asset, dictates what local, state or federal entity has jurisdiction,” Owens wrote.

After the parties filed motions during the week of December 14, SCC hearing examiner Alexander Skirpan scheduled a conference call with the parties on December 21. A hearing on the merits, scheduled for December 22, became a five-minute conference, during which the parties agreed to continue to identify the relevant issues to be resolved.

Counsel for HNWD and DHR agreed to submit briefs to Skirpan by January 4, which should contain all of the issues and arguments for the hearing examiner to make a decision.