Pocahontas asserts its rights on Va. border

Pocahontas asserts its rights on Va. border
Officals ask for hold on wind tower project
By Anne Adams • Staff Writer

A fawn makes its way quietly through the tall grass on Allegheny Mountain, near where Highland New Wind Development is about to start construction on its towers. Deer and their babies have been spotted all spring and summer this year. (Photo courtesy Pendleton Goodall)
MONTEREY — Pocahontas County officials are more than a little upset by the approval of a wind energy utility near their border, and that Highland officials have not included them discussions about the project.

Pocahontas County commissioners are preparing to hold a special, emergency meeting this week to decide on a course of action. Commissioners issued a letter last Friday to several West Virginia agencies, including the attorney general, and Virginia's State Corporation Commission.

They have asked Highland New Wind Development owner Henry T. "Mac" McBride, by letter Friday, to hold off on construction until they can meet with him. They have also asked for a meeting with Highland's board of supervisors.

Last Thursday, Highland resident Dan Foster was invited to speak to Pocahontas County Commissioners, addressing his concerns for Highland New Wind Development's project impacts on Camp Allegheny — the Civil War battlefield site in Pocahontas, less than a mile from where HNWD's 400-foot turbines are planned. It's listed on the National Register of Historic Places, and is owned by Monongahela National Forest and one private landowner. It is considered by historians to be the most pristine, intact Civil War battlefield in the U.S. because nothing about the site has changed since the early 1800s.

Foster told commissioners about the difficulties Virginia's Department of Historic Resources has had in obtaining final site plans, view shed studies, and archaeological surveys from HNWD, as required by Virginia's State Corporation Commission.

Foster said Pocahontas officials shared his concerns. "They said they were invited to the public hearing (in Virginia) early on but decided not to go because it was a sort of 'theoretical' project at that point; they didn't have a final site plan," Foster said. "And now that there is a site plan, they felt they wanted to comment on that … they agreed they are an entity that has standing in this."

HNWD did not submit a final site plan until Monday, Aug. 3. That plan changed as late as Thursday, Aug. 5, but was approved by Highland County officials within hours of being submitted Aug. 3, leaving little time for any agency or official to review it (see related story).

Last week, Highland supervisor Robin Sullenberger said one turbine tower situated near the West Virginia line was not within the county's required 1,600-foot setback from U.S. 250, but said it was not an issue for Highland officials. "I don't know about how West Virginia does things, but they were contacted early on in this process and they did not choose to get actively engaged … We don't deal with property on the other side of the state line and we have no indication they are concerned," he said then.

But apparently, they are.

One concern is "ice throw." Industrial wind turbines are known to have ice freeze on their blades, which gets tossed when the blades are spinning. Pocahontas County Commission president Martin Saffer said he has contacted the West Virginia Department of Transportation to see whether that might cause safety problems on the Pocahontas side of the highway.

Highland supervisor David Blanchard told his colleagues weeks ago, when HNWD was re-drawing the state line to account for one tower, that someone needed to make sure West Virginia didn't have a problem with that. He wrote a letter to county officials before the site plan was approved, saying it was in Highland's best interests to make sure HNWD moved the tower, its foundation, and its blades entirely out of West Virginia to avoid any conflicts.

Highland attorney Melissa Dowd had said her research showed that Virginia has no standing in issues affecting West Virginia, and advised Highland officials they had no authority concerning West Virginia property.

Pocahontas commissioners are concerned not just about the Civil War battlefield, but also about environmental issues like potential harm to endangered species. One of the proposed towers is so close to West Virginia that its blades will spin across the border, in West Virginia air space, though still on property owned by McBride.

Commissioners felt strongly enough about it that during their meeting lunch break last Thursday, they drafted two letters — one to McBride, and one to the SCC and relevant agencies in both states. "Two of them felt the project should be stopped at least until the West Virginia State Historical Preservation Office got a chance to review and comment on the project," Foster said.

One commissioner, Rita Griffith, was not inclined to go that far and did not vote in favor of the letters, Foster said. "She felt maybe it was enough to just move a couple of those towers," he said.

Attending the meeting was Mr. Riley, part owner of the battlefield, and Richard Laska, and adjoining landowner.

"Mr. Riley said he wasn't opposed to the project at first," Foster explained, "but then he said, 'When Mac McBride stood on my land and said this battlefield is insignificant, well, it upset me.' Mr. Laska said he felt the project would devalue his property."

What impressed Foster, though, was the decisive and immediate action of the Pocahontas commissioners. "The main discussion was about what to write, and it's the first time I've seen any supervisors or commissioners just sit down, all of them putting their heads together and trying to logically come to a decision. There was no lawyer there telling them what to do; it was a very measured response, and there was a range in what their thinking was," Foster said. "But they cooperated, and wanted to do best for their state."

Saffer told The Recorder he and his colleagues do have deep concerns about the project, though Griffith disagrees as to the next step, and level of approach.

"I've lived in Pocahontas County since 1972," he said, "and I became a commissioner a couple of years ago and now I am president. This county is one of the most beautiful places I have ever see, and I've been all around the world."

Saffer noted the county's "rock solid" tourism economy, and beautiful rolling farmland. He said its economy is sustainable as long as its assets are protected, and one of those assets is the Camp Allegheny battlefield, where many early Pocahontas and Highland men fought and died. "That battlefield has, as its backdrop, the Allegheny Mountain ridge, the line between Virginia and West Virginia," he said. "It's my understanding now that the battlefield has become much more historically significant, as looked at by scholars … it's an important area of history."

He also pointed to Pocahontas' rich history, from the home of Pulitzer Prize winner Pearl S. Buck, to the Droop Mountain battlefield and park, and all its pristine rivers and streams. "We are really extremely lucky," he said. "And this project is of no advantage to Pocahontas County."

He said the towers could adversely impact property values, tourism, historic assets, and the quality of the environment. Birds and bats, including endangered species, do not respect state property boundaries, he added. "Wildlife migrates; they don't recognize those lines," he said. "If bats leave a West Virginia cave at night and get killed by turbines in Virginia, that impacts us."

Further, he said, "We feel as county commissioners that we must act on our own due diligence to protect Pocahontas and West Virginia … we were not fully included in our due process rights.

"We have an interstate commerce issue here. All the impact is on us, and all the benefits are on you (Virginia). There is absolutely no positive for us. It's all negative."

Saffer explained the issue had only recently come to his attention. "I know this is 11th hour, but we just now learned about this," he said.

When HNWD had a local surveyor relocate the state line differently from U.S. Geological Survey maps, he said, that, too, became an issue. "Excuse me," Saffer said, "but I think that's a big concern … who says the USGS survey is wrong?"

Craig Neidig is the USGS acting chief for the eastern region office, and serves as the USGS liaison to West Virginia. He explained HNWD may have used topography maps that are outdated, but that doesn't change the fact that moving a state boundary is not as simple as redrawing it on a site plan. "Since it involves another state, you don't just do that," he said Monday. "It cannot be a unilateral decision by one county, certainly not on the basis of one surveyor … We know some of our maps may be outdated and with the terrain up there, there could be discrepancies. But if it were me, I would have at least consulted with my neighboring county and then try to agree on something."

West Virginia has laws about its boundaries, and there is historic precedence set based on a "Boundary Commission" which was used to demarcate that state's eastern boundary, he said. The commission has been inactive since 1959 — the last time it was used to settle boundary issues, "but it's still on the books," Neidig said.

He suggested West Virginia might want to have its own surveyor review HNWD's survey, which was conducted by Jeff Hiner of Highland. Hiner may not have been aware of the West Virginia laws, he said.

Once an agreement is reached, Neidig said a new boundary line must still be approved by the West Virginia legislature.

The West Virginia boundary commission, according to state law, is to consist of three members with surveying experience appointed by the governor. The commission has the authority to establish boundary lines presumed correct unless proven otherwise in a court of law; employ a surveyor; meet with other states to establish boundary lines and submit its findings to the legislature; recommend to the legislature actions to establish boundary lines, provided the other states agree with the recommendation; and recommend action when no agreement can be reached with another state to get an opinion from the U.S. Attorney General's office.

It was the winter of 1860-61 when Virginians began disagreeing about issues raised during the Civil War, and by 1863, a year after the battle at Camp Allegheny and the Battle of McDowell in Highland, Virginians in the west declared their independence and West Virginia was created. It is one of only two states that were reconfigured during that time, according to historians.

Saffer says the boundary issue is just one of Pocahontas' concerns, but notes no one can change a state boundary line by filing a deed. "No one can assert adverse possession against the government," he said.

Sullenberger said he couldn't recall what county attorney Melissa Dowd said about the boundary issue, but said, "I would think that would be an issue between Pocahontas and the developer, because it was an agent of the developer that made that determination. I don't know what impact this will have on us."

"We need to have a talk — Virginia to West Virginia," Saffer said. "We need to understand that one state needs to be a good neighbor to the other … It's almost as though Virginia acted as if West Virginia doesn't exist."

Saffer and the commission reviewed correspondence exchanged between Virginia's Department of Historic Resources, and the West Virginia State Historic Preservation Office. Saffer called the exchanges "mild" and "milk toast," saying the agencies have to be that way sometimes. "But when the rubber hits the road, somebody has to say something," he said. "This is a matter of grave concern to us … I intend to make sure we are completely involved in the process."

The Pocahontas commission sent 10 letters out Friday.

The first letter, to McBride, stated, "The Pocahontas County Commission is very concerned that the currently proposed wind turbine project on Allegheny Mountain will have a negative impact on Camp Allegheny and the environment. Of equal concern is the apparent lack of West Virginia and Pocahontas County in the dialogue and planning of this project to the extent that our due process rights as a state and county have been infringed upon and overlooked. Accordingly, we want the opportunity to participate as stake holders and not be mere observers. Due process requires that we have a full and complete discussion with you concerning the impact of the project in our State and to formulate with you a plan to address them. This process necessarily requires that sufficient time be allotted before breaking ground. We also believe that the expected negative economic impact on tourism and land values raises concerns regarding interstate commerce. At the outset, we request a meeting with you at the earliest opportunity."

The letter, from the commission, was signed by Saffer, as president, and copied to several agencies, along with a cover letter, which read: "As you may read in the attached letter (to McBride), the Pocahontas County Commission is very concerned about the wind turbine project on Allegheny Mountain. The commission believes that there has been little involvement of state agencies in the discussion concerning the impacts of this project in West Virginia. Projects of this scale should be reviewed by all our state agencies dealing with the environment and history. We urge your agency to take an active role in the process of protecting West Virginia. Please contact our office at your earliest opportunity as ground breaking is imminent."

"When you stand there (on Camp Allegheny), if you squint a little," Saffer said, "you can see all the way to Heaven from there. I don't want to be seeing some 400-foot wind tower with blades spinning. What if they'd put those next to the Great Pyramids in Egypt? What if they put them up at the Vietnam veterans' memorial? There are just certain areas that must be held sacrosanct ... There is nothing — and you can underline that — nothing positive coming to the State of West Virginia from this."

By Monday, Saffer had spoken with Highland supervisor David Blanchard.

"He was very nice, but my ears are still hurting — he made their disappointment very clear," Blanchard said. "All it would have taken is a phone call (to Pocahontas officials) and I think we owed them the courtesy."

Asked whether a letter of approval from U.S. Geological Survey, Department of the Interior, would be considered a "federal approval" required by the project's conditional use permit it, Blanchard said, "I could interpret it that way. I would think you'd want to ask both states if that line is correct," he said.

Blanchard could not explain why Highland officials didn't seek input from West Virginia about the matter. "I can only go back to what I've said before — it seems we've taken a pro-developer stance on this project, and we have not been willing to ask more than needed."

He said Saffer would like to meet with Highland officials before any construction is started. "He felt we should talk before ground-breaking," Blanchard said. "This is why I felt all questions should be answered before ground-breaking, because it becomes much more difficult — and much more costly — if you don't. If HNWD is putting equipment up there because we (Highland) gave them the go-ahead, and now this comes up, these things should have been resolved before so the project doesn't come to a grounding halt."

Saffer said Blanchard was "very sympathetic to many of the issues and felt West Virginia, and Pocahontas County in particular, had much to say about the outcome of this project, and he welcomed our participation and continuing, ongoing dialogue."

Further, Saffer said, if he had known about the scope of the project before, he would have acted earlier. "Honestly, I just became aware of it … If I'd known about this last year, I would have done something then," he said.

"They've requested a meeting and I am certainly going to accommodate that," said Highland supervisor Robin Sullenberger this week. "As chairman, it is my belief that you never deny a neighboring governing body a meeting, as a professional courtesy."

Sullenberger said he thinks Pocahontas officials were invited to attend project meetings over the course of the review and permitting process, which began in 2002. "I don't know the exact facts, but I know they (Pocahontas officials) were there on some occasions."

Plus, he said, "This has been all over the news on a regular basis for years. I feel it would be personally incumbent on me (and other county officials) to monitor any activity on our borders, and remain aware of them. We did that when the (wind project) was going on in Pendleton County because it might affect us. I'm frankly surprised they (Pocahontas) seem oblivious about this … Obviously, I made an incorrect assumption."

By Monday, Saffer had spoken to Dowd about his concerns. "She told me she would not talk to me without the permission, advice, and consent of the board of supervisors," he said, noting that felt like a bad way to start discussions with Highland.

He then spoke with Lambert to ask about the border issue, who told him the same thing.

Saffer said he had received a letter from the West Virginia Attorney General's office that advised it could not take any action yet, but Saffer said the commission's initial letter was broad. "It did not address specific, actionable issues … but I would think as these matters are explained specifically, the attorney general will address them," he said.

McBride had not responded to the commissioners' letter as of press time Wednesday.

HNWD has already moved excavation and road-building equipment to the site this week, and has told Highland officials it intends to start construction as soon as possible.