State Line Issue
Sticky state line issue casts shadow on wind project
By Anne Adams • Staff Writer
One of Highland New Wind Development's proposed wind turbine towers is located close enough to the border with West Virginia that Pocahontas County commissioners are seeking legal guidance on how to find out, officially, where the exact state line is. The 50-foot base of the tower crosses over the USGS line, but only the blades of the tower cross the line HNWD surveyed.
MONTEREY, Va. and MARLINTON, W.Va. — Of all the legal challenges facing Virginia's first wind power utility, one mounting right on the mountain could be the toughest to overcome.
Right where Highland New Wind Development intends to erect two of its 400-foot Gamesa turbines, there's a state line separating Virginia from West Virginia.
Pocahontas County, W.Va., officials want to know exactly where that line is, and aren't taking HNWD's word for it that all the turbines are in Virginia.
Despite some disagreement among three Pocahontas commissioners, between a meeting last Thursday and one held Tuesday this week, the question about the border is not going to go away soon.
This week, on a 2-1 vote, the commission decided to seek legal advice, and potential court action.
Pocahontas County commissioners (l-r) Martin Saffer, David Fleming, and Reta Griffith, voted two to one, Griffith casting the dissenting vote, to ask law professor Robert Bastress to give them a recommendation on the process needed to resolve a boundary dispute between Highland and Pocahontas counties. (Recorder photo by James Jacenich)
In the fray, too, are Highland supervisors, the Virginia State Corporation Commission, several attorneys, the developer, one local surveyor, and the U.S. Geological Survey agency — all of whom take a different position on the matter.
How did it get there?
On HNWD's first draft of a site plan, Highland County officials noticed one of the towers was located across the state line, in Virginia. HNWD said it had already noticed the mistake, and was assured by a field survey the state border as shown on USGS topography maps wasn't exactly right. The turbine will be in Virginia, HNWD said.
Highland officials asked for a new site plan to make that clear, plus some evidence HNWD was right about the line. HNWD provided both — a plan showing the USGS line in addition to the border as surveyed by Jeff Hiner of Monterey, who is licensed in both states. Hiner also provided a detailed letter explaining the technology and research he used.
Even when the line was re-drawn on the plans, however, the tower in question was still partially in West Virginia. The towers have a 50-foot base, and part of the base remained over the line surveyed by Hiner. Highland officials said it should be moved, base and all, into Virginia; so, HNWD moved it back a little more. That satisfied the committee reviewing the plans, even though the blades atop the tower would still spin into West Virginia airspace, and the plan was approved.
Once Pocahontas commission president Martin Saffer learned about the surveyed line, he and his colleagues agreed to send letters to officials in both states expressing their concern about a new survey line that had not been officially or legally agreed to in West Virginia.
Commissioners
discuss it
Last Thursday, in an occasionally heated discussion, commissioners agreed HNWD's project might be infringing on West Virginia property but did not agree on how to approach the issue. Saffer and commissioner David Fleming felt they should take action, and quickly, but commissioner Reta Griffith did not.
Griffith, who has served on the Pocahontas commission for 11 years, said she attended hearings on the HNWD project. "I was well aware of the project," she said, noting she had expressed her concern about view shed issues, especially as the towers relate to the historic Camp Allegheny battlefield. She had hoped some of the towers could be moved to minimize the visual effect on the Civil War site, but had not heard much from Highland County since she was following the project in 2005. "I had hoped we could comment once a site plan was released but now I think we have alienated ourselves (from Highland)," she said.
Saffer said HNWD asserted a property line different from the USGS line, which added a little bit of land to Virginia, and decreased land in West Virginia. But if the USGS line is the one accepted as the true line, he said, then at least one of the turbines is actually in West Virginia.
"We need a declaratory judgment to declare and establish officially and unequivocally the line between Virginia and West Virginia," he told The Recorder last week. "To me, it's an issue in which Pocahontas not only has standing, but has due diligence."
Saffer contacted Robert Bastress, a constitutional law professor at West Virginia University, who agreed to represent the county pro bono.
Griffith, however, was satisfied HNWD's towers were all in Virginia after speaking with the company's attorney. She told The Recorder Monday that, as she understood it, the USGS line as marked contains certain points, and all Hiner did was "connect the dots." Griffith explained that in her previous experience with a similar question along Pocahontas' border with Bath County, West Virginia decided not to re-establish its Boundary Commission to resolve the issue. Griffith called the West Virginia Geological and Economic Survey agency "and they indicated they would not get to it for awhile," she said.
Right before Thursday's meeting, Highland County Attorney Melissa Dowd sent an email to Saffer explaining the turbines were in Virginia, not West Virginia.
HNWD also sent a drawing of one tower to Pocahontas officials, but they did not receive it in time for that meeting. The drawing indicates the USGS line goes directly through the foundation of one tower, but the line, as determined by Hiner, is about 11 feet to the west of its foundation.
Dowd told Saffer, "The answer is, all turbines will be in Virginia, as I have said to you repeatedly … A field survey trumps aerial information from USGS, which is what you are relying on."
But that isn't enough to re-draw the state boundary, Saffer said, because West Virginia law requires changes to state lines be authorized by the West Virginia legislature.
"It's a very complicated and exacting process," he said. "The statute in West Virginia says we must have a boundary commission, convened by our governor, in concert with legislation to make an official determination in cooperating with an adjoining state. Right now, there is a question … All we want is to answer the question and we need to go through that process."
Asked whether the matter could be settled more informally between Pocahontas and Highland counties, Saffer said, "I don't think so. Once a boundary is in dispute, it has to go through the lawful commission to establish it with certainty.
"I don't know what Virginia can do," he added. "I can't understand why this property line hasn't given (Virginia officials) more pause. This is a very important matter."
By the time the commission met again this week, Saffer had bolstered his conclusions after talking with the USGS office in Charleston, W.Va., and the West Virginia Geographic and Economic Survey office. "The principals assured me that (USGS line) is the state line," he said. The developer's survey "crosses the line set by the USGS survey."
"The surveyor for the developers says the USGS is incorrect, that his survey is correct and the project is entirely within Virginia. It is not a question of whether the survey is correct or not," he said. "But if the survey is challenged, there is a proper procedure," he said Tuesday.
According to West Virginia code, the West Virginia boundary commission is the agency authorized to determine the accurate placement of the line, he said. "It is up to Pocahontas County to be the moving political body. It is our border. It is an issue of territorial boundaries. This is very important for matters affecting the state. It affects taxation, criminal law, voting rights, every activity the jurisdiction of state imposes."
West Virginia requires utilities to obtain a siting certificate from the Public Service Commission, he said, and developers avoid having to get the certificate if the turbine is not in West Virginia.
Saffer suggested the commission have Bastress "fully investigate all legal processes he can undertake on our behalf to fully settle and determine the state line.
Commissioner David Fleming told his colleagues last week he had mixed feelings about the project. "We haven't been given a sincere chance to learn about or be a part of this dialogue and when I think more about this issue, private property rights need to be protected, but the Allegheny ridgeline, it's unique, one of a kind. It's a long, graceful spine supporting diverse and deciduous forests and this line, essentially, divides West Virginia and Virginia, so we have property owners on both sides of the line who stand to be affected by anything going on here. So my feeling is, any project that would impact this, what I call a geological and ecological gift, needs to be considered by all bordering counties and the states of West Virginia and Virginia."
Hiner wrote a letter Monday to West Virginia officials, explaining his process. He said the Virginia- West Virginia border has always been the top of Allegheny Mountain, and he did not move it (see Letters to the Editor, this issue).
Hiner said that border was established in 1861, but USGS topography maps do not show the same level of detail as his field survey, which he said trumps the USGS information unless West Virginia has formally adopted the USGS line as the right one. "The survey was made as a result of the request by the Technical Review Committee for detailed information as to the location of Turbine Site 1T and its proximity to the state and county line," he wrote. "It was my understanding that they wanted to know the physical location of the actual state and county line, not the approximate line shown on the USGS topographic map."
Saffer contends West Virginia law stipulates all its county lines are determined by USGS maps. "Challenges to accuracy of those maps must be in accordance with law, specifically 29-23-2 West Virginia Code, establishing a Boundary Commission which has authority to set state boundary lines," he said in a statement this week. "Of course, this must be in conjunction with the appropriate governmental body in Virginia. Boundary lines of states are jurisdictional lines and jealously guarded as they define the limit of law and taxation and legislation and administrative rule within the physical territory of a particular state. Whether or not Mr. Hiner's survey is accurate is not for him or any other surveyor to determine. Changes or re-definition is an official state action which must follow the rule of law. This is not like two adjoining farmers agreeing on a fence. This is an official state boundary which is challenged as to accuracy."
Saffer said he doesn't understand why Virginia's State Corporation Commission would approve the project with the turbines' locations in question on the state border.
SCC information resources director Ken Schrad explained. "The boundary issue is a factual dispute," he told The Recorder this week. "The (HNWD) application indicated the facility would be constructed in Highland County near the Virginia-West Virginia border. I do not recall any indication during the proceeding at the SCC that any particular tower would be located on the West Virginia side. I do recall that the application stated that the property owned by the developer of the project did lie in both states. I am not familiar with West Virginia utility laws. Typically, each state would approve any generation facility located within it boundaries."