SCC Hearing Examiner Denies Motion to Exclude Evidence

Richmond, Virginia

Highland New Wind Development's request to withhold evidence of visual impact upon Camp Allegheny from future hearings has been denied.

State Corporation Commission Hearing Examiner Alexander Skirpan, Jr. denied Highland New Wind's "Motion in Limine-Viewshed." Skirpan declared that "visual impact evidence will be presented at future hearings."

Mr. Skirpan rescheduled the hearing to address the complaint filed by the Virginia Department of Historic Resources (DHR) August 19 (and originally scheduled for September 23 in an "Order" dated August 26) for October 13.

That's the new deadline: October 13, 2009.

The Attorney General's office is now free to produce evidence at trial of the impact of the wind utility on Camp Allegheny, an exceptionally well-preserved Civil War Battlefield listed on the National Register of Historic Places.

After listening to nearly an hour of testimony by John Flora, attorney for Highland New Wind, William Chambliss, General Counsel for the SCC, and Steven Owens, Assistant Attorney General for the Commonwealth of Virginia, Mr. Skirpan abruptly interrupted a rebuttal by Mr. Flora to deny the "Motion in Limine".

Mr. Flora's assertion that "viewshed is a settled issue," did not convince Mr. Skirpan, who said more than once that "there is a difference between conducting more studies and looking at evidence that has been produced."

Skirpan expressed his understanding that the Commission's Final Order (12/20/07) included requirements that the Defendant (Highland New Wind) "mitigate environmental impacts". He stated that conducting a viewshed analysis was not equivalent to mitigating or minimizing environmental impacts.

Mr. Chambliss concurred with Flora, repeatedly stating that the issue of viewshed was settled by the law of the Commission's "Order", and if held in question, should have been appealed by DHR to the Virginia Supreme Court.

Chambliss seemed to chastise the DHR, saying, in effect, that if the agency had a problem with the SCC's 2007 "Order," they should have sought appellate review. "Instead," he stated, "DHR has decided to impose, on it's own, studies that the SCC did not order [the Defendant] to do. This does not seem to the Staff to be the right remedy."

Mr. Owens, in response, stated that if DHR had had any expectation that the Defendant (Highland New Wind) would not comply with SCC's Order, then perhaps DHR would have known in advance that seeking appellate review was necessary. "We believed that the Commission assumed its Order had some meaning," Owens said.

Owens explained that in long experience with similar SCC Orders regarding public utilities, the party seeking certification had cooperated with DHR regarding the evaluation and minimization of impact upon historic resources. DHR had no reason to anticipate that Highland New Wind would refuse to cooperate, thus no rationale for appealing to the State Supreme Court in 2007.

"Viewshed is the area from which the turbines can be seen. Visual impact is adverse effect. DHR is not asking for additional analysis. We want compliance with the SCC Order which requires [the Defendant] to evaluate impacts to historic resources," Owens stated.

"We don't think the SCC intended Highland New Wind to identify impacts just so they can ignore them."

What does all of this mean?

The viewshed analysis to which the attorneys refer was a requirement of the Conditional Use Permit issued by the Highland County Board of Supervisors. This "analysis" consists of eleven photos of Tamarack Ridge and Red Oak Knob (the proposed sites of the wind turbines), each one taken from a different vantage point. One of the photos was taken from a point on the Camp Allegheny Battlefield between two and three miles from the proposed location of the turbines on Tamarack Ridge.

Conducting additional viewshed analysis was not included in the SCC's Final Order, dated 12/20/07. However, the Final Order does require Highland New Wind to cooperate with the DHR in evaluating the impacts on archaeological and architectural resources identified by the viewshed analysis as existing within a 1.5 mile Area of Potential Effect around each turbine.

Highland New Wind has repeatedly asserted that, based upon the driving distance from US 250 to the Camp Allegheny parking lot, Camp Allegheny is more than two miles from Tamarack Ridge and thus outside the Area of Potential Effect.

This assertion has been revealed to be false using line of sight measurements. Click below to see line of sight measurements taken from a point very near the present-day cattle gate, where historians believe most of the battlefield engagement took place and most of the casualties occurred. All 19 turbines will be visible from this point. The height shown is 270 feet to the top of the turbine tower. At 400 feet, the top of the rotor is actually 130 feet taller.

Hearing Examiner Skirpan's ruling will allow such measurements to be entered into evidence on October 13.

What happens then?

The hope is that once Camp Allegheny is revealed to be well-within the 1.5-mile Area of Potential Effect, then the Hearing Examiner will be compelled to enforce the SCC's Final Order which requires Highland New Wind to "Coordinate 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."

As Mr. Owens explained at the hearing September 23: "Specific analysis can only be done once you've identified what needs to be protected. What can be done to minimize or mitigate impact on Camp Allegheny? We need the SCC to tell them there's more to be done."