Saturday, September 7, 2013/lk
Will a 35-turbine wind-power generating facility ever be built in southeastern Skamania County?
That’s not a given, but the developer of the Whistling Ridge Energy Project — to be sited roughly between Willard and Underwood on private timberland — is ready to move ahead with the project now that the Washington Supreme Court has ruled in its favor.
On Aug. 29, the Washington Supreme Court issued an unanimous decision that upholds the permit — called a site certification agreement, or SCA — for a 35-turbine wind farm approved by then-Governor Christine Gregoire in March 2012, based on the recommendation of the state Energy Facility Site Evaluation Council.
The Supreme Court dismissed most of the allegations against the project leveled by opponents Friends of the Columbia Gorge Inc. and Save Our Scenic Area in a petition for judicial review filed in April 2012, including the primary claim that the process and resulting permit are legally flawed. Moreover, the justices found that two challenges in the petition — the adequacy of wildlife mitigation measures and EFSEC’s decision to defer review of compliance with the state Forest Practices Act — are not “ripe” for decision. (The Supreme Court heard oral arguments from petitioners and respondents on June 27 of this year.)
The ruling caps a process that began in March 2009 with Whistling Ridge Energy Partners’ filing of its project application with EFSEC, the state agency charged with reviewing and recommending permits for energy facilities in the state where no regulatory framework exists. (Skamania County did not have such a framework in place at the time the project was proposed in the spring of 2008; thus, it went to EFSEC.)
Jason Spadaro, president of developer Whistling Ridge Energy Partners LLC, said the company remains committed to the $150 million renewable energy project that would be built across 1,152 acres of privately owner commercial timberland. (Only about 57 acres would be permanently developed, the court noted.)
“The Siting Council, the governor and now the Washington Supreme Court have all recognized that this project is outside of the Columbia River Gorge National Scenic Area, and that all impacts have been appropriately mitigated,” Spadaro said. “We look forward to finally proceeding with the business of securing markets for our energy, and creating local jobs and tax base.”
Nathan Baker, a staff attorney for FOCG, said the Aug. 29 Supreme Court decision “isn’t the final say in the matter.”
“According to the Supreme Court, several issues are yet to be resolved, including wildlife mitigation and forest practices. In the words of the Supreme Court, these issues are not yet ‘ripe.’” Baker added, “Friends and SOSA will continue to participate in the public process on these and other unresolved issues.”
The Supreme Court noted it in its opinion, “The challenge here focuses on the site certification agreement and whether it, and the process leading up to it, complied with the statutory and regulatory requirements.” In the final issue, the court stated, “We find no basis to reverse the Energy Facility Site Evaluation Council’s recommendation or the governor’s approval of the project.”
Moreover, the court said, “Invalidation of the completed review and recommendation would also defeat the purpose of the extended hearings and [EFSEC’s] ongoing oversight of the project.”
Petitioners FOCG and SOSA challenged the process and substance of the governor’s approval, and sought a court ruling invalidating the SCA and remanding the matter to EFSEC “for further study and evaluation of the project.”
“Most of the allegations appear to involve EFSEC’s supposed failure to follow its own regulations or resolve all issues requiring resolution and we address the arguments through that lens,” the court stated. “Friends essentially challenges the completeness of the application ... many of the alleged omissions are rather technical and ignore the broader framework of the application process ... Essentially, the application is the starting point of a longer process and more specific decisions are addressed throughout the process. Any minor deficiencies in the application itself are to be expected and do not warrant reversal.”
Petitioners FOCG and SOSA challenged the process and substance of that approval, and sought a court ruling invalidating the SCA and remanding the matter to EFSEC “for further study and evaluation of the project.”
According to the court’s opinion, “The ‘most hotly contested issue’ involved the project’s impact on the aesthetic and cultural heritage of the area, largely due to the project’s visibility from the national scenic area.” To preserve the view from the National Scenic Area as much as possible, the court wrote, “EFSEC reduced the number of allowable windmills from 50 to 35 and restricted where those windmills could be sited.”
On the question of the project’s consistency with Skamania County land use laws, the court found that the project is “authorized outright under the local zoning code.” In areas of the county “where no formal adoption of any zoning map has taken place,” those areas will be designated as unmapped.
“In these unmapped areas, ‘all uses which have not been declared a nuisance by statute, resolution, ordinance or a court of jurisdiction are allowable.’” The governing Energy Facilities Site Location Act, it stated, “requires only that the project be consistent with either ‘land use plans or zoning ordinances.’”
Said Spadaro, “EFSEC reached the right conclusion, as did Gov. Gregoire. Now, the Supreme Court has confirmed their actions. We always knew that we were making a wise investment and doing the right thing for our community and for the environment. I’m looking forward to the next step in the process.”
As are opponents FOCG and SOSA, who raised doubts about whether Whistling Ridge will ever be built as permitted, according to Baker.
“It is still uncertain the project would ever be built. Because of public concerns about scenic and cultural heritage impacts, EFSEC and the governor substantially reduced the project, from 50 turbines to no more than 35 turbines. According to the applicant, the project is not currently economically viable. With the ongoing phasing out of government tax breaks for wind energy, the future viability of the project remains uncertain.”