But Scott Hans, acting chief of the Regulatory Branch at the corps’ Pittsburgh office, said development at the site near Dallas Pike has far exceeded the scope the corps was led to believe it would when that letter was mailed.
The controversy began last week when Ohio County Administrator Greg Stewart said county officials may be fined up to $35,000 a day for what the corps believes was the unauthorized filling of streams on Lot 13C at The Highlands — and that the ongoing permit disputes could jeopardize some future development at the site.
Lot 13C is located on the south side of Interstate 70 — the side opposite Cabela’s and the planned Wild Escape theme park site.
“These permit problems do not help the future of the development and could prevent The Highlands from reaching its potential, and we may have to scale back on some of our plans,” Stewart previously said.
Hans said the inspection team saw that Streams 34 and 35 had been already been filled in, and that the county could be fined up to $35,000 per day of violation. Hans noted the U.S. Environmental Protection Agency would have the authority to impose the fines on the county as well, but an official with the EPA said any potential fines would not be levied until the end of an investigation.
Stewart said he believed the county had permission to start work because the formal public comment period for the development on Lot 13C ended Sept. 25, but Hans said the corps is still compiling comments because it must consider any information received — no matter when the corps gets it.
Now, Sims said, he believes a letter county officials received from corps official Fred Pozzuto in 2004 relieves them of the need for additional permits.
In the letter — dated Jan. 12, 2004 — Pozzuto wrote, “Due to the overall scope and long duration of unforeseen future development, if any future isolated wetlands or seeps are revealed, it may be feasible to further coordinate with the state for expansion of the previously approved mitigation sites on the unnamed tributary to Middle Wheeling Creek.”
Stewart said the county has fulfilled these obligations.
“We’ve had 64 permits issued to us by the West Virginia DEP (Department of Environmental Protection), and there are several ponds that we built to catch runoff water,” he said.
Pozzuto’s letter continues, “We feel that since ample review, permitting, coordination and mitigation requirements have been performed for the Fort Henry Industrial Park (former name of The Highlands), especially since this site was formerly an abandoned strip mine, no further coordination is required from this office.”
Pozzuto did not return calls seeking comment about the letter.
Sims believes the letter shows that the county has done nothing wrong.
“I have been practicing law for 20 years, and I take this letter to mean that we need no further permits from the U.S. Army Corps of Engineers,” he said.
In 2005, county officials changed the name of the Fort Henry Business and Industrial Center to The Highlands.
But Hans believes county officials did more than just change the name of their development — they changed the scope of it, as well.
Hans said additional permits are required because the size — and therefore the environmental impact — of the development area has dramatically increased over the past four years.
“When we first issued permits to the Ohio County Development Authority, their plans only included Cabela’s and the Cabela’s Distribution Center ... their project has grown immensely since then,” he said.
Pozzuto’s letter indicates the corps’ approval of Phases III, IV, V, VI and VII of the project.
Proposed development for The Highlands has grown to include at least five additional “phases,” or “lots,” since that time, while the proposed acreage for Phase V has grown from 42 acres to more than 100.
But Sims said these changes should not matter because of the “unforeseen future development” listed in Pozzuto’s letter.
Stewart said county officials applied for additional permits because they wanted to keep the corps apprised of their activities.
Sims also said ongoing problems with New Jersey resident David O’Brien prompted commissioners to seek additional permits. ‘‘If O’Brien had not kept pestering the corps about what we were doing, I think they would have just left us alone the whole time,’’ he said.
Sims and Stewart said O’Brien — who owns 20 acres of property adjacent to the development — has no right to access his property.
O’Brien issued numerous objections about the entire Highlands development site to the corps, and specifically requested that it deny the county’s permit application for the Wild Escape area.
O’Brien declined to be interviewed, but David Judy, an attorney from Moorefield, W.Va., representing O’Brien, said county officials have not properly addressed environmental concerns. Judy said O’Brien brought the corps’ attention to what he believed were deficiencies in the way the county was treating the environment — and that O’Brien is not trying to prevent the county from developing The Highlands.
O’Brien’s property sits in an area where developers would like to see the West Virginia Division of Highways construct a road to facilitate access to Wild Escape.
But Judy said the county’s $210,000 offer for the property is well below its true value. ‘‘We want $1,037,000 for the property because that is the appraised value of it. All Mr. O’Brien wants is a fair price for the property the county approached him about buying. If they do not think his property is worth that much, I would like to know why they want it so much,’’ he said.
Sims noted O’Brien is not even allowed to access his property because of the contract his parents signed when some of the property was sold to the state of West Virginia to make way for Interstate 70 in 1964.
‘‘O’Brien is not even allowed to on his property because the rights were bargained away. Therefore, it is totally useless to him,’’ Sims said.
Judy said the county denied O’Brien’s request to walk across the public property at The Highlands to get to his property. ‘‘How do they have the right to deny a citizen the right to walk on public property to visit property that he owns?’’ Judy said.
Stewart said there is no public access to O’Brien’s property because it borders on a working construction area at The Highlands. ‘‘If he does not want to sell the property to us, we will move our plans for the access road somewhere else,’’ Stewart added.
Judy said the county has no right to declare how much a person’s property is worth to that individual person. ‘‘Just because they see it as being useless to him does not mean that he sees it that way,’’ he said.
Sims said county officials are determined to see The Highlands project fulfill all of its potential for Ohio County residents — no matter how long it takes.
‘‘No good deed goes unpunished,’’ he added.