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In re ANR Permits in Lowell Mt. Wind Project

Supreme Court of Vermont

May 23, 2014

In re Appeals of ANR Permits in Lowell Mountain Wind Project (Energize Vermont, Inc., Appellants)

Editorial Note:

This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40

On Appeal from Public Service Board. James Volz, Chair.

Nathan H. Stearns and C. Daniel Hershenson of Hershenson, Carter, Scott & McGee, P.C., Norwich, for Appellants.

Geoffrey H. Hand and Elizabeth H. Catlin of Dunkiel Saunders Elliott Raubvogel & Hand PLLC, Burlington, for Appellee Green Mountain Power, Inc.

William H. Sorrell, Attorney General, and Gavin J. Boyles, Assistant Attorney General, Montpelier, for Appellee Agency of Natural Resources.

Present: Dooley, Skoglund and Crawford, JJ., and Morse, J. (Ret.), and Pineles, Supr. J. (Ret.), Specially Assigned

OPINION

Page 17

Dooley, J.

[¶1] Appellants Energize Vermont, Inc. and several individuals challenge the Vermont Public Service Board (PSB)'s affirmance of a permit issued by the Agency of Natural Resources (ANR), approving an operational-phase stormwater management plan for appellee Green Mountain Power (GMP), with respect to the Kingdom Community Wind Project (Wind Project) on Lowell Mountain in Lowell, Vermont. Although appellants raised a variety of challenges to the operational-phase permit, as well as other permits, on appeal to the PSB, the only issue maintained on appeal to this Court is the narrow one of whether ANR complied with certain requirements of its own Vermont Stormwater Management Manual (VSMM) in granting the operational-phase permit. We affirm.

[¶2] The facts of this case are undisputed. The Wind Project is a wind-powered electric generation facility involving twenty-one wind turbines, along with access roads, a substation, an operations building, and power lines. Because the project contains over twenty-seven acres of impervious surfaces, GMP is required to maintain a permit from ANR to regulate management of its stormwater runoff as long as the project is operational. 10 V.S.A. § 1264(a)(11). In granting the permit, ANR is required to ensure that the permit is " consistent with, at a minimum, the 2002 Stormwater Management Manual [VSMM]." Id. § 1264(e)(1).

[¶3] The VSMM contains regulatory requirements for stormwater treatment practices, known as STPs, which are designed to manage stormwater runoff. Because the parties' arguments rely in large part on the language of the VSMM, we describe the VSMM in detail here. The VSMM is divided into three sections. Section 1 is titled " Stormwater Treatment Practice Sizing Criteria." It sets out five distinct " treatment standards" for water quality, channel protection, groundwater recharge, overbank flood protection, and extreme flood protection. This appeal concerns only the Wind Project's compliance with the channel protection treatment standard.

[¶4] Subsection 1.1.2 sets forth the standards for channel protection treatment. It begins: " To protect stream channels from degradation, storage of the channel protection volume (CPv) shall be provided by means of 12 to 24 hours of extended detention storage (ED) for the one-year, 24-hour rainfall event." The subsection provides a bulleted list of criteria that " shall be applied" to evaluate channel protection volume and STPs for channel protection.

Page 18

The final bullet in this list states, " For projects that have disconnected the majority of impervious surfaces per use of the credits in Section 3 such that routing to a detention facility is not achieved, the designer may use an alternative design standard." Section 3 of the VSMM addresses " Voluntary Stormwater Management Credits," which the parties agree GMP did not use. Subsection 1.1.2 further contemplates that the " treatment standard for channel protection shall be waived" for several situations which also do not apply to the present case. These are the only places in which subsection 1.1.2 explicitly contemplates exceptions to the channel protection standards it contains. The Wind ...


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