Appellants File Motion to Alter in Sheffield Wind Stormwater Case
Failure to Protect Water Quality in “High Risk” Conditions Key Issue
Appellants in the Sheffield Wind stormwater permit case filed a Motion to Alter with the Environmental Court. The motion comes after Environmental Court Justice Meredith Wright issued her decision granting the construction permit, which was released on August 26th.
The Environmental Court ruled that First Wind did not need to monitor baseline water quality prior to construction at the wind project’s high-risk ridgeline location or during or after construction, but rather can use Best Management Practices (BMPs) established for low risk environments to ensure that the Sheffield project will comply with Vermont’s Water Quality Standards (VWQS). This approach focuses entirely upon trying to prevent degradation of the waters on the site but calls for no monitoring during or after construction to determine whether the streams or wetlands became degraded by stormwater runoff during construction.
Speaking for the Appellants in the case, Paul Brouha stated that the motion is based on a number of aspects of Wright’s decision that are out of compliance with existing state and federal laws. The motion specifically calls out the BMP approach approved by Wright. Brouha stated “The ‘Best Management Practices’ approach to permitting these large high risk projects on our ridgelines simply results in too great a likelihood of failure to protect water quality. There are too many ‘moving parts’ spread over too large an area for too long a time period to prevent water quality degradation.” Such degradation is prohibited by state and federal water quality laws.
Far from being “low risk,” construction of the project will take place on extremely steep and erodible soils. Over 40% of the between 60.5 and 83 acres of soils that will be disturbed on the mountains are on slopes of 35-60%. Over 90% of the disturbed area is located on land that has at least a 15% grade.
In the comprehensive Motion to Alter, the Appellants challenged the court’s ruling on six different counts, including errors concerning the size of the project, the stormwater run-off plans, and the applicability of both BMPs and VWQS laws.
The Appellants argue that the size and scope of the project is significantly larger than was originally indicated by the First Wind filing that was reviewed by the state Agency of Natural Resources (ANR). As a result of the increased size and larger disturbed area, they argue that a different set of BMPs are needed to mitigate stormwater run-off than were approved by the Court.
Additionally, the final proposed construction plans submitted to the Court showed that some critical stream and wetland buffers are minimal to non-existent, increasing the potential for sediment-laden stormwater runoff to reach and degrade the 5 pristine headwater streams. These streams support native trout species that are highly vulnerable to degraded water quality conditions.
Assistant counsel on the motion, Jared Margolis, explained why the original decision was inadequate to protect the site’s unique features. “This decision allows the use of stormwater Best Management Practices that are the minimum required for low risk construction projects to be used to protect water quality on a very high risk, steep and erodable site. There can be no assurance that these minimum controls will be sufficient to protect the headwater streams in this area from degradation. This sets a bad standard for future construction projects in high elevation, steep and erodible areas in Vermont, which could harm our water resources.”
If unchallenged, the Environmental Court’s decision would have implications for construction projects all over the state, not just on ridgelines. Lead Appellant attorney Stephanie Kaplan stated, “In our view the judge made several important errors worthy of re-examination. This decision and the errors contained in it have far-reaching implications to maintaining the integrity of Vermont’s environment and trout stream water quality in the face of development of any kind.”
Energize Vermont is concerned that the Court’s ruling gives a higher priority to facilitating development than to protecting the environment and Vermont’s unique landscapes. Lukas Snelling, Energize Vermont Director of Communications stated, “We cannot sacrifice the character of Vermont in the name of energy progress. We must approach these utility scale developments with caution, and ensure that basic water quality standards are consistently applied for every kind of development in the state.” Energize Vermont believes that many of the impacts created by the proposed Sheffield Wind project can be avoided with “Vermont-scale” energy development, which includes responsible siting, scaling, natural resources stewardship and community involvement.
Despite this ongoing litigation, the September 15th issue of the Barton Chronicle indicates First Wind has begun construction activity. It is unknown when Justice Wright will rule on the Motion.
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PDF of release available here.