North Country News
12:30 pm
Fri December 6, 2013

Vermont Supreme Court Hears Stormwater Appeal From Wind Opponents

Credit Green Mountain Power

Opponents of the Lowell Mountain Wind project took their case to the Vermont Supreme Court on Thursday, where lawyers argued whether the state improperly permitted the project’s stormwater permits.

The 21-turbine Lowell Mountain wind project went online last November. A series of protests and arrests occurred as the project was constructed. Legal challenges have been filed and rejected by the Vermont Supreme Court. On Thursday, another challenge filed by Energize Vermont was argued before the state’s high court. Energize Vermont Executive Director Lukas Snelling explains that the key issue in the group’s appeal is that the Vermont Agency of Natural Resources did not follow the mandatory language of its own regulations when granting the stormwater permit.
    "The issue of this case is really whether they can go beyond the stormwater manual, the existing regulations and choose what unproven methods can be used what can’t. And in this case they actually permitted  methods that have shown a tendency to fail at high elevations and steep slopes and that's exactly what this site is."

Snelling adds the case is therefore very significant due to its ramifications beyond wind development on ridgelines.
    "At the heart of the case is whether the Agency of Natural Resources has hte discretion to decide which new or untested stormwater treatment protocols can be used in development in the state of Vermont.  But doesn’t the ANR have the discretion to decide those sorts of things? They certainly in some cases may,       but in this case they actually said we can go beyond the existing stormwater manual to approve untested and unproven ways of treating stormwater at the site."

Vermonters for a Clean Environment Executive Director Annette Smith agrees with Snelling that while the appeal appears to be about the wind project, it’s really about the Agency of Natural Resources violating its own rules.
    "The appeal is a very narrow appeal of the argument that ANR  has discretion to approve these experimental technologies which are clearly not allowed in the  stormwater manual. And so, this case has a real impact on the ability of ANR to do whatever they want outside of the rules and for the public to have any faith in the integrity of the Agency of Natural Resources."

Smith doesn’t believe the turbine’s stormwater infrastructure is working properly.
    "I and other citizens have been up on the site,  but only in a very controlled way. Green Mountain Power was giving open houses and there was a downpour  and photographed levelspreaders failing. We have asked for other experts other than the state and Green Mountain Power to have access to the site and it has been repeatedly denied. So there is absolutely no way to ground truth the claims that the system is working."

Green Mountain Power Spokesman Robert Dostis considers this appeal insignificant. He notes that opponents have appealed every permit for the project, and in every case the courts have ruled in favor of the wind project.  Dostis recounts that the Agency of Natural Resources recommended the system that was permitted.
    "It’s new technology, yes, but it’s new technology that means we actually disturb less land in protecting storm water. It’s a more expensive technology, but we felt was worth the investment because actually it reduces the footprint of the entire project by about ten percent, while protecting water. So it is a win-win      for everybody and appealing this permit is consistent with what they've done with all other permits. So we just have to go through the process.  It gets  scrutinized, which is fine.  We’re confident that we’ve done the right thing by the environment and also by our customers."

Dostis also doesn’t see a problem with the agency’s actions.
    "The agency sets the guidelines, looks at projects, determines if it meets those guidelines and standards. Ours did, ANR finds our system satisfactory, so I'm not sure what the opponents of  the project are actually arguing."

It is expected to be several months before the state Supreme Court issues a decision on the case.

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