Environmental Court’s decision on Sheffield wind project stormwater construction permit opens the floodgates for stormwater pollution 

“This Lowers the Bar for All Permits”

Energy, community, and environmental activists reacted today to the Vermont Environmental Court’s decision on the appeal of Sheffield Wind’s construction stormwater permit, which was released Aug. 26. In a decision that has wide reaching implications, Justice Meredith Wright ruled that First Wind does not need to monitor baseline water quality prior to construction at their ridgeline location, and can use Best Management Practices for low risk environments to ensure that the Sheffield project will comply with Vermont’s Water Quality Standards.

Paul Brouha, a Sutton resident with an extensive background in water quality science, summarized the reaction when he said that the decision “deals a blow to Vermont’s efforts to clean up stormwater and protect water quality.”

Those monitoring impacts from stormwater runoff on water quality and species around the state have been awaiting the decision on the appeal, which has been pending for seven months. Anti-degradation implementation issues have been raised in diverse situations ranging from high-elevation utility-scale wind turbines to Vermont Yankee’s discharge permit to the permitting of ski area developments. If the decision stands it could play a role in all future stormwater construction permits in Vermont.

The decision quotes the EPA’s 2006 guidance on stormwater regulations regarding effluent limits as the best that can be accomplished – yet in 2009, the EPA proposed implementing the specific protective measures that this decision says it is impossible to do. Stormwater protections are critical at construction sites in particular because they can discharge 2000 times more sediment than forested areas. These discharges increase turbidity, sweep toxic fluids into waterways, and have long-term impacts on streamflow, water temperature, and other factors critical to sensitive streams.

Brouha, a former Executive Director of American Fisheries as well one of the appellants in the case, expressed concern for the potential impact the decision has on Vermont’s fish: “Native brook trout in Vermont increasingly exist as isolated remnant populations in high elevation areas. They are losing viability and blinking into extinction in the face of large development projects that degrade water quality in our mountains. The federal law clearly requires the state to protect that water quality – Justice Wright’s decision shows a fundamental lack of understanding about erosion prevention and sediment control, ” he concluded.

First Wind proposes to construct 16 2.5 MW wind turbines on high-elevation ridges in Sheffield and Sutton. The project was approved by the Vermont Public Service Board in 2007. The Vermont Supreme Court upheld the project’s Certificate of Public Good in 2009. Community members appealed the construction stormwater permit after recognizing that the Agency of Natural Resources was applying the lowest possible protective standards to high elevation streams in sensitive soils.

Jared Margolis, co-counsel for appellants, pointed out that the Court’s decision frustrates the purpose of the state’s delegated responsibility to protect water quality under the federal Clean Water Act’s National Pollution Discharge Elimination System, which requires that discharges must not degrade existing water quality, a concept knows as to as “anti-degradation.” “It is very disappointing to see the Court rule that the project only needs to apply minimum protections for low risk projects, even though this is a high risk project consisting of steep slopes and very erodable soils,” Margolis said.

Lukas Snelling, Energize Vermont Director of Communication stated, “We fear this decision could free developers of renewable energy projects in Vermont from their environmental responsibilities. Vermont needs to protect its natural resources while making energy progress, not sacrifice one for the other.” Energize Vermont believes that many of these challenges can be avoided with “Vermont-scale” energy development, which includes responsible siting, scaling, natural resources stewardship and community involvement.

John Liccardi, Energize Vermont’s Board Chair, summarized the organization’s challenges. “The Sheffield project is a great illustration of the fact that achieving our goal of developing substantive alternative energy sources in harmony with our Vermont character and way of life will not be easy. We will continue to advocate for development that is in full compliance with federal laws, state laws, and common sense,” he concluded.

Energize Vermont was created to educate and advocate for establishing renewable energy solutions that are in harmony with the irreplaceable character of Vermont, and that contribute to the well-being of all her people. This mission is achieved by researching, collecting, and analyzing information from all sources; and disseminating it to the public, community leaders, legislators, media, and regulators for the purpose of ensuring informed decisions for long term stewardship of our communities.

Contact: Lukas B. Snelling
(802) 778-0660
Email: luke@energizevermont.org