In re Appeals of Anr Permits in Lowell Mountain Wind Project (Energize Vt., Inc.

• Decision Date: 23 May 2014
• Docket Number: No. 13–180.,13–180.
• Citation: 2014 VT 50,98 A.3d 16
• Court: Vermont Supreme Court
• Parties: In re Appeals of ANR PERMITS IN LOWELL MOUNTAIN WIND PROJECT (Energize Vermont, Inc., Appellants).

98 A.3d 16
2014 VT 50

In re Appeals of ANR PERMITS IN LOWELL MOUNTAIN WIND PROJECT
(Energize Vermont, Inc., Appellants).

No. 13–180.

Supreme Court of Vermont.

May 23, 2014.

[98 A.3d 17]

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.

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.

[98 A.3d 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 Project's STP does not conform to the default channel protection standards contained in subsection 1.1.2 because it does not use extended detention storage.

¶ 5. Section 2 of the VSMM is titled “Acceptable Stormwater Treatment Practices.” Subsection 2.1 is also titled “Acceptable STPs” and states: “This section outlines STPs that can be used to meet the ... treatment standards set forth in section 1. These acceptable STPs can be used alone, or in combination, to meet the required treatment standards.” VSMM 2.1. The Wind Project has not used an “acceptable STP” as defined by subsection 2.1.

¶ 6. Subsection 2.5 is titled “Alternative STP Designs.” It states:

The stormwater treatment field is rapidly evolving and new stormwater management technologies constantly emerge. A permit applicant may propose and [ANR] may allow the use of STPs other than those listed [above] if the permit applicant can demonstrate to [ANR]'s satisfaction that the proposed alternative STPs will attain the applicable treatment performance standards for [the five treatment standards contained in VSMM Section 1]. Proposals for use of alternative treatment systems will require consideration of the design through the use of the individual permit application process.

There are two methods by which a designer may propose an alternative system design evaluation: through consideration of an existing-alternative system ...; or through a new design-alternative system proposed for use in Vermont.

Subsections 2.5.1 and 2.5.2 pertain to “Existing Alternative Systems” and “New–Design Alternative Systems,” respectively. The parties agree that the Wind Project's stormwater treatment practices make up a “new-design alternative system,” not an “existing alternative system.”

¶ 7. Subsection 2.5.2 states:

The performance standard for STPs shall meet the applicable treatment standards specified in section 1.1, and shall have the capability to achieve long-term performance in the field. For an alternative STP to be submitted to [ANR] for consideration, a designer's certification of compliance, including pertinent design information must be provided. This certification must provide details, with a reasonable level of surety, on how the system will achieve the requisite performance standards.

....

If a proposed alternative STP design is successfully approved by [ANR], then this alternative will be available for use by other permit applicants, if determined appropriate by [ANR].

¶ 8. The Wind Project uses an STP known as “level spreaders.” The level spreaders function by collecting stormwater in a trough and then dispersing the water across a level edge, through a vegetated buffer. Level spreaders are not specifically referenced in the VSMM. Level spreaders do not meet the default requirements, under subsection 1.1.2, for channel

[98 A.3d 19]

protection because they do not use “extended detention storage.” Rather, as described by the PSB, “A level spreader is a constructed feature which is used to convert concentrated runoff to sheet flow and release it in a non-erosive manner across a slope. Vegetated buffers are defined as the land areas immediately downslope of the level spreader which provide for the ‘disconnection’ of runoff from impervious surfaces to undisturbed natural vegetated terrain.”

¶ 9. Appellants contend that the language of subsection 1.1.2 mandates the use of...