The filing by Vermont Wind on December 23, 2008 (“December 2008 Amendment”), involves numerous substantial changes which not only have the potential for a “significant impact” with respect to a number of Section 248(b) criteria but in many instances demonstrably will cause such impacts. Vermont Wind, well aware that its newly configured project will trigger the provisions of Board Rule 5.408, attempts to avoid this inevitable result by attaching a number of perfunctory, and technically indefensible, conclusory assertions from its experts, all of which intone the magic phrase “no substantial change” but none of which provide adequate technical data to back up that assertion. However, by this filing Vermont Wind demonstrates that its proposed changes “have the potential for significant” impacts on numerous issues relevant to the § 248(b) criteria, otherwise there would be no need to file any technical declarations. The issue is whether Vermont Wind’s assertion of beneficial improvement or no adverse impact are correct. As this Board held in setting a new schedule for discovery and hearings regarding Vermont Wind’s previous amendment to its proposal:
we cannot determine, until after we hear the relevant evidence and arguments, whether the amendment lessens the impacts associated with the proposed project and represents an improvement to the proposed project.
Order Entered 11/1/2006, Docket No. 7156, at 3.
In addition, Vermont Wind attempts to hide what it is really doing by mischaracterizing its filing as solely to comply with Condition 1 of the CPG. December 2008 Amendment, cover letter at 1. That disingenuous assertion is obviously wrong since by its own admission Vermont Wind is making a substantial change to the project by replacing 12 of the proposed 16 Clipper Liberty Class IIB 2.5 MW turbines with Clipper Liberty Class C93 IIa turbines. Condition 2 of the CPG explicitly requires Vermont Wind to “receive permission from the Board if UPC seeks to use a turbine other than the Clipper Liberty Class IIB 2.5 MW turbines it proposes.” Order Entered 8/8/2007 (“Final Order”) at 113. Since obtaining permission from the Board necessarily involves an amendment to the CPG, for that reason alone, Vermont Wind should have to file a request for leave to file an amendment.
Finally, Vermont Wind’s December 2008 Amendment reflects the consequences of its own failure to submit a complete application. Rather than present a proposal which already possessed the necessary state and federal permits and represented its final decisions on the type of turbines and their locations, Vermont Wind chose to save money by seeking, and obtaining, permission to postpone obtaining those permits until after it had received its CPG and has granted itself the “right” to change the project in any way that it believes will be to its economic advantage. Regardless of the legality of that approach – the issue is still pending before the Vermont Supreme Court (In Re: Docket No. 7156 Public Service Board Amended Petition of UPC Vermont Wind, LLC, for a Certificate of Public Good, pursuant to 30 V.S.A. § 248, et al, S.Ct. Docket No. 2007-456) – the consequence can be, as it is here, that substantial changes must be made to the project to accommodate the demands of permitting agencies or to accommodate Vermont Wind’s attempts to maximize profits. Vermont Wind essentially concedes that at least some of its changes were caused by its consultation with permitting agencies:
Over the past year, Vermont Wind has finalized the project design, in consultation with the U.S. Army Corps of Engineers, the US Fish and Wildlife Service, the US Environmental Protection Agency and the Vermont Agency of Natural Resources, with the goal of making the project design more efficient and further reducing project impacts. This iterative process has resulted in the following modifications to the Project’s layout.
December 2008 Amendment, cover letter at 1. Vermont Wind cannot escape obligation to seek leave to file an amendment to its CPG.
Download original document: “Ridge Protectors: Motion to require amended application, Sheffield, Vt.”
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