A state magistrate has dealt a major blow to the proposed $40 million, 20-turbine wind farm in Florida and Monroe.
Natalie S. Monroe, an administrative magistrate for the state Division of Administrative Law Appeals, ruled Monday that the state Department of Environmental Protection was incorrect in issuing a wetlands permit to Hoosac Wind Power’s then owner enXco. PPM Energy of Portland, Ore., purchased the rights to the project in February 2006.
“I recommend that the acting commissioner (of the DEP) vacate the wetlands permit that the (DEP) issued to enXco,” Monroe said in her written ruling. “I do so because I conclude that the proposed work does not comply with the Wetlands Protection Act and the Wetlands Regulations .”
The ruling says enXco did not accurately describe the boundaries of 11 stream banks that the project interacts with, that the building of culverts would destabilize the banks of 10 of these streams, that the work would alter more than 50 feet of stream bank and that enXco failed to perform a wildlife habitat evaluation.
“We’re very pleased,” Green Berkshires spokeswomen Eleanor Tillinghast said Wednesday. “We had the entire force of the state government against us saying that we were wrong, that we had no valid reason for appealing the superseding orders and conditions and what we showed was the citizens who appealed this were right.”
Green Berkshires Inc., a non-profit environmental group, and two citizen’s groups appealed the DEP’s permit in 2005, citing environmental concerns, particularly over the building of an access road leading to the proposed sites. The 2,300-megawatt facility would be built on Bakke Mountain and on Crum Hill in Monroe.
The ruling comes a year after hearings on the matter closed.
PPM representative Jan Johnson said in an e-mail that the company had received the ruling Wednesday and that it has both “positive and negative elements for the Hoosac project.” She said PPM would await further action by the DEP.
Monroe’s ruling will next be taken under advisement by acting DEP Commissioner Arleen O’Donnell, who can decide to uphold it or disregard it and grant the wetlands permit.
“I think it would be a mistake for the commissioner to ignore such a clear decision by the magistrate, and if the commissioner decides to overrule the magistrate, we feel we have a very strong case and we’ll take it to Superior Court,” Tillinghast said.
The project has some support – Florida voters approved the a nonbinding resolution backing wind power 170-47 at the annual town meeting in March 2003. But PPM’s attempt in Vermont to expand the Searsburg Wind Facility in Searsburg and Readsboro has provoked mixed responses. Readsboro voters last year overwhelming approved the company’s plans for up to 24 turbines along ridges in the nearby Green Mountain National Forest; Searsburg gave the project a thumbs-down last Friday.
Under the Massachusetts Wetlands Protection Act, anyone who intends to “remove, fill, dredge or alter” in a wetlands resource area must request a permit. Both the town and DEP had to approve the project’s work, as it would be within 100 feet of a wetlands.
“Clearly the DEP made the wrong decision in issuing the superseding orders and conditions, and that’s shown very clearly in the magistrate’s ruling,” Tillinghast said. “What’s rewarding from our point of view is that she said the order should be vacated, that they should start from the beginning.”
Representatives for the DEP would only comment that they had just received the ruling were still reviewing it.
Anticipating the project moving ahead, Gov. Deval Patrick signed into law two bills in early February that allowed Florida and Monroe to lease the land for the project for 25 years instead of charging property taxes. The towns can negotiate payments that would take the place of property taxes throughout the length of the lease.
Tillinghast said the governor has opposed to the citizen’s appeal and even the appeal process.
“The governor has made this case his example for why this appeals process should be ended,” she said. “He’s trying to abolish this process and our win is exactly why we should retain the citizen’s right to appeal bad decisions by state agencies.”
By Ryan Hutton
North Adams Transcript
17 May 2007