ST. JOHNSBURY – In Vermont, brook trout may be to fishermen what white tail deer are to hunters. But when it comes to a timetable for building 16 wind turbines on the ridge lines of Sheffield, trout may be the determining factor.
The condition of brook trout in the five streams that run through 60 acres of the Sheffield wind farm was a subject of contention during a three-day trial that got under way here in Environmental Court last week.
Actually, the condition of the trout was only an issue in larger dispute involving how far a wind farm should go to protect the water quality of small, mountain streams.
Testimony is scheduled to resume this week in a trial that pits opponents of the Sheffield project against both its developer, First Wind, and the Agency of Natural Resources (ANR), the state regulatory agency that already has given the project a green light to begin construction.
First Wind’s permit and compliance director for the Sheffield project, Josh Bagnato, told the court that a storm water discharge permit is the only one still pending before construction can get under way for the first wind farm in the Northeast Kingdom.
“We build a project the way it is supposed to be built,” he said, testifying from the stand of how the company has amended its original plans and reduced the number of turbines from 26 to 16.
“We feel the project has come a long ways, and the footprint has been reduced as much as possible.”
Off the stand, Mr. Bagnato declined to discuss how much First Wind has spent on a permitting process that began roughly six years ago. But whatever the expense, it has been driven by a group of area residents, known as the Ridge Protectors, Incorporated, (RPI), who, in putting their money where their mouth is, have battled the project at every level.
The fight has gone from town meetings, through rounds of hearings before the Public Service Board (PSB), and all the way to the Supreme Court where RPI lost an appeal in February to overturn the certificate of public good that PSB had awarded the project.
“We’ve tried to exhaust every option,” replied Paul Brouha, one of the organization’s founders, when cross-examined by one of the company’s attorneys as to why the fight has landed in Environmental Court.
Argued before Environmental Judge Meredith Wright, the case came to trial after RPI prevailed in an appeal that said ANR erred in granting a storm water discharge permit for the Sheffield project. A ruling by Judge Wright on the appeal said that because the waters in the project area are high quality waters, a benchmark must be established.
“Such a benchmark is also necessary to determine during the life of the permit whether the requirements of the permit and the anti-degradation policy are being met,” wrote the judge in an opinion handed down in October.
Simply put, the overriding issue at trial is whether ANR and First Wind have collected enough data to establish a benchmark without first going out and collecting more samples from the streams within the project’s area. ANR and First Wind say they have; the Ridge Protectors disagree.
What’s at stake at this late date is time and money. RPI wants at least a year’s worth of sampling done on the streams, including data about the trout population. If the court agrees, that would cause additional delay in the startup time for construction. According to Mr. Bagnato, First Wind would like to start logging the site over the winter months, although he objected to a permit condition that would require cutting to be done only during the winter.
Streams within the project include Annis Brook, Calendar Brook, Clark Brook, and Nation Brook. According to trial testimony, the two most important indicators of a stream’s health are the organisms that live there and the composition of the stream bed.
To test water quality and existing uses, Jeff Nelson took a team of researchers onto the site to take chemistry and temperature samples before and after a heavy run-off. A run-off sample was taken in an early October storm, “just the kind of circumstances we were looking for,” testified Mr. Nelson who is the director of environmental services for a Vermont consulting and engineering firm.
In conducting the research, Mr. Nelson, who authored a benchmark report for the wind company, made a decision to sample only the macro invertebrates, or the bugs and insects that inhabit the streams, and skip the trout. He said fish were not sampled because the streams were very small, and such sampling is not required to establish a benchmark in high elevation streams. Besides, he added, samples from bugs and insects are more indicative of the water quality in small streams.
“Did you make that decision,” snapped attorney Stephanie Kaplan, knowing that RPI strongly believes it was a mistake to take no fish samples.
Mr. Nelson said it was a team decision. “I’m no biologist.”
Based on the samples the team collected, Mr. Nelson said he drew up a model to establish a benchmark that could be used to determine the impact the project was having on water quality and existing uses.
The decision to exclude fish in stream sampling was support by ANR’s expert, Richard Langdon, an aquatic biologist with 30 years on the job.
Bugs and insect samples, he testified, give “a pretty good feel for what’s out there,” when it comes to the health of a stream. He noted that a snow melt is high in aluminum and can be highly toxic and capable of killing off bugs and small trout. But after a wipeout, some bugs but no trout would survive.
“They have been in these streams for 10,000 years; they have a way of hanging in there,” he said.
Because Sheffield is located at the heights of the land, the streams in the project drain both to the south, through the Passumpsic River, and to the north, through the Willoughby River. According to testimony, the project’s elevation ranges from a high of 2,250 feet to a low of roughly a 1,000 feet.
The only stream associated with the project, the Calendar Brook, was sampled by the state five years ago and five miles downstream from the site. Mr. Langdon characterized it as a Class B stream with good water quality.
Mr. Langdon said the state sampled nine streams to establish its criteria for measuring water quality. From the study, he said a reference stream was created, which serves as the agency’s baseline or its ideal. Of the nine, however, he acknowledged that only one had an elevation similar in height to those in the project’s area. The average elevation of the nine streams was 1,300 feet.
He further testified that a year’s sampling is not required to determine if a stream is healthy or experiencing degradation; a sampling of bugs and insects alone, he concluded, will show if water quality standards are being met.
“I am not planning to do any sampling of the project area,” he said, under cross examination.
Among the experts, none have a higher stake in the trial’s outcome than Mr. Brouha. Time and time again through cross-examination by First Wind attorney, Geoffrey Hand, he had to defend his conclusions as an objective scientist from his role as one of the leading activists against the Sheffield project.
Mr. Brouha told the court that his property abuts the project site, with the line being about 1,000 feet from the nearest turbine. A retired fishery scientist and wildlife biologist who worked for the U.S. Forest Service and at one time headed the American Fishery Society, Mr. Brouha testified that he was opposing the project because of his special knowledge about brook trout habitat.
His professional interest, he said, may have stemmed from the day when he fished Calendar Brook as a boy and brought back smelt to stock the pond at the ancestral home, which is located about a mile from the project. He testified that the project would have a “major and harmful effect on receiving streams.” At one point toward the end of his testimony, he told his attorney that wind farms sited on ridge lines would “corrupt the Vermont brand and violate our community standards.”
Among the professional concerns listed by Mr. Brouha were impacts the project would have on stream flows, temperatures, and turbidity. According to his testimony, because of the ideal conditions of clear, cold water flowing over clean gravel, trout have been in the project’s high elevation streams since the ice age. Without trout samples, he contended that a bio-criteria cannot be applied to measure the quality of a stream; that there is a need to know the general conditions, age, and growth of trout.
Attorney Kaplan wanted to know how that could be accomplished.
“You have to go out and sample,” he said, adding that sampling should be done at different times of the year so a full and complete picture of a stream would emerge.
What about creel surveys, she asked.
“Fishermen are known to be great liars,” he replied.
In addition to omission of any fish sample, Mr. Brouha also took exception to First Wind’s decision to substitute modeling from taking multiple sampling from streams. Modeling, he said, would never account for all the variables that can happen over time. Constant sampling was needed to obtain an accurate picture because watersheds differ, and because with modeling, “at some level you’re going to be wrong.”
There was little doubt among attorneys for First Wind that Mr. Brouha was using his professional credentials to support a personal bias.
“Isn’t it true you have been working against this project for six years?” asked Mr. Hand as his cross examination got under way.
During his 18 years as a biologist working with the U.S. Forest Service, Mr. Brouha acknowledged that he had not required a baseline or a benchmark before giving timber contractors a permit to cut. And when he cut on 35 acres of his own land, he only did a visual survey to examine the turbidity of Calendar Brook.
“You didn’t require a test before or after like you’re requiring of this project?” wondered Mr. Hand.
“That’s correct,” said Mr. Brouha adding that the terrain was different, with no steep slopes.
Earlier Mr. Brouha testified that a fish sample by electrical shocking should have been done on the project streams. That brought a challenge from Mr. Hand who noted that a study by the American Fishery Society showed that when fish are shocked, about 26 percent of the sample is injured.
“Are you killing the last fish in the world?” responded Mr. Brouha, who said it is necessary to injure some fish in order to collect a meaningful sample for science.
The trial is scheduled to resume Wednesday morning at the Environmental Court in Berlin.
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