Based on the lack of enforcement of the permit conditions to monitor their experimental stormwater management systems at Green Mountain Power’s Lowell Kingdom Community Wind project, Vermont is well on its way to violating its own stormwater management rules, their obligations as a U.S. EPA delegated agency, and the Federal Clean Water Act. The failure to enforce permit conditions is an affront to my client Energize Vermont, who spent nearly $400,000 on appealing the permits granted to the Lowell Kingdom Community Wind project, and the Vermont Public Service Board (PSB) and Vermont Supreme Court, both of which upheld the permits.
Construction began in early September 2011, even before the filing of an appeal1 by my client on Sept. 19, 2011. In its press release noticing the start of construction2, Green Mountain Power (GMP) declared its commitment to the “highest environmental standards,” while the Agency of Natural Resources (ANR) was quoted: “(T)he monitoring program imposed on GMP to protect high quality waters is more restrictive than any program required of any Vermont ski area to date… In addition, GMP made an extraordinary effort in the design to avoid stream and wetland impacts.” These are bold, yet still unfulfilled statements.
GMP proposed to use a new type of stormwater management system as they claimed using ANR-accepted practices would require the cutting down and grading of too much forest. This new system using a combination of “level spreaders and vegetated buffers” had not yet been proven to be effective at meeting the requirements to manage and clean stormwater. Therefore, the primary and most important condition of the post-construction, or “operational stormwater,” permit is that the experimental treatment systems (“new design-alternative systems” or “new ASTs” as they are officially called in the Vermont Stormwater Management Manual)3 are required to be monitored for a period of time after construction, and the results will dictate whether or not these systems are protective of water quality. If the experimental systems are found not to comply with the required performance standards, then the stormwater management control must be remedied or redesigned. Condition 14 of the permit states:
The Operational Phase Stormwater Management Alternative Design and Performance Monitoring Plan, prepared by VHB, Inc., dated 9/20/2010, and last revised 12/9/2010, shall not commence until the new-design alternative treatment system has been in place for one full year from the date of construction completion….4
Public records show the date of the start of the one-year time clock was July 12, 20135. The Vermont Stormwater Management Manual states that “(t)he study must be completed within three years of construction”6, and GMP went even further stating that they would monitor over the course of three years, not just complete the study in three years7. So, monitoring in accordance with Condition 14 should have started in the summer of 2014. It did not. Nor did it begin in 2015 and has not started as of early February (the date of my public records request). In fact, based on VHB’s memorandum stipulation of a three-year study, meeting the deadline of the permit expiration of Aug. 19, 2016, could not be met, even if they had started on time. So, without knowing it, ANR approved a study that had doomed compliance to failure from the get-go. Can ANR still renew the permit within their authority without backup data? The answer is yes. The more important question is, should they? They have no data to prove that these systems are functioning as permitted.
As an experimental treatment system in a high risk environment, ANR specifically limited the duration of the permit to five years to allow for the initial monitoring study. Five years makes perfect sense as it would have provided a sufficient amount of time to satisfy the condition of the permit, if construction had been completed when GMP had promised (Dec. 31, 2012). Construction was expected to require just over a year to complete, leaving one year following construction to start the three-year monitoring period. Then, at year 5, ANR technical staff could make a determination of whether to extend the permit, or to require GMP to remedy the shortcomings, or require the construction of the already approved stormwater control systems (i.e. not experimental). Has there been an explanation for not implementing the monitoring in accordance with the permit and the Vermont Stormwater Management Manual? There is no explanation that I have found.
The record shows evidence of half-hearted correspondence to start the process, including several sporadic email requests from ANR addressed to GMP’s consultants asking about the status of the monitoring plan, and the repeated responses by GMP’s consultants that they were continuing to look for different systems to monitor. But there is no evidence of threats of the issuance of a notice of violation, an issued notice of violation, assessed fines, or other administrative actions by ANR.
The question of why ANR has enabled GMP in its non-compliant behavior can only be speculated based on the evidence. One look at photographs of the stormwater control features provided by ANR leave little doubt that these experimental systems are not working out as well as envisioned in the approval. It appears that GMP’s consultants have been unable to identify a set of the experimental stormwater management features (i.e. level spreaders) to monitor that will consistently show compliance over a three-year period.
Of all the parties involved in the appeal of the stormwater permits in 2011, the PSB should be indignant at the state of the permits for this project. They had to review mountains of paperwork, endure four days of hearings plus a daylong visit to the site, and then write a 93-page decision.
Via of their final order, the PSB defended GMP’s permit at the conclusion of the appeal process with the understanding that GMP would comply with, and ANR would enforce, the permit conditions, including monitoring8. While I disagreed with the outcome, I respected it. The process was complete, the decision made, and with enforcement, the truth of this experiment in a high-elevation, sensitive environment would play out, albeit at the expense of the laboratory of Lowell Mountain. Except GMP did not comply with the conditions in the permit and ANR did not enforce it. Now, there is zero evidence to determine the impacts that this industrial project has had on water quality and the sensitive ecosystem of Lowell Mountain.
After the PSB upheld the permits, Energize Vermont followed up with an appeal to the Vermont Supreme Court. The court denied the appellant’s claims, giving ANR “substantial deference” in their interpretation of the Vermont Stormwater Management Manual. I can only respectfully speculate on the justices’ reaction to the behavior of the people in which they placed so much trust.
I expect ANR to defend their position by citing that GMP is monitoring thousands of feet and over a mile downstream of the Kingdom County Wind project. However, “the solution to pollution is dilution” is an archaic approach to water quality protection. My question is about what is happening to the sensitive and regulated headwater streams and wetlands between the experimental stormwater systems and those monitoring points way far away. You might as well sample way down in Lake Champlain and say, “See it’s all good” … oh, wait, that’s another story.
I visited near the site over a year after the completion of construction and observed evidence of breached treatment ponds and erosion downstream of the experimental stormwater management system, even in the limited view from my location.
The next experiment is set to begin construction very soon by Iberdrola at the Deerfield Wind project in southern Vermont on U.S. Forest Service land using the exact same experimental, unproven methods for managing stormwater. And with the next proposed utility wind projects in Grafton, Windham and Swanton, how will ANR be able to manage those projects, when they cannot manage the Kingdom Community Wind project?
1 Public Service Board, Lowell Mountain Wind Project Appeal, 7628 A-E.
2 Marketwired.com, GMP Press Release, September 6, 2011.
3 The VSMM is enacted through State legislation; it is a regulatory and statutory document.
4 Condition 14 of 6216-INDS.
5 First Annual Inspection Report, signed by Krista Reinhart of VHB, dated July 12, 2013.
6 VT ANR Stormwater Management Manual, subsection 2.5.2.
7 Page 5 of memorandum prepare by Krista Reinhart and Jeffrey Nelson of VHB, revised December 9, 2010, addressed to ANR.
8 In the Final Order, Docket 7628A-E, the PSB reference and rely upon the applicant and ANR to implement and enforce, specifically, Condition 14 of the 6216-INDS permit and Section 2.5.5 of the VSMM.
Editor’s note: This commentary is by Geoffrey M. Goll, who is a founding and managing partner of Princeton Hydro and a 26-year engineer who has been working on renewable energy issues in Vermont for the past six years. He was an expert witness for Energize Vermont during the stormwater and wetland permit appeals of the Kingdom County Wind project in front of the Vermont Public Service Board.
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