On behalf of the Town of New Milford, Cramer & Anderson Partner Dan Casagrande has filed a petition asking the Connecticut Siting Council to deny the proposed Development and Management Plan (DMP) for the 20 MW solar photovoltaic project planned by Candlewood Solar, LLC for a 163-acre site on Candlewood Mountain.
The petition, filed Feb. 28 on behalf of the Town and Mayor Pete Bass, is the second action by the Town in just over a month citing grave concerns about the “massive” adverse environmental impact of the project—following the Town’s petition submitted Jan. 16 to the state Department of Energy and Environmental Protection (DEEP) seeking a stricter permitting process for the project’s proposed Stormwater Pollution Control Plan (SWPCP).
That petition is still pending. It asks DEEP Commissioner Katie Dykes to issue a declaratory ruling preventing the solar power project from proceeding under a General Permit for the Discharge of Stormwater and Dewatering Wastewaters from Construction Activities—and requiring the developer to apply for an individual permit “because of the massive adverse environmental impact of the Project, including the proposed destruction of some 54 acres of core forestland on Candlewood Mountain and the resulting potential for substantial stormwater runoff and erosion during and after construction … .”
“As with the petition to DEEP in January, the Town of New Milford filed this new Petition out of concern for the potential negative impact this project would have on a sensitive area of Candlewood Mountain and on the Town generally,” Mayor Bass said. “The clear-cutting of mature forest, destruction of wildlife habitats, and significant overall environmental harm are not acceptable tradeoffs for the creation of renewable energy that would go to out-of-state consumers, not Connecticut utility customers. To safeguard our Town, we must take every step possible to mitigate the harm this project would cause.”
This week’s petition comes in response to the DMP submitted Jan. 28 by Candlewood Solar for the project, as required by the Siting Council’s Dec. 21, 2017, Final Decision and Order issuing a declaratory ruling approving the solar power project.
The petition is divided into two parts, the first challenging the DMP and the second asking that the Town be made a party or intervenor to the pending application for approval of the DMP, and to the Town’s request for a declaratory ruling to deny the DMP.
Attorney Casagrande cites three factors in the petition on which the Town is seeking the DMP denial: the DMP “fails to comply with the erosion and sedimentation control and stormwater pollution control standards set forth in the Department of Energy and Environmental Protection’s … regulations and guidelines with which the Decision requires the Project to adhere”; “the DMP fails to address or comply with accepted best engineering practices for controlling sedimentation, erosion and runoff from a project of this massive size and potential environmental disruption”; and “the DMP is in material conflict with other portions of the Decision.”
The second part of the petition says, “The Town believes that the Project will or may unreasonably destroy or impair the public trust in the natural resources of the state, and thus seeks to be made a party or intervenor to the above-requested declaratory ruling proceeding as well as to the pending application for approval of the DMP. The Town also requests the Council to schedule a hearing on this request.”
Additionally, the Town asks the Siting Council to extend the time for approving, disapproving or modifying the DMP beyond the current 60-day deadline, in order to schedule a hearing on the petition and/or conduct further proceedings.
The Town has retained the engineering, landscape architecture, and environmental science firm Milone & MacBroom, Inc. to review the DMP, as it also reviewed the proposed Stormwater Management Plan (SMP) and Stormwater Pollution Control Plan (SWPCP).
The petition to the Siting Council is accompanied by an affidavit detailing “numerous and significant concerns about the inadequacies in these plans” cited by Engineers Vincent McDermott, Edward Hart, and Ryan McEvoy of Milone & MacBroom.
“In summary, the plans submitted to the CSC as part of the D&M Plan are inadequate and lack the necessary information to assure that there will not be erosion and sedimentation caused by the construction activities that could impact the waters of the state … ,” the Milone & MacBroom affidavit says.
Among the points detailed, Milone & MacBroom says that “contrary to representations made by the petitioner, the hydrology of the site will be permanently altered and will impact adjoining properties”; the “Candlewood Solar project will require the clearing, grubbing, and regrading of a large block of land on steep slopes where it will be difficult to manage impacts”; and “the density of the solar arrays will severely restrict sunlight to the grass beneath the panels and make it very difficult to maintain the grass that will allow for its long-term health.”
The new petition furthermore cites additional material conflicts between the Siting Council’s approval decision and the DMP, including the lack of any sufficient decommissioning plan. “… [T]he Developer has submitted no evidence as to the effectiveness of the decommissioning plan in restoring the destroyed core forest areas,” the petition says. “No evidence has been submitted that the owner of the Property (who would lease it to the Developer for 20 years) has been consulted or is even willing to agree to the plan. The Developer has submitted no proof that it has commitments or agreements from sureties to secure the plan financially—a particularly glaring omission given the fact that Developer is a single-purpose entity created solely to lease the Property and operate the Project for its expected 20-year life. Indeed the Developer’s representative … testified bluntly before the Council that Ameresco, its parent, would not agree to commit to fund such a plan.”
The petition goes on to address inadequacies with the SMP and the SWPCP, saying, “As the Milone & MacBroom affidavit demonstrates, the SWPCP, SMP and related plans submitted with the DMP are wholly inadequate and do not provide assurance that the Project will not cause erosion and sedimentation.”
The Milone & MacBroom affidavit says, in part, “The plans do not show the limits of clear cutting of the 54 acres of core forest to be destroyed, the grading plans do not show how the topography will be regraded after removal of the trees and stumps and before restoration and implementation of site improvements, the plans lack critical details relating to drainage structures customized for this Project, and the proposed solar panels are too close together to allow for adequate sunlight to promote vegetation, all in contravention of customary engineering practice.”
The affidavit calls the stormwater drainage analysis “fundamentally flawed,” and says the phasing plan for construction “is simplistic and does not adequately address the potential erosion and sedimentation that should be anticipated from the clearing of 83.4 acres on a steep hillside.”
“In sum, the Town respectfully requests the Council to issue a declaratory ruling rejecting the DMP and requiring a resubmission that remedies the deficiencies pointed out in the Milone & MacBroom affidavit and the other conflicts … ,” the petition says. “The Town also requests the Council to hold a public hearing on the DMP. At the hearing the Town would submit the testimony of the signatories to the Milone & MacBroom affidavit in support of their professional judgment as to the DMP’s inadequacies, as well as other evidence showing conflicts between the DMP and the [Siting Council’s] Decision.”
This week’s petition follows the one filed with DEEP in January seeking a stricter permitting process for the Stormwater Pollution Control Plan (“SWPCP”), as well as intervenor status for the Town and an extension for the period in which comments are allowed. Candlewood Solar applied to DEEP for registration under the General Permit, and Attorney Casagrande argues in the January petition that requiring an individual permit “will better protect the waters of the state from pollution. The individual permit process will also afford the Town and other stakeholders a meaningful opportunity to review and comment on the developer’s proposed stormwater management plan.”
In addition to the Town of New Milford’s actions concerning the planned solar power project, the citizens group Rescue Candlewood Mountain intervened in the Siting Council proceeding to oppose the project out of concern for its potential to have significant adverse effects on the natural resources of the Town, region and state.
Rescue Candlewood Mountain also filed an administrative appeal of the Siting Council’s declaratory ruling in favor of the project. The trial of the appeal began December 4, 2018, in New Britain Superior Court and is continuing.
In its appeal, Rescue Candlewood Mountain argues that the project would cause the massive destruction of core forest and other adverse environmental impacts.
Partner Daniel E. Casagrande is a highly experienced attorney based in the firm’s Danbury office. His primary Practice Areas include Land Use & Environmental Law, Municipal Law, and Planning & Zoning Land Use issues. He has served as an outside Assistant Corporation Counsel for the City of Danbury from 1990 through the present.
Based in western Connecticut, Cramer & Anderson has a hometown sensibility, a strong regional presence, and a worldly outlook in Practice Areas extending from Personal Injury to Real Estate, Estate Planning, Divorce & Family Law, and much more. In addition to a flagship office on the Green in New Milford, the firm has offices in Danbury, Litchfield, Kent, Washington Depot, and a new office in Ridgefield, serving Fairfield County. For more information, see the website at crameranderson.com or call the New Milford office at (860) 355-2631.