The state Department of Energy and Environmental Protection (DEEP) has rejected Candlewood Solar’s latest attempt to move forward with plans for an embattled 20 MW solar photovoltaic project on Candlewood Mountain in New Milford.
The regulatory agency rebuked Candlewood Solar for another flawed attempt to win registration of a proposed stormwater management plan (SMP) under the broad General Permit process—and again raised doubts about whether the controversial “solar farm” will ever be created.
The May 12 decision represents a major victory for Cramer & Anderson Partner Dan Casagrande, who represents the Town of New Milford in its efforts to mitigate the project’s “massive” adverse environmental impact, including clear cutting of 54 acres of core forestland and the disruption of another 29 acres on the top of Candlewood Mountain and its surrounding slopes.
“This decision is against all odds,” Partner Randy DiBella, the longtime Town Attorney for New Milford, said of his colleague’s victory. Attorney DiBella called the decision comparable in magnitude to Attorney Casagrande’s March 24 Connecticut Supreme Court win in a major antitrust case concerning decades-old precedent on tying agreements for real estate brokerage fees.
Read More About Attorney Casagrande’s
Major Cases and Awards
“The DEEP’s decision is an affirmation of the Town’s significant and justified concerns about this invasive project and a major victory delivered by Attorney Casagrande,” said New Milford Mayor Pete Bass. “While we value clean and renewable energy, we don’t support the Candlewood Solar project because it would mean the clear-cutting of mature forestland, threaten or destroy wildlife habitats, and cause other environmental harm.”
Attorney Casagrande filed the Town’s petition Feb. 28 with DEEP, seeking a declaratory ruling rejecting General Permit registration for the SMP and instead requiring the stricter individual permit process.
The May 12 DEEP decision from Oswald Inglese, Jr., Director of the Bureau of Materials Management and Compliance Assurance, disapproves General Permit registration because it “fails to demonstrate compliance with numerous provisions of the General Permit.”
“… Candlewood Solar will need to obtain an individual permit pursuant to Conn. Gen. Stat. § 22a-430 if a discharge permit is to be issued for stormwater associated with construction of the Project,” Inglese wrote. “An individual permit will allow for the inclusion of terms and conditions in a permit that is customized for the particulars of the Project site.”
Inglese noted that “the technical judgments of my staff and a commenter regarding the Registration remain markedly different from those of Candlewood Solar.”
More dramatically, Inglese wrote that he has doubts, “given the three prior attempts under the General Permit, that even an individual permit can be issued for the Project … .”
That rebuke echoes skepticism expressed by DEEP Commissioner Katherine S. Dykes in March 2019 when she rejected an earlier SMP certification attempt for the project. Commissioner Dykes wrote at the time, “ … it remains unclear, especially given the substantial nature and extent of the deficiencies in the last registration it submitted, if Candlewood Solar will make any resubmission – either in the form of a registration or an application for individual permit.”
Candlewood Solar did resubmit shortly after the Town of New Milford’s pre-emptive declaratory ruling request in February, but the DEEP found grave flaws and causes for concern in the latest SMP.
Among the issues cited by Inglese in the latest rejection were that the plan:
- Does not maintain an adequate buffer to protect on-site wetlands/watercourses;
- Does not comply with Sections 5(b)(1)(A) and 5(b)(2)(C) of the General Permit requiring consistency with the 2004 Connecticut Stormwater Quality Manual for the design of post-construction stormwater management measures;
- Does not comply with Sections 5(b)(1)(A) and 5(b)(2) of the General Permit requiring consistency with the 2002 Guidelines for Soil Erosion and Sediment Control (Guidelines) for the design of construction, erosion and sediment control measures and site stabilization;
- Lacks sufficient justification of hydraulic and hydrologic parameters governing the design of post-construction stormwater management measures;
- Lacks sufficient documentation and justification of the ability to phase and construct erosion and sediment controls and post-construction stormwater management measures along steep and/or long slopes, and
- Lacks sufficient documentation of the ability of outlet protection measures at discharge locations to prevent adverse downstream impacts.
A memo to Inglese from engineer Chris Stone delineating problems and concerns notes that revisions to the Project raise a new threat to endangered species. “While Candlewood Solar received a letter from the [DEEP] Natural Diversity and Database Division noting that, provided certain conditions were met, the Project could proceed, since that time Candlewood Solar has altered the Project in a way that would threaten the continued existence of species listed pursuant to section 26-306 of the Connecticut General Statutes as endangered or threatened and result in the destruction or adverse modification of habitat designated as essential to such species.”
In addition to representing the Town in its efforts to oppose the solar Project through regulatory channels, Attorney Casagrande represents the group Rescue Candlewood Mountain and other concerned citizens in an appeal of the Connecticut Siting Council’s approval of the Project in New Britain Superior Court. A trial in the appeal began Dec. 4, 2018 and is ongoing.
The Siting Council approved the solar project in a declaratory ruling December 21, 2017, conditioned upon the SMP being approved by DEEP, as well as Candlewood Solar’s resubmission to the Siting Council of a revised development and management plan.
Candlewood Solar, LLC is a wholly-owned subsidiary of the Framingham, Mass.-based renewable energy company Ameresco, Inc.
Working With Cramer & Anderson Amid the Coronavirus
Cramer & Anderson’s attorneys continue to work remotely amid the coronavirus pandemic, or are working in offices that have only one attorney. They are accessible by phone or email and working with clients via Zoom, FaceTime and other digital tools. Calls to our offices in New Milford, Litchfield, Danbury, Kent, Washington Depot, and Ridgefield are being answered as usual.
Our attorneys are highly experienced in nearly 20 practice areas, including Personal Injury, Workers’ Compensation, Business, Corporate & Commercial Law, Estate Planning, Elder Law, Social Security Disability, and Immigration Law.