State Department of Environmental Protection (DEEP) Commissioner Katherine S. Dykes issued an extraordinary rebuke this week to the developer planning a 20 MW solar photovoltaic project on a 163-acre Candlewood Mountain site when she rejected Candlewood Solar’s stormwater management plan certification, citing substantial flaws.
In part of her March 14 decision, raising doubt about the future of the embattled solar power generation project, Commissioner Dykes wrote “ … 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.”
“The Town is grateful to the commissioner for recognizing the substantial defects in the filing,” said Cramer & Anderson Attorney Dan Casagrande, who represents the Town of New Milford in its quest to protect Candlewood Mountain. “The Town believes that the proposed project will or may unreasonably destroy or impair the public trust in the natural resources of the state.”
“We’re gratified the DEEP recognized the serious flaws with the stormwater management plan,” said New Milford Mayor Pete Bass. “As I have previously stated, we don’t support this project because it would mean the clear-cutting of mature forestland, threaten or destroy wildlife habitats, and cause other environmental harm—all to create energy for out-of-state customers. Our priority is protecting the landscape, environment and quality of life in New Milford on behalf of residents and taxpayers, and today, thanks in large part to the work of Attorney Casagrande, the townspeople have won a key round in this fight to safeguard the town’s environmental integrity.”
Specifically, in the March 14 decision, DEEP rejected the Jan. 2 registration submitted by Candlewood Solar, LLC seeking coverage for its solar project under the General Permit for the Discharge of Stormwater and Dewatering Wastewaters from Construction Activities.
“The registration is rejected because it fails to meet the requirements of the General Permit,” reads DEEP’s Notice of Rejection. “As documented in the attached memorandum, a review by Department staff and observations of site conditions by Department staff during a February 7, 2019 site visit indicate that the stormwater analysis, which is the basis for the design and sizing of stormwater controls, is flawed and that the Stormwater Pollution Control Plan (“Plan”) is lacking elements necessary to demonstrate the appropriateness and effectiveness of the proposed construction and post-construction stormwater management measures.”
In summarizing the failings, DEEP made these judgments of Candlewood Solar’s stormwater plan:
• Is not representative of and lacks information regarding the existing topographic, geologic and hydraulic site conditions necessary for the design of erosion and sediment controls and long-term stormwater management measures ( detention/infiltration);
• Lacks a detailed construction sequencing, grading and phasing plan;
• Does not identify naturally occurring and man-made landscape features (roadways, stonewalls, small streams, intermittent seeps, naturally eroded gullies, steep slopes, and rock ledges) that will direct and channelize stormwater flow;
• Lacks documentation of adequate erosion and sediment controls along steep and/or long slopes; and
• Lacks documentation of adequate outlet protection at discharge locations to prevent adverse downstream impacts.
DEEP’s rejection rendered moot the Town of New Milford’s petition filed in January seeking a stricter permitting process for the proposed stormwater management plan, filed on behalf of the Town by Attorney Casagrande.
The petition sought a declaratory ruling preventing the project from proceeding under a General Permit, and instead 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 … .”
Also on March 14, DEEP Commissioner Dykes released a decision not to issue the declaratory rulings sought by New Milford, which also included a request that the period for comments by the Town and other interested persons in response to the application for registration under the General Permit be extended.
“… there is no longer a registration pending with the Department. There being no registration, there is no reason to extend the public comment period regarding this registration. As such, I am deciding not to issue a ruling regarding that portion of the Petition seeking an extension to the public comment period for Candlewood Solar’s registration,” Commissioner Dykes wrote.
“I am also, in this declaratory ruling proceeding, declining to exercise my authority to require that Candlewood Solar obtain an individual discharge permit for the Project, although not for any of the reasons cited in Candlewood Solar’s objections,” Commissioner Dykes wrote. “I recognize that with the rejection of Candlewood Solar’s registration, nothing prevents Candlewood Solar from resubmitting a revised registration seeking coverage under the General Permit. Nevertheless, with the rejection of Candlewood Solar’s registration, there is no longer anything pending before the Department and 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.”
Commissioner Dykes noted she was not precluding issuance of a ruling in the future requiring Candlewood Solar to seek an individual permit.
The memorandum accompanying DEEP’s Notice of Rejection lists 18 “substantial flaws” with the stormwater management plan, and says, “The primary purpose of this memorandum is to highlight major deficiencies in the application and is not intended as a complete and final list. Without the aforementioned issues addressed, continuing further with a review at this time would not be productive.”
This week’s DEEP decision comes as a separate petition filed in February is still pending. It asks the Connecticut Siting Council to deny the proposed Development and Management Plan (DMP) for the solar power project.
The Feb. 28 petition, also filed by Attorney Casagrande, is the Town’s response to the Development and Management Plan (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 project.
In that petition, Attorney Casagrande cites three factors 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.”
A 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.
Meanwhile, a trial is proceeding in New Britain Superior Court on the group Rescue Candlewood Mountain’s administrative appeal of the Siting Council’s declaratory ruling in favor of the project. In its appeal, Rescue Candlewood Mountain argues that the project would cause the massive destruction of core forest and other adverse environmental impacts. The trial began December 4, 2018.
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.