New Milford Seeks New Declaratory Ruling on Candlewood Solar

Anticipating a new request from Candlewood Solar LLC for stormwater management plan (SMP) certification from the state, the Town of New Milford filed a petition Feb. 28 with the Department of Energy and Environmental Protection (DEEP), seeking a declaratory ruling that would require a stricter type of SMP review.

New Milford Town Hall.

The petition, filed on behalf of the Town by Cramer & Anderson Municipal Law Partner Dan Casagrande, argues the planned 20 MW solar photovoltaic project on Candlewood Mountain should not be allowed to use the broad General Permit process “because of the enormous environmental consequences, risks, and implications” of the Project.

Instead of allowing General Permit consideration for the Discharge of Stormwater and Dewatering Wastewaters from Construction Activities, the new petition asks the DEEP Commissioner to require a more stringent individual permit application for the Project that would destroy core forest, as well as causing other environmental harm on a 163-acre Candlewood Mountain site.

SMP approval is Candlewood Solar’s last hurdle before work can begin on the Project, which the Connecticut Siting Council approved in a declaratory ruling December 21, 2017. The Siting Council’s approval is conditioned on the SMP being approved by DEEP, as well as Candlewood Solar’s resubmission to the Siting Council of a revised development and management plan.

Read the New Petition on Candlewood Solar

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 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 Project will have a 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,” the Feb. 28 petition says. “The gravamen of the Town’s petition is a request that the DEEP Commissioner require Candlewood Solar to submit an individual permit application that will afford the Town a reasonable time to prepare a careful and thorough response to Candlewood Solar’s revised stormwater management plan—which Candlewood Solar has taken almost one year to develop. The individual permit process also will trigger a public hearing to allow a robust and open vetting of the stormwater and erosion-control aspects of the Project and their consequences to the water and other natural resources of the state. By contrast, the regulatory period for public comment on Candlewood Solar’s request for authorization under the General Permit is only fifteen (15) days from the date of filing of the request, an extremely narrow and unrealistic window of time to provide meaningful responses to an application of this magnitude.”

New Milford has reason for optimism that its petition will receive careful review. In March 2019, DEEP Commissioner Katherine S. Dykes issued an extraordinary rebuke when she rejected Candlewood Solar’s stormwater management plan certification, citing substantial flaws and even raising doubts about the future of the embattled solar power generation Project.

At the time 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.”

In conjunction with a separate action at the time, Commissioner Dykes warned, “ … I may indeed exercise my authority under Conn. Gen. Stat. § 22a-430b(c) and require that Candlewood Solar obtain an individual discharge permit for the Project. I remain concerned about a number of the issues raised by the [Town of New Milford] and Rescue Candlewood Mountain.”

New Milford Mayor Pete Bass

“Our priority is protecting the landscape, environment and quality of life in New Milford on behalf of residents and taxpayers, and …  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,” New Milford Mayor Pete Bass said at the time.

“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,” the Mayor added. “We’re gratified the DEEP recognized the serious flaws with the stormwater management plan.”

In its March 14, 2019 decision, the DEEP rejected the Jan. 2, 2019 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,” the DEEP’s Notice of Rejection said. “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.”

The new Feb. 28 petition from the Town seeks two forms of relief, including a two-part declaratory ruling that first asks for rejection of the General Permit process “because of the enormous environmental consequences, risks, and implications of the Project, including the clearcutting of core forestland, the removal and grubbing of over 15,000 trees, the removal of other native vegetation, and the resulting potential for substantial stormwater runoff and erosion during and after construction.” 

The second part of the declaratory ruling, designed to protect the interests of members of the public and the Town, requests that the period for comments by the Town and other interested persons in response to the application for registration under the General Permit and accompanying Stormwater Pollution Control Plan be extended to 90 days after either:

  • the Commissioner rules on the Town’s request for a declaratory ruling requiring an individual permit application (assuming that ruling is a denial of the request), or
  • Candlewood Solar files its new request for authorization under the General Permit, whichever date is later.

“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 new application for authorization under the General Permit,” the Feb. 28 petition says.

In addition to the declaratory ruling, the petition seeks intervenor status for the Town in the SMP review process. “The Town’s application for party status should be granted so that it may participate by presenting evidence and otherwise meaningfully assist the Commissioner in reviewing the New Application and reaching a decision which minimizes the Project’s impact to the natural resources of the state,” the petition says.

“The Town respectfully submits that it is fair and appropriate for the Commissioner to decide the Town’s declaratory ruling petition without waiting for Candlewood Solar’s formal re-submission of its General Permit authorization request” says the Conclusion of the Feb. 28 petition, later adding, “An early ruling by the Commissioner to either require an individual permit or provide a reasonable extension of the public comment period will provide fair notice to Candlewood Solar, the Town and other stakeholders as to how to proceed in litigating a project of such important public concern.”

About Attorney Casagrande

Based in Cramer & Anderson’s Danbury office, Attorney Casagrande is the “Giant Slayer” among Connecticut counsel—a designation bestowed by the Connecticut Law Tribune for his high-profile Municipal Law work on behalf of towns and cities, notably in tax appeal cases. 

Cramer & Anderson Partner Dan Casagrande
Attorney Dan Casagrande

In July 2019, he won another prestigious award, being named a Marvin J. Glink Private Practice Local Government Lawyer of the Year by the International Municipal Lawyers Association (IMLA).

A highly-experienced attorney in private practice in Connecticut since 1986, who also focuses on Planning & Zoning Land Use and Land Use & Environmental Law, Attorney Casagrande has been retained to represent Connecticut municipalities and land use agencies in specialized assignments such as charter revisions, affordable housing appeals, construction projects and disputes. Attorney Casagrande’s municipal work has also included drafting public works construction contracts and redevelopment contracts, land use appeals, construction claims, takings disputes, condemnations, assessment appeals, and tax foreclosures.

He has served as an outside Assistant Corporation Counsel for the City of Danbury from 1990 through the present, and has served multiple-year engagements as Town Attorney for New Milford and New Fairfield. Additionally, Attorney Casagrande has been retained for special counsel assignments on behalf of Ridgefield, Middlebury, Southbury, New Milford, Waterford, Cheshire, Bethany, Beacon Falls, and the City of Waterbury, for which he handled a complex and “historic change” in municipal government.

A signature example of Attorney Casagrande’s work is the 1998 Union Carbide appeal of the municipal tax assessment valuation of its Danbury, Conn., headquarters, equating to a $307 million market value. As outside Assistant Corporation Counsel, Attorney Casagrande represented the City of Danbury. The trial court upheld the City’s valuation after a 24-day trial, Union Carbide appealed, and Attorney Casagrande ultimately prevailed before the Connecticut Supreme Court, safeguarding $10 million in tax revenue for the City.

About Cramer & Anderson

Cramer & Anderson LLP serves clients from six offices in western Connecticut with a hometown sensibility and a worldly outlook. In addition to Municipal Law, Planning & Zoning Land-Use, and Environmental Law, the firm’s attorneys also handle Personal Injury, Divorce & Family Law, Workers’ Comp, Immigration, Elder Law, Estate Planning and more.

The flagship office is located in a historic structure on the Green in New Milford. Additional offices are located in Danbury, Litchfield, Kent, and Washington Depot, and Ridgefield, serving Fairfield County. For more information, see the website at crameranderson.com or call the New Milford office at (860) 355-2631.