As the trial proceeds in Rescue Candlewood Mountain’s appeal of Connecticut Siting Council approval for a 20 megawatt solar photovoltaic facility in New Milford, Cramer & Anderson Attorney Daniel E. Casagrande this week filed a Petition on behalf of the Town of New Milford seeking a stricter permitting process for the project’s proposed stormwater management plan.
The solar power array is planned by Candlewood Solar, LLC for a 163-acre site on Candlewood Mountain. Electricity generated would be sold to utilities in Massachusetts and Rhode Island.
The appeal by Rescue Candlewood Mountain, a coalition of concerned citizens also represented by Attorney Casagrande, seeks to overturn the Siting Council approval of a declaratory ruling that no Certificate of Environmental Compatibility and Public Need was required for construction, operation and maintenance of the facility. That case is currently being tried in New Britain Superior Court.
The Town of New Milford’s petition to the state Department of Energy and Environmental Protection (DEEP), signed by Mayor Pete Bass, is a separate action targeting the environmental permitting process for the solar project.
It asks DEEP Commissioner Katie Dykes to issue a declaratory ruling preventing the project from proceeding under a General Permit for the Discharge of Stormwater and Dewatering Wastewaters from Construction Activities and instead require 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 … .”
An individual permit, Attorney Casagrande states in the petition, “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.”
A second part of the Town’s petition for a declaratory ruling requests that the period for comments by the Town and other interested persons in response to the pending application for registration under the General Permit and accompanying Stormwater Pollution Control Plan (SWPCP) be extended to 90 days after either the commissioner rules on the Town’s request for a declaratory ruling requiring an individual permit application, or 90 days from the current due date for comments of January 17, 2019.
Attorney Casagrande—a Municipal Law colleague of New Milford Town Attorney D. Randall DiBella—also asks in the petition that the Town be made a party or intervenor to the requested declaratory ruling proceeding, as well as to the pending application for authorization under the General Permit.
“The Town believes that the proposed project will or may unreasonably destroy or impair the public trust in the natural resources of the state,” the petition states.
Candlewood Solar, LLC submitted its application to the DEEP for registration under the General Permit earlier this month, accompanied by an SWPCP prepared by Wood Environmental & Infrastructure Solutions, Inc. The SWPCP was submitted to DEEP as required by the Connecticut Siting Council as a condition of its December 21, 2017, issuance of a declaratory ruling approving the project.
The Town intervened as a party to the Siting Council proceeding to raise numerous concerns about the project, and retained the engineering, landscape architecture, and environmental science firm Milone & MacBroom to review the developer’s plans for the project. Milone & MacBroom has reviewed the conceptual plans submitted to the Siting Council, and also has conducted an initial review of the SWPCP filed by the developer earlier this month.
Based on these reviews, Milone & MacBroom prepared an affidavit describing numerous significant concerns about the inadequacies in the SWPCP—and stating why the individual permit process for the SWPCP will better protect the waters of the state.
The affidavit says the SWPCP and related plans “lack the necessary information to assure that there will not be erosion and sedimentation caused by the [Project’s] construction activities that could impact the waters of the state,” according to the petition, and that “disturbing 83 acres of steep woodland is an unusual phenomenon in Connecticut, something that was probably not contemplated when the SWGP general permit regulations were adopted.”
“For the reasons stated in the … affidavit … the Town submits that the General Permit review process is simply unsuited to review of a project as huge and potentially environmentally disruptive as this … ,” the Town’s petition to DEEP states, adding, “Moreover, given the scale of environmental disruption to be caused by the Project, the more public review required in an individual permit application is warranted in the interest of fundamental fairness to the Town and other persons who may be adversely affected by the Project.”
Citing those same reasons, the Town requests a declaratory ruling to extend the time period for public comment on the developer’s application for registration under the General Permit until either 90 days after the Commissioner rules on whether to require an individual permit, or until April 2, 2019, which is 90 days from the date the application was filed with DEEP.
The Town further requests that the DEEP commissioner hold a hearing on the petition for a declaratory ruling, stating in the petition, “In a project of this scale and with such critical potential adverse impacts to the waters of the state, a hearing is necessary and appropriate to allow interested persons sufficient opportunity to participate in this process and to ensure the completeness and transparency of DEEP’s review.”
In seeking intervenor status to the requested declaratory ruling proceeding, as well as to the pending application for authorization under the General Permit, the Town seeks to introduce expert testimony and other evidence “regarding the inadequacy of the SWPCP in effectively controlling runoff, sediment and erosion from the Project site, thereby jeopardizing the on-site and off-site wetlands, vernal pools, and CTHs, as well as providing inadequate protection to downgradient properties,” according to the Petition, which also says the developer’s 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.”
Meanwhile, the trial is proceeding in Rescue Candlewood Mountain’s administrative appeal of the Siting Council’s declaratory ruling in favor of the project.
The appeal was filed Feb. 1, 2018, and in an Aug. 9, 2018, brief, Attorney Casagrande spelled out the errors committed by the Connecticut Siting Council in declaring no Certificate of Environmental Compatibility and Public Need was required for the construction, operation and maintenance of the solar power farm.
Rescue Candlewood Mountain contends that the Siting Council committed irreversible error by approving the project in the face of the developer’s failure to provide critical information on the effect the massive razing of forestland will have on important natural resources on the site, including several vernal pools and the upland habitats of the rare species that depend on the forest and the pools for their survival.
A 2017 Connecticut law requires denial of the fast-track declaratory ruling petition filed by the developers because DEEP told the Siting Council the project will have a materially adverse effect on this core forest. The brief argues that the Council improperly ruled the new law did not apply because the developer filed its petition three days before the effective date of the law.
After detailing numerous other ways in which the Council abused its discretion—including approving the project without requiring the developer to perform necessary environmental testing and studies—Attorney Casagrande argues the Siting Council’s “manifest rush to judgment … stands on its head the Council’s statutory mandate to balance the State’s energy needs with the preservation and protection of our ever-diminishing natural resources.”
In asking the court to reverse the Siting Council’s decision, Attorney Casagrande adds, “Certainly twenty megawatts of electricity to be sold to other states do not justify the destruction of … core forest, especially when the state’s environmental protection agency opposes the Petition and the record is devoid of the information necessary for the Council to intelligently strike the statutory balance. The Council acted illegally, arbitrarily, without substantial evidence, and in violation of Plaintiffs’ fundamental due process rights in stamping its imprimatur on a project with such serious and irreversible environmental consequences in the face of the wholesale deficiencies … .”
In addition to the organization Rescue Candlewood Mountain, the plaintiffs include Lisa K. Ostrove, Michael H. Ostrove, and Candlelight Farms Aviation, LLC.
Cramer & Anderson 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 Estate Planning, Elder Law, Estate Administration and Personal Injury to Real Estate, 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.