Monday, May 26, 2014

Functional Flexibility

In re ANR Permits in Lowell Mountain Wind Project, 2014 VT 50

By Andrew Delaney

Technical noncompliance arguments work quite well sometimes; other times, not so much. This appeal falls into the latter category.

When a project has over twenty-seven acres of impervious surfaces, a stormwater-management permit is required. The Wind Project at issue in this case “is a wind-powered electric generation facility involving twenty-one wind turbines, along with access roads, a substation, an operations building, and power lines.” It needed a permit.

The Agency of Natural Resources (ANR) issued Green Mountain Power (GMP) a permit for strormwater management for this project. When the ANR issues a permit, it’s required to ensure that permit is, at minimum, consistent with the 2002 Vermont Stormwater Management Manual (VSMM). After the permit was issued, Energize Vermont, Inc. and a number of individuals appealed to the Public Service Board (PSB).

The PSB affirmed and this appeal followed. The only issue on appeal is whether ANR complied with its VSMM in issuing the permit.

There is a very-detailed discussion of the particular aspects of the VSMM relevant to the appeal. But let’s just grossly oversimplify it for brevity’s sake. The specific and only issue on appeal is whether GMP’s methods protect stream channels sufficiently. Appellants argue that GMP’s method of managing stormwater through “level spreaders”—collecting stormwater in a trough and then dispersing the water across a level edge, through a vegetated buffer—is noncompliant with the VSMM. The manual lists a number of acceptable stormwater treatment practices and “level spreaders” aren’t specifically referenced.

In general, there’s a requirement that to prevent stream-channel degradation, stormwater be detained in storage for 12 to 24 hours. There is, however, a section dealing with “alternative” stormwater treatment practices that gives the ANR some discretion in deciding whether to issue a permit—and that section specifically mentions the evolving nature of stormwater-management practices.

Appellants’ primary argument is that GMP has to use the extended-detention-storage practice, and doesn’t get to use any alternative treatment system because GMP’s system doesn’t fit within the exceptions in the manual.

The SCOV briefly discusses the PSB appeal, which was de novo. The PSB rejected appellants’ it-can-only-be-this argument for two reasons: (1) the section appellants rely on doesn’t contain any “only” limiting language; and (2)”consistent with” is not the same thing as strict compliance or conformity—it allows for some flexibility.

The SCOV begins by noting that it affords “substantial deference to an agency’s interpretation of its own regulations.” The PSB’s de novo review doesn’t change that.

The SCOV is not convinced “that ANR’s interpretation of the VSMM is irrational or unreasonable in relation to its intended purpose.” The SCOV concludes that appellants have added the “restrictive gloss” to the regulations themselves. Appellants set forth “an extremely narrow interpretation” of the relevant regulations, which the SCOV declines to follow.

Because it’s a deferential standard and the plain meaning does not include the restrictions appellants read into the regulation, the SCOV could stop there, simply concluding that appellants haven’t met their burden. But it doesn’t.

The SCOV also notes that the VSMM as a whole supports the concept that an alternative stormwater management system need not be achieved by only one path. The SCOV references the “rapidly evolving” language in the manual and explains that it’s not a my-way-or-the-highway standard.

The SCOV is quick to point out that this doesn’t mean that new-design alternative systems are without standards—there’s just some flexibility. There’s an individualized permit process and other safeguards—including a follow-up study—in place.

Finally, the SCOV notes that its interpretation is supported by the legislative intent behind the regulations. The legislature in fact noted evaluation and appropriate evolution of programs in the statutes. The SCOV notes that a narrow interpretation that doesn’t allow for alternative methods when appropriate would be contrary to that intent.

And so the issuance of the permit is again affirmed. The actual opinion in this case is very technical. Environmental law buffs may enjoy reading it. If I got anything wrong, feel free to let me know. 

 This summary is offered AS IS, no warranties—express or implied, use at your own risk, etc., etc.

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