In Re Appeals of ANR Permits in Lowell Mountain Wind Project
98 A.3d 16
Vt.2014Background
- Kingdom Community Wind Project on Lowell Mountain: 21 turbines plus roads and infrastructure; project creates >27 acres of impervious surface, triggering an ANR operational-phase stormwater permit under 10 V.S.A. § 1264.
- ANR issued an operational permit approving stormwater treatment practices (STPs) using "level spreaders" rather than the VSMM default of 12–24 hours of extended detention (ED) for the one-year, 24-hour event to meet the channel protection standard.
- VSMM structure: Section 1 sets five treatment standards (issue is channel protection); Section 2 lists acceptable STPs and authorizes alternative STP designs; Section 3 provides voluntary credits for disconnection.
- Appellants (Energize Vermont et al.) argued ANR violated the VSMM because subsection 1.1.2 mandates ED for channel protection except when a project uses Section 3 credits; GMP did not use Section 3 credits.
- PSB reviewed de novo, but applied the agency-interpretation standard (compelling-indication-of-error) and upheld ANR, finding VSMM permits alternative-design approvals for new technologies via the individual permit process.
- Vermont Supreme Court affirmed, deferring substantially to ANR’s interpretation and concluding ANR’s allowance of level spreaders as a new-design alternative was neither wholly irrational nor inconsistent with VSMM objectives.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether VSMM §1.1.2 requires ED as the only way to meet channel protection absent §3 credits | §1.1.2 must be read to require extended detention unless project used §3 credits; ANR cannot deviate without amending VSMM | VSMM permits alternative STP designs (Section 2.5) evaluated via individual permit process; §1.1.2’s §3 cross-reference doesn’t preclude other alternatives | Court: No. Plain reading and VSMM context do not limit alternatives to §3-credit projects; ANR's interpretation is reasonable and entitled to deference |
| Whether ANR’s approval of level spreaders complied with VSMM treatment standards | Level spreaders don’t use ED, so approval violates channel protection standard as written | Level spreaders are a new-design alternative that can meet "applicable" treatment standards and be validated through the individual permit and post-construction study requirements | Court: ANR permissibly approved level spreaders as a new-design alternative subject to the VSMM’s individualized review and monitoring requirements |
| Proper standard of review for PSB appeal of ANR regulation interpretation | Appellants urged strict textual enforcement of VSMM | ANR/PSB argued for deference to agency expertise even after PSB de novo review | Court: Apply substantial deference to ANR’s interpretation (agency-authored regulation) while reviewing PSB decision de novo; appellants must show ANR’s interpretation wholly irrational |
| Whether allowing alternative designs would contravene statutory intent of permitting program | Appellants argued rigid textual compliance required to protect water quality | ANR/PSB argued statute favors tailored, minimal structural treatment, evolution of practices, and agency discretion | Court: Allowing individualized alternative approvals aligns with statutory intent to tailor management and permit evolution |
Key Cases Cited
- In re Peel Gallery of Fine Arts, 543 A.2d 695 (Vt. 1988) (agency must abide by its regulations as written absent lawful change)
- Conservation Law Found. v. Burke, 645 A.2d 495 (Vt. 1993) (regulations should be interpreted with drafters’ intent; de minimis exceptions must be explicit)
- In re Electronic Indus. Alliance, 889 A.2d 729 (Vt. 2005) (standard adopted by PSB for review of agency interpretation)
- Town of Killington v. Dep’t of Taxes, 838 A.2d 91 (Vt. 2003) (courts may defer to agency expertise post-de novo review where methodologies fall within agency competence)
- Travia’s Inc. v. Dep’t of Taxes, 86 A.3d 394 (Vt. 2013) (intermediate appeal standard mirrors original appellate standard)
- In re Johnston, 488 A.2d 750 (Vt. 1985) (agency decisions within expertise presumed correct absent clear and convincing showing)
- In re Verburg, 616 A.2d 237 (Vt. 1992) (interpret regulations in light of drafters’ intent)