1 STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION Docket No. 252-10-08 Vtec

} In re Sheffield Wind Project } Amended Individual Stormwater Permit (No. 5535-IN DC.A) } (Appeal of Brouha et al. ) } }

Decision and Order

Appellants Carol Brouha, Paul Brouha, Greg Bryant, Do n Gregory, the King George School, Linda Lavalle, Robert Tuthill, and Dav id Zimmerman initially appealed 1 in October 2008 from a decision of the Vermont Agen cy of Natural Resources (ANR) issuing individual stormwater discharge permit No. 5535-INDC, covering the construction of the Sheffield Wind Project (the Pro ject) in Sheffield, Vermont. The permit underwent an amendment before the ANR, and, in late May of 2009, Appellants filed a notice of appeal from the amended individua l stormwater discharge permit (No. 5535-INDC.A) for the same project. The parties agr eed that the amended permit superseded the original one, and that it would be mo st efficient to incorporate the appeal of the amended permit in the ongoing case. Appellants are represented by Jared M. Margolis Es q., and Stephanie J. Kaplan, Esq.; Appellee-Applicants Signal Wind Energy, LLC an d Vermont Wind, LLC (referred to as in the singular as “Applicant” or “Vermont Wi nd”) 2 are represented by Ronald A. Shems, Esq., Andrew N. Raubvogel, Esq., Geoffrey H. Ha nd, Esq., and Elizabeth H. Catlin, Esq. The Vermont Agency of Natural Resource s (ANR) is represented by Judith

1 In addition, Jane Rollins was an appellant who lat er withdrew.

2 The amended permit lists only Vermont Wind, LLC as the “Principal Permittee” and does not show a co-permittee; however Appellee-Appl icants did not withdraw or dismiss Signal Wind Energy, LLC from this proceeding

.2

L. Dillon, Esq.

The Court issued two decisions on the parties’ mot ions for summary judgment, and on other pending motions, on September 29, 2009 a nd October 19, 2009, substantially narrowing the issues for trial. 3 On October 13, 2009, Appellants filed a more specific statement that further narrowed the i ssues in Questions 1 and 2 of the Statement of Questions. Thirteen days of trial we re held in this matter before Merideth Wright, Environmental Judge. During trial, Question 4 of the Statement of Questions was also resolved, as the parties recognized that no portion of the area proposed to be disturbed by the project was located at an elevatio n over 2500 feet above sea level. In addition, during trial the parties resolved Question 11 of the Statement of Questions by agreeing to a revision to Part III.A.10 of the Proj ect’s Permit 4 and Erosion Prevention and Sediment Control (EPSC) 5 Plan to state as follows:

3 The September 29, 2009 Summary Judgment Decision discussed the discrepancies between the initial statement of questions and the statement of questions filed in June 2009 regarding the amended permit, and established a consolidated statement of questions remaining after that decision. The numbe ring used in the present decision refers to the question numbers used in that consoli dated Statement of Questions.

4 The Permit at issue in this appeal (Vermont Wind Ex. 1), incorporates by reference an EPSC Plan narrative prepared by VHB Pioneer (also f ound in VW Ex. 1), and associated EPSC Plan sheets 5C-116 through 123 and detail shee ts 5C-601 through 603 prepared by James W. Sewall Co. (VW Ex. 2 and 2a). The Court n otes that the part and section numbers referred to in this revision and in the oth er conditions proposed by Vermont Wind appear in the Permit document itself (Ex.1), ra ther than in the Plan narrative or Plan sheets, although Vermont Wind’s memoranda refer to the revisions as being to the EPSC Plan. Also see n. 8 at p. 8 below.

5 Several acronyms are used throughout the evidenc e and the parties’ memoranda and other materials associated with this case and are p rovided here for the reader’s assistance: BMPs: Best Management Practices EPSC: Erosion Prevention and Sediment Control NPDES: National Pollutant Discharge Elimination Sys tem3

When site conditions between April 15 and May 15 ar e similar to winter conditions—such as snow cover, frozen ground, or satu rated soils— within the areas of planned earth disturbance, the a ppropriate winter restrictions on page 3.19 of the 2006 Vermont Stand ards and Specifications for Erosion Prevention and Sediment Control selecte d by the [On-Site Plan Coordinator] OSPC shall be applied to the portions of the site that are experiencing those conditions. Thus, as of the close of trial, Questions 1, 2, 3, and 7 remained to be addressed in the appeal. After trial, the parties were given the opportunity to submit written memoranda and requests for findings. Upon consideration of t he evidence and of the written memoranda and requests for findings filed by the pa rties, the Court finds and

concludes as follows.

Vermont Wind, LLC proposes to construct and operat e a wind electrical generating facility (the Project) on property on Gr anby Mountain and Libby Hill in

Sheffield, Vermont, near the headwaters of small 6 unnamed tributaries of Calendar Brook, Nation Brook, Annis Brook, Willoughby Brook, and Clark Brook. The Project consists of an array of sixteen wind t urbines, each located on a concrete pad, along a 16-foot-wide access roadway. The project also includes a permanent meteorological tower, which appears on the project plans and narrative but was not specifically at issue during trial. During construction, the access roadways will be constructed to the 25-foot width necessary for c rane access for the equipment used to

erect the wind turbine structures; at the conclusio n of the need for crane access, the Project’s permanent roadways will be reduced to the 16-foot width by seeding and mulching the areas outside that width.

OSPC: On-Site Plan Coordinator VWQS: Vermont Water Quality Standards

6 Many of these small streams are under one foot in width on the Project property.4

An electrical substation and a small operations an d maintenance building are also proposed as part of the Project. They are loc ated on the lower portion of the property, on either side of the project access road, near the public roadway. Electricity will be conducted by underground and above-ground t ransmission lines from the

turbines down to the electrical substation. The Pr oject is located adjacent to and will tie into an existing VELCO electrical transmission line . In the amended permit application now before the Court, the Project’s path or layout w as altered from that presented in the original permit application to decrease the total a rea of disturbed land, to minimize the need to work on steep slopes and erodible soils, and to reduce impacts on wetlands and

streams. The overall property on which the Project is locat ed consists of approximately

three thousand acres leased from Meadowsend Timberl ands, some of which has been logged in the past. The Project will follow the pa th of existing logging roads and use existing cleared areas to the greatest extent possi ble without adversely affecting wetlands or streams on the Project property. Addit ional logging by Meadowsend is anticipated to occur on approximately 500 acres of the overall project property over the next five years. Approximately 83.2 acres of the Project property i s located within the flagged

limits of construction. Within that limits-of-cons truction area, approximately 65.6 acres of the project property actually is proposed to be disturbed during construction of the project, including construction of the Project’s as sociated permanent and temporary stormwater management features. All the features a re capable of being constructed in lifts or stages to avoid equipment intruding beyond the required limits. The project is proposed to be constructed in a seq uence of segments or work

areas, not to exceed 7 acres of earth disturbance at any one time, working generally upwards along the project roadways from the lowest elevation to the highest, so that areas of disturbed earth are stabilized as the proj ect progresses. Exhibit 48 shows the5

relative sizes of the different work areas, and the potential for sequencing the construction in that manner. The project therefore has the characteristics of a linear project, as that term is used in the construction f ield, in that areas that are worked on earlier are completed and stabilized as new areas a re opened up, progressing along the Project roadways. The more rapidly that constructi on can progress through a linear project, the less time any one area of the project remains disturbed but unstabilized, thereby minimizing the risk of erosion. The Project required a variety of permits and appr ovals not at issue in the present appeal. With regard to the regulation of s tormwater discharge from the Project, it required two permits. The Project required one NPDES stormwater permit governing the discharge of stormwater from impervious surface s created by the project after it is fully constructed, sometimes referred to as its Oper ational stormwater discharge permit. The Operational stormwater permit for the project was approved without appeal, and became final. The Project required anot her NPDES stormwater permit governing erosion prevention and sediment control d ue to the flow of stormwater over disturbed earth surfaces during construction; that is the permit at issue in this appeal,

sometimes referred to as its Construction stormwate r discharge permit. Vermont Wind proposes to install all of the permanent stormwater management systems approved in the final Operational stormwater permit for each di sturbed area, prior to disturbance of the area to be served by those systems, so that thos e systems would function as supplemental features to control sediment and preve nt erosion during the construction of the Project, together with additional temporary e rosion prevention and sediment control measures. As a linear project, the pre-con struction and construction elements of the Project’s erosion prevention and sediment contr ol plans are combined and considered together. As described in testimony and in Part 2 of the Ver mont Standards and Specifications for Erosion Prevention and Sediment Control (Vermont Standards and6

Specifications) (VW Ex. 3, 2.4–2.8) construction pro jects pose the risk of exposing large

areas of disturbed soil to erosion from rain and st ormwater runoff during storm events. Erosion occurs at far greater rates to exposed soil s at construction sites than it does to soils that are stabilized by vegetation. Eroded se diment can be transported by stormwater into streams and wetlands, reducing water quality and damaging the habitats of fish and other aquatic organisms. Construction projects therefore must develop an er osion prevention and sediment control plan to minimize the amount of sed iment that erodes during the construction of the project (erosion prevention) an d to control the transport of any eroded sediment so that it does not damage water qu ality (sediment control). Depending on certain risk factors laid out in the V ermont Standards and Specifications, a project may be eligible to be considered under th e Construction General Permit, or may be required to obtain an individual stormwater discharge permit covering its construction activities. Appendix A of the applica tion form contains the risk evaluation protocol, which analyzes whether a project will invo lve steep slopes, highly erodible soils, the area of disturbed earth exposed at any on e time, the length of time disturbed earth will be exposed before temporary or final sta bilization, whether earth disturbance will occur upslope of streams, and whether stormwate r will pass through at least 50 feet of established vegetated buffer before entering a r eceiving water. Based on this assessment, the Sheffield Wind Project was not eligi ble to be considered under the Construction General Permit, but instead required an individual stormwater discharge permit for its construction activities. Logging and other clearing of vegetation on the P roject property, necessary to clear the proposed construction areas of trees and smaller vegetation, up to but not including the stage of digging up any stumps or roo ts of the cut trees and vegetation (“grubbing and stumping”), is covered by the Agency of Natural Resources Department of Environmental Conservation’s Acceptable Manageme nt Practices for Maintaining7

Water Quality on Logging Jobs, sometimes referred to as the AMPs. Such logging is not governed by the Vermont Standards and Specification s for Erosion Prevention and Sediment Control (Vermont Standards and Specificati ons) and the NPDES permitting program applicable to stormwater runoff during cons truction; rather, those programs are triggered by earth disturbance, that is, disturba nce of the soil surface. This distinction is recognized by Note 2 of the General Notes and Construction Specifications on Sheet 5C-601 of the EPSC Plan, whi ch states that all vegetation clearing is to be conducted in accordance with the AMPs and applicable permits. 7 However, some confusion has been imported into the E PSC Plan by the fact that the Construction Sequence and Phasing Notes, also on She et 5C-601 of the EPSC Plan, describes Phase 1 of the overall project as “Cleari ng of Vegetation” without distinguishing those aspects of logging and vegetat ion removal that do not involve

earth disturbance from those that do, such as Phase I, Note 7 involving “stumps to be removed” and chipped on site. Although Vermont Win d has proposed to add a condition to Part II.A.6 of the EPSC Plan (or of th e Permit, see n. 8 at p. 8 below) clarifying that the “[c]ontractor shall install all required sediment control devices within a given work area prior to disturbance of earth wit hin that work area” and that “[e]arth disturbance includes stumping and grubbing of clear ed areas,” the same note should appear on Sheet 5C-601 of the EPSC Plan. That is, t he “Erosion Control During Construction” notes requiring that the “contractor shall install all erosion control devices prior to the disturbance of any work area” must state that the requirement applies to the earth disturbance involved in removi ng stumps, that is, to “grubbing and stumping.” In addition to proposing compliance with the amend ed permit as issued by the

7 All references to the EPSC Plan sheets are to the edition of the Plan shown in Vermont Wind Exhibit 2a, unless reference to the earlier Exh ibit 2 Plan is necessary to discuss an issue in this appeal.8

ANR and with the proposed EPSC Plan, Applicants prop ose to comply with five additional conditions, presented here in the order i n which they would appear in the

Permit. 8 First, to clarify the sequence of sediment pond an d sediment trap construction, Applicants propose that the following requirement b e added to Part II.A.4 of the EPSC Plan (or of the Permit, see n. 8): The Permittee shall assure [that] construction of s edimentation ponds and sediment traps, where proposed on the site, is comple ted prior to upslope disturbance of areas [for which] these features are [designed] to provide large area sediment control in accordance with the 2006 Vermont Standards and Specifications for Erosion Prevention and Sediment Control. Second, to clarify the sequence and placement of sil t fence installation, Applicants propose that the following requirement be amended o r added as Part II.A.5 of the EPSC Plan (or of the Permit, see n. 8): [The Permittee shall assure that,] prior to earth di sturbance within any area of the site located within 100 feet upslope of a stream or wetland, silt fence shall be installed in accordance with the [20 06] Vermont Standards and Specifications for Erosion Prevention and Sedim ent Control, and [Plan] Sheet 5C-602, Detail H of the EPSC Plan, at an appropriate distance downslope from disturbed areas and upslope from suc h waters. Third, to clarify the sequence of sediment control d evice installation within each work area, and to clarify that the term “earth disturbanc e” includes “stumping and grubbing” of cleared areas, Applicants propose that the follow ing requirement be amended or added as Part II.A.6 of the EPSC Plan (or of the Pe rmit, see n. 8):

8 Vermont Wind’s Finding ¶ 134, which contains thes e proposed additional conditions, refers to them as being added to a specific “Part” of the “Project EPSC Plan.” Also see n. 4 at p. 2 above. However, it is the Permit, rathe r than the Plan sheets or narrative, that contains the numbered “Parts”; in addition, som e of the subsection numbering even in the Permit (VW Ex.1) does not appear to mat ch with the numbering proposed for the additional conditions. This decision notes the discrepancies, and requires Vermont Wind to provide a conformed copy of these p ermit conditions with the appropriate numbering.9

Contractor shall install all required sediment cont rol devices within a given work area prior to disturbance of earth withi n that work area. Earth disturbance includes stumping and grubbing of clear ed areas. Fourth, as discussed above, to resolve Question 11 of the Statement of Questions according to the parties’ stipulation, Applicants pr opose to add or revise Part III.A.10 of the EPSC Plan (or of the Permit, see n. 8) to state as follows: When site conditions between April 15 and May 15 ar e similar to winter conditions—such as snow cover, frozen ground, or satu rated soils— within the areas of planned earth disturbance, the a ppropriate winter restrictions on page 3.19 of the 2006 Vermont Stand ards and Specifications for Erosion Prevention and Sediment Control selecte d by the [On-Site Plan Coordinator] shall be applied to the portions of th e site that are experiencing those conditions. Finally, to correct an error in the orientation of s edimentation basin 62P due to the omission of depictions of a tributary of Calendar B rook on Sheet 5C-121 of the EPSC Plan (Exh. 2a), Applicants propose to revise that sh eet and add the following requirement as Part II.A.7 of the EPSC Plan (or of the Permit, see n. 8), as follows:

The location or orientation of sedimentation basin 62P, shown as “62P” on Sheet 5C-121 of the EPSC Plan (Exh. 2a) shall be mo dified [rotated] to maximize the area of undisturbed forested buffer be tween the area of earth disturbance and the adjacent Calendar Brook t ributary. This modification [shall] be implemented as a plan subst itution, documented by the [On-Site Plan Coordinator] on the appropriat e [ANR Department of Environmental Conservation] (DEC) form available fo r DEC review [as a field adjustment pursuant to Part II.F.4 of the Per mit.]

Even though stormwater discharges and process wast ewater discharges both fall within the NPDES program, the two types of discharge s have different characteristics and must therefore be regulated differently. Storm water discharges are precipitationdriven and episodic, and therefore variable in natur e, unlike the type of steady-state process wastewater discharge from an industrial pro cess or municipal wastewater treatment plant. That is, stormwater is characteriz ed by natural variability in flow10

amount, and physical and chemical characteristics, s uch as turbidity, temperature, and pH, independent of the effect of the regulated proje ct. Moreover, numerical limits on pollutants from process wastewater discharges are m onitored in the receiving stream during low-flow conditions, whereas by definition st ormwater discharges occur during storms, that is, during higher flow conditions in the receiving streams, when it is

difficult to assess what their effect will be on th e receiving stream after the storm is

over. As explained by EPA in its 1996 guidance on storm w ater regulations, the difficulty of applying numeric effluent limits to s torm water discharge stems from the fact that such limits are derived fr om methodologies designed primarily to calculate water quality impac ts from “process wastewater discharges which occur at predictable ra tes with predictable pollutant loadings under low flow conditions in rec eiving waters.” By contrast, storm water discharge is highly variable b oth as to flow and pollutant type and concentration, and storm water pe rmits are issued on a system-wide basis, thus rendering it largely incompa tible with numeric effluent calculation methodologies. In re City of Irving, Tex., Mun. Separate Storm Sewer System , 10 E.A.D. 111, n.13 (U.S. E.P.A. Environmental Appeals Board, 2001) (citations omitted). Because stormwater discharges are so highly variab le, the standard for their control is to apply a suite of best management prac tices or techniques (BMPs) tailored to the particular topography of the project and circum stances of the receiving waters, rather than to measure physical or chemical water q uality during the storm event. [T]he highly variable conditions associated with st ormwater discharges— including the intensity and duration of rainfall, th e fluctuation of pollutants, and the varying property uses and space limitations within the sub-watersheds—make the application of a numeric [w ater quality-based effluent limitation] or [technology-based effluent limitation] standard complex and nearly unfeasible. Fortunately, EPA regu lations, guidance and persuasive case law provide a simplified approa ch for regulating stormwater through NPDES permits: the use of “best management practices” (“BMPs”).11

In re: Stormwater NPDES Petition , No. 14-1-07 Vtec, slip op. at 17 (Vt. Envtl. Ct. Au g. 28, 2008) (Durkin, J.) (citing 40 C.F.R. § 122.44(k)( 2)). It is extremely important to understand that the E PSC Plan does not only consist of the physical erosion prevention and sediment con trol features that will be

constructed or installed on the site and are shown on the Plan sheets (the BMPs whose specifications are found in Parts 4 and 5 of the Ve rmont Standards and Specifications). Equally, the EPSC Plan also consists of the supervis ion, inspections, monitoring, and response practices, protocols or methodologies, also considered to be BMPs, which are administered on the site by the On-Site Plan Coordi nator and the EPSC Specialist, with oversight by ANR personnel. The On-Site Plan Coordinator will be supervised by Josh Bagnato, who has environmental compliance authority within the Permi ttee to take action to stop or modify construction activities, as will the On-Site Plan Coordinator as required by the Permit. Mr. Bagnato will be on site several days p er week during construction and the On-Site Plan Coordinator or designee will be on the site on a daily basis during active construction, as required by the Permit. In additio n, VHB-Pioneer will be the ESPC Specialist, in the person of Krista Reinhart and sup ervised by Jeff Nelson, both of whom are knowledgeable about the EPSC requirements for t he project and were responsible for development of the EPSC Plan. Contractors for the Project are required to meet with the Project personnel and ANR personnel, to be brie fed on all the requirements pertaining to the Project, prior to commencement of construction. The suite of structural BMPs for the Project inclu de eighteen features, shown in details on Sheets 5C-601 through 5C-603 of the EPSC Plan. Each of these BMPs functions to prevent the erosion of disturbed earth surfaces or to convey runoff so that sediment can be detained or settle out in an approp riate pond or other feature. The details are associated with alphabetic symbols used on Plan Sheets 5C-117 through 123

to show the location of the structural BMP features

.12

These symbols were shown as “typical” features on the version of the Plan sheets

in evidence as VW Ex. 2; some have been drawn out t o scale on the version of the Plan sheets in evidence as VW Ex. 2a. It is customary p ractice in the EPSC field to show the location of features as “typicals.” With the excep tion of the volumes to be used for the wet ponds (sediment ponds), which are found in the O perational stormwater permit and plans; all the information necessary to constru ct or install the actual feature at a given location is found in the instructions and con struction notes for the particular detail, found on the EPSC Plan sheets 5C-601 through 603, together with the Standards and Specifications for that particular detail in Pa rts 4 and 5 of the Vermont Standards and Specifications. The non-structural BMPs describe an iterative proc ess of inspection of the functioning of the BMPs during construction, monitor ing of turbidity in runoff flowing

from the site 9 and modifying or amending BMPs and the Plan as nec essary to achieve the required erosion protection and sediment contro l. Any minor field changes or more significant modifications to the BMPs or the Plan m ust be at least reported to the ANR and, depending on their significance, receive ANR app roval. The non-structural BMPs are designed to maintain control, in real time, of th e stormwater discharges from the

site.

9 The action level of 25 NTU in stormwater runoff from the site is an extremely protective level, as the VWQS in a stream under base flow conditions is a yearly average of 10 NTU. The Permit requires the OSPC to inspect runoff during or as soon as possible after a rainfall event, and, if there is visibly discolored stormwater, to inspect and maintain the (structural) BMPs and to sample th e runoff as it leaves the construction site. If the runoff exceeds an instan taneous reading of 25 NTU, the OSPC must evaluate the need for, and install, supplementa l structural BMPs necessary to correct the runoff as soon as practicable.13

Question 3 of the Statement of Questions Question 3 of the Statement of Questions asks whet her “the baseline studies and identification of existing uses” required by the an ti-degradation policy in § 1-03 of the Vermont Water Quality Standards (VWQS) must be done before the Permit can issue. In the Decision and Order issued on September 29, 2 009, the Court determined that the presumption of compliance found in the app licable statute, 10 V.S.A. 1264(g)(1) applies in the present case, and specifically that i t applies to the anti-degradation requirements embodied in § 1-03 of the VWQS, and tha t therefore in this appeal the Appellants bear the burden of re butting the presumption that compliance with the permit will en sure that all VWQS standards have been met, including the anti-degradat ion policy’s requirements that existing uses and water quality o f the receiving waters will be maintained and protected. Decision on Summary Judgment, at 11 (filed Sept. 29, 2009) (citing 10 V.S.A. § 1264(g), (h); Re: CCCH Stormwater Discharge Permits , Permit Nos. WQ-02-11, WQ-03-05, WQ03-06, & WQ-03-07, Findings of Fact, Concl. of Law, & O rder, at 40, n.10 (Vt. Water Res. Bd. Oct. 4, 2004). The Court went on to explain, in footnote 8, that, assuming that the Vermont Standards and Specifications establish the BMPs for construction permits, consistency with the Vermont Standards and Specific ations for construction-phase permits creates the statutory presumption of compli ance with all VWQS. Therefore, the Court ruled that the rebuttable presumption establi shes that the BMPs in place in the permit will achieve the requirements of § 1-03(C), but that Appellants could come forward with evidence at trial to rebut the presump tion. However, the Court also required that: [a]n agreed or otherwise established benchmark of the existing uses and existing quality of the receiving waters is necessa ry against which to measure that evidence. Such a benchmark is also ne cessary to determine during the life of the permit whether the requireme nts of the permit and the anti-degradation policy are being met. See Ame nded Permit, § J.14

Decision on Summary Judgment, at 12 (filed Sept. 29, 2009). It is important to note that the Court did not fin d the benchmark to be necessary in order to set any standards in the permit or to r equire any monitoring in the Project’s receiving waters during construction. Because stor mwater discharges are intermittent, precipitation-driven events characterized by high f low conditions, they must be managed by applying BMPs rather than by monitoring the concentrations of pollutants in the receiving waters. The numerical water quali ty standards are designed to monitor concentrations of pollutants in base flow condition s, when they are least diluted, not during storm events.

Instead, the Court found the benchmark to be necess ary to establish what are the existing uses and the existing quality of the recei ving waters. That is, on the one hand, VWQS § 1-03(B) requires that existing uses of all waters be maintained and protected, whether the waters are impaired or unimpaired. On the other hand, for waters “the existing quality of which exceeds any applicable wa ter quality criteria,” § 1-03(C)(1) requires them to be managed “to maintain and protec t the higher water quality and minimize risk to existing and designated uses.” 10 The parties did not agree on a benchmark to establ ish the existing uses or the existing quality of the waters potentially affected by the project. Accordingly, in October 2009 Applicant had a water quality study (t he Benchmark Study) performed by environmental professionals on the receiving waters potentially affected by the project. This study sampled the chemistry and physical chara cteristics of the receiving waters during a precipitation/storm event and during base flow conditions, on two separate days in October 2009. In October of 2009, the study also sampled the macroinvertebrate

10 Section 1-03(C)(2) also allows a “limited reducti on in the existing higher quality of such waters,” under certain circumstances, but not so far as to jeopardize the maintenance of “the level of water quality necessar y to maintain and protect all existing uses as well as applicable water quality criteria” required to be maintained “in all cases” by the final sentence of § 1-03(C)(1).15

aquatic biota of the streams, and characterized the streams’ aquatic habitat. The study also considered macroinvertebrate sampling performe d in October of 2006 during the planning stage of the Project. The Agency of Natural Resources has characterized the natural or ‘reference’ conditions of Vermont streams, through many site-spe cific field studies over the past twenty-five years, resulting in the “Biocriteria fo r Fish and Macroinvertebrate Assemblages in Vermont Wadeable Streams and Rivers” (Biocriteria). The Biocriteria reflect the physical, chemical, and biological charac teristics of the reference conditions, including the assemblages of typical macroinvertebr ate communities residing in the reference condition streams. Prior to the developm ent of the Biocriteria, water quality could only be assessed by measuring certain physica l and chemical parameters of the water, such as phosphorus, pH, dissolved oxygen, or tur bidity (suspended solids), which function as surrogates for whether the water quality is sufficiently good to support various aquatic biota such as macroinverteb rates and fish. The Biocriteria now allow a more direct measurement of the health of aq uatic biota and their habitat in streams, by establishing the expected assemblages of macroinvertebrates and, to some

extent, the fish, to be found in the reference waters minimally influenced by human activity.

The reference conditions in the Biocriteria establ ish the “attainable chemical, physical, and biological conditions for specific wat er body types against which the condition of waters of similar water body type [may be] evaluated.” Biocriteria, Implementation Phase at 2. Of the four different water body types reflected in the Biocriteria: small high-gradient streams, medium hig h-gradient streams, warmwater moderate gradient streams and rivers, and slow windi ng streams, the streams that are the receiving waters on the Project property are sm all high-gradient streams. The

Biocriteria contain reference conditions for three macroinvertebrate community stream categories, one of which is the category of small hi gh-gradient streams. The Vermont16

Water Quality Standards categorize waters of the st ate by class and management type. The receiving waters on the Project property fall w ithin Class B, and Water Management Type 2–3. The Biocriteria contain the expected departures from the reference conditions for each class and water manag ement type. The Benchmark Study revealed that the receiving wa ters on the Project property

are consistent with the macroinvertebrate Biocriter ia for small high-gradient Class B 2–3

streams. 11 The related physical and chemical sampling were c onsistent with the same level of quality. The Benchmark Study assumed all existing uses for the receiving waters, including as habitat for brook trout, as cla imed by Appellants and any other party, and analyzed their present status as supporte d by the existing water quality. The Benchmark Study is therefore adequate to estab lish the existing uses and existing water quality for the receiving waters on the Project property. The assemblages of macroinvertebrates for small high-gradient Class B2–3 streams found in the Biocriteria provide the benchmark for the receiving waters on the Project property. The September 29, 2009 Summary Judgment Decision ru led as to Question 7(b) of the Statement of Questions that material facts a re in dispute as to whether any more stringent requirements are necessary to meet the re quirements of the VWQS. Appellants were given the opportunity to present ev idence at trial as to whether any more stringent requirement is necessary to meet any specific standard in the VWQS. Appellants continue to propose additional condition s; Appellants’ proposed additional

conditions 1 and 2 are here addressed in connection with Question 3. Appellants’ first proposed additional condition se eks a full year of baseline monitoring to reflect year-round conditions in the streams before construction could

11 A single exception was found at one sampling sta tion (AN-1 on Annis Brook) at base flow, which yielded an “indeterminate” rating becaus e the ‘density’ value was near the threshold value. Further analysis of the chemical and physical properties at that station shows that it meets all applicable VWQS, has favorab le habitat conditions, and therefore conforms to the VWQS for Class B2–3 water s.17

begin. Because the Baseline Study characterized th e project streams, by use of the Biocriteria, as falling within a certain stream typ e, management category, and macroinvertebrate community, the Biocriteria for th at category of stream can be used as the benchmark. A year of monitoring would not a dd relevant data and has not been shown to be necessary to achieve or maintain water quality in those streams. Appellants’ first proposed additional condition the refore is not appropriate to be included in this construction stormwater permit. Appellants’ second proposed additional condition s eeks continuous in-stream monitoring of turbidity, pH, temperature and water fl ow during the entire construction period, together with fish sampling by multiple-pass electrofishing methods to provide population estimates and information on relative br ook trout ages. This proposed

condition misunderstands the nature of construction stormwater permitting. The purpose of the conditions in a stormwater permit ap plicable to the construction period is to prevent or minimize erosion of the exposed so il from the site and to control the migration of any eroded sediment so that it does no t violate the VWQS in the receiving waters. The BMPs, if correctly chosen and properly implemented, will have this result. Such in-stream monitoring during storm events, and f ish sampling of the brook trout population, might yield interesting scientific infor mation, if the sampling could be done without harm to the fish population, but it is not r elated to erosion prevention and

sediment control and has not been shown to be neces sary to achieve or maintain water quality in the project streams. Appellants’ second proposed additional condition therefore also is not appropriate to be included in this construction stormwater permit.

Questions 1 and 2 of the Statement of Questions Appellants narrowed the issues in Questions 1 and 2 by a more specific

statement dated October 9, 2009 and filed with the C ourt on October 13, 2009. Question 1 addresses the Project’s compliance with the general statutory water18

policy in 10 V.S.A. § 1250. 12 To the extent that it is even possible for a pro posed project to be said to “comply” (or not) with a general, hor tatory policy statement, Appellants did not present evidence that could support a concl usion that the EPSC Plan and Permit

before the Court violates or is inconsistent with t his policy. Judgment as a matter of law is therefore granted to Appellee-Applicants on Ques tion 1 of the Statement of

Questions. Question 2 of the Statement of Questions, as narrow ed by Appellants’ October 13, 2009 filing, raises questions of the Project’s co mpliance with certain subsections of the Vermont Water Quality Standards. As the Projec t enjoys a rebuttable presumption that the BMPs in the EPSC Plan and Permit, if proper ly implemented, will cause the construction of the project to comply with the VWQS , the issue here is whether the evidence presented by Appellants successfully overc ame that presumption. Three of the listed VWQS, like § 1250 of the statut e, simply present state policy, respectively, for water quality (VWQS § 1-02.A), ripa rian areas (VWQS § 1-02.C) and hydrology (VWQS § 1-02.E). To the extent that thes e statements have any regulatory effect, Appellants’ evidence did not show that the P roject would violate or be inconsistent with these policies, and did not in any event overcome the rebuttable presumption of compliance. The VWQS governing hydrology, VWQS § 3.01.C, is not applicable to this construction stormwater permit, as the construction itself, as distinct from the Project, has no effect on the hydrology of the area. If per manent features of the project have any effect on the hydrology of the area, they were dealt with in the Operational stormwater permit, which is final and not at issue in this appe al. For example, the wet ponds that

12 The other statutory section raised in Question 1 , § 1264(e)(1), allowing ANR to impose additional conditions in a permit, is simply a statement of the ANR’s authority. The question of whether any additional conditions s hould be imposed is addressed as appropriate in connection with the other specific q uestions remaining in the Statement of Questions.19

also serve a sediment control function during const ruction may be used as detention ponds to detain and slowly release stormwater durin g the operation of the Project, to minimize the Project’s effect on area hydrology, bu t that effect was analyzed and became final in the approval of the Operational sto rmwater permit. Appellants’ evidence simply did not overcome the r ebuttable presumption of the Project’s compliance with any of the remaining VWQS addressed in the more specific statement of Question 2. Although it is Appellants ’ burden to overcome the presumption, and not Applicants’ responsibility to b olster it, Applicants’ Benchmark Study, discussed above regarding Question 3 of the S tatement of Questions, provided evidence that the existing water quality meets the physical, chemical, and biological standards or indices, and support the full range of existing uses and aquatic biota, referenced in the VWQS. Appellants did present testimony that a wholesale breach and failure of a sediment basin, if it were to occur, could have the p otential to adversely affect the VWQS for turbidity, temperature, or pH, but did not sh ow either that such failure was likely, if the BMPs are properly implemented and mai ntained, or that such a failure could reasonably result in any specific exceedance of the VWQS in any specific receiving water.

Question 7(a) of the Statement of Questions Question 7 originally presented two separate issue s, which the Court and the parties have dealt with separately and have referre d to as Questions 7(a) and 7(b). Question 7(a) asks whether the Applicants’ Erosion Prevention and Sediment Control Plan (EPSC Plan) complies with specific sections of the Vermont Standards and Specifications for Erosion Prevention and Sediment Control (Vermont Standards and20

Specifications). The original section remaining fo r trial was in Part 3 13 , Step 4, ¶3 at page 3.8 of the Vermont Standards and Specification s: whether the EPSC Plan provides for prompt stabilization of disturbed areas. 14 As a basically linear project, the Project is antic ipated to proceed along the roadways, divided into work areas generally defined by their associated structural

EPSC measures such as sedimentation basins and the berms and drainage swales conducting water to the basins. The structural EPS C measures will be installed prior to disturbance of upslope areas drained by those featu res, which is the appropriate phasing plan for a project of this nature. Part II .H.2 of the Permit limits the maximum area of earth disturbance at any time to 7 acres, so that it is in the interest of the project developers to finish and stabilize the trailing edg e of the project so as to be able to open

additional areas of earth disturbance at the leadin g edge of the project. Part II.H.3 of the Permit requires that all areas of earth disturbance must be stabilized within 14 days of initial disturbance, an d on a daily basis thereafter.

13 In fact, Part 3 of the Vermont Standards and Spec ifications simply provides guidance for preparing EPSC plans; § 3.1 characterizes Part 3 as “a recommended approach to EPSC development,” except for the minimum requireme nts in § 3.3. Section 3.3 by its terms is only applicable to those projects that are eligible for coverage under the Construction General Permit. It does not provide r equirements applicable to individual construction stormwater permits, as such individual permits must be tailored to the particular site and will be individually reviewed a nd approved by the ANR. Parts 4 and 5 of the Vermont Standards and Specifications, on the other hand, function as a handbook for the proper design and installation of erosion control features (Part 4) and sediment control features (Part 5) and are applicab le to an individual permit. In addition, Note 3 of the General Notes on Sheet 5C-60 1 makes it clear that the project must comply with the Vermont Standards and Specific ations.

14 Applicants argue that Appellants failed to respo nd to Requests to Admit that the EPSC Plan complies with all relevant sections of th e Vermont Standards and Specifications, and that they should therefore be pr ecluded from addressing the ‘prompt stabilization’ issue that they had raised i n the original statement of questions. However, the Court will reach the ‘prompt stabilizat ion’ question based on the parties’ expectations that it was reserved for trial.21

However, this 14-day period represents an outside li mit of the period before stabilization, because specific notes on Sheet 5C-60 1, and specific requirements of certain EPSC details, require stabilization immediat ely upon completion of the EPSC feature or project structure. For example, Note 4 o f Phase 2B, involving construction of the permanent stormwater management systems, require s stabilization once final grades are achieved. Similar requirements pertain to Note 8 of Phase 2C, Note 12 of Phase 2D, and Note 19 of Phase 2E. The following sp ecific erosion control features also require prompt or immediate stabilization: Level Li p Ditch Turnout (Detail D); Rock Sandwich (Detail E) and Culvert Apron (Detail I). In addition, the notes on Sheet 5C601 governing erosion control during construction r equire stabilization of all disturbed areas not to be paved or rip rapped, and require imm ediate stabilization of slopes greater than 3:1. Most importantly, General Note 3 on Sheet 5C-601 of the EPSC Plan requires compliance with the Vermont Standards and Specifications. The specifications, for example, for Sediment Basins, at page 5.44, requi re that the embankment and emergency spillway be stabilized “immediately follo wing construction” and “[i]n no

case shall the embankment remain unstabilized for m ore than seven (7) days.” Thus, the berms, embankments and steeper slopes, as shown o n Sheet 5C-603 without specific notes, will be immediately stabilized pursuant to th e specific requirements in Parts 4 and 5 of the Vermont Standards and Specifications. In addition, during winter conditions, the notes on Sheet 5C-601 require areas of disturbed soil must be stabilized at the end of each work day unless no storm is fore cast for the following work day. Beyond the specific requirements for prompt or imm ediate stabilization, under

the Permit, the On-Site Plan Coordinator and the EPS C Specialist, as well as the ANR staff, have authority to stop construction activitie s if necessary to comply with the Plan and the Permit, as well as to require areas to be st abilized temporarily if repair or modification of necessary BMPs is impracticable bef ore an anticipated storm event. Appellants propose an alternative condition restri cting the area of concurrent22

disturbance to 2 acres, and requiring stabilization within 7 days. However, they have

not shown that the additional restriction is “neces sary to achieve compliance” with the VWQS. 10 V.S.A. § 1264(e)(1). Accordingly, the EPSC Plan and Permit provide for p rompt stabilization, and the 7-acre disturbed area, 14-day stabilization limits, w ith the additional specific stabilization requirements for various specific fea tures, represent an appropriate balance between progressing with construction and m anaging areas of disturbed earth to prevent erosion and control the transport of sed iment.

Supplemental Statement of Questions Appellants moved during trial to supplement their Statement of Questions to raise additional issues as to VW Exhibit 2a’s compl iance with Part 3 of the Vermont Standards and Specifications, arguing that such issu es could not have been raised earlier based on their analysis of the former versi on of the EPSC Plan, VW Exhibit 2. The Court at trial denied any supplemental question s based on features that were unchanged in Exhibit 2a compared to Exhibit 2. The Court left for the parties’ post-trial memoranda the question of whether Exhibit 2a is dif ferent from Exhibit 2. Exhibit 2a simply represents a different graphic d epiction of the information that was already contained in the application materials, the Permit and the EPSC Plan (Exhibits 1 and 2). That is, Exhibit 2a shows some of the features that were only shown as typical symbols on Exhibit 2 drawn out or graded out to scale. All the information that was necessary to Exhibit 2a was available in t he earlier materials, although the link to the information from the Operational stormwater permit was not made as clear as it could have been in Exhibit 2. In particular, Detail R of Exhibit 2, on Sheet 5C-603, refers the reader to “a table shown on this page” for the dimensions of each sediment basin,

that is, the volume of the basins. Without that inf ormation, it would not have been possible to grade out the sediment basins on the pl ans. Although no table is in fact23

shown on Sheet 5C-603, that information was intended to be drawn from the Operational stormwater permit that had become final . Note 3 of the Phase 2B notes on sheet 5C-601 of both Exhibit 2 and Exhibit 2a, gover ning Construction of Permanent Stormwater Management Systems, states clearly that, f or those features, “grading [is] to be conducted in accordance with permitted (GP 3-901 5) permanent stormwater management design.” This note provides the necessa ry information as to where to find

the basin dimensions in both Exhibit 2 and Exhibit 2a; the misleading reference to a

non-existent table has been removed from Detail R o n Sheet 5C-603 of Exhibit 2a. Moreover, none of the supplemental issues under Par t 3 of the Standards and Specifications relate to any of the differences bet ween Exhibit 2 and Exhibit 2a. Further, Part 3 of the Standards and Specifications, see n. 1 3, above, simply provides guidance and contains no mandatory provisions for EPSC plans for individual construction stormwater permits. In any event, the EPSC Plan and all its details comply with the Vermont Standards and Specifications, recognizing th at Parts 4 and 5 provide the Standards and Specifications for the specific BMPs. Accordingly, Appellants’ sixth proposed additional condition, to provide a full set of amended plans, fully graded out, is unnecessar y.

Question 7(b) of the Statement of Questions Question 7(b) asks whether, even if the EPSC Plan d oes meet the Vermont Standards and Specifications, more stringent require ments should be imposed to meet the VWQS. Appellants were given the opportunity t o present evidence at trial directed at the merits of whether any more stringent require ment is necessary to meet any specific standard in the VWQS. Appellants propose seven additional conditions. Ap pellants’ proposed

additional conditions 1 and 2 have been addressed i n connection with Question 3, above; Appellants’ proposed additional condition 5 has been addressed in connection24

with the discussion of “prompt stabilization” in Qu estion 7(a), above; Appellants’ proposed additional condition 6 has been addressed in connection with the discussion of the differences between VW Ex. 2 and 2(a) above. Appellants’ proposed additional

conditions 3, 4, and 7 are addressed here. Appellants’ third proposed additional condition se eks a full-time EPSC specialist or OSPC to be hired by ANR rather than by the Permi ttee, and to be overseen by the Environmental Court. On summary judgment the Court ruled that such a condition was not required as a matter of law, but allowed App ellants the opportunity to show at trial why such a condition should be required. App ellants did not present evidence to show that the supervision, inspection, monitoring an d reporting scheme established in the Permit and EPSC Plan would result in any violat ions of the VWQS. The Permit provides for ANR inspection and monitoring as well as the oversight provided by the On-Site Plan Coordinator and the EPSC Specialist. In addition, the ANR has independent inspection and investigation authority under 10 V.S.A. § 8005. Appellants’ fourth proposed additional condition s eeks a bond to cover the remedial costs of any BMP failure. Although on sum mary judgment the Court determined that the statute does not provide for su ch a bond, it left open the opportunity for Appellants to show at trial why suc h a condition should be required as “necessary to achieve compliance” with the VWQS. 1 0 V.S.A. § 1264(e)(1). As Appellants did not show that installation of the st ructural BMPs, application of the nonstructural BMPs, and the iterative inspection, monito ring, and response methodology required by the Permit would fail to achieve compli ance with the VWQS, they did not show the need for a bond to achieve compliance with the VWQS. Appellants’ seventh proposed additional condition is that a fifty-foot buffer be required to be provided along all streams and wetla nd boundaries. First, Criterion H in

Part II of the detailed risk evaluation that result ed in this project’s being classified as requiring an individual permit (found in Appendix A to the project narrative in VW25

Ex. 1) asks whether stormwater leaving the construc tion site will pass through at least 50 feet of established vegetated buffer before ente ring a receiving water. This criterion shows that higher risk projects requiring individua l construction stormwater permits may have less than a fifty-foot buffer to receiving waters. The project is designed to have a buffer of at lea st fifty feet to streams, except where stream crossings are necessary or where porti ons of the existing logging road are already located closer than that distance to stream s. In any event, the Vermont Standards and Specifications do not require a buffe r of any specific width either to streams or to wetlands. As described in the EPSC p roject narrative, the delineated wetlands on the site that are proposed to be affect ed by the project are all Class 3, not subject to state regulation under the Vermont Wetla nd Rules, and only approximately 0.09 of an acres of such wetlands are anticipated t o be affected. Further, the protection

of wetlands on the site is addressed in the federal Army Corps of Engineers permit and not by the Vermont Agency of Natural Resources. Al though a fifty-foot-buffer condition could be imposed if necessary to achieve compliance with the VWQS, Appellants did not show that such a buffer was nece ssary for that purpose in the limited areas that are not already designed to have that extent of a buffer (or more).

Accordingly, based on the foregoing, it is hereby OR DERED and ADJUDGED that amended individual stormwater discharge permit No. 5535-INDC.A is hereby GRANTED as issued by the Vermont ANR, based on the n arrative incorporated in VW Ex. 1 and the plans submitted as VW Ex. 2a in the p resent proceeding, and with the following additional conditions or revisions:26

1. The following language shall be added as Part II .A.4 of the Permit (see n. 8, above), and as a note in the EPSC Plan, to clarify th e sequence of sediment pond and sediment trap construction:

The Permittee shall assure that construction of sed imentation ponds and sediment traps, where proposed on the site, is comple ted prior to upslope disturbance of areas for which these features are d esigned to provide large area sediment control in accordance with the 2006 V ermont Standards and Specifications for Erosion Prevention and Sediment Control.

2. The following language shall be added as Part II .A.5 of the Permit (see n. 8, above), and as a note in the EPSC Plan, to clarify th e sequence and placement of silt

fence installation: The Permittee shall assure that, prior to earth dist urbance within any area of the site located within 100 feet upslope of a st ream or wetland, silt fence shall be installed in accordance with the 2006 Verm ont Standards and Specifications for Erosion Prevention and Sediment Control, and Plan Sheet 5C-602, Detail H of the EPSC Plan, at an appro priate distance downslope from disturbed areas and upslope from suc h waters.

3. The following language shall be added as Part II .A.6 of the Permit (see n. 8, above), and as a note on Sheet 5C-601 of the EPSC Pl an, to clarify the sequence of

sediment control device installation within each wo rk area, and to clarify that the term “earth disturbance” includes “stumping and grubbing ” of cleared areas: Contractor shall install all required sediment cont rol devices within a given work area prior to disturbance of earth withi n that work area. Earth disturbance includes stumping and grubbing of clear ed areas.27

4. Part III.A.10 of the Permit (see n. 8, above), sha ll be added or revised, per the parties’ stipulation, and an equivalent note shall b e added to the Winter Conditions

section on Sheet 5C-601 of the EPSC Plan, to state a s follows: When site conditions between April 15 and May 15 ar e similar to winter conditions—such as snow cover, frozen ground, or satu rated soils— within the areas of planned earth disturbance, the a ppropriate winter restrictions on page 3.19 of the 2006 Vermont Stand ards and Specifications for Erosion Prevention and Sediment Control selecte d by the On-Site Plan Coordinator shall be applied to the portions of the site that are experiencing those conditions.

5. To correct an error in the orientation of sedime ntation basin 62P on Sheet 5C-121 of the EPSC Plan (Ex. 2a) the following requirement shall be added as Part II.A.7 of the Permit (see n. 8, above), as follows:

The location or orientation of sedimentation basin 62P, shown as “62P” on Sheet 5C-121 of the EPSC Plan (Ex. 2a) shall be mod ified (rotated) to maximize the area of undisturbed forested buffer be tween the area of earth disturbance and the adjacent Calendar Brook t ributary. This modification shall be implemented as a plan substit ution, documented by the On-Site Plan Coordinator on the appropriate ANR Department of Environmental Conservation (DEC) form available for DEC review as a field adjustment pursuant to Part II.F.4 of the Per mit.

6. At any pre-construction meeting the EPSC Special ist, the On-Site Plan Coordinator, all personnel employed by Vermont Wind on the project, and any contractors working on any segment of the project s hall be made aware of the need to comply fully with the Permit, the EPSC Plan, the req uirements of the Vermont Standards and Specifications for Erosion Prevention and Sediment Control, and the Vermont Water Quality Standards.28

Appellee-Applicants shall prepare a clean conforme d copy of the Permit and EPSC Plan as approved by this decision, reflecting a ll the changes or clarifications, whether proposed by Vermont Wind or agreed by the p arties, as imposed by the Court, including all necessary detail sheets and any incor porated-by-reference tables or other documents from the operational stormwater permit. On or before September 10, 2010, a copy approved as to form by the parties shall be fi led with the court for the issuance of the judgment order in this appeal, and a copy shall be provided to the ANR for it to complete any ministerial tasks necessary to maintai n an approved copy of the Permit and EPSC Plan in its permit files.

Done at Berlin, Vermont, this 26th day of August, 201 0.

________________________________________________ _ Merideth Wright Environmental Judge