Monthly Archives: June 2011

Act 250 Criteria: Not Applicable? Not Your Decision, Environmental Court Says

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In a Jurisdictional Opinion issued earlier this year, the Vermont Environmental Court made clear that Act 250 applicants do not have the independent authority to determine which criteria might not apply to their permit application.

The case – In re Jurisdictional Opinion # 6-007: Wright Parcel Act 250 Subdivision, McBride Parcel Act 250 Subdivision Docket Nos. 55-4-10 Vtec & 56-4-10 Vtec (Feb. 23, 2011) – involved an appeal by Act 250 applicants regarding whether their Act 250 subdivision applications were complete.  Although the appeal has no bearing on any of the substantive Act 250 criteria, the decision is useful to any Act 250 applicant in that it spells out some of the basic requirements for ensuring that an application is complete when filed with the District Commission.

The issue in this case was whether the District #6 District Coordinator erred in rejecting the Act 250 applications as incomplete where the applicants had stated, under several criteria, that the criteria were “not applicable” because the subdivision would not affect the resources or characteristics protected by the criteria.  The Environmental Court ruled that it is the District Commission’s role to determine which criteria are applicable to any given permit application, and it is the applicant’s responsibility to provide the commissioners with sufficient information for them to make the determination.  Thus, the District Coordinator correctly rejected the applications as incomplete.

In this case, the applicants were proposing to subdivide two parcels of land into three lots per parcel.  The District Coordinator ruled that the applications were incomplete because under Criterion 9(B) (the primary agricultural soils criterion), the applications stated, “Criterion 9(B) does not apply to this application as no impact to any soils, primary agricultural or not, will occur due to the subdivision or sale by auction as no earth disturbance or construction of any kind is proposed as part of this application.”  After submitting these applications, the applicants later provided additional information about the agricultural soils on the parcels, including maps and a letter from the Department of Agriculture.  Additionally, the applicants also obtained state wastewater and potable water supply permits for each of the proposed subdivisions.  These permits were sent to the District Coordinator, and after receiving them, the District Coordinator believed that the Act 250 applications were intended to request approval for construction of houses, not simply for subdivision of the parcels.  The District Coordinator then requested additional information from the applicants.  The applicants met with the District Coordinator to discuss some of these issues and explain that they were seeking permits solely for subdivision, and that they were not planning to construct any houses themselves.  They also discussed the possibility of the District Coordinator reconsidering the decision that the applications were incomplete and the request for additional information; however, instead of formally requesting that the District Coordinator reconsider, the applicants appealed the decisions to the Environmental Court.

In its decision, the standard that the Environmental Court used was whether the applications provided “enough information about the property and its resources and characteristics to allow the District Commission to determine whether resources on the land must be assessed or analyzed under the Act 250 criteria for the project property as a whole, before the boundary lines are approved for the subdivision.”  The Court stated that, to decide the case, it was “necessary to determine which Act 250 criteria could potentially be affected by the proposed drawing of lot lines and sale of the lots separate from one another, without regard to what those lots might be used for by their purchasers.”  Because the Environmental Court has de novo authority in Act 250 appeals, it looked not only at the information provided to the District Coordinator at the time it decided that the applications were incomplete, but also at the information provided to the Court during the appeal.

Based on the information provided, the Court evaluated the Act 250 applications and determined that the applications were deficient under multiple criteria, including stormwater, floodways, wildlife and endangered species, primary agricultural soils, and earth resources.  Thus, the applicants were required to provide the additional information before their Act 250 applications would be reviewed by the District Commission.  The take-home message from this case for Act 250 applicants is to provide all of the information requested in the Act 250 application, and leave it to the District Commission to determine whether the criteria apply to the project or not.

Vermont Standard Offer Technology Caps Lifted by the PSB

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The Public Service Board has lifted the so-called “technology caps” applicable to the SPEED Standard Offer program in an Order dated June 3, 2011.  The technology caps limited any renewable technology sector — solar, wind, biomass, farm methane, landfill gas, and hydro — projects from filling more than 25% of the project queue for the 50 MW ceiling created under the SPEED statute (see section 8005(b)(2)).

The technology caps have been in place since the Board’s Order of September 30, 2009 and resulted in the need to create waiting lists for technologies that were oversubscribed (total projects exceeded 12.5 MW (25%)).  Many of the resource categories remained undersubscribed, including biomass, farm methane, landfill gas, and hydro.

In reaching its decision to lift the caps, the Board first reviewed the existing status of the standard offer program.  At present, 44 projects totaling 36 MW of capacity have executed standard offer contracts, or roughly 72% of the 50 MW ceiling.  But only 15 of the 44 projects have been constructed and are operating, as follows:

  • four solar projects (3.26 MW total),
  • nine farm methane (3.09 MW total),
  • one landfill methane (0.56 MW), and
  • one hydro (0.68 MW).

The total capacity of the 15 operating projects is 7.59 MW, representing 15% of the 50 MW ceiling.  It was thus apparent to the Board that the program was falling short of maximizing the amount of renewable energy that was being brought on-line.

The Board observed that the purpose of the technology caps was to balance the competing goals of technological diversity and rapid deployment.  However, “[g]iven that the technology caps have been in place since September 30, 2009, and there are projects in each technology category, it appears that the goal of rapid deployment should now take precedence over technological diversity.”

In order to preserve an opportunity for resource diversity, and to recognize that different technologies require different project-development times, the Board directed the SPEED Facilitator to admit projects on an alternating basis from the solar and wind waiting lists, beginning with solar.  If the program is not yet fully subscribed to the 50 MW ceiling by January 2012 and there are no projects on waiting lists, the Board may notify potentially eligible existing hydroelectric plants of the availability of a standard-offer contract.

With the technology caps lifted, several solar projects have moved from the waiting list to the queue, resulting in 6.2 MW in newly executed contracts.  Additional projects should be able to move on to the queue before the 50 MW ceiling is reached.