Comments on Energy Generation Siting Policy Commission

The Vermont Natural Resources Council has worked for 50 years to protect Vermont’s environment and give Vermonters a voice in development decisions that affect natural resources and their communities. We believe that developing renewable energy, both in Vermont and elsewhere, is necessary, that climate change is the most pressing environmental issue of our time and that a strategic but bold response is required in Vermont and across the globe.

We don’t believe environmental protection and renewable energy development are mutually exclusive goals. We think Vermont can address potentially competing interests and advance clean energy projects efficiently while protecting the state’s natural resources.

VNRC participates in state policy development and Section 248 proceedings at the Public Service Board. We also work closely with Vermonters at the local level. We were actively involved in the update of the Comprehensive Energy Plan, offering our own organizational comments as well as helping to lead the public engagement process to ensure that the on-the-ground perspective of Vermonters — including the state’s network of 100-plus energy committees — informed the end result. We feel confident that Vermonters were heard in that process, and we support the ambitious goal of meeting 90 percent of the state’s energy needs with renewable energy in 2050.

The 90 percent renewable by 2050 frame should guide our policy and decision making and must be met through an aggressive commitment to conservation and efficiency as well as developing and securing new, clean energy generation in Vermont and the region. That said, how we develop renewable energy matters. VNRC recognized the need to improve the process for siting and constructing energy facilities in Vermont, and we joined other conservation organizations in calling on Governor Shumlin to convene a commission to examine this very issue. Now that commission — the EGSPC — is wrapping up its significant charge.

We have appreciated the hard work of commission members, as well as the opportunity to comment previously. The commission has clearly worked to address issues raised by the public in its rigorous process, and VNRC appreciates that many of our own initial recommendations are reflected in some way in the current draft. Thank you for the opportunity to offer additional comments to the “EGSPC 3rd Draft Packaging of the Recommendations — April 3, 2013.” Find our further thoughts and recommendations below.

Overarching Comments and Recommendations:

Broad Recommendation: We are concerned that the EGSPC’s ambitious charge — under a compressed timeline — might not have offered sufficient time to research, analyze, synthesize and distill the kinds of policy, program and practice recommendations Vermont needs to balance renewable energy development, natural resource protection and community concerns. We also think it’s important that well-versed commission members lend their expertise and perspective on these issues into ensuing conversations about policy and practice changes.  We therefore urge the EGSPC to cite their recommendations as concepts and potential policy or practice changes and recommend an implementation process to refine certain recommendations. We also urge the EGSPC to recommend an implementation committee comprised of key legislative leaders, relevant agency officials and willing, per-diem paid members of the EGSPC to create and participate in a summer and fall process that allows further revision to recommendations, as needed.

Broad Recommendation: As the EGSPC’s recommendations currently reflect, we believe decisions for siting electrical generation should remain the purview of the Public Service Board; however, we believe that land use and natural resources issues are an important consideration in generation dockets before the PSB. Act 250 criteria should play a stronger role, and they need to be brought into the 21st century. While this may be part of the EGSPC’s considerations in Recommendation #17, we believe it’s important, and urge the EGSPC to specifically recommend updating the Act 250 the criteria to better protect natural resources, including addressing hydrology issues, fragmentation of habitat and forestland, as well as the reality of climate change — measuring, rewarding or penalizing greenhouse gas benefits or impacts.

In addition, the EGSPC should require greater specificity in the Section 248 process to understand how Act 250 criteria are considered and weighed against the public benefits of a project.  There should be criteria to understand in what circumstances undue adverse impacts to natural resources can be approved to achieve public good benefits.  We do not believe it is appropriate to approve projects that will have undue adverse impacts to the environment; and in the situation such projects are allowed to be approved, we need to understand under what conditions this would be allowed.

Broad Recommendation: VNRC urges the EGSPC to augment the use of bill-back as the primary revenue source for technical review of project impacts with a fee structure that provides a sufficient, sustainable funding stream to bolster the capacity and expertise available to the Agency of Natural Resources, Public Service Department and, potentially, Public Service Board. Greater resources, expertise and guidance is needed to evaluate projects, and their potential benefits and impacts. We believe directed funding that secures the staffing needed to balance important goals could improve the process and outcomes for all.  Such a fee could be assessed on a Kw/Kwh or MW/MWh basis. These fees should be reasonable and not overburdensome to energy developers, but should create a funding stream to pay for essential state review, including potential studies and supplemental information needed to make good, informed, unbiased decisions.

Increase Emphasis on Planning Recommendations:

Several of the EGSPC’s recommendations are aimed at improving protections for natural resources and local and regional interests. While VNRC supports a stronger and more specific role for regional planning, we have concerns about the lack of internal expertise and sufficient staffing capacity at Regional Planning Commissions (RPCs). We also want Vermont to avoid duplicative efforts or create layers of bureaucracy that make things unnecessarily difficult.

Many RPCs lack the energy expertise, understanding of transmission and distribution issues and statewide context that is essential to energy decision-making. The PSD can and must play an important role in ensuring that regional plans are rooted in the fundamental realities surrounding grid constraint, transmission, distribution, siting and other important considerations, and it seems clear that the EGSPC recognizes this pivotal role, as well as that of the ANR, in the RPC planning process. VNRC recommends that if RPCs play a greater role in energy siting, and that regional plans are accordingly granted greater deference in §248 processes, that there be a clear expectation that regional plans make a reasonable provision for renewable energy development within each region (24 VSA Chapter 117 §4302 (c)(7) requires RPCs to “encourage the efficient use of energy and the development of renewable energy resources”).  In addition, a process needs to be established to ensure state oversight (as was once envisioned through the council of regional commissions) to ensure regional plan conformance with this – and other – state planning and development goals set forth in §4202.

 Simplify Tier System: Recommendations #5 and #6

While VNRC understands and supports the goal behind making improvements to Vermont’s existing tiered process, we have concerns about the potential consequences of the tiering system.  Permit tiering systems can result in less environmental review than is necessary to protect resources. They can also be cumbersome, costly and bureaucratic. The state’s goal must be to advance projects but also to adequately protect natural resources. We appreciate the EGSPC’s recognition that this system will require further refinement by the PSD, PSB and ANR, and while we generally support the suggested tier sizes, we urge the EGSPC to:

  • Recommend that ANR develop natural resource screening criteria that could, in certain circumstances, bump a project up or down the tiering system based on potential likelihood of natural resource issues. Want to develop a 2.5 MW project in an unutilized, flat field far from water or fragile natural resources? It could potentially be considered in Tier 2. Want to develop a 350 Kw solar array adjacent to or in a significant wetland? That might bump the project review up to a Tier 2 or 3. The goal would be to have natural resource realities serve as a more of a determinative criteria that could bump the project review up or down the tiers.
  • Remove or strictly limit “self certification” opportunities for developers, which has been proven insufficient to protect natural resources when used for other types of permitting, and instead task the ANR to work in partnership with project developers to expedite the process and avoid natural resource issues.
  • Recommend that new and updated standards and guidelines to address recognized impacts to environmental resources be mandatory. This would include provisions for mitigation and/or avoidance of certain types of impacts to natural resource features. Guidelines should go through rulemaking or statutory approval so they are enforceable.

Recommendations #7 and #8: VNRC recommends the EGSPC consider and recommend a public notification model similar to that used for the large groundwater withdrawal permit process for Tiers 3 and 4 (and for certain Tier 2 projects, dependent upon potential likelihood of environmental impact). It’s our understanding that, in many cases, robust public outreach related to project development is already happening. Formalizing the process could provide citizens a known opportunity and process to foster better, earlier discussions about the project and create an opportunity for questions to be answered outside of the permitting process, potentially reducing conflict.  We suggest that the draft recommendations be amended to:

  • Require that the applicant hold a public informational meeting about the project 30 days before an application is submitted, and ensure adequate public notice for tier 2 projects.
  • Hold a second public information meeting once the application is complete.
  • Hold a final public informational meeting on the draft permit.

Recommendations #17 and #20

The EGSPC’s recommendations to charge the ANR with updating or creating new natural resource protection guidelines is important. Preventing damage to natural resources must be a commitment of the State of Vermont. This includes avoiding landscape-scale fragmentation, water quality impairments, impacts to wetlands and changes to hydrology. Avoiding significant water quality impacts is a complex challenge that requires holistic, integrated hydrology expertise and analysis. To address these issues VNRC urges the EGSPC recommend:

  • The ANR use necessary or existing tools, such as its “Biofinder” resource inventory, to assist RPCs with regional energy planning and help guide large-scale energy facilities to areas with minimum impact. The ANR should also use the “Biofinder” or other tools to inform (and develop guidelines for) avoiding landscape-scale fragmentation.
  • Specifically recommend the development of mandatory guidelines for mitigation and/or avoidance of certain types of impacts to natural resource features.
  • Specifically recommend that the ANR develop integrated hydrology protocol to consider a comprehensive and integrated evaluation of potential impacts to water resources, including groundwater, rather than a piecemeal consideration of impacts on specific water features (e.g., wetlands, streams, riparian management).
  • This also should include a hydrological and biological monitoring plan for Tier 3 and Tier 4 projects, and Tier 2 projects located in headwater watersheds.

Recommendation #21

  • VNRC urges the EGSPC to clarify the tiers for which monitoring compliance is required and require it of all Tier 3 and Tier 4 projects, as determined necessary by the ANR. If, due to specific natural resource values, the ANR urges other specific tiered projects to undergo monitoring, these areas too should also be monitored.
  • The EGSPC should charge the ANR to develop consistent monitoring protocols for specific resources (e.g., biomonitoring for streams, forest health).
  • VNRC urges the EGSPC to recommend expanded enforcement capacity at DPS, or in conjunction with ANR/Natural Resources Board, for this monitoring process.
  • As opposed to the bill-back funding mechanism, VNRC again recommends that the EGSPC charge the PSB with creating a fee structure that fairly but adequately raises the funding need to staff and/or monitor projects throughout the process.

ADD A RECOMMENDATION: #22

To bolster shared community benefits, the EGSPC should charge the PSD and PSB to work in partnership with utilities to establish guidelines for regional allocation of community benefits based on impact and turn those guidelines into “best practice” for projects in Tiers 3 and 4.

ADDITIONAL CONCERNS AND AREAS FOR IMPROVEMENT:

There are a few additional considerations and potential issues VNRC urges the EGSPC address including:

  • Clarifying and eliminating ambiguity around deference given to ANR and agency permits that do not always align with §248 criteria (e.g. water).
  • Deference should not prevent parties from challenging ANR decisions and rebutting and/or strengthening permit conditions with appropriate evidence.
  • As mentioned before, clarifying how the PSB weighs the “public good” in its decision-making process. The EGSPC should, again, recommend specific 21st century updates to Act 250 (reflecting climate change issues and more, as noted above) and direct the PSB and PSD to better clarify how the “public good” is measured and applied, especially in relation to impacts on the natural environment. This should be revisited routinely by state agencies to reflect lessons learned from installed projects, hydrologic and other ecological science, as well as the most recent climate science.
  • Avoiding conditions subsequent, i.e. the issuance of Section 248 permits with conditions that can be met after the project is issued a certificate of public good. This may be appropriate in limited situations, but all too often permits are issued with conditions that can be met at a later date, and parties cannot address the merits of whether the condition is adequate as part of the Section 248 hearing process.

Conclusion

We appreciate the EGSPC’s tireless efforts and dedication to helping Vermont address some of the complex — and controversial — issues that have intensified in the state over the last several years. There are many recommendations outlined in the 3rd Draft Packaging that will help balance important, and sometimes competing, interests. It remains essential, however, that Vermont’s commitment to climate change is front and center in our policy making across the board. The potential negative impacts to natural resources, waterways, wildlife and communities from climate disruption are severe. We must modernize our response, our tools and our state staffing accordingly to ensure that, in this instance, we design and construct energy generation swiftly but in a manner that protects our water, natural resources and communities. We must also recognize the significant public benefits in clean energy generation and find ways to measure that in science-based, fair and forward-looking ways.