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Ten Local Citizen Group v. New England Wind

ELR Citation: 40 ELR 20186
Nos. No. SJC-10585, (Mass., 07/06/2010)

Massachusetts' highest court affirmed a lower court decision upholding a state environmental commissioner' conclusion that a proposed wind farm project complied with the state's Wetlands Protection Act. The project will require certain streams to be bridged using open footed culverts. These culverts would be located two to eight feet from the banks of the stream and would not physically touch the bank itself. A magistrate recommended that the project not be approved, but the commissioner rejected the magistrate's conclusions, finding that the magistrate erred in applying bank performance standards to the open bottom culverts since the actual installation of the footings would take place in the buffer zone. An environmental group argued that the commissioner misinterpreted 310 Code Mass. Regs. §10.54(4)(a) when she concluded that the performance standards for work "on" a bank do not apply to the project's open bottom culverts. But the commissioner's interpretation of the preposition "on," limiting the applicability of §10.54(4)(a) to work performed physically on the bank, is not unreasonable and is entitled to deference. Moreover, there is substantial evidence in the record to support the commissioner's conclusion that the work will be performed in the buffer zone, and her decision was not arbitrary or capricious or based on error of law.