By TIM FAULKNER/ecoRI News staff
PROVIDENCE — Superior Court Judge Michael Silverstein disappointed opponents of the proposed Burrillville power plant with his recent ruling to allow the town of Johnston to resell the water it receives from the Scituate Reservoir, the city-owned water supply that serves 60 percent of Rhode Island.
The April 23 decision means Johnston can keep its contract to resell water it buys from a public supply to Invenergy Thermal Development LLC, the Chicago-based developer that has struggled to find cooling water for its energy project.
The Conservation Law Foundation (CLF) filed the lawsuit, along with the town of Burrillville in 2017, as part of its effort to halt the nearly 1,000-megawatt, fossil-fuel power plant being considered for forestland in the rural community.
CLF was optimistic about the prospects of its lawsuit after Silverstein turned down an appeal by Invenergy in 2017 to dismiss the case.
Back then, Silverstein agreed with CLF’s assertion that the lawsuit needed to answer “a question of substantial public interest that cries out for a declaratory judgment.”
At the Aug. 20, 2018 court hearing, CLF argued that the phrase “other ordinary municipal water supply purposes” found in state law passed in 1915 precludes Johnston from reselling water to a third party.
The lawsuit already received a boost in January 2018 when then-Attorney General Peter Kilmartin offered his support by fling an amicus brief in the case. Kilmartin argued that the water agreement allows other wholesalers of public water to resell it to entities within or outside the state, thus straining the public water supply, especially during water restrictions that may be imposed during droughts.
Silverstein, however, said the $18 million water deal between Johnston and Invenergy “constitutes an ‘ordinary municipal water supply purpose.’”
CLF said it hasn’t decided yet if it will appeal the decision. CLF senior attorney Jerry Elmer said the ruling doesn’t mean the natural-gas/diesel-fueled power plant is justified.
“Today’s decision does not change the fact that Invenergy’s polluting fracked gas and diesel oil plant is unneeded and would cause unacceptable environmental harm,” Elmer said.
Pamela Marchand, executive director of the Bristol County Water Authority (BCWA), said she supports allowing Johnston to resell water to the power plant. There should be no restrictions on how water wholesalers like BCWA use the water it receives, no matter the source, she said.
BCWA joined other state water boards and communities who receive water from Providence as defendants in the case. BWCA supplies all of its 17,000 customers in Barrington, Bristol, and Warren with water from the Scituate Reservoir. The public water agency doesn’t currently resell to any entities outside of its region, but “it’s always a possibility,” Marchand said.
Eugenia Marks, a member of the Rhode Island Water Resources Board, hopes CLF appeals the decision.
“Water is a natural resource that is developed, treated, and managed in the public interest,” Marks said. “For one wholesale customer to use that resource, paid for by ratepayers of another system, to turn a profit is wrong.”
Providence Water, the city agency that manages the Scituate Reservoir, declined to comment on the court decision.
Water has been a controversial issue for the proposed power plant from the beginning. Both water boards in Burrillville rejected proposals to sell public water to Invenergy. Woonsocket also denied a request for water. After public outcry, Invenergy scrapped a plan to buy water from the Narragansett Indian Tribe in Charlestown. After finding out the use of the water, Fall River regretted a deal it made with a Rhode Island water trucking company to sell municipal water as a backup supply for the proposed power plant.
After the latest decision, Burrillville town manager Micheal Wood said Invenergy’s plan for cooling water is inadequate to supply water year-round for 20 years or longer. He expects the Energy Facility Siting Board (EFSB) to deny the application for the power plant, which it is currently deliberating.
“We are confident that the EFSB will see this charade for what it is,” Wood said.
For it’s part, Invenergy is pleased with the decision, which it considers a validation of its water plan.
“The project is moving forward as planned,” Invenergy spokeswoman Beth Conley said.
The EFSB is expected to issue a final decision on the application for the Clear River Energy Center this summer. If approved, the twin-turbine power plant would take about 2.5 years to build.