Court rules for protection of wetlands, water quality and against Borrego Solar and AD Makepeace in lawsuit challenging 65-acre ground mounted industrial solar project on rare Pine Barrens forest
Town’s April 2021 permit under Wetlands Bylaw not adequate, residents have legal standing to pursue the case
Meg Sheehan, Attorney
On January 11, 2023, Superior Court Judge Elaine Buckley issued a decision upholding the rights of Wareham residents to pursue a lawsuit against Borrego Solar Corporation to protect wetlands and waterways from a large industrial scale solar project and sand and gravel operation proposed by AD Makepeace Co. and Borrego at 140 Tihonet Road. The operation will clear-cut 65 acres of pristine Pine Barrens forests and harm wetlands, water quality and wildlife habitat according to the lawsuit. AD Makepeace owns the land and is operator of the aggregate mining company, Read Custom Soils of Carver. Makepeace plans an industrial scale earth removal operation to extract about $9 million in sand and gravel before Borrego installs its solar project. The earth removal operation will level one of the region’s highest hills, located on Tihonet Pond. In 2021, Makepeace CEO Kane inaccurately claimed to the Conservation Commission that the earth removal operation is exempt from permitting and earth removal fees because it is an “agricultural” project. After the earth removal operation, Makepeace will lease the land to Borrego to install about 47,000 solar panels and batteries. In about 20 years, the solar panels will be removed and the project decommissioned.
The residents (plaintiffs) filed the lawsuit on June 6, 2021 asking the court to invalidate the wetlands permit issued by the Town Conservation Commission on April 25, 2021 under the Town’s Wetland Protective Bylaw. The permit being challenged is called a wetlands order of conditions. The purpose of the Town’s Wetland Protective By-law is to protect water supplies, groundwater, fisheries, wildlife and habitat, and prevent flooding, water pollution and other harmful impacts. The lawsuit claims the Town’s order of conditions permit is not strong enough to carry out the purpose of the By-law to protect these interests.
Borrego Solar filed a motion with the court to dismiss the lawsuit claiming the residents lack legal standing and will not be harmed by the project. Judge Buckley disagreed citing harm to the residents’ interest in clean water, preventing pollution and flooding, and protecting fisheries including the unique alewife fishery migration route on the Wankinko River, wildlife habitat and the residents’ recreational use of Tihonet Pond. The court decision relies extensively on information in February and March 2021 letters to the Conservation Commission by Community Land and Water Coalition and Wareham Land Trust about the harm to wetlands interests from the solar project and mining operation.
“This is a significant victory in the effort to protect our drinking water, forests, and waterways from improperly sited large ground mounted solar projects, AD Makepeace’s industrial sand and gravel operations, and reckless industrial development,” said Meg Sheehan an attorney with the CLWC non-profit group.
Borrego and Makepeace have already installed 330 acres of industrial ground mounted solar projects spanning miles from Carver to Wareham. In Wareham at its 160 Tihonet Road mining and solar site, Makepeace conducted a multi-year earth removal operation eliminating at least 40 acres of “Priority Habitat” for plant and animal species protected under the Massachusetts Endangered Species Act. In addition to the 140 Tihonet Road site, AD Makepeace and Borrego plan projects at 150 Tihonet Road and 27 Charge Pond Road. The three proposed Wareham solar projects will clear-cut 174 acres, bringing the total acres of forest clear-cut and strip mined for solar in the Wareham-Carver area to over 500 acres.
The Court’s Decision says the Conservation Commission did not adequately address the cumulative impacts of the existing and proposed Makepeace and Borrego solar projects in Wareham. The two proposed solar projects at 150 Tihonet Road and 27 Charge Pond Roadwere approved in 2020 but the permits expired. Construction has not started. The new owner, New Leaf Solar has asked the Wareham Planning Board to extend the permits for another two years. The Planning Board is meeting on January 23, 2023 at 7 p.m. to decide on whether to extend the permits. A broad coalition is opposing the extensions saying New Leaf must reapply for the permits due to new information and numerous factual and procedural defects in the 2020 approvals.
Next, the case will move forward in court to the next state. Both parties will submit briefs on whether the Conservation Commission permit is was adequate to protect wetlands under the By-law.
Court’s January 11, 2023 Decision here
Lawsuit challenging Wetlands Order of Conditions here
Jim Kane’s March 2021 letter to the Wareham Conservation Commission in 2021 here
Borrego-Makepeace application for solar project to Wareham Conservation Commission here
Wareham Wetlands Protective By-Law here
Community Land & Water Coalition comments to Wareham Conservation Commission here: