MIDDLEBURY — A Burlington-based solar development company has worked for more than a year to gain approval for a large-scale solar array on farmland owned by Middlebury College, which would help the college achieve its goal to be 100% renewable by 2028.

But after clearing every hurdle except one, Encore Renewable Energy could now be sent back to the drawing board.

It’s a process that Encore representatives say makes it increasingly difficult for solar developers to build, and in turn complicates Vermont’s ability to reach the goals outlined in the Global Warming Solutions Act passed last year. Vermont is legally required to drastically reduce emissions in the state by 2050.

Pushback to the project comes largely from Vermont’s Agency of Natural Resources, which argues that the solar project may jeopardize grassland bird habitat that’s already disappearing from the Northeast. A solar array would prevent the birds from nesting on the 30-acre parcel.

Grassland birds, such as the bobolink, commonly nest in farmers’ hayfields. Young birds are often killed when those fields are mowed in the spring. Organizations like the Bobolink Project compensate farmers for skipping the first cut, giving the birds a chance to fledge.

Solar developers must prove that the areas they wish to develop do not infringe on “necessary wildlife habitat.” In cases of incursion, developers often engage with the Agency of Natural Resources to mitigate the impacts.

Encore Solar argues that the Agency of Natural Resources didn’t raise concerns about grassland birds until late in the process. In turn, the agency has argued that Encore didn’t agree to mitigation measures until this month, when the state’s Public Utility Commission hearing officer had already recommended that the commission not approve the project.

Encore contends that its mitigation plan creates a net positive situation for the birds. Farmers who manage the proposed site still hay the fields when birds would be nesting, so if the birds are there, many likely die each year when farmers mow.

A lawyer for Encore, Anthony Iarrapino, said at a Public Utility Commission hearing last Friday that the company is willing to donate funds to the Bobolink Project, which would protect 60 acres of farmland in the Northeast for grassland bird development — double the area of the project site.

But Encore proposed that strategy only recently. Until now, they’ve argued that necessary wildlife habitat doesn’t exist on the property because “the site is already the subject of unregulated and intensive agricultural use.”

The Agency of Natural Resources says it’s too late. Encore needs to conduct a field-specific study of the project site to estimate how many grassland birds are currently breeding on the land, according to ANR attorney Aaron Kisicki. Since that survey can only happen in the spring, when the birds are breeding, the window has passed for the year.

“To be very clear, the agency approached the petitioner at the outset of this proceeding, starting in June of 2020, and highlighted this issue with them, and sought to engage them on specifically that discussion,” Kisicki said Friday.

Iarrapino said that the company is willing to assume that a survey would show that the solar project will negatively impact the bird population and perform mitigation accordingly, rather than refiling the entire case and waiting another year for the survey to be timed correctly.

“With each new case a petitioner needs to file to remedy an entirely curable evidentiary shortcoming, you are adding expense and delay to a permitting process that is already a difficult one for developers to navigate,” Iarrapino said at the hearing Friday. “The Legislature has set ambitious goals in relying on institutions like Middlebury College to step up to the plate with projects like this.”

For the commission to consider Encore’s mitigation plan, Encore would need the commission to reopen the record and allow the company to submit additional testimony, which the agency argues would set a bad precedent. Agency of Natural Resources officials, in a response to Encore’s request to reopen the record, called Encore’s efforts “an effort to salvage a failed litigation strategy.”

Chad Farrell, CEO at Encore, also serves on the board of directors of the Vermont Natural Resources Council and at Renewable Energy Vermont, and was appointed by the Vermont Senate to represent the clean energy sector on the Vermont Climate Council.

“At the end of the day, we realize that to generate a meaningful amount of electricity from solar we need a decent amount of land to do that,” he said. “We’re laser focused on trying to minimize the impacts of our projects on Vermont’s landscape.”

Frustrated by the process, he said he wishes the agency could give renewable energy companies more instruction and guidance to help them comply with numerous rules.

For example, the commission’s proposal for decision — the document that recommends whether to approve or deny the project — lists the project’s impacts to the economy, the energy grid, aesthetics, historic sites, air and water purity, waste disposal, soil erosion, transportation, education services and more.

Farrell said the state’s process protects the environment, which he lauds, but “when it becomes too draconian, when it becomes too burdensome, the state is basically telling us they don’t want us here.”

That’s out of step with the Legislature’s mandates within the Global Warming Solutions Act, he said. He wishes the Agency of Natural Resources felt like a “true partner … in the fight against climate change.”

“But if we had a true partner, then why have we not been provided guidance for this new and evolving issue?” he said. “Why have there not been trainings and education around how we manage the coexistence of renewable energy and grassland bird habitat?”

Kisicki, the attorney for the agency, referred VTDigger to comments the agency made in the hearing.

Encore is waiting for the commission’s final decision, which will indicate whether they can petition further to implement a mitigation strategy and receive their Certificate of Public Good, or whether they’ll need to start the process from scratch.