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Drain commissioner says Consumers Energy rejected stormwater agreement for Spring Creek solar; county staff disagree on who must complete review
Summary
Barry County Drain Commission raised concerns that Consumers Energy refused to accept a proposed stormwater agreement tied to a planned Spring Creek solar facility, leaving unresolved who will complete the administrative stormwater review and who pays review fees and security bonds.
Barry County's drain commissioner told the Board of Commissioners on May 6 that Consumers Energy declined to accept key items in a proposed stormwater agreement for the Spring Creek solar project, potentially forcing the county to re-evaluate the project's alternative stormwater management plan.
Why it matters: The drain commissioner's office said its earlier acceptance of alternate stormwater approaches for the project was contingent on a signed stormwater agreement that would include bonding, liability insurance and sample/monitoring commitments; without such an agreement, the office said it will not approve the facility's stormwater plan. County administrators told the board they interpreted the zoning ordinance differently and that the county administrator might issue the permit without the drain commissioner's sign-off.
Barry County Drain Commissioner Jim (name provided in the meeting as Jim) described a months-long review process that began with Consumers Energy submitting a preliminary stormwater management plan and the drain commissioner's office engaging legal counsel and an engineering consultant. Jim said the two parties exchanged drafts throughout 2024 and that Consumers' legal team provided a list of items the utility would not agree to, including several items the BCDC considered essential: notice of construction, stormwater sampling, full liability insurance documentation, broader indemnification and payment of review fees. "They are not providing evidence of liability insurance," Jim said. "They are limiting their indemnification to only those claims related to stormwater management, not the panels."
Eric (County Administrator) told the board on April 28 that, in his and the county attorney's view, the county ordinance does not require the Barry County Drain Commission (BCDC) to perform the administrative review and that he intended to issue the permit without BCDC sign-off. Jim said the drain commissioner's office will not approve the stormwater management plan unless the previously discussed stormwater agreement is in place and recommended maintaining bonding and insurance provisions, including a decommissioning bond.
The drain commissioner also warned about potential long-term liability if the solar project were to be abandoned: "I don't want to see the county get stuck with another brownfield... Better be a decommissioning thing," Jim said.
Related land-use action: Separately at the same meeting, the planning department presented a resolution to partially terminate a PA 116 farmland development rights agreement to remove a parcel mistakenly included in a PA 116 contract because the parcel is now within the Spring Creek solar project footprint. Planning and zoning staff explained the termination request was to correct a clerical error; Jeff Kiesler (planning and zoning) said the planning commission unanimously recommended release of the parcel on April 28.
The committee moved to recommend adoption of Resolution 25-16, described as a partial termination of farmland development rights for a parcel in Section 28 of Johnstown Township (parcel number 08-09028007-30). Motion to recommend adoption was made by Commissioner Hatfield, supported by Commissioner Getty and carried by voice vote.
No vote to approve or deny the solar project's permits occurred at the meeting; the drain commissioner said the BCDC will withhold approval of the stormwater management plan unless the stormwater agreement is executed as previously discussed. The county administrator indicated he might proceed with permit issuance under his interpretation of the ordinance.
Next steps: The drain commissioner's office, county administration and legal counsel will need to resolve which office has administrative responsibility for the review and whether the proposed stormwater agreement terms remain a condition of approval. The planning department will forward the PA 116 partial-termination recommendation to the full Board of Commissioners for action on Resolution 25-16.
