This article comes from law firm Pierce Atwood LLP and is authored by Thomas R. Doyle, Lisa A. Gilbreath and Matthew D. Manahan
Expecting to initiate a formal rulemaking in March 2017, the Maine Department of Environmental Protection (DEP) invited final public comment on its pre-rulemaking draft Wind Energy Standards rule at a workshop held on January 27, 2017 in Farmington. The Wind Energy Standards rule will address certain standards in the Wind Energy Act that are not addressed in current DEP rules. DE
P held a similar workshop and received written comments during the summer of 2016 on the initial draft rule, a description of which may be found here. The slightly revised rule reflects comments received on the initial rule, and is available here. DEP expects to publish a final version of the proposed rule after considering comments received at the January 27 workshop, as well as any written comments submitted before February 17, 2017.
Like the initial version, the revised rule will apply to proposed grid-scale wind energy developments located within an expedited permitting area, and will address scenic character, shadow flicker, public safety, tangible benefits, and decommissioning. The scenic character, shadow flicker, public safety, and decommissioning standards in the revised rule also apply to proposed small-scale wind energy developments. Any portions of a proposed development that are not located within an expedited permitting area will be reviewed under standards established pursuant to the Site Location of Development Act, the Natural Resources Protection Act (NRPA), and any other applicable standards. Like its prior version, the revised rule will not address best practical mitigation measures, as this will be the subject of a future rulemaking.
In response to comments submitted in the summer of 2016 by Pierce Atwood and others, DEP made revisions to the draft rule, reflected in the version discussed at the January 27 workshop. These revisions include removing the requirement previously found in Section 2(A) that disturbed wetlands or critical wildlife habitat be restored during decommissioning, striking reference to the NRPA in Section 3(A), revising Section 3(E) to make clear that the purpose of the project — to generate energy from a renewable resource — will be considered a mitigating factor (though energy production alone will not be considered a significant mitigating factor), and removing the strict setback requirement of the larger of local zoning setbacks or 1.5 times the maximum turbine blade height in Section 5(A).
DEP used the January 27 workshop to address public questions regarding the revised rule, as well as to solicit comments on how to better clarify the rule’s proposed standards. For example, in Section 3(B)(6) on unreasonable adverse effects, DEP struck the phrase “non-wind energy” in its proposed rule, and stated at the workshop that it would consider, under the revised rule, evidence of the degradation of scenic character by any form of incompatible development (and not just non-wind energy) in the viewshed.
Members of the public expressed their concern that striking this clause would allow wind energy developers to develop one parcel, and then point to that parcel as evidence of the degradation of the scenic character of the area in a subsequent application. DEP clarified at the workshop that it struck the phrase to broaden the term “development,” but that other provisions in the rule address cumulative impact, such as Section 3(H). In Section 3(E)(4), regarding evidence of the applicant’s mitigation proposal, DEP clarified that its intent is to locate projects where there already is infrastructure. In other words, applicants may be able to demonstrate available infrastructure as evidence of mitigating scenic impacts.
A representative of the Maine Renewable Energy Association expressed concern that the tangible benefits provisions of the revised rule continue to require proprietary information and suggested that there is no value to DEP in requiring evidence of a power purchase agreement (PPA) or the projected effect on electrical rates in Maine. DEP appeared unconcerned, however, responding that it will keep confidential the contents of any PPA submitted to it. It made clear that one of its goals is to ensure that a project built in Maine has somewhere to send its electrons.
Both members of the public and industry representatives continued to criticize the subjectivity of the proposed rule, with both sides of the discussion seeking predictability. DEP will take into consideration the oral comments received at the workshop, as well as any written comments submitted to DEP’s Mark Margerum by February 17, before issuing a final version for rulemaking in early March.
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