STATE SITING PROCESSES FOR GRID-SCALE WIND ENERGY FACILITIES: ISSUES AND OPTIONS This document, prepared to facilitate discussion, reflects issues identified to date regarding Maine's current process for siting grid-scale, industrial wind energy facilities, and outlines potential options for addressing those issues. Inclusion of an item in this document neither indicates nor implies its support or endorsement by Task Force members, but rather reflects that it has been presented to the Task Force and merits serious consideration. It is anticipated that additional materials will be developed subsequently to assist the Task Force in similarly reviewing options to address identified issues regarding community wind development, financial feasibility and incentives, transmission infrastructure, wind power installation goals and other matters within the Task Force's purview. The issues and options presented here are divided into two basic categories: 1) approval requirements, which includes regulatory standards, zoning and related state guidance; and 2) approval process, which concerns decision-making and administrative procedure issues. In the end, while listed as if they were independent, the options need to be considered as a whole rather than individually – as an option chosen to resolve one issue may or may not be consistent with an option chosen to resolve another – but to initiate the discussion, they are articulated independently leaving the integration into a coherent solution to a second step. PART A. APPROVAL REQUIREMENTS: REGULATORY STANDARDS, ZONING AND RELATED STATE GUIDANCE Issue A-1: Key environmental laws governing decisions by both DEP and LURC do not provide for consideration of the relative benefits of wind power development, including those regarding reduction of CO2 and air pollutants, while in addressing regional energy needs. Potential options (not mutually exclusive): * Amend pertinent siting laws (e.g., site, NRPA, and LURC's statute and rules) to clarify that in applying "unreasonable" adverse effect and related decision criteria the decision making body shall consider a wind power project's environmental benefits, including those regarding its contribution to greenhouse gas reduction, reductions in emissions of air pollutants, and renewable energy generation goals; * Amend pertinent siting laws to require PUC, and/or DEP, and/or the Office of Energy Independence to provide factual information regarding a proposed wind power development project's energy and greenhouse gas-related benefits, such as its contribution to attainment of RGGI and other pertinent state and regional renewable energy goals; relative reduction of air pollutants, as well as CO2 and/or other greenhouse gas emissions as compared with fossil fuel generation; and relationship to the state energy plan (see below), for consideration in applying "unreasonable" adverse effect and related decision criteria; and * To provide further policy and planning direction, articulate the state's installed generation goals for wind power and other forms of renewable energy in light of RGGI, RPSs and other pertinent laws and agreements in a state energy plan, developed possibly by the Office of Energy Independence and Security, in consultation with PUC. Issue A-2: LURC's current zoning scheme, developed before the emergence of modern wind energy technology and its widespread commercial feasibility, is not designed or well-suited to provide for consideration of wind power projects' locational requirements or the regional nature of the renewable energy and environmental benefits that such projects provide. Potential options: * Amend LURC's Comprehensive Land Use Plan (CLUP) to specify that: 1. The Commission shall consider a proposed wind power project's energy, air quality, and greenhouse gas reduction-related benefits when considering the acceptability of such a development proposal, and the “reasonableness” of its impacts; 2. High mountain areas and management districts located in certain areas may be more suitable to wind power development than others and may be appropriately be used for that purpose, provided potential adverse affects are minimized to the maximum extent practicable. Accordingly, the Commission's land use planning and zoning should facilitate wind power development in areas that minimize adverse effects to natural resources, the values provided by large unfragmented forested landscapes and related public values and ensure mitigation of unavoidable adverse effects. * Amend Chapter 10 land use zones and standards to implement the CLUP, amended as described above. Potential approaches include: ­ To facilitate consideration of individual wind energy projects on their merits, amend LURC’s current rezoning standards, in particular provisions related to the requirement that the zone replacing an existing high mountain area protection district will provide a "substantially equivalent level of protection,” and that the applicant demonstrate that they have chosen the "best reasonably available site" provisions,; ­ Identification of areas, including certain high mountain areas, where wind energy development will not be allowed in light of natural resources and/or related public use values that are particularly significant individually or collectively; or ­ Based on analysis of their natural resources and related public values, division of current high mountain area protection zones and general management districts into two categories – one of which allows wind power development without requiring rezoning. For example, in the case of high mountain area sub districts, create two sub districts: a P-MA1, where wind power is a permitted use without requiring rezoning (i.e., may be built if simply a permit is obtained); and a P-MA2, where wind power may be allowed pursuant to rezoning to. A similar approach could be taken for the general management district by creating MGN1 and MGN2 sub-districts. NOTE: Development of siting guidance, as described in Issue A-4 below, may be useful to the Commission in restructuring its zoning to accommodate more efficient consideration of wind development proposals. Issue A-3: State environmental and land use standards were not designed and have not been specifically tailored to address issues presented by wind power projects. Consequently, existing state regulatory standards as applied to wind power projects could be improved as regards: * Addressing issues of concern, e.g., are state standards for noise, strobe and flicker, and other wind power specific project operation related effects adequate?; * Clarity vis-ŕ-vis the specific tests for approval, e.g., how much of an impact on a wildlife population is acceptable, and/or what constitutes an unreasonable impact on scenic conditions; and * The information that an applicant must submit to demonstrate compliance with approval criteria and/or any post-construction related permit conditions, e.g., specifications for acceptable pre- and post-construction study requirements regarding potential adverse effects to birds and bats. Such clarification of regulatory requirements, in consultation with the wind power industry and stakeholders, has the potential to enhance both regulatory certainty and environmental and community protection objectives. Potential options (not mutually exclusive): * Review current DEP and LURC rules to protect natural resources and public health and safety in relation to other states' standards and/or ISO standards, as applicable, to identify improvements which deal with the impacts specifically associated with wind power projects, which set clear standards for approval, and which are based on best currently available information; * Develop information on the interpretation of approval criteria and the nature and extent of information needed to address such criteria. To the extent practicable, this effort should build on relevant past and current efforts to develop such guidance or protocols. (Note: Wind power siting guidance produced by stakeholders in New Hampshire, outlined by David Publicover at the July 31, 2007 Task Force meeting, may provide a model for this effort.) DEP and LURC specific project evaluation guides to assist project reviewers, applicant and the public in identifying key project review issues and related information requirements and review schedules may be useful products of this effort. Issue A-4: Maine's regulatory agencies have yet to develop sufficiently detailed guidance on: * Areas where wind power development may be most appropriate, or alternatively, problematic due to natural resources values and/or related public values; and * Outreach and provision of project related information to community and stakeholder interests, e.g., in advance of or in addition to that pursuant to regulatory requirements, to identify and address issues of concern and optimize opportunities for community understanding and support. Potential options (not mutually exclusive): * To facilitate project review, inform land use planning related decision making and help guide developers in assessing project opportunities, develop a GIS-based tool that identifies potential constraints to wind power siting, such as complexes of natural features of special concern or interest (AMC's analysis regarding wind power development opportunities and constraints in Maine's mountainous areas may provide a model or starting point for this effort); and * Encourage (require?) applicants to hold pre-project public information meetings and related community outreach efforts. If needed, convene a joint DEP-LURC effort, undertaken in consultation with stakeholders, to provide guidance, standardized as appropriate, on information that developers should provide at such meetings. Issue A-5: Current state regulatory authorities do not provide a well-established and predictable means for identifying and ensuring mitigation of unavoidable adverse effects on high mountain habitat areas and related public uses resulting from use of such areas for wind energy development. Potential option: * Include in laws the requirement that, as a condition of approval, a wind power developer provide funding for acquisition of public rights in high mountain areas as compensation for adverse effects to such areas and their related public uses, as determined through coordination and consultation among pertinent state, federal and local authorities Issue A-6: Because a wind power project, like other industrial development activities, has real and potential effects on the natural environment, it is important to ensure that the project facility is properly decommissioned and the project site remediated as appropriate at the end of its useful life when it no longer provides public benefit. Potential option: * Develop a standardized state decommissioning policy, to be implemented regarding wind power, under which, as a condition of project approval, the applicant would establish a fully funded decommissioning account commensurate with the project's scale, location and other considerations, that would be unaffected by the applicant's future financial condition. Issue A-7: Maine municipalities generally lack decision making criteria designed to ensure efficient and effective consideration of the beneficial and potential detrimental effects of proposed wind energy development and may in addition lack adequate technical and financial capacity to develop such criteria. Although this issue may be more germane to community wind projects, since smaller projects may not be subject to state regulation and a significant percentage of larger projects have been and may continue to be in LURC territory, there is increasing potential for grid-scale wind energy development in municipalities as technological changes make additional areas economic. Potential options (not mutually exclusive): * Develop guidance to assist local officials in considering pertinent natural resources and public health and safety issues; and * Develop a local model ordinance for use by Maine municipalities; and * Provide related technical assistance to aid local officials in making land use planning decisions regarding wind power development PART B: APPROVAL PROCESS Issue B-1: Improvement of the State's regulatory framework to address the following and related problems is needed to ensure thorough, equitable, and efficient consideration of wind energy development proposals statewide: * Division of state approval regarding wind power projects among authorities with different and potentially conflicting responsibilities; * Differences in review and approval processes, criteria, and overall approach to wind power development in DEP and LURC jurisdictions; * Lack of adequate financial and technical resources available to regulatory agencies (e.g., LURC) to ensure assessment and processing of wind power applications within established timeframes for review; and * Unreasonable burdens and expectations, in terms of time commitment and breadth of expertise, on existing state siting authorities, and particularly their citizen boards (BEP and LURC). Various aspects of Maine's land use and environmental regulation framework, as applied to wind energy development proposals, raise concerns that determination of how, whether, and when a wind power project may be approved is uncertain and difficult to predict. There is also concern that existing problems will be exacerbated if there is notable increase in the number or complexity of proposed projects, particularly in LURC territory. Such concerns may not only dampen investors' interest in pursuing wind development projects in Maine but also undermine public confidence that state review processes will ensure appropriate protection of natural resources and community values. NOTE: Each of the following options is presented with the assumption that decisions will be pursuant to regulatory standards and a LURC zoning system improved as necessary to address issues in Part A. Potential alternative options: * Harmonize current LURC and DEP review processes in two basic ways: 1. "True-up" existing administrative procedures, e.g., create common DEP-LURC application form; regularize review schedules; ensure adequate project review resources through permit fees; and other matters; and 2. Enact targeted revisions to the pertinent siting laws (Site Law, NRPA and LURC laws) as needed to make approval criteria and related information requirements as uniform as practicable (in manner comparable to recent effort regarding state water extraction-related laws; see PL 2007 c. 399); * Establish a statewide siting authority, funded entirely by applicants for and operators of wind power projects, to be convened as needed to issue all requisite state approvals. Alternatives for this new approval authority include: ­ The PUC; ­ An interagency board; or ­ A newly established independent board; or ­ Some hybrid of the above.1 A law applicable statewide would provide approval criteria addressing both environmental2 and energy issues, including a project's relationship to regional energy needs, renewable energy policy objectives, including those related to the Regional Greenhouse Gas Initiative (RGGI), and related public benefits. The applicant would bear the actual costs of board actions, e.g., hearings, associated with project review (energy facility siting laws in other jurisdictions, e.g., MN, NH, and VT, may provide useful models); or * Vest DEP/BEP with statewide siting authority, with LURC retaining zoning authority, implemented in accordance revised CLUP as described (see options under Issue A-2); 1 For example, the wind power siting board could be made up of the PUC Commissioners plus the Commissioners of DEP, DOC and IF&W (or DMR if the project is in a marine area). 2 The environmental portion of this statute could be modeled after the site law, but adding consideration of air quality and greenhouse gas benefits as well as energy supply, reliability, and pricing considerations. ?? ?? ?? ?? DRAFT; FOR DISCUSSION ONLY; NOT AGENCY OR ADMINISTRATION POLICY 10.30.07 7 DRAFT; FOR DISCUSSION ONLY; NOT AGENCY OR ADMINISTRATION POLICY 10.30.07