Maine wind ordinance recommendations

Keywords and phrases: Model wind ordinance, wind turbine ordinance, wind power regulation in Maine.

There has been quite a bit of confusion about what I recommend for wind turbine ordinances for Towns in Maine that are considering such legislation, so I wanted to post a summary online where they could be found easily with a Google search.

Some of these recommendations were sent to the State Planning Office but arrived too late to be considered in the draft of the model ordinance. They are, however, supported by both the science, by legal precedent, and by the experience we have seen so far in Maine with wind power developers.

I have been thinking about them since the draft of the model ordinance came out, and have added some elaborations.

For the record, I advocate that Towns considering wind turbine planning ordinances have a moderate setback, variable for different turbine size categories, with a severe and absolute noise performance standard for all turbines. Elaborations include required anemometry data submission with some categories of turbine and farm proposal, and possible wind power development zoning.

So the main regulatory requirements would be 1) moderate and variable (by category of turbine size) setback, combined with 2) severe and absolute noise performance standard. You have to include both for this to work well.

I think noise performance standards should be in the region of no more than 40 decibels (dBA) from a wind power plant day or night, measurable at any residence in place and occupied at the time the permit was issued, (not the property boundary, not unoccupied buildings such as barns or industrial sites or abandoned houses, not a newly erected building put up deliberately to deter turbine planning).

This is much, much lower than the 45 decibel standard implicit in the State of Maine's Site Location of Development Law, as the decibel scale is a logarithmic scale. Towns might consider 40-43 dBA, but 40 would be best, in my opinion. The 45 dBA standard is far too much noise. The 45 decibel standard in the Site Location law was not meant for the kind of grating noise that turbines, especially these GE 1.5s, make day and night.

We should be clear about this. It is the noise that is the greatest dis-amenity created by turbines.

Setbacks for the larger machines should be at least 1,500 feet, preferably 2,000, but much less for smaller machines. The GE 1.5 turbines are quite audible downwind on a moderately windy day at 1,000 feet, while for a Bergey or Skystream, you probably can't even see it at 1,000 feet, let alone hear it.

Setbacks could be included from roads, or certain classes of roads too, such as State roads, if Towns wish to avoid ice throw hazard on roads. Ordinances should state clearly that setbacks are for ice throw, shadow flicker, and other hazards, as well as noise. The nuisance has to be clearly defined, and setbacks are not just for noise. Actually, setbacks are not very good for controlling noise at all.

But they should not be one mile or anything ridiculous like that, unless Towns specifically wish to prohibit turbines, in which case they should just prohibit turbines and be done with it.

If Towns want to prohibit turbines they should just do so and save themselves litigation down the road. A determined developer could sue on the basis of the noise or setback regulation if the effect is to remove the developer's ability to develop the site for no good reason. The legal history of planning in the US is rife with such examples, but the case of precedent remains Lucas vs. South Carolina Coastal Commission, which states that government must show a reasoned attempt to avoid a public nuisance if it wishes to take away a developer's property rights. In the words of the Cornell Law School's summary of the case, the government "must identify background principles of nuisance and property law that prohibit the uses" intended. A suit would thus turn on the question of whether a public nuisance were created, which would turn on the scientific evidence of noise, ice thrown, shadow flicker, or catastrophic failure, using expert witnesses. If Towns try to control development for noise or safety reasons, they therefore have to have reasonable standards.

It is also reasonable that Towns could vote to prohibit turbines overall, having determined that they are inherently a public nuisance, detrimental to historical or landscape values, and their development was outside of the normal bundles of property rights. Although this would seem to take away a developers rights and so provoke a Lucas case, in Maine, where townsfolk vote on planning ordinances, the clarity of such a vote in identifying public values and what would locally be considered a nuisance would carry great weight. No developer would wish to develop a site where the townsfolk had clearly voted to prohibit turbines.

But to prohibit turbines through the back door using unreasonable setback or performance standards is definitely leaving the road open for a Lucas suit. In particular, since the State's own model ordinance has a much lower setback, that creates a red flag. If I were a developer who was particularly mad about a town's regulatory efforts, I might drum up some financial support from my buddies in wind power development, and sue on the basis that the science showed that the regulations were too severe considering the intent, just to prove a point and discourage other similar ordinances.

I recommend that violations of noise performance standards should be punished with severe consequences, such as shutting the site down. These should be clearly stated in the ordinance.

I also recommend that Towns require companies to provide the wind data from their anemometry studies as part of the permit, so that claims for noise impacts can be matched against the wind direction and wind speed data before the turbines go up. The wind that is strong enough to turn the turbine probably comes out of a different quarter than the so-called "prevailing wind." This is counter-intuitive, so you need the data. The results are however predictable and plan-able if you have the wind speed and direction data, the topographic data, and the noise characteristic data of the proposed turbine or turbines.

Ordinances should allow an "out" for when a developer compensates a homeowner, by mutual agreement, for the noise and other dis-amenity that they create at a residence site.

The overall effect of these regulations, should towns include them in ordinances, would be to encourage wind power developers to undertake much better planning and noise analysis, and to have upfront negotiations with noise amenity "losers," who will have to be compensated. Companies that do not plan out their noise carefully will suffer financially if they go ahead and erect turbines that create a dis-amenity. Companies will also be encouraged to use the quietest possible turbines (which the GE machines are not -- although they are cost-effective).

And Towns will know, from the anemometry studies, how much money the companies are making, more or less. My data suggest that companies that use the GE 1.5s gross around $200,000-500,000 per turbine depending on the wind power class of the site, before taxes. I think the Townsfolk deserve to have this information.

Towns that wish to direct wind development to certain sites might offer a reduced noise performance standard on those sites using regular zoning, in effect to declare a "wind power production zone." Or they could use no performance standard at all in these zones at all, since the Site Location of Development Law would be in effect with the 45 dBA standard.

These recommendations would also not place an undue burden on small household scale turbines, assuming the size categories were carefully selected. Through the net-metering and other laws, the PUC's net-metering and power production regulations currently recognize six categories of turbines and wind farms implicitly. I recommend using these categories. My setback and other ordinance recomendations by categories are...

1) Household scale, under 10KW, not grid-tied. No setback. 40 dBA noise performance standards only.

2) Household scale, under 20 KW, grid-tied. 200 foot setback (for ice throw and catastrophic failure), 40 dBA noise performance standard.

3) Industrial scale, under 100KW, net-metered. 500 foot setback (for ice throw and catastrophic failure), 40 dBA noise performance standard. Must provide anemometry and turbine noise characteristic data with construction permit.

4) Industrial scale, under 660 KW, joint ownership, net-metered. 1,000 foot setback (for ice throw and catastrophic failure), 40 dBA noise performance standard. Must provide anemometry and turbine noise characteristic data with construction permit.

5) Industrial scale, wholesale supply, farms under 5MW. 1,500 or 2,000 foot setback (for ice throw and catastrophic failure), 40 dBA noise performance standard. Must provide anemometry and turbine noise characteristic data with construction permit. Possibility of wind power development zone declared by Town.

6) Industrial scale, wholesale supply, farms over 5MW, 1,500 or 2,000 foot setback (for ice throw and catastrophic failure), 40 dBA noise performance standard. Must provide anemometry and turbine noise characteristic data with construction permit. Engineering impact study required (by existing PUC regulation).

7) Possibility of wind power development zone declared by Town in which the noise or setback standards, or requirements for permits are relaxed, in order to direct developers to preferred sites.

The State's draft ordinance also has regulations for the screening of turbines. I think this is silly, and don't mind saying so. What people think of the visual impact of turbines is subjective, and if Towns think them ugly or detrimental to tourism, they should just ban them. For other towns, the public capital that is represented by the resources in a wind turbine should be put to good use, in which case it should be put on the highest hill with the strongest wind available that does not create a noise dis-amenity or hazard for neighbors.