An Act To Improve the Permitting Process for Wind Energy Developments and To Protect Maine's Quality of Place
Sec. 1. 12 MRSA §685-B, sub-§2-C, ¶A, as amended by PL 2009, c. 615, Pt. D, §3, is further amended to read:
Sec. 2. 12 MRSA §685-B, sub-§4-B, as amended by PL 2009, c. 615, Pt. D, §5, is repealed.
Sec. 3. 12 MRSA §685-B, sub-§4-C is enacted to read:
(1) Will meet the requirements of the Board of Environmental Protection's noise control rules adopted pursuant to Title 38, chapter 3, subchapter 1, article 6;
(2) Will be designed and sited to avoid undue adverse shadow flicker effects;
(3) Will be constructed with minimum setback requirements, defined by rule by the Department of Environmental Protection pursuant to Title 38, section 484, subsection 10-A;
(4) If the wind energy development is located more than 1,000 feet above sea level, will not be greater than 75 feet in height; and
(5) Will not have a significant cumulative environmental impact, in accordance with rules adopted by the Department of Environmental Protection pursuant to Title 38, section 484, subsection 10-A; and
(1) If the wind energy development is an expedited wind energy development, the development will provide significant tangible benefits, as defined in Title 35-A, section 3451, subsection 10, within the State, as provided in Title 35-A, section 3454;
(2) An assessment of wildlife impacts by the Department of Inland Fisheries and Wildlife pursuant to section 12709 has been completed with respect to the development; and
(3) A decommissioning plan with respect to the development has been developed that includes a description of the circumstances under which the decommissioning would occur. An escrow account must be established to provide financial guarantees for the decommissioning of the development. The terms and conditions of the escrow account must be in accordance with rules adopted by the Department of Environmental Protection pursuant to Title 38, section 484, subsection 10-A.
The Department of Labor, the Executive Department, State Planning Office and the Public Utilities Commission shall provide review comments if requested by the primary siting authority. For purposes of this subsection, "primary siting authority" and "expedited wind energy development" have the same meanings as in Title 35-A, section 3451.
Sec. 4. 12 MRSA §12709 is enacted to read:
§ 12709. Wildlife impacts of a wind energy development
At the request of a developer of a proposed wind energy development, the department shall complete an assessment of the cumulative environmental impact and potential wildlife impacts of the proposed wind energy development. The department shall adopt rules to implement this section. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A. The department may charge the developer a fee to cover the cost of the assessment.
As used in this section, "wind energy development" has the same meaning as in Title 35-A, section 3451, subsection 11.
Sec. 5. 35-A MRSA §3453, last ¶, as enacted by PL 2007, c. 661, Pt. A, §7, is amended to read:
Rules adopted by the Maine Land Use Regulation Commission pursuant to this section are routine technical major substantive rules as defined in Title 5, chapter 375, subchapter 2-A.
Sec. 6. 35-A MRSA §3454, sub-§2, as enacted by PL 2009, c. 642, Pt. A, §7, is amended to read:
Sec. 7. 35-A MRSA §3456, sub-§1, as enacted by PL 2007, c. 661, Pt. A, §7, is repealed.
Sec. 8. 35-A MRSA §3456, sub-§1-A is enacted to read:
(1) Will meet the requirements of the noise control rules adopted by the Board of Environmental Protection pursuant to Title 38, chapter 3, subchapter 1, article 6;
(2) Will be designed and sited to avoid unreasonable adverse shadow flicker effects;
(3) Will be constructed with minimum setback requirements, defined by rule by the Department of Environmental Protection pursuant to Title 38, section 484, subsection 10-A;
(4) Will not have a significant cumulative environmental impact, in accordance with rules adopted by the Department of Environmental Protection pursuant to Title 38, section 484, subsection 10-A; and
(5) If the wind energy development is located more than 1,000 feet above sea level, will not be greater than 75 feet in height; and
(1) An assessment of wildlife impacts by the Department of Inland Fisheries and Wildlife was completed pursuant to Title 12, section 12709 with respect to the development; and
(2) A decommissioning plan with respect to the development has been developed that includes a description of the circumstances under which the decommissioning would occur. An escrow account must be established to provide financial guarantees for the decommissioning of the development. The terms and conditions of the escrow account must be in accordance with rules adopted by the department pursuant to Title 38, section 484, subsection 10-A.
A person proposing a wind energy development subject to certification under this section shall apply to the department for certification using an application provided by the department and may not begin construction until the certification is received.
Sec. 9. 35-A MRSA §3456, sub-§3, as enacted by PL 2007, c. 661, Pt. A, §7, is amended to read:
Sec. 10. 38 MRSA §344, sub-§1-B is enacted to read:
Sec. 11. 38 MRSA §344, sub-§2-A, ¶A, as amended by PL 2009, c. 615, Pt. E, §3, is further amended to read:
(1) The commissioner may not request the board to assume jurisdiction of an application for any permit or other approval required for an expedited wind energy development, as defined in Title 35-A, section 3451, subsection 4, a certification pursuant to Title 35-A, section 3456 or a general permit pursuant to section 480-HH or section 636-A. Except as provided in subparagraph (2), the commissioner shall issue a decision on an application for an expedited wind energy development, an offshore wind power project or a hydropower project, as defined in section 632, subsection 3, that uses tidal action as a source of electrical or mechanical power within 185 days of the date on which the department accepts the application as complete pursuant to this section or within 270 days of the department's acceptance of the application if the commissioner holds a hearing on the application pursuant to subsection 1-B or section 345-A, subsection 1-A.
(2) The expedited review periods of 185 days and 270 days specified in subparagraph (1) do not apply to the associated facilities, as defined in Title 35-A, section 3451, subsection 1, of the development if the commissioner determines that an expedited review time is unreasonable due to the size, location, potential impacts, multiple agency jurisdiction or complexity of that portion of the development. If an expedited review period does not apply, a review period specified pursuant to section 344-B applies.
The commissioner may stop the processing time with the consent of the applicant for a period of time agreeable to the commissioner and the applicant.
Sec. 12. 38 MRSA §484, sub-§10, as amended by PL 2009, c. 615, Pt. E, §18, is repealed.
Sec. 13. 38 MRSA §484, sub-§10-A is enacted to read:
(1) Will be designed and sited to avoid unreasonable adverse shadow flicker effects;
(2) Will be constructed with minimum setback requirements, defined by rule by the department;
(3) Will not have a significant cumulative environmental impact, as determined by rule by the department. For the purposes of this subparagraph, "cumulative environmental impact" means the impact on the environment that results from the incremental impact of the generating facilities when added to other past, present and reasonably foreseeable future actions; and
(4) If the grid-scale wind energy development is located more than 1,000 feet above sea level, will not be greater than 75 feet in height; and
(1) The grid-scale wind energy development will provide significant tangible benefits, as defined in Title 35-A, section 3451, subsection 10, within the State, as provided in Title 35-A, section 3454, if the development is an expedited wind energy development;
(2) An assessment of wildlife impacts has been completed by the Department of Inland Fisheries and Wildlife pursuant to Title 12, section 12709 with respect to the development; and
(3) A decommissioning plan with respect to the development has been developed that includes the circumstances under which the decommissioning would need to occur. An escrow account must be established to provide financial guarantees for the decommissioning of the development. The terms and conditions of the escrow account must be in accordance with rules adopted by the department.
The department shall adopt rules to implement this subsection. Rules adopted pursuant to this subsection are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.
Sec. 14. Consideration of Town of Phillips ordinance. When adopting rules for minimum setback requirements to implement the provisions of this Act, the Department of Environmental Protection shall consider the wind energy facility ordinance adopted by the Town of Phillips on September 16, 2010.
summary
This bill requires that all approvals for a license, permit or certification for wind energy developments be decided through an adjudicatory proceeding. The bill requires the consideration of cumulative environmental impact and impacts to wildlife when approving wind energy developments. It prohibits wind energy facilities constructed at 1,000 feet or more above sea level from being greater than 75 feet in height. The bill requires all expansions of an expedited wind energy zone to be done through major substantive rulemaking rather than routine technical rulemaking and it requires wind energy developers to establish an escrow account for decommissioning.