Public Laws

124th Legislature

Second Regular Session


Parts: A B C D E F G H

Chapter 615

S.P. 710 - L.D. 1810

PART E

Sec. E-1. 38 MRSA 341-D, sub-2, as amended by PL 2007, c. 661, Pt. B, 1, is further amended to read:

2.Permit and license applications. Except as otherwise provided in this subsection, the board shall decide each application for approval of permits and licenses that in its judgment:
A. Involves a policy, rule or law that the board has not previously interpreted;
B. Involves important policy questions that the board has not resolved;
C. Involves important policy questions or interpretations of a rule or law that require reexamination; or
D. Has generated substantial public interest.

The board shall assume jurisdiction over applications referred to it under section 344, subsection 2-A, when it finds that the criteria of this subsection have been met.

The board may vote to assume jurisdiction of an application if it finds that one or more of the criteria in this subsection have been met.

Any interested party may request the board to assume jurisdiction of an application.

The board may not assume jurisdiction over an application for an expedited wind energy development as defined in Title 35A, section 3451, subsection 4 or , for a certification pursuant to Title 35A, section 3456 or for a general permit pursuant to section 480HH or section 636A.

Sec. E-2. 38 MRSA 341-D, sub-4, D, as enacted by PL 2007, c. 661, Pt. B, 4, is amended to read:

D.License or permit decisions regarding an expedited wind energy development as defined in Title 35-A, section 3451, subsection 4 or a general permit pursuant to section 480HH or section 636A. In reviewing an appeal of a license or permit decision by the commissioner on an application for an expedited wind energy development under this paragraph, the board shall base its decision on the administrative record of the department, including the record of any adjudicatory hearing held by the department, and any supplemental information allowed by the board using the standards contained in subsection 5 for supplementation of the record. The board may remand the decision to the department for further proceedings if appropriate. The chair of the Public Utilities Commission or the chair's designee shall serve serves as a nonvoting member of the board and is entitled to fully participate but is not required to attend hearings when the board considers an appeal pursuant to this paragraph. The chair's participation on the board pursuant to this paragraph does not affect the ability of the Public Utilities Commission to submit information to the department for inclusion in the record of any proceeding before the department.

Sec. E-3. 38 MRSA 344, sub-2-A, A, as amended by PL 2007, c. 661, Pt. B, 5, is further amended to read:

A. Except as otherwise provided in this paragraph, the commissioner shall decide as expeditiously as possible if an application meets one or more of the criteria set forth in section 341-D, subsection 2 and shall request that the board assume jurisdiction of that application. If at any subsequent time during the review of an application the commissioner decides that the application falls under section 341-D, subsection 2, the commissioner shall request that the board assume jurisdiction of the application.

(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 35A, section 3451, subsection 4, or a certification pursuant to Title 35A, section 3456 or a general permit pursuant to section 480HH or section 636A. 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 section 345A, subsection 1A.

(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 35A, 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. E-4. 38 MRSA 344-A, first , as amended by PL 2009, c. 270, Pt. A, 1, is further amended to read:

The commissioner may enter into agreements with individuals, partnerships, firms and corporations outside the department, referred to throughout this section as "outside reviewers," to review applications or portions of applications submitted to the department. The commissioner has sole authority to determine the applications or portions of applications to be reviewed by outside reviewers and to determine which outside reviewer is to perform the review. When selecting an outside reviewer, all other factors being equal, the commissioner shall give preference to an outside reviewer who is a public or quasi-public entity, such as state agencies, the University of Maine System or the soil and water conservation districts. Except for an agreement for outside review regarding review of an application for a wind energy development as defined in Title 35A, section 3451, subsection 11, a certification pursuant to Title 35-A, section 3456 , an application for an offshore wind power project as defined in section 480-B, subsection 6A or a general permit pursuant to section 480-HH or section 636-A or an application for a hydropower project, as defined in section 632, subsection 3, that uses tidal action as a source of electrical or mechanical power, the commissioner may enter into an agreement with an outside reviewer only with the consent of the applicant and only if the applicant agrees in writing to pay all costs associated with the outside review.

Sec. E-5. 38 MRSA 346, sub-4, as enacted by PL 2007, c. 661, Pt. B, 8, is amended to read:

4.Appeal of decision. A person aggrieved by an order or decision of the board or commissioner regarding an application for an expedited wind energy development, as defined in Title 35A, section 3451, subsection 4, or a general permit pursuant to section 480HH or section 636A may appeal to the Supreme Judicial Court sitting as the law court. These appeals to the law court must be taken in the manner provided in Title 5, chapter 375, subchapter 7.

Sec. E-6. 38 MRSA 480-B, sub-6-A is enacted to read:

6-A. Offshore wind power project. "Offshore wind power project" means a project that uses a windmill or wind turbine to convert wind energy to electrical energy and is located in whole or in part within coastal wetlands. "Offshore wind power project" includes both generating facilities as defined by Title 35-A, section 3451, subsection 5 and associated facilities as defined by Title 35-A, section 3451, subsection 1, without regard to whether the electrical energy is for sale or use by a person other than the generator.

Sec. E-7. 38 MRSA 480-D, first paragraph, as amended by PL 2007, c. 353, 9, is further amended to read:

The department shall grant a permit upon proper application and upon such terms as it considers necessary to fulfill the purposes of this article. The department shall grant a permit when it finds that the applicant has demonstrated that the proposed activity meets the standards set forth in subsections 1 to 9 11, except that when an activity requires a permit only because it is located in, on or over a community public water system primary protection area the department shall issue a permit when it finds that the applicant has demonstrated that the proposed activity meets the standards set forth in subsections 2 and 5.

Sec. E-8. 38 MRSA 480-D, sub-1, as amended by PL 2007, c. 661, Pt. B, 10, is further amended to read:

1.Existing uses. The activity will not unreasonably interfere with existing scenic, aesthetic, recreational or navigational uses.

In making a determination under this subsection regarding an expedited wind energy development, as defined in Title 35A, section 3451, subsection 4, or an offshore wind power project, the department shall consider the development's or project's effects on scenic character and existing uses related to scenic character in accordance with Title 35A, section 3452. In making a decision under this subsection regarding an application for an offshore wind power project, the department may not consider whether the project meets the specific criteria designated in Title 12, section 1862, subsection 2, paragraph A, subparagraph (6), divisions (a) to (d). This limitation is not intended to restrict the department's review of related potential impacts of the project as determined by the department.

Sec. E-9. 38 MRSA 480-D, sub-11 is enacted to read:

11. Offshore wind power project. This subsection applies to an offshore wind power project.
A. If an offshore wind power project does not require a permit from the department pursuant to article 6, the applicant must demonstrate that the generating facilities:

(1) Will meet the requirements of the noise control rules adopted by the board pursuant to article 6;

(2) Will be designed and sited to avoid unreasonable adverse shadow flicker effects; and

(3) Will be constructed with setbacks adequate to protect public safety, while maintaining existing uses to the extent practicable. In making a finding pursuant to this paragraph, the department shall consider the recommendation of a professional, licensed civil engineer as well as any applicable setback recommended by a manufacturer of the generating facilities.

B. If an offshore wind power project does not require a permit from the department pursuant to article 6, the applicant must demonstrate adequate financial capacity to decommission the offshore wind power project.
C. An applicant for an offshore wind power project is not required to demonstrate compliance with requirements of this article that the department determines are addressed by criteria specified in Title 12, section 1862, subsection 2, paragraph A, subparagraph (6).

Sec. E-10. 38 MRSA 480-E, sub-1, as enacted by PL 1989, c. 656, 4 and affected by c. 890, Pt. A, 40 and amended by Pt. B, 73, is repealed and the following enacted in its place:

1. Municipal and other notification. The department shall provide notice according to this subsection.
A. Except as otherwise provided in paragraph B, the department may not review a permit without notifying the municipality in which the proposed activity is to occur. The municipality may provide comments within a reasonable period established by the commissioner and the commissioner shall consider any such comments.
B. The department may not review an application for an offshore wind power project without providing:

(1) Notice to the Maine Land Use Regulation Commission when the proposed development is located within 3 miles of an area of land within the jurisdiction of the Maine Land Use Regulation Commission; and

(2) Notice to any municipality with land located within 3 miles of the proposed development and any municipality in which development of associated facilities is proposed.

The Maine Land Use Regulation Commission and any municipality notified pursuant to this paragraph may provide comments within a reasonable period established by the commissioner and the commissioner shall consider such comments.

Sec. E-11. 38 MRSA 480-E-1, first , as repealed and replaced by PL 2005, c. 330, 14, is amended to read:

The Maine Land Use Regulation Commission shall issue all permits under this article for activities that are located wholly within its jurisdiction and are not subject to review and approval by the department under any other article of this chapter , except as provided in subsection 3.

Sec. E-12. 38 MRSA 480-E-1, sub-3 is enacted to read:

3. Offshore wind power project. The department shall issue all permits under this article for offshore wind power projects except for community-based offshore wind energy projects as defined in Title 12, section 682, subsection 19.

Sec. E-13. 38 MRSA 482, sub-2, D, as amended by PL 1999, c. 468, 6, is further amended to read:

D. Is a subdivision as defined in this section; or

Sec. E-14. 38 MRSA 482, sub-2, F, as enacted by PL 1997, c. 502, 5, is amended to read:

F. Is an oil terminal facility as defined in this section . ; or

Sec. E-15. 38 MRSA 482, sub-2, J is enacted to read:

J. Is an offshore wind power project with an aggregate generating capacity of 3 megawatts or more.

Sec. E-16. 38 MRSA 482, sub-8 is enacted to read:

8. Offshore wind power project. "Offshore wind power project" means a project that uses a windmill or wind turbine to convert wind energy to electrical energy and is located in whole or in part within coastal wetlands as defined in section 480-B, subsection 2. "Offshore wind power project" includes both generating facilities as defined by Title 35-A, section 3451, subsection 5 and associated facilities as defined by Title 35-A, section 3451, subsection 1, without regard to whether the electrical energy is for sale or use by a person other than the generator.

Sec. E-17. 38 MRSA 484, sub-3, G, as enacted by PL 2007, c. 661, Pt. B, 11, is amended to read:

G.In making a determination under this subsection regarding an expedited wind energy development, as defined in Title 35-A, section 3451, subsection 4, or an offshore wind power project with an aggregate generating capacity of 3 megawatts or more, the department shall consider the development's or project's effects on scenic character and existing uses related to scenic character in accordance with Title 35-A, section 3452.

Sec. E-18. 38 MRSA 484, sub-10, as enacted by PL 2007, c. 661, Pt. B, 12, is amended to read:

10.Special provisions; wind energy development or offshore wind power project. In the case of a grid-scale wind energy development, or an offshore wind power project with an aggregate generating capacity of 3 megawatts or more, the proposed generating facilities, as defined in Title 35-A, section 3451, subsection 5:
A.Will be designed and sited to avoid unreasonable adverse shadow flicker effects;
B.Will be constructed with setbacks adequate to protect public safety. In making a finding pursuant to this paragraph, the department shall consider the recommendation of a professional, licensed civil engineer as well as any applicable setback recommended by a manufacturer of the generating facilities; and
C.Will provide significant tangible benefits as determined pursuant to Title 35-A, section 3454, if the development is an expedited wind energy development.

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, "grid-scale wind energy development," "primary siting authority," "significant tangible benefits" and "expedited wind energy development" have the same meanings as in Title 35-A, section 3451.

Sec. E-19. 38 MRSA 488, sub-9, as repealed and replaced by PL 2005, c. 330, 19, is amended to read:

9.Development within unorganized areas. A development located entirely within an area subject to the jurisdiction of the Maine Land Use Regulation Commission, other than a metallic mineral mining or advanced exploration activity or , an oil terminal facility or an offshore wind power project with an aggregate generating capacity of 3 megawatts or more that is not a community-based offshore wind energy project as defined in Title 12, section 682, subsection 19, is exempt from the requirements of this article.
A. If a development is located in part within an organized area and in part within an area subject to the jurisdiction of the Maine Land Use Regulation Commission, that portion of the development within the organized area is subject to review under this article if that portion is a development pursuant to this article. That portion of the development within the jurisdiction of the commission is exempt from the requirements of this article except as provided in paragraph B.
B. If a development is located as described in paragraph A, the department may review those aspects of a development within the jurisdiction of the Maine Land Use Regulation Commission if the commission determines that the development is an allowed use within the subdistrict or subdistricts for which it is proposed pursuant to Title 12, section 685-B. A permit from the Maine Land Use Regulation Commission is not required for those aspects of a development approved by the department under this paragraph.

Review by the department of subsequent modifications to a development approved by the department is required. For a development or part of a development within the jurisdiction of the Maine Land Use Regulation Commission, the director of the commission may request and obtain technical assistance and recommendations from the department. The commissioner shall respond to the requests in a timely manner. The recommendations of the department must be considered by the Maine Land Use Regulation Commission in acting upon a development application.

Sec. E-20. 38 MRSA 488, sub-25 is enacted to read:

25. Offshore wind power project and certain standards. An offshore wind power project with an aggregate generation capacity of 3 megawatts or more is exempt from review under the existing use standard in section 484, subsection 3, insofar as the department determines that review is required under criteria specified in Title 12, section 1862, subsection 2, paragraph A, subparagraph (6).

Sec. E-21. Rulemaking. No later than June 1, 2011, the Department of Environmental Protection shall adopt rules pursuant to the Maine Revised Statutes, Title 38, chapter 3, subchapter 1, article 5-A and Title 38, section 344, subsection 7 to provide permit by rule standards for meteorological towers in coastal wetlands that are associated with resource analysis activities in anticipation of an offshore wind power project as defined by Title 38, section 480-B, subsection 6-A. The rules must specify the class of eligible activities and may establish standards of location, design, construction or use that the department considers necessary to avoid adverse environmental impacts. These rules are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.

Office of the Revisor of Statutes
State House, Room 108
Augusta, ME 04333