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An Act To Minimize Conflicts between Property Owners and Grid-scale Wind Energy Developments
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  12 MRSA §682, sub-§20  is enacted to read:
 
20.  Grid-scale wind energy development.     "Grid-scale wind energy development" has the same meaning as in Title 35-A, section 3451, subsection 6.
Sec. 2. 12 MRSA §685-B, sub-§4-B, as amended by PL 2009, c. 615, Pt. D, §5, is further amended to read:
 
4-B. Special provisions; wind energy development or project.   In the case of a wind energy development, as defined in Title 35-A, section 3451, subsection 11, withthat is not a grid-scale wind energy development and that has a generating capacity greater than 100 kilowatts, or a community-based offshore wind energy project, the developer must demonstrate, in addition to requirements under subsection 4, that the proposed generating facilities, as defined in Title 35-A, section 3451, subsection 5:
 
A. 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;
 
B. Will be designed and sited to avoid undue adverse shadow flicker effects;
 
C. Will be constructed with setbacks adequate to protect public safety, as provided in Title 35-A, section 3455. In making findings pursuant to this paragraph, the commission 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
 
D. 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, as defined in Title 35-A, section 3451, subsection 4.
Sec. 3.  12 MRSA §685-B, sub-§4-C  is enacted to read:
 
4-C.  Special provisions; grid-scale wind energy development or project.     In the case of a grid-scale wind energy development, the developer must demonstrate, in addition to requirements under subsection 4, that the proposed generating facilities, as defined in Title 35-A, section 3451, subsection 5, will meet the requirements in Title 38, section 484-C.
Sec. 4. 35-A MRSA §3454, sub-§2, as enacted by PL 2009, c. 642, Pt. A, §7, is amended to read:
 
2. Community benefits package requirement.   Except as provided in subsection 3, to demonstrate that an expedited wind energy development provides significant tangible benefits as required in Title 12, section 685-B, subsection 4-B and Title 38, section 484, subsection 10484-C, the applicant for an expedited wind energy development is required to establish a community benefits package valued at no less than $4,000 per year per wind turbine included in the expedited wind energy development, averaged over a 20-year period. This subsection does not affect the property tax obligations of an expedited wind energy development.
Sec. 5. 35-A MRSA §3455, as enacted by PL 2007, c. 661, Pt. A, §7, is amended to read:
§ 3455.Determination of public safety-related setbacks
In making findings pursuant to Title 12, section 685-B, subsection 4 or Title 38, section 484, subsection 3 on whether a wind energy development must be constructed with setbacks adequate to protect public safety, the primary siting authority must consider the recommendation of a professional, licensed civil engineer as well as any applicable setback recommended by a manufacturer of the generating facilities and the requirements in Title 38, section 484-C for grid-scale wind energy developments and offshore wind power projects. The primary siting authority may require submission of this information as part of the application.
Sec. 6. 38 MRSA §484, sub-§10, as amended by PL 2009, c. 615, Pt. E, §18, is repealed.
Sec. 7.  38 MRSA §484-C  is enacted to read:
§ 484-C. Standards for grid-scale wind energy development or offshore wind power projects
 
1.  Definitions.     As used in this section, unless the context otherwise indicates, the following terms have the following meanings.
 
A.  "Approved residential subdivision" means a residential subdivision for which the developer has received all applicable land use permits for the subdivision and the time for beginning construction under such permits has not expired.
 
B.  "Boundary line" means the boundary of a parcel of land owned or leased for a grid-scale wind energy development.
 
C.  "Capacity factor" means the value of electricity production in one calendar month divided by the maximum potential production based on the nameplate capacity.
 
D.  "Expedited wind energy development" has the same meaning as in Title 35-A, section 3451.
 
E.  "Grid-scale wind energy development" has the same meaning as in Title 35-A, section 3451.
 
F.  "Locally designated passive recreation area" means a site or area designated by a municipality for passive recreation that is open and maintained for public use and that:
 
(1) Has fixed boundaries;
 
(2) Is owned in fee simple by a municipality or is accessible by virtue of public easement; and
 
(3) Is identified and described in a local comprehensive plan.
 
G.  "Nonparticipating property" means any parcel of land not subject to a lease agreement or other property agreement with a wind energy developer for a wind energy development.
 
H.  "Offshore wind power project" has the same meaning as in section 480-B, subsection 6-A.
 
I.  "Operator" means a person, firm or corporation owning or operating a generator or that person's, firm's or corporation's representative or agent.
 
J.  "Permitting authority" means:
 
(1) The department, in the case of a grid-scale wind energy development subject to the department's jurisdiction pursuant to this article, including, but not limited to, a development subject to the department's jurisdiction pursuant to section 488, subsection 9; or
 
(2) The Maine Land Use Regulation Commission, in the case of a grid-scale wind energy development subject to the Maine Land Use Regulation Commission's jurisdiction pursuant to Title 12, chapter 206-A.
 
K.  "Plan" means the site restoration and decommissioning plan developed by a wind energy developer.
 
L.  "Planned residence" means a residence for which the owner of the parcel of land on which the residence is to be located has received all applicable building and land use permits and the time for beginning construction under such permits has not expired.
 
M.  "Primary siting authority" has the same meaning as in Title 35-A, section 3451.
 
N.  "Protected location" means:
 
(1) Any location, accessible by foot, on a parcel of land containing a residence, planned residence, approved residential subdivision, commercial building, house of religious worship, school, college, library, duly licensed hospital or nursing home, building or structure to house or contain domestic animals or any structure likely to be occupied by persons, near the site of a grid-scale wind energy development when an application is received by the permitting authority; and
 
(2) Any location within a state park, a national park, a historic area, a national wildlife refuge, the Appalachian Trail, a federally designated wilderness area, a state wilderness area designated by statute or a locally designated passive recreation area or any location within consolidated public reserve lands designated by rule by the Department of Conservation, Bureau of Public Lands as a protected location.
 
O.  "Tangible benefits" has the same meaning as in Title 35-A, section 3451.
 
P.  "Wind turbine" means a mechanical device that captures the energy of the wind and converts it into electricity.
 
2.  Grid-scale wind energy development standards.     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, a developer must demonstrate:
 
A.  That the proposed generating facilities, as defined in Title 35-A, section 3451, subsection 5 will meet:
 
(1) The following minimum setback standards:
 
(a) A wind turbine must be at least 1 1/4 miles from a protected location if the elevation change between the wind turbine and the protected location is equal to or less than 500 feet;
 
(b) A wind turbine must be at least 2 miles from a protected location if the elevation change between the wind turbine and the protected location exceeds 500 feet;
 
(c) A wind turbine must be at least 1/2 mile from the nearest boundary line of the parcel of land on which the wind turbine is located; and
 
(d) A wind turbine must be at least 1/3 mile from any public highway or right-of-way and from any aboveground utility line or facility, except for a utility line that directly connects a wind turbine; and
 
(2) Quantifiable sound level limits adopted by the department by rule that eliminate or minimize reasonable annoyance and health concerns of persons located near the proposed generating facilities;
 
B.  That an analysis of shadow flicker effect for each wind turbine has been completed and that shadow flicker effects will not be perceptible on any nonparticipating property;
 
C.  That a plan has been developed that provides for the following:
 
(1) The replacement or removal of a wind turbine in the event of the wind turbine's failure, including a failure due to natural disaster;
 
(2) The removal and lawful disposition of all wind turbines and other structures of the grid-scale wind energy development or offshore wind power project, including hazardous materials, foundations and all aboveground or belowground transmission or generator lead lines;
 
(3) The removal or adequate supervision and control of all access roads;
 
(4) To the greatest extent possible, the restoration of the parcels of land that are located at the grid-scale wind energy development site to their condition prior to the construction for the grid-scale wind energy development;
 
(5) The decommissioning of the grid-scale wind energy development site or a portion of the grid-scale wind energy development site upon the expiration or revocation of the permit or license or if the wind energy development or any individual wind turbine performs at less than 10% of its capacity factor for 12 consecutive months;
 
(6) Demonstration of the posting of a 3rd-party bond in the amount of the full estimated costs of the decommissioning and site restoration adjusted for inflation, prior to the commencement of construction. The calculations used for determining the cost of implementing the plan and the terms and conditions of the bond must be in accordance with rules adopted by the department; and
 
(7) Written authorization by the wind energy developer for each municipality in which the grid-scale wind energy development is located and the State to have authority to access the parcels of land on the grid-scale wind energy development site for the purpose of implementing the plan in the event that the wind energy developer fails to implement the plan;
 
D.  That roads and utility lines associated with the grid-scale wind energy development are the minimum feasible length as determined by the permitting authority;
 
E.  That wind turbines that are part of the grid-scale wind energy development have no lighting except for the minimum lighting needed to meet the requirements of the Federal Aviation Administration, including any technology or system approved by the Federal Aviation Administration that allows for minimum illuminated time; and
 
F.  If the grid-scale wind energy development is an expedited wind energy development, that the requirement that a grid-scale wind energy development provide significant tangible benefits as determined pursuant to Title 35-A, section 3454 has been met.
 
In establishing standards and limits under this subsection, the department may establish different standards for offshore wind power projects and generating facilities located on land.
 
The Department of Labor, the Executive Department, State Planning Office and the Public Utilities Commission shall provide review comments if requested by the permitting authority.
 
3.  Sound level limits noncompliance.     The department shall establish by rule a process for resolving property owner complaints regarding noise and operator noncompliance with the sound level limitations adopted by the department.
 
4.  Waiver.     A property owner whose property is subject to the requirements in subsection 2, paragraphs A and B may waive one or more of the requirements in subsection 2, paragraphs A and B by signing a written waiver of rights. The waiver of rights must include, but is not limited to:
 
A.  The specific requirements to be waived;
 
B.  The potential impact on the property owner of waiving each provision;
 
C.  The grid-scale wind energy development to which the waiver applies; and
 
D.  A statement that the waiver is binding on all future property owners.
 
Prior to the operation of the grid-scale wind energy development, the waiver must be recorded in the land records of the applicable municipality or county.
 
If the permitting authority determines that every property owner potentially affected by requirements in subsection 2, paragraph A or B has signed a waiver of rights under this subsection and the requirement should therefore be waived, the permitting authority shall waive the requirement.
Rules adopted under this section are major substantive rules pursuant to Title 5, chapter 375, subchapter 2-A.
Sec. 8. Department rulemaking.
1. Rules. When adopting rules regarding sound level limits pursuant to the Maine Revised Statutes, Title 38, section 484-C, paragraph A, subparagraph 2, the Department of Environmental Protection shall review the following documents:
A. Town of Jackson, Maine's Wind Turbine Ordinance as approved by the Jackson Planning Board February 25, 2010;
B. Town of Phillips, Maine's Wind Energy Facility Ordinance as enacted on September 16, 2010;
C. Town of Montville, Maine's Wind Turbine Generator Ordinance as enacted on March 27, 2010; and
D. The proposed noise rule amendment submitted with a petition to require agency rulemaking submitted to the Board of Environmental Protection by Rufus Brown of Portland, Maine, dated December 27, 2010.
 
The department shall identify the most restrictive sound level limitations in the documents listed in paragraphs A to D and adopt provisions in the rule that require wind developers to meet the most restrictive sound level limitations. The department shall also review the documents in paragraphs A to D when adopting rules governing property owner complaints regarding noise and operator noncompliance with sound level limitations under Title 38, section 484-C, subsection 3.
2. Cost calculations for decommissioning. When adopting rules regarding calculating the cost for the implementation of the decommissioning plan pursuant to Title 38, section 484-C, subsection 2, paragraph C, subparagraph (6), the department may not permit the cost of implementing the decommissioning plan to be offset by speculative or volatile values, such as the salvage value of materials salvaged from the parcels.
 
SUMMARY
This bill removes statutory guidance for wind energy development standards and creates specific statewide standards for setback requirements, shadow flicker effects and decommissioning plans for grid-scale wind energy developments and offshore wind power projects. This bill limits the length of roads and utility lines associated with a grid-scale wind energy development and the type of lighting that may be placed on a wind turbine. This bill directs the Department of Environmental Protection to adopt rules concerning statewide standards for sound level limits.