Wind Zoning and Siting Barriers by Darla Garrett

Wind Zoning and Siting Barriers Darla M. Garrett 5/12/2011

Supporting the use of renewable energy sources has been a primary initiative of the Obama Administration. The development of Wind Energy as an alternative source of power is being explored as a potential solution. However, regulatory, zoning and siting issues across the country is a major barrier to the rapid deployment of wind energy systems. Only through a collaborative federal and state process that promotes a uniformed centralized regulatory and siting system will successful wind deployment finally be realized.

Section 1.0

State of Intergovernmental Relations Issue

With fuel prices continuing to rise, the search for renewable energy solutions has become a national priority. One of those renewable energy solutions is wind. According to the National Renewable Energy Laboratory (NREL), wind energy could support “20 percent of the power generated from fossil fuels to wind power by 2030” along the Eastern Interconnection (Dotson, 2010, p. 54). While President Obama has made energy independence a national priority, there is no uniformed Federal or State policy for regulating siting and zoning authority for wind turbines on land and offshore. In fact, some Federal and State regulations constrain local siting authority (Ostrow & Salkin, 2009). The lack of siting and zoning regulation guidance on the part of the national government and numerous siting and zoning rules at the local level has created a hodgepodge of siting and zoning problems across the country creating friction between Federal-State and State and Local governments, stalling the deployment of wind energy systems. This paper will examine intergovernmental siting and zoning issues specifically related to the development of wind energy systems. Section 2.0

Literature Review

Zoning and siting issues have become the primary barrier to the development of wind energy systems. Green and Sagrillo (2005) noted that there are as many as “25,000 local zoning jurisdictions in the nation and vary from state to state” (p.1). This has produced an uneven development of wind energy projects across the country and hindered or ceased development all together in some areas. States across the country are taking matters into their own hands and creating their own renewable energy goals. In an effort to support the states, the Department of Energy (DOE) produced a guide for county commissions to assist county planners and local

governments with information to successfully implement wind energy projects. Yet, there continues to be barriers primarily as a result of local regulations that do not address wind turbine siting. As the chart indicates below land planning decisions are primarily at the municipal level. Summary of State Delegation of Zoning Authority States with Zoning Enabling Laws

States with State-Level Zoning Authority

States with County Zoning Authority

States with Town/Township Zoning Authority

States with Municipal Zoning Authority

Green and Sagrillo (2005)

According to Fleischauer (2010), zoning and siting wind ordinances would impact the location of wind projects. Wisconsin’s Governor Scott Walker passed legislation recently restricting wind farm development in opposition to State regulators (Content, 2011). The uncertainty of the regulatory environment in Wisconsin has caused the development of wind projects to stall or to cease completely. Prior to Walker’s administration, according to Green and Sagrillo (2005), Wisconsin had been a leader in developing a “model zoning initiative,” which would have been a “ready to use ordinance” that would pass legal challenges (p. 4). In Rhode Island, the community was struggling with two different town committees’ language on wind turbine zoning (Lemire, 2010). At the heart of the matter was the community’s concern with the placement of the turbines and if anyone objected to the “dominate view” of the turbines. Texas on the other hand was viewing wind energy as a potential revenue source from leasing land to wind developers and had earned a reputation for being a “wind friendly state” surpassing California as” the state with the most installed wind energy capacity” (McHahan, 2007). 2

However, as federal and State governments examined public and private land to use for wind turbines, siting challenges continue to unfold. Regulatory uncertainty not only affected land based wind farms but also stretches to offshore wind projects as well. States looking to develop wind offshore in State waters are faced with a host of federal regulations. Fleishcauer (2010) explained that states looking to develop wind projects in State waters are required to follow federal permitting requirements. Since there were no comprehensive federal wind legislation, states were left to navigate as many as nine different federal agencies involved in the permitting process including the Department of Energy, the Mineral Management Service, the United States Army Corps of Engineers, the Fish and Wildlife Service, the Bureau of Land Management, the Environmental Protection Agency, the Department of Defense, the Federal Aviation Administration, and the National Telecommunication and Information Administration, in addition to other federal agencies that provided tax credits for wind development (Ostrow & Salkin, 2009). This was compounded further with multiple stakeholders and NIMBYism (Not In My Backyard). Residents in Patrick County gathered to discuss the placement of turbines near the Blue Ridge Parkway. The discussion centered around property ownership versus the affect the turbines would have on the views of its neighbors (Lindsey, 2006). Moreover, the publicâ&#x20AC;&#x2122;s lack of understanding of wind energy systems in general exacerbates the problem making it harder for local officials to deploy wind projects quickly. Part of the problem was that most local ordinances do not have zoning rules for wind turbines and the other was the sites that will deliver the most energy tend to be on landscapes that communities value. For example, the federal Bureau of Land Management had coordinated with Californiaâ&#x20AC;&#x2122;s Energy Commission to spur the development of renewable energy projects in some 3

of the Southwest most prized ecological areas (Kenworthy, 2010). Planning and communicating to stakeholders in the community, according to Geraint, Cowell, Warren, Strachan, Szarka, Hadwin et. al. (2009) had been left to the developer. The authors proposed inclusion of the local government and the community into the decision-making process. An open and cooperative planning process among developers, communities and local governments would certainly improve the pace of wind deployment. Geraint, Cowell, Warren, Strachan, Szarka, Hadwin, et.al (2009) noted that underestimating the public’s sentiments regarding landscapes and not actively addressing zoning and siting issues early on would undermine the planning process. Connecticut provided a perfect example of the planning process coming to a complete halt over landscape and wild life issues not being addressed in the siting or zoning process. However, according to Singer (2011), the primary issue in Connecticut was that it did not have turbine standards and neither did most states. Colebrook Connecticut Siting Council had no land-use regulations that limited the ability to approve wind projects (Boughton, 2011). Legislators are working on developing standards that would address “noise, blade sheer, property setbacks, and impact on natural resources” (Singer, 2011). This is clearly an area where the state should step in to implement consistent regulations and processes. With the urgent need to develop and deploy renewable energy sources, zoning and siting regulations need to be streamlined to help spur development. According to Stemler’s (2007) study on wind power siting, incentives and guidelines, “six states—Colorado, Minnesota, North Dakota, Oregon, South Dakota, and Vermont” had specific wind siting authority (p. 2). Without a more coordinated effort to wind development both land based wind and offshore wind is certain to stall. In a study on wind deployment conducted by Fischlein, Larson Hall et. al. (2010), stakeholders noted siting and permitting as the primary barriers to wind deployment. In Idaho, 4

Republican Representative Tom Loertscher was pushing legislation to “forbid counties from approving wind energy facilities” if blades flicker shadows on someone else’s property (Crandell, 2011). Loertscher asserted the local governments need more guidance on what should be in their ordinances when considering wind development and wanted a moratorium on any further wind development projects (Crandell, 2011). This is a clear example of the State overriding home rule of the local jurisdiction’s authority to develop its own land-use policies. The federal government implemented a partial federal preemption of home rule in 1996 to push the development of cell phone towers. Under the Telecommunication Act of 1996, local jurisdictions were limited on how they could regulate the installation of cell phone antenna and towers (Green & Sagrillo, 2005). A partial preemption of home rule in the development of wind power may be one solution to local siting and zoning issues. Michael Polsky, a wind power entrepreneur in a 2009 interview argued that the U.S. needs a “federally mandated renewable electricity standard” (p. 72). Despite the complex nature of zoning and siting regulations at the local level, the U.S has led in the development of land based wind but has yet to develop any offshore wind energy projects. One of the first offshore wind projects that still has not come to full fruition was Cape Wind. Due to the multitude of federal and regulatory requirements, the permitting process has taken nine years (Musial & Ram, 2010)! Even if states are proactive in their pursuit of off shore wind development, their efforts are stalled at the federal permitting level. Yet, that has not stopped states from jumping on the offshore wind band wagon. In Maryland, the O’Malley administration lobbied hard this past year to pass offshore wind legislation but ultimately failed. The cost to subsidize the development was the primary concern of the legislators (Hyslop, 2011). O’Malley’s proposal to enter into 20-25 year contracts with 5

prices so high did not seem feasible. Moreover, with permitting on the federal side taking so long, there is great uncertainty regarding the timing involved in getting the turbines up and running. Klimasinska (2011) in an article in Bloomberg on Clean Energy observed that the regulatory environment made renewable energy projects just as hard to develop as a coal fired power plant. Wind projects were being impeded by years and years of permitting delays due to the nature of the complex regulatory process at all levels of government. Massachusetts Cape Wind project has proven to be the most controversial with numerous legal challenges (McMahan, 2007). In an aggressive measure to override local authority, Massachusetts legislators introduced its own Wind Bill, which standardized siting and a one stop permitting and appeals processes at the state and local levels (Kimmell, Blumkin and Evans, 2010). Some states are being proactive in modifying their ordinances to accommodate wind projects. Minnesota, for example developed a Wind Workshop collaborating with state and local administrators (Lindquist, 2006). The workshopâ&#x20AC;&#x2122;s goal was to identify zoning barriers to wind projects and recommend changes to the ordinances. One of the primary issues in Minnesota was tension between the state and local government over who had permitting authority for projects under 5MW (Lindquist, 2006). Garrett County Commissioners in Maryland, according to Lamb (2005), pulled back on their support of approving any more wind projects until they could determine if they have the authority to limit wind develop. Rural communities that lack zoning laws have had several problems. Hartsville for example, a small rural community in New York, is struggling to slow down the development of wind farms in their community, but the local government in Hartsville viewed wind as an opportunity to increase tax revenues (Bell, 2006). Furthermore, with federal tax credits offered to offset project cost related to wind development, and state mandates requiring utilities to generate a percentage of power from renewable sources, 6

has made it more difficult for local governments to say no (Swiatek, 2009). On a positive note, some towns have surveyed problems in other towns and used it to tighten up their zoning ordinances. For example, Cape Cod, Massachusetts learned of the town of Falmouth’s issue with its placement of wind turbines and used that example as a “lessons learned” to determine where wind turbines should be placed and not placed (Chesto, 2011). Placement is critical for effective wind management and having the proper ordinances and permitting in place is key, but what happens when the federal government wants to put up a turbine in your backyard or in your ocean? The federal government was exploring wind development in federal waters near Martha’s Vineyard. In Cassidy’s 2011 article he explained how the Office of Energy and Environmental Affairs were interested in “3,000 square miles of ocean south of the islands.” This case demonstrated the federal government’s power and desire in spurring wind deployment, but the project was already facing legal challenges from local stakeholders. However, in Maryland, government officials have been working on its offshore wind planning project for several years and have involved the Department of Natural Resources, the Maryland Energy Administration and the Maryland Offshore Wind Task Force and other stakeholders in order to stave off any controversy (Brighter Energy, 2010). While offshore wind development is beginning to heat up, land based projects continue to create controversy. Anne Arundel County in Maryland has no zoning laws pertaining to wind turbines (Fuller, 2010). According to the Maryland Energy Administration (2010), Councilman Ronald C. Dillon Jr.’s wind turbine proposal was the most restrictive ordinance in the state. Maryland officials should consider developing a consistent land based siting and zoning policy across the state but this does not seem likely now that all of the attention is focused on offshore wind deployment.

Several factors were considered when developing wind ordinances. The U.S. Department of Energy (DOE) noted sixteen elements of wind energy ordinances: access, appearance, clearance, electrical, equipment, height, lightly, noise, permits, setbacks, shadow flicker, signage, signal interferences, site restoration and decommissioning, spacing and density, zoning areas.1 Some states are coordinating their wind planning efforts. Rhode Island and Massachusetts are currently collaborating on their offshore wind projects (Dotson, 2010). Other states and counties around the country our taking matters into their own hands. Shawano County in Wisconsin had a very functional wind ordinance process for land turbines and had developed its own guidelines regarding wind ordinances (Shawano County 2005, Wind Energy Conversion System Ordinance). However, in other states and counties controversy surrounding wind was alive and well. Kittitas County Board of Commissioners rejected plans for a wind project “saying in would not comply with zoning regulations” and “was not on property designated” for wind activity (2007, Geiselman, p.11). However, the Governor approved the project anyway but with some modifications. This was clear example of the State usurping the counties home-rule authority. In Maryland, one local opponent of wind Jon Boone, created so much controversy, according to Alexander Nunez of Constellations Public Affairs Office (personal communications, April 25, 2011), that the Public Service Commission of Maryland amended Article § 7-207 to allow producers of electricity to be exempted from obtaining a Certificate of Public Convenience and Necessity (CPCN) as long as the generating station does not exceed 70 megawatts. Nunez cited in a phone interview that there are “sharp contrasts in zoning rules for siting across the state that makes land based turbines a complicated issue.” Garrett County for

Available at www.windpoweringamerica.gov/pdfs/policy/2008/ordinances_overview.pdf

example, has no county-wide zoning and Allegany County passed very strict countywide zoning according to Nunez. In Hartford, Connecticut wind development projects have been stalled until the state can develop clear turbine standards (Singer, 2011). Despite the complexity and mixed bag of wind ordinances and regulations, land based wind deployment has moved more quickly than offshore wind. Maryland is pushing forward to develop its offshore wind projects and it is likely to be a topic during in the special session. Offshore wind is not without its own hurdles. Aside from having to deal with multiple federal agencies just to obtain the proper permitting, local community opposition has proven to be a major obstacle. Rhode Island in 2008 was poised to be the first state to have offshore wind (Brown, 2008). Fisheries in Rhode Island were concerned about the negative impact that offshore wind farms could have on commercial fishing. Maryland too was looking at the impact off shore wind would have on radar and military interference, grid connectivity, and the placement of turbines in shallow versus deep waters (Environmental Protection, 2005). Another hurdle to offshore wind deployment, according to Musial and Ram (2010) was that “there is no institutional knowledge about offshore wind energy facilities” (p.7). This was completely new territory and while the U.S. could look to the Europeans for guidance, they too are discovering that wind energy may not be the power solution they expected. It should be noted that there are many problems with wind energy as a source of power and there are many skeptics. According to an article written by Eric Rosenbloom, Denmark has over “6,000 turbines producing electricity equal to 19% of what the country used in 2002” but not a single power plant had been shut down primarily because the wind power produced in surplus was being sold to other countries. Many European countries are rethinking their wind policies and future wind projects. There are also a number of technical problems like connecting 9

the wind to the grid. Some opponents see wind as just another way for corporations to make money or as Jon Boone (email communication, April 25, 2011) stated “it’s all about tax sheltering for large corporations, most of which are in thrall to coal.” A German Energy Agency study in 2005 stated that wind power would actually increase consumer cost. Moreover, in addition to the cost of building and supplying the power, wind turbines come with a host of other issues such as size, noise, and the impact on wildlife. For example the definition of “small wind” according to Green and Sagrillo (2005) includes wind turbines….with up to 60-ft rotor diameters and total heights of tower and extended blade of 170 ft.” (p.4). Some communities view the turbines as an eyesore and have complained about the noise. To conclude, it is clear from the literature review that there are several intergovernmental relation (IGR) policies on wind deployment on and offshore that need to be addressed if wind energy is going to be successful. The next section of this paper will discuss several alternatives IGR policies that could resolve or mitigate some of the complicated wind ordinances and regulatory issues that hinder the development of wind energy systems. Section 3.0

Discussion of Alternative Intergovernmental Relation Policies

There are several intergovernmental issues occurring with the deployment of wind energy systems: (1) no clear federal siting and zoning policies for wind energy systems; (2) States mandating wind development down to the local level and in some cases preempting local home rule; and (3) Local governments have no ordinances or a mixed bagged of ordinances for wind development that creates confusion for developers and other stakeholders. These issues could be mitigated using the following alternatives: (1) zoning variance exceptions maintain

home rule local control; (2) Partial Federal preemption of home rule and (3) State Preemption of home rule. Alternative 1 Zoning Variance Exceptions: Green and Sagrillo (2005) argued that zoning variance exceptions would allow individual property owners to obtain a special variance to install wind turbines on their property. This alternative keeps land use planning at the local level and gives land owners facing a zoning barrier an alternative. However, this solution does not address the differences in zoning across county and state lines, leaving property owner to their own devices to navigate the siting and permitting process. Zoning variance exceptions is the weakest alternative and does not solve the long-term problems surrounding wind deployment and this process may in fact slow deployment down. If discovering and deploying renewable energy resources is of national urgency, and it seems that it is, then promoting home rule for wind will just keep the local jurisdictions left to pursue their own interests at the expense of the rest of the state or regions (Stephens and Wikstom, 2007). Yet, overriding local home rule would likely set off a fire storm of protests from local governments and the community. Alternative 2 Federal Preemptions: Ostrow and Salkin (2009) argued that a national wind siting policy would â&#x20AC;&#x153;increase uniformity of regulatory requirements across regionsâ&#x20AC;? (p. 137). This would be a complete preemption of home rule over state and local authority. This alternative would certainly give energy producers more confidence in the regulatory environment and help to speed the deployment of wind development. The federal government used this option in 1996 during the expansion of the cell phone industry. The Telecommunication Act of 1996 partially preempted 11

State’s home rule to limit local jurisdictions from regulating the installation of cell phone towers (Green and Sagrillo, 2005). Positive results of this policy are evident today. If the federal government is serious about promoting renewable energy sources, perhaps it should take the same measures it did under the Clean Air Act of 1970 by requiring certain standards but allowing states to implement their own programs as long as it promotes the effective development of wind energy systems (O’Toole 2007). However the federal government is having difficulty in overriding state decisions regarding site transmission lines. Once the turbines are built the power produced has to get to the grid and according to Dotson (2010), the states have siting authority over transmission lines. Officials at FERC would like to see Congress enact legislation that would invoke federal authority for transmission siting authority to connect the renewable energy source to the grid. Federal preemption of State and local authority would be an extreme use of federal power but it may be necessary for rapid deployment of wind energy systems. Alternative 3 State Preemption of Home Rule: There are several examples of State preemption of home rule for wind projects. Wisconsin, according to Green and Sagrillo (2005) passed restrictive legislation on the installation of solar and wind energy projects. The legislation was specifically developed to limit the municipalities’ ability to regulate solar and wind projects. Nevada’s state legislature proposed legislation to limit the local authority on restricting owners from using wind energy on their property. In 2001, California passed legislation significantly limiting local zoning authority (Green & Sagrillo, 2005). State Preemption of home rule could streamline the siting process and allow for faster deployment of wind energy systems. However, as with any preemption of power there will likely be significant push back from the local governments.

Section 4.0

Recommended Intergovernmental Policies

To quicken the pace of wind deployment a combination of Federal preemption and State preemption of home rule is necessary. While home rule, according to Stephens and Wikstrom 2007, â&#x20AC;&#x153;maximizes local flexibilityâ&#x20AC;? it has not proven very effective in the deployment of wind. Wisconsin has one of the best wind siting processes and that was a result not of local control, but of the state preemption of restricting local authority. Home rule empowers local governments to address land use planning, but in the case of wind, most have been ill equipped to handle wind siting issues and many communities are in turmoil. A more centralized approach to wind deployment would be more beneficial. According to Ostrow and Slakin (2009) Congress has a history of regulating local siting authority. Under the Federal Energy Regulatory Commission (FERC), the federal government limited the local siting authority for electric transmission lines (Energy Act of 2005). Furthermore, a cooperative federalism framework for wind siting could be modeled after the Telecommunication Act of 1996. Federal-state collaboration would allow the federal government to lay the groundwork for a central regulatory framework but empower the states to carry out the program. This has been done in other areas of national concern such as education, welfare reform, homeland security and tax policy. Energy policy is certainly a national issue now with gas climbing to four dollars per gallon so it seems natural that the federal government should play a more active role in wind energy deployment. However, some state and local governments are clearly not prepared to handle some of the issues facing wind projects so clear federal guidance will be needed but the states should be given the flexibility to implement its own processes without too much federal interference.

As stated earlier, wind siting ordinances varies from state to state. Maintaining control at the local level is not going to be effective if the United States wants to rapidly deploy wind energy projects. Yet, most of the federal policy year to date regarding wind generally has focused on improving the technology and the costs, and advancing the industry as a whole. Most recently under the American Reinvestment and Recovery Act (ARRA) 2009 extension for tax credits for wind energy facilities were approved along with other incentives and research dollars. Wind policy in general has come from the state level. To date, the federal government has not been unable to pass legislation that would require electric utilities to increase their electricity from renewable sources, nor have they attempted to address the problems of siting and permitting at the state and local level (Ostrow and Salkin (2009) Historically, businesses and special interests found their interests being best served at the local level but that has changed in recent years and according to Conlan & Posner (2008), have rolled up to the federal level. The telecommunications industry had significant money and influence and this was demonstrated through the passing of the Telecommunications Act. Preemption in this case was successful. However, according to Green and Sagrillo (2005) the wind industry does not have the financial or political influence that the telecommunications industry had and because the benefit of wind energy is spread out makes it more difficult to sell as a national policy. Nevertheless, an override of local siting authority at the federal and state level would be the most effective means to spur the development of wind energy systems. A comprehensive federal policy would streamline the permitting and siting process and keep state and local jurisdictions from stalling on wind energy projects. Yet, the federal government is often hesitant to exercise its preemptive power and prefers a more cooperative approach. However, a uniform approach of â&#x20AC;&#x153;regulatory requirement across regions would greatly 14

facilitate increased deployment” (Ostrow and Salkin 2009). A policy of cooperative federalism would allow the Federal government to mandate a national wind policy to address regulatory and siting issues but give the states the flexibility to implement the appropriate permitting and siting processes. Furthermore, limited state preemption of home rule on the local jurisdictions would reduce wind developers and property owners’ barriers to implementing wind energy systems. A federal wind siting policy should according to Ostrow and Salkin (2009): (a) “should prohibit local governments from excluding wind energy facilities; (b) Require local governments to make decisions on wind siting within a reasonable period of time; and (c) require such decisions to be made in writing and supported by substantial evidence” (p. 144).

Developing and implementing new energy sources is a critical national issue that is too important to be left to the states and local jurisdictions. Wind energy both on and offshore as a power source has sparked debate all over the country. The federal government needs to take the lead on developing clear policies for renewable energy resources and give the states the guidance it needs to spur the development of renewable energy sources such as wind. The states need to leverage their power over the local jurisdictions to ease the permitting and siting process, otherwise wind projects will continue to stall or all together cease. The federal government needs to strategically partner with the states if it truly wants to accelerate the approval and deployment of wind energy systems.

Wind energy as a source of power is a very controversial topic beyond permitting and siting. Further study on the pros and cons of wind energy as a source of power, the politics, special interest groups, and the costs would be an interesting follow-up to this topic.

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