The Law of Wind: A Guide to Business and Legal Issues

The Law of Wind: A Guide to Business and Legal Issues

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Barbara D. Craig
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Siting and Permitting Wind Projects

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Although wind energy projects are commonly praised for producing green power, they rarely receive preferential permitting treatment. Wind energy projects raise local land use, environmental, and community concerns similar to those raised by other commercial and industrial projects. Concerted opposition to large projects by local and nationwide wind opponent groups can cause schedule delays and pro forma impacts so significant as to halt project development. This has sensitized potential project purchasers and financiers, who scrutinize permitting and environmental issues very closely.

In this climate, project developers can achieve a significant competitive advantage by doing permitting right: imposing a disciplined focus on site assessment and fatal flaw analysis, “permitability”-oriented project design, and strategic consultation with interested agencies, communities, interest groups, and other identified stakeholders.

I. The Permit Process. Wind energy facility siting processes are highly localized. There is enormous variation from state to state and even from location to location. Factors such as the need for transmission lines or access roads, facility size, facility and equipment location, land ownership, and federal involvement may determine the number of agencies and the level of government involvement for a particular project.

A. Federal Siting. Wind projects proposed on federally managed land must secure land rights (typically called “rights-of-way”) and undergo the associated environmental review under the National Environmental Policy Act (“NEPA”) and related statutes. This is particularly relevant in those western states such as Utah and Nevada where much of the land, including much of the prime wind area, is located on federal lands. A deeper discussion of challenges and opportunities related to this subject is found in Chapter 5.

B. State Siting. A few states, including Oregon and Minnesota, have state siting councils or boards that have “one-stop” mandatory siting jurisdiction over permits for wind energy facilities exceeding certain sizes. California has a state siting body that has no jurisdiction over wind energy facilities. Washington has a siting council that may take jurisdiction over issuing permits for wind energy facilities of any size, but only if requested by the applicant. The Washington State Supreme Court addressed the state’s authority to approve projects in Residents Opposed to Kittitas Turbines v. State Energy Facility Site Evaluation Council, 197 P.3d 1153 (Wash. 2008) (en banc) (“Kittitas”). In Kittitas, a developer sought to have the Washington Energy Facility Site Evaluation Council (“EFSEC”) exercise its discretion, preempt local regulations, and approve a project after the developer was unable to successfully obtain a land use consistency determination from the local jurisdiction in which the developer had proposed the project. Following an affirmative decision by EFSEC to preempt and Governor Chris Gregoire’s approval of a site certificate for the facility, several residents and the Kittitas County Commission appealed, arguing that EFSEC could not preempt the County’s authority under the Growth Management Act. The Washington Supreme Court rejected their arguments and upheld EFSEC’s ability to offer “one-stop” licensing for large wind energy projects. Many of the principles articulated in the Kittitas decision will be helpful to wind developers fighting similar battles in other states.

C. Local Siting. In states where projects do not trigger state siting jurisdiction, and in states with no state siting process, wind energy projects are permitted by the local jurisdiction. For typical rural wind energy projects, this is almost always a county (as opposed to a city governing body). Windy states with no state siting process include California, Montana, New Mexico, Colorado, Idaho, Iowa, Nevada, Texas, and Utah. In Oregon, for projects that do not meet the mandatory minimum threshold for state jurisdiction (104 MW), state law requires that all energy facilities proposed in agricultural areas must be allowed, subject to a conditional use permit, with criteria defined by state law.

D. Comparative Advantages. On average, siting wind energy facilities through a state siting process takes longer than doing so through a local process, as more documentation is typically required at the state level. In Oregon, for instance, the issuance of a site certificate for a wind project may take from 12 to 18 months or more if there is heavy opposition. However, Oregon allows for an expedited (nine- to 12-month) review process for wind energy projects that will have up to 300 MW of nameplate capacity, although in practice, the expedited process has not resulted in much time savings. In comparison, siting at the local level can be completed in as little as three to six months if no significant environmental reviews are required and if there is little opposition to siting the project.

Despite the longer period required for state siting, it offers several advantages over local siting. Generally, these advantages are important for difficult or highly contentious projects and are less important for straightforward, locally supported projects. First, state agency or board review and approval tend to be based on more objective and carefully prescribed criteria adopted through public rule-making processes, resulting in decisions that are subject to less potential political or other subjective bias. Second, the process for appealing site approvals is often expedited and streamlined under state permitting.

There is a commonly held view that it is easier to permit wind energy projects at the local level, but this may not be true for all projects. When the option exists, a decision to pursue a particular permitting route should be made carefully and on a case-by-case basis, with careful consideration of potential project opposition risks.

State siting typically requires a higher level of involvement from other state departments such as fish and wildlife, environmental quality, water resources, parks, and cultural resources agencies. State siting is usually far more costly to the applicant due to significantly more complex regulations, required studies, agency review costs passed on to the applicant, and added processing and review time. However, done well, state permitting typically is a “one-stop shop” approach, where permitting through multiple agencies is consolidated into a single master permit approval document. In local permitting, such agencies may not even be notified, and, if they are, their recommendations may be afforded a different level of significance than may be attached by a state reviewing body.

II. Local Permitting. For local siting applications, an applicant works with local planning commissions, zoning boards, and county boards and staff. The county governing body, e.g., a board of commissioners or board of adjustment, typically approves and issues a permit for siting and development. In most counties throughout the United States, a wind power project is conditionally allowed in rural land use zones. Rather than being expressly allowed or prohibited, wind energy facilities are typically subject to a discretionary review by the appropriate local authority and issuance of a conditional use permit that contains the conditions attached to the approval.

To secure a conditional use permit, an applicant must show that the project will be compatible with adjacent land uses (typically farming or ranching). Many counties have developed utility or wind overlay zones (or use-specific code provisions) that further dictate where and how wind energy projects can be sited. Additionally, conditional use ordinances often require review by and consultation with state or federal agencies in the permitting process. For instance, if the project could negatively impact wildlife species listed by state or federal agencies as threatened or endangered, the appropriate state and/or federal agencies will have to be consulted. State and federal wildlife agency review may also occur as a matter of course through the environmental review process.

In addition to the actual development permit, some states require that the local permitting body conduct comprehensive environmental review based on state statutes modeled after NEPA. Washington and California require this review, Washington under its State Environmental Policy Act (“SEPA”), and California under its California Environmental Quality Act (“CEQA”). Though SEPA and CEQA are procedural evaluative tools and do not mandate specified results, the net effect of such statutes is to increase process time and cost, and the probable imposition of additional mitigation requirements. Oregon, Nevada, Wyoming, Utah, New Mexico, and Idaho do not have comprehensive environmental review statutes.

III. Federal Environmental Review. Wind energy projects that require a federal agency to take action or make a decision “enabling” the project trigger NEPA review. NEPA is a procedural statute that requires federal agencies to consider the environmental impacts of a proposed decision before making the decision. In the context of wind energy projects, NEPA can be triggered by the need to acquire a right-of-way or special use permit from the Bureau of Land Management (“BLM”), the U.S. Forest Service (“Forest Service”), or another land-managing federal agency; the need to interconnect with a Bonneville Power Administration (“BPA”) or Western Area Power Administration (“WAPA”) main transmission line or substation; entering into a power purchase agreement with BPA or WAPA; and the need to secure a Clean Water Act section 404 removal/fill permit from the U.S. Army Corps of Engineers.

Early consideration should also be given to the question of NEPA applicability to various federal loan and grant programs. While federal financing typically involves a discretionary action that triggers NEPA, there is a specific carve-out of its application to the Section 1603 Energy Property Grant program created under the 2009 American Recovery and Reinvestment Act. Depending on the level of environmental review required, the process can take one month (for decisions that have been categorically excluded from individual NEPA review), two to six months (for an environmental assessment to be prepared that concludes that the federal action will not significantly impact the environment), or more than a year (for an environmental impact statement (“EIS”) that analyzes in much more detail the impacts of a project in an area that is considered to be environmentally sensitive). When a state-level environmental review is already under way for a wind energy project, the federal agency may piggyback on the state process and incorporate the environmental documentation from the state process into the federal NEPA review. In appropriate situations, the federal agency may also “tier” a decision to a prior NEPA review and thereby reduce the amount of time and material that must be prepared for the new decision. An example of this would be BPA’s relying on a prior “programmatic” EIS that evaluated future energy development in the Northwest in order to support a decision as to whether to allow an interconnection to a BPA transmission line as part of a specific wind project.

In 2005, the BLM published its Final Programmatic Environmental Impact Statement on Wind Energy Development on BLM-Administered Lands in the Western United States (“Wind PEIS”), which focuses on public land administered by the BLM in 11 western states, excluding Alaska. Upon releasing the final document, the BLM announced that “this EIS proposes a consistent, agency-wide approach to wind energy permitting that will support and expedite site-specific analysis of individual wind projects.” In plain English, this means that the BLM has laid the environmental groundwork to speed up the permitting of wind energy in the 11 western public-land states. As of July 2016, the BLM had authorized 40 wind energy development projects, with applications for another 20 projects pending.

In addition to the Wind PEIS, the BLM also announced a wind energy development policy in December 2008, which provided further guidance on processing right-of-way applications for wind projects on public lands.1 Further, on December 19, 2016, BLM published a final rule revamping its leasing regulations to include competitive processes, incentives for development in “designated leasing areas” (identified in the rule and relevant resource management plans), and new payment and bonding requirements for wind energy development rights-of-way. 81 Fed. Reg. 92,122 (Dec. 19, 2016). Much of what was included in the formal rulemaking derived from existing policies, described above, that the agency had issued in prior years. The rule went into effect on January 18, 2017.

The Forest Service has not prepared a programmatic EIS for wind energy development but has generally followed the BLM’s lead. In 2011, the Forest Service issued internal guidance related to the issuance of permits for wind energy uses on National Forest System lands, including “direction on authority, objectives, responsibility, definitions, and references for use in authorizing wind energy uses on National Forest System lands.” Forest Service Handbook 2709.11, Chapter 70. This guidance provides direction on siting turbines and other facility components, evaluating protected resources, and addressing issues unique to wind energy in the special use permitting process. Thus, although the Forest Service lacks a national special use wind-siting program and still makes its decisions about wind energy development on a case-by-case basis at the individual National Forest level, developers should carefully review the Forest Service’s guidance.

A. Key Substantive Issues. Substantive issues are important to developers for two reasons: cost and risk. Accordingly, fatal-flaw analysis of the following “big-ticket” items should be part of any project planning.

B. Avian Impacts. Impacts on avian species has been a high-profile issue in the siting of wind energy projects for two reasons. The first reason is the number of birds killed, particularly at Altamont Pass in California, where turbine technology consisted of fast-moving blades and lattice towers that offered perching opportunities. Also, mortality rates have been affected historically by a lack of knowledge about avian flyways and migration patterns. Failure to adequately account for these factors in siting decisions contributed to unexpected avian mortality rates. Today, avian mortality rates are dramatically lower due to advances in turbine technology and tower construction, and better siting decisions. Nonetheless, avian impact concerns remain an important issue for wind project permitting, particularly in regard to bat species, whose behavioral patterns have historically been less studied and understood by biologists because of their nocturnal nature.

Second, avian impacts are an important issue because almost all avian species and some bat species are protected by one or more of the following federal laws: Endangered Species Act (“ESA”), Migratory Bird Treaty Act (“MBTA”), and Bald and Golden Eagle Protection Act (“Eagle Act”). Although these laws differ in scope and approach, all generally prohibit some form of “take” (i.e., injury or killing) of protected species. The application of these laws to wind energy projects is challenging. The ESA provides two mechanisms for obtaining permits for incidental take of protected species, including a formal Section 7 consultation under the ESA, or a Section 10 “incidental take permit” (“ITP”) that authorizes the take of a species that is “incidental to, and not the purpose of, carrying out an otherwise lawful activity.” A project need not have a federal nexus to receive Section 10 take authorization. However, an ITP must be accompanied by a Habitat Conservation Plan that receives U.S. Fish & Wildlife Service (“FWS” or the “Service”) approval. The time required for either of these processes is often incompatible with project timelines.

The MBTA does not have a mechanism for permitting incidental take associated with a wind project; however, since 2009, Eagle Act regulations have provided for both standard Eagle Take Permits, which authorize individual instances of “take,” and programmatic Eagle Take Permits, which authorize recurring “take” that is unavoidable even after conservation measures are implemented. In December 2013, the FWS published in the Federal Register a final rule to extend the maximum term for programmatic permits to 30 years, subject to a recurring five-year review process through the permit life. In addition, in 2013, the FWS issued its final Eagle Conservation Plan Guidance (“ECPG”). Designed to promote compliance with the Eagle Act and the MBTA, the ECPG specifies in-depth guidance for conserving bald and golden eagles in the course of siting, constructing, and operating wind energy facilities.

In 2014, the American Bird Conservancy filed a lawsuit challenging the Service’s 2013 revisions to its eagle permit rule under NEPA. The court set aside the 30-year rule, concluding that the Service violated NEPA by relying upon a categorical exclusion. On December 16, 2016, the Service issued a revised rule that includes changes to the regulations and issued a final Programmatic Environmental Impact Statement (“PEIS”). The revisions to the 2016 eagle rule went into effect on January 17, 2017, and include changes to permit issuance criteria, duration (including a maximum permit term of 30 years), compensatory mitigation standards, and permit application requirements (81 Fed. Reg. 91,494 (Dec. 16, 2016)). The new rule eliminated the individual and programmatic permit distinctions and now refers to the permits as ITPs. The Service now has the ability to issue ITPs under the Eagle Act for terms of up to 30 years.

Prior to the FWS’s release of the ECPG in April 2013, the industry norm was to proceed with development without seeking an Eagle Take Permit. Given the then-evolving regulatory landscape, wind developers were opting to prepare Avian Protection Plans or Bird and Bat Conservation Strategies (“BBCS”) documenting coordination with the Service and the implementation of agreed-upon conservation measures pending the release of a 30-year programmatic permit. At the time, this procedure operated effectively to reduce the developers’ exposure: provided the individual developer was taking the agreed-upon measures to protect the species, the Service would typically investigate any “take” that occurred and then decline to take further action based on a conclusion that the developer was a “good actor” and was pursuing a responsible approach toward Eagle Act compliance. Since the ECPG was issued, however, there has been greater scrutiny on Eagle Act compliance issues. Now that a 30-year ITP is available, the FWS routinely recommends that wind developers apply for an ITP even for low risk sites. Given this “new normal,” we believe that the risk of enforcement or prosecution for unauthorized “take” of eagles is now greater than it was prior to the release of the ECPG. Perhaps the strongest evidence of this trend is the past settlement agreement between Duke Energy Renewables and the U.S. Department of Justice regarding 14 golden eagle fatalities at Duke Energy Renewables’ Top of the World Windpower Project and Campbell Hill Windpower Project in Wyoming. Although the settlement resolved charges brought under the MBTA, the agreement required Duke Energy Renewables to develop Eagle Conservation Plans and apply for and “diligently pursue” Eagle Take Permits for both wind projects. Although the Service continues to actively promote compliance with its eagle permitting program, the assertive criminal enforcement approach seems to have become tempered somewhat by the Chief’s Directive on civil settlement agreements on “legacy takes.” Since the issuance of the Chief’s Directive, the Service seems to be focused on actively resolving “legacy takes” through civil settlement agreements and encouraging project operators and developers to pursue an ITP. Although the opportunity to resolve “legacy takes” through civil settlement is a welcome shift from criminal enforcement, the cost of resolving alleged violations—even through civil settlement—remains significant.

Even with the focus on civil settlements, there continues to be a heightened awareness of the risk of proceeding without “take” coverage under the ESA and/or the Eagle Act, even where risk to protected species is relatively low. As such, project operators and developers should assess their projects and craft appropriate strategies to comply with the avian statutes, including development of an eagle conservation plan to support the issuance of an ITP. Because the issuance of an ITP is a federal action that requires compliance with NEPA, including the preparation of an environmental assessment or EIS, project schedules must account for the NEPA timeline.

Importantly, although there is no legal requirement that project developers or operators apply to obtain an ITP under the Eagle Act, failing to secure “take” coverage under the Eagle Act may invite enforcement or prosecution under the MBTA. Because an applicant must demonstrate compliance with other federal wildlife statutes as part of the NEPA process and there is no available ITP under the MBTA, seeking “take” coverage under the Eagle Act is one of the more effective MBTA compliance strategies, particularly when the ITP incorporates a robust BBCS. Additionally, an ITP for bald or golden eagles issued by the Service under the Eagle Act and the 2016 eagle rule serves as authorization for bald and golden eagles under the MBTA. 50 C.F.R. § 22.11.

The importance of adequately assessing permitting strategy for protecting species at a proposed site is emphasized by the Indiana bat case. In Animal Welfare Institute v. Beech Ridge Energy LLC, 675 F. Supp. 2d 540 (D. Md. 2009), no federal permits were required nor was there a federal nexus for the siting and development of the wind project. The developer’s pre-project studies demonstrated that no Indiana bats occupied the areas in or near the project’s location. Thus, no ITP was obtained. Suit was filed seeking an injunction to halt construction on the basis that the project would unlawfully “take” the protected species in violation of the ESA. The trial judge found that (1) hibernacula (caves used for hibernating) were located near (six to 10 miles) the project site; (2) the physical characteristics of the project site made the presence of Indiana bats more likely; and (3) acoustic evidence at the project site suggested that the bats were present. Based on such findings, the court concluded that an ITP was, in fact, required under the ESA and in the absence thereof, issued an injunction halting construction.

C. Other Wildlife. Wind energy projects can also disturb other wildlife and plant species. It is important to assess whether any of the species present in the project area are listed as federal or state threatened or endangered species or state species of concern. In some states, wildlife agencies request evaluation of impacts to big game species, reflecting concerns over state efforts to manage these species and associated habitats (including wintering areas) for recreational (hunting) purposes. Initial knowledge of potential impacts to habitat is generally determined through a database inventory of species likely to occur in the project vicinity, combined with site visits that typically require a spring survey for plants and some animal species.

D. Habitat (Including Soil Erosion). The final footprint of a wind energy facility is small in relation to the landmass over which the entire project, including transmission lines, is spread. Still, wind energy projects typically involve substantial grading for road and turbine base construction, with impacts on a wide variety of plant and animal species. In active agricultural areas, this issue may be of minimal importance. However, most productive wind energy sites will likely include some areas of native habitat or native species occupying previously undisturbed areas. In many western states, wildlife habitat is classified in one of several categories based on its importance to various species, and mitigation ratios are set accordingly; in some cases, no disturbance at all is allowed to the most valuable habitat types.

Soil erosion due to road and facility construction can also be a problem. Project planning should include an attempt to avoid sensitive habitats, consider mitigation for habitat impacts that cannot be avoided, and provide for soil conservation and any necessary erosion-control measures.

E. Visual Impacts. Modern onshore wind turbines can be over 400 feet tall at the hub, with blades extending the total to 500 feet or more, although as wind turbine height has increased, so has generation capacity, resulting in fewer turbines that more efficiently generate greater power. Wind turbines are typically sited in open areas and on ridge lines with little available in the way of visual buffers. Offshore turbines are even taller, with no buffer to ameliorate their visual effects. Lights on the turbines, which are typically required by the Federal Aviation Administration (“FAA”) and the Department of Defense (“DOD”), can have nighttime visual impacts as well. In addition, associated substations and transmission lines can add to the visual impact of a wind project.

There appears to be a split in sensibilities between those who consider wind turbines an eyesore and those who like the visual effect of the turbines. From either perspective, for areas with broad vistas, wind energy projects can result in a fairly dramatic change to rural landscapes, with turbines typically standing in a sentinel-like manner along ridge lines or in rows through pastures and fields. When wind energy projects are sited in relatively close proximity to populated areas or areas of scenic importance, visual impacts may be particularly acute. Visual modeling is usually required to assess the potential impacts of wind energy projects. Mitigation for visual impacts typically includes painting turbines a neutral color that blends into the landscape. However, aside from avoidance, options for full mitigation of visual impacts are limited, although turbine lighting requirements from the FAA have been revised over the last several years to eliminate strobes and to reduce the number and placement of turbine lights at wind energy facilities while preserving the safety of aircraft. The FAA and DOD have established a “Clearing House” process to jointly evaluate and issue determinations concerning the potential hazards to air traffic and military radar installations.

F. Cultural Resources. Pre-project site review for indicia of historical and cultural resources addressed by the National Historic Preservation Act is also critical. Native Americans have occupied the continent for millennia, and it is not uncommon to discover fossil and cultural resources, including those of significance to Native American tribes, at potential wind project sites. A thorough site evaluation is generally necessary before and during construction. When appropriate, the early and constant involvement of local Native American tribes is advisable. Mitigation may also be necessary. Such mitigation typically requires avoiding protected sites and moving the sites if they cannot be avoided. In addition, it may be necessary to have an expert in native culture or paleontology on site during construction to protect identified sites and alert the work crew to additional sites that may be unearthed during construction.

G. Storm Water and Federal Water Crossing Permits. Factors such as road construction, steep terrain, and the proximity of streams and rivers require storm water management, including compliance with local, state, and federal storm water regulations. The presence of wetlands and streams will raise numerous other concerns relating to habitat and water resource management and may involve ESA issues through Clean Water Act section 404 consultation and/or state removal or fill laws. In addition, some wind energy projects will need to cross water bodies subject to U.S. Army Corps of Engineers jurisdiction. This includes streams flowing into navigable waters and river power line crossings. Myriad issues may arise, including salmon habitat impacts and potential impacts on bird species listed under the ESA. Federal Rivers and Harbors Act section 10 permits can often lead to the need to consult with federal wildlife agencies as well.

H. Land Use Compatibility. Compliance with applicable land use criteria will be required. Each county has its own land use criteria, which may be dictated by statewide land use requirements. County land use codes often have vague standards and criteria, requiring (or allowing) highly discretionary determinations of public need, public safety, and “compatibility” with other land uses, although with the growth of the wind industry, local jurisdictions have become increasingly aware of and sophisticated at tailoring local regulations to address wind energy facilities.

I. Wake Effect. An additional siting issue increasingly of concern to local jurisdictions is that of “wake effect,” a situation in which an upwind turbine is proposed for installation so close to a downwind turbine (owned by somebody else) that it may reduce the wind efficiency of the downwind turbine and consequently its productivity and profitability. Another effect of a turbulent air regime through the downwind turbine is increased and erratic wear and tear on the turbine’s components. Turbine manufacturers’ specifications and warranties may address turbine placement distances for purposes of avoiding such negative effects, and failure to abide by those requirements may jeopardize warranty coverage. In the absence of setback standards that expressly or in application eliminate wake effects, developers and landowners are seeking to have local permitting agencies force proposed turbine sites deeper into the developer’s property. Often, the demand to the siting agency by a developer or landowner is accompanied by an attorney’s letter to the neighboring project developer that damages may be sought due to wake effect-driven loss of profits (if a turbine exists where a new upwind turbine is proposed) or by a preemptive letter to a potential downwind developer that they assume the risk of loss themselves if they site a turbine too closely to an existing upwind turbine. Developers are cautioned to carefully examine the substantive setback criteria and procedural processes that may enable a county to impose wake-effect avoidance setbacks.

J. Noise. Some states, particularly Oregon, Washington and California, have statutes that limit the amount of noise that can be emitted by a wind energy project. All states and jurisdictions that impose such noise standards do so using a dBA scale, as this decibel scale reflects noise that is typically audible to the human ear. Wind turbine noise decreases rapidly over distance and tends to be masked by the background noise of the wind itself. However, wind energy projects are typically sited in locations with very low ambient noise levels, which can make limits on the allowed increase in ambient noise generated by the project difficult to meet in locations with homes nearby. Noise-related concerns tend to be expressed by those with homes located closest to the wind turbines. In Oregon, the noise statutes do not expressly allow an applicant to simply get permission from a nearby resident to exceed the maximum statutory noise limits (such as through a noise easement). As a result, applicants may be required to purchase the residence or refrain from siting turbines near the residence. Noise modeling and ambient baseline noise monitoring may be required as part of the permitting process. It is periodically propounded by some wind energy project opponents that in addition to audible noise measured by the dBA scale, wind turbines should also be regulated by use of a dBC scale that measures low-frequency (inaudible) sound waves, or infrasound, theorizing that infrasound may cause adverse health effects when experienced repeatedly and in close proximity to the emitting source. However, while wind turbines may emit a low whooshing sound that is audible to the human ear (correctly regulated by application of an audible noise dBA scale), wind turbines do not emit considerable infrasound, and there is no credible, peer-reviewed medical data attributing low frequency noise and infrasound to human health effects. No permitting jurisdictions in the United States apply a dBC scale to wind turbines.

IV. Timing. To develop a project-specific assessment of issues that may cause permitting delay, consider whether any of the following apply:

  • Whether avian baseline data will be required and, if so, whether a full year (four seasons) or more of baseline data will be required as part of the permit application.
  • Whether any surveys in spring or other seasons will be required for certain plant or wildlife species as part of the permit application.
  • Whether a take-avoidance or a take-compliance strategy will be pursued to address liability concerns created by the ESA, MBTA, and Eagle Act.
  • Whether a state environmental process (e.g., SEPA/CEQA) or federal NEPA process will be required and, if so, whether an EIS (which in the case of NEPA typically takes at least a year to prepare) or a less comprehensive environmental document will be required.
  • Whether a cultural and archaeological site survey will be required and how long it will take to complete such a survey (if the survey will completed by a Native American tribe, it may take much longer than expected).
  • Whether the locality will require a conditional use permit for installation of meteorological towers to assess the wind feasibility of the site. If so, this may add weeks or months to the site evaluation process.
  • Whether an easement or lease from the BLM or other federal agency will be required for the project (and, if so, what level of NEPA review will be required).

An early assessment of potential public opposition and appropriate strategies to respond to controversies and opposing environmental opinions is also strongly advised. With the increased demand for renewable energy, the siting of wind energy facilities is becoming more controversial as more remote project locations become developed, resulting in new projects being proposed in less remote areas and areas with greater environmental or visual consequences. It is important to follow local code changes and state legislation as these are proactive vehicles for project opposition, and it is also valuable to engage public agencies and other interested parties early in the siting process to reduce the likelihood of later controversy.
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1See U.S. Dep’t of the Interior, Bureau of Land Mgmt., Instruction Memo. No. 2009 043, Wind Energy Development Policy (Dec. 22, 2008).

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