Any wind easement or lease that is entered into must be in writing and wind easements must be filed with the county register of deeds. In this way, anyone wanting to buy the property will be aware of the wind easement. Certain provisions are required and others prohibited in wind leases.
A developer must consider existing land uses and commercial enterprises on nonparticipating land within one mile of the proposed system site and must meet certain setback requirements described in the rule.
A political subdivision may not set height or distance requirements that are more stringent than in this rule or certain requirements already in existence, such as Federal Aviation Administration (FAA) standards for public use airports. A wind energy system may not be built in the path of existing line-of-sight communications technologies.
The rule sets noise, shadow flicker, and television/radio and cell telephone interference criteria and provides for mitigation efforts. It also provides for stray voltage testing. Construction, electrical, operation and maintenance standards are set. A complaint process and requirements for decommissioning are established, including requirements for site restoration and demonstrating financial responsibility to complete decommissioning.
Political Subdivision Procedure
The rule specifies information that must be included in an application for approval by a political subdivision and provides procedures if the application is found to be incomplete. The rule allows for a joint application review process for projects proposed in more than one political subdivision. A reasonable application fee may be charged. On the same day an application is filed, detailed notice must be sent to property owners and residents within one-half mile of participating properties. The rule requires that political subdivisions hold at least one public hearing and provide for written comments concerning the project. A political subdivision must issue a written decision and keep a written record of its decision-making.
The rule also specifies certain things that may, and may not, be included in a local ordinance or as a condition for project approval. It allows for modifications to approved systems and a monitoring committee to examine complaints and compliance.
Commission Procedure
This section specifies the process for commission review of political subdivision decisions and enforcement actions. It identifies what must be in a request for review and what the political subdivision must provide to the commission. Notice of the appeal must be provided, depending on the situation, to the political subdivision or the energy system developer, owner or operator. The Commission may hold a hearing on the matter. Finally, the rule establishes timeframes for action if the Commission remands the decision to the political subdivision.
Comparison with federal regulations
There are a number of federal laws that interact with the issues in this rulemaking, although the Commission is not aware of any that deal with the specific requirements that a political subdivision may impose. A few of the federal laws that may interrelate include the National Environmental Policy Act,
42 U.S.C. 4321 et. seq., the Endangered Species Act,
16 U.S.C. 1531–1544, and 14 C.F.R. Pt. 77, which requires a Federal Aviation Administration airspace study before constructing certain types of projects.
Comparison with similar rules in adjacent states
Illinois:
Illinois statutes provide that a municipality or county may regulate wind farms within its zoning jurisdiction and within the 1.5 mile radius surrounding its zoning jurisdiction. A county or municipality may not require a wind tower or other renewable energy system that is used exclusively by an end-user to be setback more than 1.1 times the height of the system from the end-user's property line. A setback requirement imposed by a municipality on a system may not be more restrictive.
There must be at least one public hearing not more than 30 days prior to a siting decision by the county board. Notice of the hearing must be published in a newspaper of general circulation in the county.
Michigan:
Michigan statutes require the Michigan Public Service Commission (Michigan PSC) to designate the area(s) of the state likely to be most productive of wind energy. In making its determination, the Michigan PSC is required to base its decision on the findings of a Wind Energy Resource Zone Board, a cost/benefit analysis and various other factors. At the same time, the Michigan PSC was to report to the legislature about the effect that local setback requirements and noise limitations might have on wind energy development, including any recommendations the Michigan PSC had for legislation. The Michigan PSC has issued both documents and, in its report to the legislature, recommended that setback requirements and noise limitations should continue to be decided at the local level where feasible so that the needs of local citizens can be appropriately considered. The Michigan PSC has a Renewable Energy Group which it intends to have sponsor periodic meetings to provide needed scientific information to decision-makers.
In 2008 the Energy Office, Michigan Department of Labor and Economic Growth, put out guidelines to help local governments, other than those in urban areas, develop siting guidelines. The guidelines contain recommended zoning language for local governments to use if they amend their zoning ordinance to address wind energy systems. They recommend different requirements for on-site use (generally small) and utility grid (generally large) wind energy systems.
On-site systems are systems designed to primarily serve the needs of a home, farm, or small business with tower heights of 20 meters or less.
For these systems, the guidelines establish a setback designed to protect neighbors in the event of a tower failure. The minimum recommended setback from the landowner's property lines is the height of the turbine, including the top of the blade in its vertical position. It is recommended that all parts of a wind energy system structure, including guy wire anchors, be setback the greater of ten feet or the zoning district setback distance from the landowner's property lines.
It is recommended that sound levels for on-site use systems not exceed 55 dB(A) at the property line closest to the wind energy system, except for short-term events such as utility outages or severe wind storms. It also recommended that if the ambient sound pressure level exceeds 55 dB(A), the standard shall be ambient dB(A) plus 5 dB(A).
Finally, the guidelines recommend that an on-site use wind energy system have both lightning protection, and automatic braking, governing, or a feathering system to prevent uncontrolled rotation or over speeding. If a tower is supported by guy wires, it is recommended that the wires be clearly visible to a height of at least six feet above the guy wire anchors and that the minimum vertical blade tip clearance from grade be 20 feet for a wind energy system employing a horizontal axis rotor.
Utility grid systems are systems designed to provide power to wholesale or retail customers using the electric grid, and on-site systems with tower heights over 20 meters.
For these systems, the guidelines establish a setback designed to protect neighbors in the event of a tower failure. The minimum recommended setback from the landowner's property lines is the greater of local zoning setbacks, road right of way setbacks, or the height of the turbine, including the top of the blade in its vertical position.
It is recommended that sound levels for utility grid systems not exceed 55 dB(A) at the property line closest to the wind energy system, except that this level may be exceeded for up to three minutes in any hour of the day. It also recommended that if the ambient sound pressure level exceeds 55 dB(A), the standard shall be ambient dB(A) plus 5 dB(A).
During the application process a developer must analyze shadow flicker impact and expected durations of the flicker from sunrise to sunset over the course of a year, as well as mitigation measures to eliminate or minimize these impacts. It must also submit a planning commission approved decommissioning plan and complaint resolution process.
No system can be installed in a way that causes interference unless the applicant provides a replacement signal to at least the pre-installation level. It also cannot be installed within the path of a line-of-sight communication technology unless doing so will produce only insignificant interference.
Minnesota:
The Minnesota state statute defines a large wind system as 5,000 kilowatts or more. Applications for a permit to site such a system must be filed with the Minnesota Public Utility Commission (Minnesota PUC). The only exception to this general rule is that a county board may assume responsibility for processing permit applications for a large wind system with a capacity of less than 25,000 kilowatts. Under the administrative rule, a local government may establish siting and construction requirements for a small system, meaning under 5,000 kilowatts.
The statutes require that the Minnesota PUC establish general permit standards, including appropriate property line set-backs, governing site permits. These standards apply to permits issued by counties and to permits issued by the Minnesota PUC for large wind systems with a capacity of less than 25,000 kilowatts. The Minnesota PUC or a county may grant a variance from a general permit standard if the variance is found to be in the public interest.
The statute preempts all zoning, building, or land use rules, regulations, or ordinances adopted by local government units. However, a county may adopt standards for large wind systems that are more stringent than those in Minnesota PUC rules or permit standards. The Minnesota PUC, in considering a permit application for system in a county that has adopted more stringent standards, must consider and apply those more stringent standards, unless it finds good cause not to apply those standards.
The administrative rule contains detailed information about what must be in an application, including information about wind conditions at the proposed site, environmental factors, project design, construction and operation details, and decommissioning plans.
Setbacks developed by the Minnesota PUC include:
•
Wind Access Buffer (setback from lands and/or wind rights lot under permittee's control) – 3 rotor diameters (RD) (760 - 985 ft) on east-west axis and 5 RD (1280-1640ft) on north-south axis,
•
Homes – at least 500 ft and sufficient distance to meet state noise standards, and road rights-of-way - no closer than 250 feet from the edge of public road rights-of-way.
Noise standards for residential and similar areas are:
•
DaytimeNightime
L501L102 50L10
•
60655055
1 L50 means the sound level, expressed in dB(A), which is exceeded 50 percent of the time for a one hour survey, as measured by test procedures approved by the Minnesota PUC.
2 L10 means the sound level, expressed in dB(A), which is exceeded ten percent of the time for a one hour survey, as measured by test procedures approved by the Minnesota PUC.
If disruptions to television, microwave, telecommunication, navigation, or other facilities occur, the permittee must take whatever steps are necessary to correct the problem.
Prior to construction, the permittee must submit procedures for handling complaints. It must also prepare an emergency plan and register with the area 911 system. Finally, it must make arrangements for the use, maintenance and repair of roads that it will use.
Within 15 days after an application is accepted, notice must be provided to the county board, city council, township board, and each landowner within the system site. Notice must also be published in a newspaper of general circulation in the area. The Minnesota PUC must provide notice to those persons it knows are interested in the proposed project.
Ohio:
Ohio's statutes require that a certificate be obtained from the state power siting board before constructing an economically significant wind farm, one with a capacity of 5 megawatts or more, and requires that the application process be identical, to the extent practicable, to the process applicable to certificating major utility facilities. It orders that a rule be written including the following minimum setbacks:
•
For the wind farm property - at least 1.1 times the total height of the turbine.
•
For the exterior of the nearest habitable residential structure on property adjacent to the wind farm – at least 750 feet measured from the tip of the nearest blade at ninety degrees.
Ohio has an administrative rule with very detailed requirements for applications including project description, project area analysis, financial data, technical data, environmental data, and ecological and social data. Applications must include information such as: potential impact from ice throw and blade shear at the nearest property boundary, including plans to minimize it; the potential impact from shadow flicker at adjacent residential structures and primary roads, including plans to minimize it; the potential for interference with radio and television reception and measures that will be taken to minimize it; the anticipated impact to roads and bridges and measures planned for returning them to their prior condition; and a plan for decommissioning, including a discussion of any financial arrangements designed to ensure the requisite financial resources.
Wisconsin:
All of the rules, including Wisconsin's, differentiate between small systems and larger systems.
In Minnesota, applications are generally filed with the Minnesota PUC, although political subdivisions may deal with applications for smaller systems. Political subdivisions can have more stringent requirements, and the Minnesota PUC must apply them unless there is good cause not to do so. In Ohio, applications are filed with a state siting board. In the other states, including Wisconsin, applications are generally filed with a local political subdivision.
Like some of the other states, the Wisconsin rule requires large system development applicants to address issues such as shadow flicker and possible mitigation, road damage and possible mitigation, signal interference and possible mitigation, and decommissioning. Like others, it requires the establishment of a complaint process. Like Michigan, it does not allow placement in the path of a line-of-sight communications technology, although Michigan allows it if interference would be insignificant.
All of the states except Michigan have some setback and noise requirements. In Michigan there are some guidelines, but not requirements, which are left to political subdivisions. Wisconsin's noise requirement is in the same range as that of other states. Setback requirements in the different states vary somewhat by what the setback is measured from, for example a property line or a residence. Wisconsin's setbacks, other than from certain property lines, is similar to those of other states. This is not surprising as these distances are generally set to ensure that if a turbine or other facilities fell over they would not fall on a residence or other buildings. Wisconsin's setback for the property lines of nonparticipating properties and buildings such as schools is larger than those specified in other states.
Because Minnesota's PUC reviews certain applications, its rules contain more detail about what must be in applications. Ohio also has detailed application requirements, perhaps because the applications are filed with a state siting board. The Wisconsin requirements, while dealing with many of the same topics, are less detailed in the rules. The rules require the Commission to publish detailed siting criteria. The states where a decision is made by a political subdivision rather than a state entity do not have an appeal process like that in the Wisconsin law.
Summary of factual data and analytical methodologies
In creating this rule, the Commission considered information from a wide variety of sources including:
•
Advice and suggestions offered by members of the Wind Siting Council.
•
Wind-siting regulations and guidelines from a variety of states, including those immediately adjacent to Wisconsin.
•
A wide variety of local ordinances and community agreements throughout the state.
•
Various white papers and best practices.
•
Papers from a conference on wind-siting effects.
•
Commission experience and precedent in wind siting decisions.
•
Environmental impact statements prepared for wind projects in Wisconsin.
•
Technical and scientific research and writing on wind siting.
•
Presentations and lectures given on wind siting issues.
•
Research by non-profit organizations on wind siting.
•
Research by educational institutions on wind siting topics.
•
Expert testimony on wind siting issues.
•
Other state commissions' investigations and precedent on wind siting.
•
Research and writing by other states' health institutions regarding wind siting.
•
Consulting professionals with experience in public health in Wisconsin.
•
Court cases on wind siting issues and political subdivision jurisdiction in Wisconsin to affect wind siting.
•
Joint Development agreements between wind developers and political subdivisions.
•
Lease agreements for wind development.
•
Complaint resolution documentation from past complaints about wind projects.
•
Wisconsin Public Service Commission Noise Measurement Protocols.
•
Wisconsin Public Service Commission Stray Voltage Protocols.
•
Wisconsin Public Service Commission Application Filing Requirements.
•
Code of Federal Regulations regarding example emergency and safety regulations in gas pipeline safety regulations.
•
Federal Aviation Administration processes, standards and provisions.
•
Other Wisconsin agency processes regarding political subdivision decision-making, such as Department of Agriculture, Trade and Consumer Protection regulations regarding siting concentrated animal feeding operations.
•
Research, writing and presentations by the federal government and national energy labs on wind siting issues.
•
Public comments received in Commission cases.
•
Public comments received by Commission staff outside of Commission cases.
Small Business Impact
The business entities this rule may affect are wind system developers, owners or operators and business owners that may wish to install small wind energy systems. The Commission cannot estimate how many of these qualify as small businesses.
The rule differentiates between large projects and small projects (100 kilowatts or less), in part to make it easier for small businesses to install small systems and in part because it seems likely that a small wind energy development company would not be taking on a very large project. Many of the approval decisions are left in the hands of political subdivisions, although their standards cannot be more restrictive than those in the rule. As a result, some political subdivisions may make additional efforts to ease any burdens on small businesses. Some of the differences contained in this rule for developers of small systems are:
•
Lessened notice requirements.
•
No advance transportation plan required.
