Resource Documents: Law (50 items)
Documents presented here are not the product of nor are they necessarily endorsed by National Wind Watch. These resource documents are provided to assist anyone wishing to research the issue of industrial wind power and the impacts of its development. The information should be evaluated by each reader to come to their own conclusions about the many areas of debate.
Memorandum of lease
Author: Upland Prairie c/o Apex Clean Energy
1. Lease. For the term and upon the provisions set forth in that Wind Energy Lease of even date herewith (the “Effective Date”) between Landlord and Tenant (the “Lease”), all of which provisions are specifically made a part hereof as though fully and completely set forth herein, Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord for Wind Energy Purposes, that certain real property (the “Property”) located in Clay County, Iowa, as more particularly described in Exhibit “A” attached hereto, together with all rights of ingress and egress and all other rights appurtenant to the Property, as more particularly described in the Lease. Pursuant to the Lease, Tenant has the sole and exclusive rights to use the Property for Wind Energy Purposes.
2. No Interference. The Lease requires Landlord, during the Term of the Lease, not to cause nor permit any restriction or interference with: (a) the siting, permitting, construction, installation, maintenance, operation, replacement, or removal of Wind Facilities; (b) the flow of wind, wind speed or wind direction over the Property; (c) access over the Property to Wind Facilities; or (d) any other activities of Tenant permitted under the Lease.
3. Term. The term of the Lease shall expire eight (8) years after the Effective Date, if not extended or sooner terminated as provided in this Lease. Tenant may at its sole discretion extend the term of this Lease for an additional thirty (30) year term, with the further option to extend the term for two (2) additional ten (10) year terms.
4. Notice. This Memorandum is prepared for the purpose of giving notice of the Lease and in no way modifies the express provisions of the Lease. In the event of any conflict between the terms and provisions of the Lease and this Memorandum, the Lease shall control. This Memorandum shall continue to constitute notice of the Lease and all amendments thereto, even if the Lease is subsequently amended.
5. Successors and Assigns. The covenants, conditions and restrictions contained in the Lease shall run with the land and be binding on the successors and assigns of both Landlord and Tenant. Tenant and any transferee shall have the right throughout the Term to transfer, convey, sublease or assign this Lease or any interest in this Lease, the Property or the wind facilities to any person or entity without the consent of Landlord.
6. Ownership of Wind Facilities. Tenant shall at all times retain title to the Wind Facilities and shall have the right to remove them from the Property at any time. Landlord shall have no ownership, lien, security or other interest in any Wind Facilities installed on the Property and Landlord expressly waives, relinquishes and quitclaims any lien or security interest in and to the Wind Facilities or any other real or personal property of Tenant, whether arising at law or in equity.
7. No Severance of Wind Energy Rights. Landlord shall not assign or otherwise transfer an interest in the wind energy rights to the Property, or a portion thereof, separate from fee title to such real property, without Tenant’s consent which Tenant may withhold in its sole discretion.
8. Right of Reentry. Upon expiration or termination of the Term, Tenant shall have a license to enter onto the Property for eighteen (18) months following termination to restore the Property and for other activities as set forth in the Lease.
9. Transmission and Access Easement. If a utility requires and/or Tenant requests an easement in perpetuity with respect to one or more of the rights granted to Tenant pursuant to the Transmission and Access Easement, then Landlord shall grant the utility and/or Tenant, as applicable, such perpetual easement which covers the portion of the Property occupied by the utility’s and/or Tenant’s permanent roads, overhead and underground electrical and communications lines, collection and/or transmission equipment, as applicable, upon the terms set forth in the Lease.
As used herein, the term “Transmission and Access Easement” means, collectively, Tenant’s (i) exclusive right to construct, install, lay down, erect, improve, place, replace, remove, relocate and operate permanent roads, overhead and underground electrical and communications lines, collection and transmission equipment on the Property, and (ii) right of access more particularly described in Section 4.3 of the Lease.
Download original document: “Memorandum of lease”
Wind farm participation and support agreement
Author: Apex Clean Energy
Owner is the owner of that certain tract of real property located in Van Wert County, Ohio …
1. Setback Waiver.
1.1 To the extent that any applicable law, ordinance, regulation or permit establishes, or has established, minimum setbacks from the exterior boundaries of the Property (or any structures thereon) for Windpower Facilities constructed on Wind Farm Property, Owner hereby waives any and all such setback requirements (the “Setback Waiver”); provided however, Grantee agrees not to construct a Wind Turbine within One Thousand Three Hundred Twenty Feet (1,320’) of any occupied residence located on the Property (as measured from the edge of the base of the Wind Turbine to the exterior of the closest foundation of any occupied residence on the Property as of the date hereof) and not to allow the blade of any Wind Turbine to overhang any boundary of the Property.For the avoidance of doubt, this Agreement does not grant to Grantee the right to construct Windpower Facilities on the Property. …
11. Confidentiality. Owner shall maintain in confidence all information pertaining to the financial terms of or payments under this Agreement, whether disclosed by Grantee or discovered by Owner, unless such information is in the public domain by reason of prior publication through no act or omission of Owner or its employees or agents. Owner shall not publish or otherwise disclose such information to others except to accountants, lawyers, or other professionals who receive such information under an obligation of confidentiality; buyers of the Property; lenders that have a security interest in the Property; or family members who agree to keep such information confidential. The provisions of this Section 11 shall survive the termination or expiration of this Agreement.
12. Wind Energy Lease Agreement. In the event that Owner and Grantee enter into a Wind Energy Lease Agreement or other similar instrument whereby Owner grants Grantee the exclusive right to install Wind Turbines and/or Windpower Facilities on the Property, then this Agreement shall be superseded by such instrument and this Agreement and all payment obligations hereunder shall terminate as of the effective date of such instrument. The foregoing shall not obligate either party to enter into any Wind Energy Lease Agreement or other similar instrument unless it determines in its own best interest to do so.
FEE SCHEDULE
Grantee shall make the following payments to Owner during the Term:
(1) within thirty (30) days of the Effective Date of this Agreement, a one-time payment of Five Hundred and No/100 Dollars ($500.00); AND
(2) Upon the Commercial Operations Date of the Phase in which the Property is a part (as determined by Grantee in its reasonable discretion), an annual payment equal to one of the following, as applicable:
(B) One Thousand and No/100 Dollars ($1,000.00) if any boundary of the Property is within one thousand one hundred twenty-five feet (1,125’) of the nearest Wind Turbine (measured horizontally from the tip of the turbine’s nearest blade at 90 degrees from the turbine tower to the nearest adjacent property line of the Property) on such date; OR
(C) Five Hundred and No/100 Dollars ($500.00) if neither subsection (A) nor (B) above apply.
The annual payment due hereunder, shall be paid by Grantee within thirty (30) days after the Commercial Operations Date and then annually within thirty (30) days after each anniversary of the Commercial Operations Date until all of the Wind Turbines in the Phase of the Wind Farm of which the Property is a part are decommissioned.
Download original document: “Wind farm participation and support agreement”
Impact of noise on health: The divide between policy and science
Author: Bronzaft, Arline
Abstract —
In her chapter “Sources of Noise” in Noise and Health [New York Academy of Medicine, 1991], Annette Zaner writes that sounds have been environmental pollutants for thousands of years, citing examples of stories of loud music in the Old Testament and noisy delivery wagons in ancient times. The Industrial Revolution and urbanization in more recent times raised the decibel levels in our communities, especially with the growth in transportation on the roads, on the rails and in the air, as well as the growth of noise polluting products. The proliferation of boom cars, cell phones and wind turbines during the past twenty years has made our world even noisier. Studies have been carried out that have demonstrated the potential impact of these noises on our mental and physical health, and there have been some efforts to lessen some of the intrusive sounds, e.g. aircraft and road traffic noise, but there is still too little attention paid to the deleterious effects of noise. While noise complaints top the list of complaints in major cities worldwide and noise even threatens the natural sound systems of our planet, there is no movement globally to address the noise pollutant. The following paper will examine the research linking noise to health effects, question why governments have not seriously attempted to lower noise levels and suggest ways to lessen the din. Doing so will not only be beneficial to our health and well-being but it would also be wise economically.
Arline L. Bronzaft
Professor Emerita, City University of New York
Open Journal of Social Sciences 2017; 5: 108-120.
doi: 10.4236/jss.2017.55008
Download original document: “Impact of noise on health: The divide between policy and science”
[T]he literature supporting the adverse effects of noise on mental and physical health has grown in the last fifteen years, underscoring the need to move ahead with federal noise legislation. …
When Dr. Nina Pierpont wrote her book reporting her findings of vertigo, dizziness, sleep disturbance and other physiological disturbances in a group of 38 residents living near wind turbines, she was widely criticized for a very limited, less than scientific study [Wind Turbine Syndrome, K-Selected Books, 2009]. Dr. Pierpont’s study calls for replication but it should not have been dismissed. In science we start with exploratory research on small numbers and then we move on to studies with larger numbers and greater control of the variables. For example, in the New York Times article on December 15th 2016, entitled “Your Brain Versus ‘Harold’,” the author reports on a study relating fitness to thinking in older people that had been conducted on sixty older men. The article indicates that further research is needed but still gives credence to the results reported. One obvious shortcoming of the study is that it only included male subjects but the author of this article in the introductory paragraph generalizes the findings to all “older people.” The New York Times in its Tuesday Science section frequently reports findings of studies with small numbers and less than ideal control as does the mass media. The findings of these studies are suggestive, although treated more seriously in the media, and should lead to further research. Dr. Pierpont’s study also should be a call for additional research exploring the relationship between wind turbine sounds and visual effects and health impacts.
In chapter 5 of Why Noise Matters there is a discussion of several studies that have found that people get more annoyed by wind turbines than noise from road traffic and other industrial sounds. Why Noise Matters concludes that noise need not stop the development of onshore wind turbines, especially if carefully located, but unless the noise issue is seriously addressed, it will harm people and curb the development. Garret Keiser in his book The Unwanted Sound of Everything [Public Affairs, 2010] states that the “noise effects of wind turbines have been routinely denied by ignorant or unscrupulous developers,” supporting his conclusion with studies affirming this statement as well as his experiences personally visiting residents in Maine who described to him the impacts that nearby wind turbines had on their lives.
Guidelines for developing regulations for acoustic impact, based on the stage of operation of wind farms in Chile
Author: Montoya, Elías; and Gómez, Ismael
Five international documents of noise impact of wind farms were studied and summarized, highlighting their main aspects, methodologies and maximum acceptable limits, allowing the proposal of guidelines for an eventual specific regulation for the Chilean territory. In all analyzed documents, the influence of wind was considered as the main factor in determining the maximum permitted noise at the receptor. Regarding the proposed guidelines for the Chilean territory, in order to determine the maximum permitted levels in the receptor, it is suggested to respect the highest value between either a fixed limit, according to wind speed in integer values, established as a result of a full study by Chilean competent authorities in the country or a maximum limit by meeting a given background noise level plus a margin of 5 dB(A). If the above is not achieved, it is suggested as a last resort to establish compensation to the receptors for each dB exceeded.
For purposes of noise monitoring (either background or wind farm), it is proposed the use of the parameter L90(A),10min, which ensures freedom from the influence of occasional noises. It is recommended that such monitoring is carried out in the dwellings closest to the wind farm, at a height of 1.5 meters above the ground and away from reflective surfaces. It is suggested, in order to collect reliable data, a period of continuous measurements of 10 to 14 days for both background and wind farm operational noise, avoiding rainy days. In parallel, it is proposed to record the wind speed at a height of 10 meters on the wind farm or in a representative area. If there is proof of tonal noise by frequency bands analysis, a penalty of 5 dB will be proposed.
Elías N. Montoya, Departamento de Acústica, Universidad Tecnológica de Chile INACAP, Santiago
Ismael P. Gómez, Control Acústico (Gerard Ing. Acústica SpA.), Santiago, Chile
171st Meeting of the Acoustical Society of America, Salt Lake City, Utah, 23-27 May 2016; Noise: Paper 4pNS2
Download original document: “Guidelines for developing regulations for acoustic impact, based on the stage of operation of wind farms in Chile”
Ontario, Canada: Noise Guidelines for Wind Farms [2008] [link].
Denmark: Statutory Order on Noise from Wind Turbines [2011] [link].
Massachusetts, United States: Noise Control Regulation 310 CMR 7.10 [1990] [link] [link].
United Kingdom: ETSU-R-97 The Assessment and Rating of Noise from Wind Farms [1996] and its application guide A good practice guide to the application of ETSU-R-97 for the assessment and rating of wind turbine noise [2013]. [critique] [critique]
South Australia, Australia: Wind Farms Environmental Noise Guidelines [2009] [link].
