Resource Documents: Maine (44 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.
Author: Maine Audubon and National Audubon Society
[To: Diana Heyder, NEPA Division, U.S. Department of Energy]
… First of all, we would like to request a more formal and detailed Environmental Impact Statement (EIS), as was proposed when a similar project was first evaluated in 2012 (Docket No. BOEM-2012-0049; FR Doc. 2012-19592 Filed 8-9-12; 8:45 am; BILLING CODE 4310-VH-P). That project was sited almost 20 miles away from Monhegan Island, which is a vital stopover for migrant landbirds. Based on current knowledge of the environmental issues surrounding this site, concerns about the current proposal (see bottom of page two for a list of specific issues), and the project’s proximity to Monhegan Island, we believe the only possible outcome of an EA will be a finding of significant impact on the human environment. The expanded opportunity for public comment on an EIS as well as the more detailed discussions of the affected environment, of the alternatives, and of the environmental impacts and mitigation for such impacts is critical for a project of this scope and nature. Please consider an EIS for this project in place of the EA.
Generating energy from offshore wind is potentially a promising opportunity for Maine and elsewhere in the US, and National and Maine Audubon support developing renewable energy sources as long as they are sited in a way that minimize risks and impacts to wildlife and wildlife habitat. However, we know very little about how wildlife species use Maine’s coastal and offshore waters; for example, we do not know the location of foraging sites for most seabird species, including endangered Roseate Terns, bird and bat migration routes, behavioral responses to turbine activities, and the indirect and direct risks posed by offshore wind power development. Even if passing migrants avoid collisions with turbines, as has been observed at some wind sites in Europe, indirect impacts through avoidance behaviors and habitat alterations may cause cumulative damage to sensitive species. It is essential we have a greater understanding of how wildlife uses the area around the test site before permits for any turbines are issued.
Our greatest concerns about possible impacts to wildlife from the turbines include:
- Harm to federally protected Roseate Terns and other sensitive seabirds nesting and foraging nearby (collision risk, changes to foraging areas/prey base, increasing energy budgets, etc.)
- Harm to Federal and state-listed protected species that breed and pass through the Gulf of Maine, including Piping Plovers, northern right whales, Peregrine Falcons, and Bicknell’s Thrush
- Harm to concentrations of migrants using Monhegan Island as a critical stopover site, especially in bad weather and poor visibility conditions
- Lack of knowledge of bird and bat migration routes through the area
- Types of surveying methodology that will be used to document migrants at the test site, particularly mortality and avoidance behavior
- Lack of knowledge about if and how migrants may avoid offshore wind farms in the Gulf of Maine and how that affects their overall energetics
- Effects on ability of species to properly orient during migration from lighting used during construction, maintenance, and operations
We strongly recommend the following be addressed in the proposed site’s EIS or EA:
- Research on location of foraging areas used by Roseate Terns and other seabird species nesting nearby
- A thorough monitoring of migrants at the proposed site must be conducted, including:
- Tracking migratory pathways of birds, bats, and marine mammals during different seasons and weather conditions
- Ground-truthing of radar estimates for birds and bats during peak migration hours (overnight and very early morning) and in a variety of weather conditions
- Minimum of two years of wildlife surveys
- Both boat and aerial surveys
- Surveys must extend at least 1 km in all directions around the test site
- Impacts from lighting on migratory species and cumulative impacts to migratory wildlife from avoiding multiple off-shore wind turbines
We also have the following specific concerns about this project, giving us further reason to request a full Environmental Impact Statement before determining whether to issue a permit:
- The initial assessments regarding potential effect on wildlife (e.g. radar studies of bird and bat use) done for the original proposed deployment at Monhegan are not applicable to the currently proposed work. The initial project was for a single, small (< 100 ft, including rotor swept area above the spar) turbine to be deployed for 4-6 months at a time. The current project proposes two much larger turbines (each with a 495’ rotor diameter) to be deployed continuously for up to five years. The current proposal also involves multiple sites for construction of the anchoring/platform system and installation of the ‘submarine’ cable to the mainland.
- Observations from the Maine Department of Fisheries and Wildlife biologists and the local birding community indicate that the area around Monhegan Island is one of Maine’s most important high use areas for the state endangered Peregrine Falcon and other raptors during migration. Raptors and falcons in particular are likely extremely susceptible to collision to lighted structures during inclement weather situations (NRC 2007).
- Monhegan Island itself is also one of Maine’s most critical stopover sites for landbird migrants using coastal waters as a flight route north in the spring, including endangered/threatened species, species of special concern, and boreal species that have been particularly hard hit. Over 250 species have been reported on the island in the last five years, and Monhegan Island has been nominated as an Important Bird Area for Maine. The potential impact to a broad range of migrant songbirds, many of which are already in decline, is a big concern of Audubon organizations both within the state and across the region.
- Both the indirect as well as direct effects on habitat and wildlife for all stages of the project, including construction, deployment, operation (maintenance, data collection), and decommissioning are of grave concerns to both National and Maine Audubon. The investment of the cable to the mainland would mark a major commitment and incentive to expand the project in the future. The effects on wildlife and commercial fishing would be greatly increased with an enlarged project.
- Construction of the floating platforms at the Hampden site brings increased risk to disturbing an area well known for mercury contamination. This brings increased risk of releasing mercury into the food chain, including threats to Atlantic salmon, alewives, and the marine food web.
- Increased boat traffic, barges, etc. may cause habitat displacement for birds and other wildlife throughout the entire project (minimum of 5+ years).
- The underwater footprint will have an effect on the ocean floor both in installation and ongoing risk to diving birds such as gannets that may be attracted to schools of fish that use the installation as an underground reef. Migrating whales face similar risk.
- Radar work associated with the original proposal for smaller blades showed that significant numbers of birds and bats would be at risk. The new project, with a sweep area of blades nearly five times larger would pose significantly larger risk. The effect of two large blades only 2.5 miles from Monhegan Island we believe poses a significant threat to one of the most important migratory stopover locations on the Atlantic coast for landbirds. Likewise, the sweep elevation clearly makes the blades a threat to seabirds such as gannets and terns. Half of Maine’s federally endangered Roseate Terns nest on Eastern Egg Rock, less than eleven miles away- a distance well within the known foraging range of the species.
- Finally, the proposal does not include any ongoing monitoring of pollution caused during the construction or follow-up monitoring of incidental kill or even use of the actual project site(s).
Following is some additional background information about the importance of the project area to a suite of wildlife species.
Gulf of Maine Background:
The Gulf of Maine is an internationally significant and essential coastal resource for a variety of wildlife species including federally listed species (Roseate Tern & Piping Plover, northern right whale, humpback whale, finback whale), state listed species (Least Tern, Arctic Tern, Harlequin Duck, Razorbill, Atlantic Puffin, Barrow’s Goldeneye, Great Cormorant, Peregrine Falcon) and species of concern or in decline (e.g. Common Tern, Common Murre, Leach’s Storm-petrel, Red-necked Phalarope, Semipalmated Sandpiper, Bonaparte’s Gull, Laughing Gull). It also is an essential link in the Atlantic migratory pathway, and millions of shorebirds, songbirds, waterfowl, raptors, and other birds pass along the Maine coast and through Gulf of Maine waters during spring and fall migrations.
Unlike many of the areas in Europe with existing offshore wind energy sites, the Gulf of Maine is dotted with thousands of islands along the coast. A total of 377 of Maine’s 4,500 islands (8% of all islands in Maine) are considered important habitat for seabird nesting. Forty-seven of these islands have been recognized as Important Bird Areas, part of a global effort to identify the most critical habitats for long-term bird conservation within each state and across the globe. Our coastal waters are the only nesting location in the United States for some of these species. Ten of Maine’s coastal islands provide habitat for 94% of all Common and Arctic Terns and 100% of all Roseate Terns nesting in Maine. These islands are intensively managed to provide a system of multiple and alternative nesting sites when adverse conditions are present (e.g. disease, predators etc.) that may drive the birds to breed elsewhere.
Species of Concern:
In addition, Maine coastal islands host 90% of all Common Eiders nesting in the continental United States. Further, hundreds of thousands of migrating shorebirds, songbirds and raptors depend on Maine coastal areas during spring and fall migration, a period that comprises more than half of their life cycle. Many of these species are also federally or state listed as endangered, threatened, or of special concern. Bald Eagles are now prevalent along our coast as well. This species has recovered from endangered status and the coastal population is flourishing, having grown from a core population located in coastal Downeast Maine. Maine’s Bald eagles are still under the protection of the Bald and Golden Eagle Protection Act. In addition to eagles, many other raptors, such as the Merlin and Peregrine Falcon, breed as well as migrate along and through the Gulf of Maine.
Current research in avian migration is demonstrating that the Gulf of Maine is a critical pathway in passerine migration, with much higher numbers of migrants passing through in spring and fall than biologists had previously known. Many of these birds, such as Bicknell’s Thrush, are of concern and face challenges at both wintering and breeding grounds. Migrating songbirds frequently fly at an altitude of over 1,000 feet in clear weather, easily clearing any rotors from a wind facility. However, in foggy and inclement weather passerines fly lower and potentially within the rotor’s zone. Gulf of Maine weather in spring and fall is frequently foggy with poor visibility, and these conditions are the most difficult to survey for wildlife, making monitoring at sites more challenging. Using radar to detect large scale movements of migrants can be very helpful, though NEXRAD radar systems operate at a relatively insensitive scale during inclement weather, and may be missing bands of migrating birds. Radar survey methods must be verified in all weather conditions and at various times of day- notably at night and in the early morning in order to catch migrating birds passing through. We recognize this provides challenges, but it is critical that we gauge the reliability of radar system detections.
The largest colony of federally endangered Roseate Terns in Maine is on Eastern Egg Rock, a seven acre island owned by the Maine Department of Inland Fisheries and Wildlife, less than 20 miles away from the proposed site. Despite decades of research and extensive monitoring, we still do not know foraging sites of these rare birds in Maine. Nesting sites elsewhere have observed Roseate Terns seeking food 20-30+ km from nest sites during the breeding season, and local prey availability can drive terns to forage farther away from nest sites (J. Burger et al., 2011). It is imperative that we have a better understanding of foraging locations of Roseate Terns on Eastern Egg Rock and elsewhere on Maine’s islands before infrastructure potentially damages foraging areas, routes to feeding grounds, or migratory pathways.
Birds aren’t the only migrants flying through the Gulf of Maine. Several bat species cross over the Gulf and some breed on Maine islands. Bat populations have declined dramatically in the region since 2009 due to the spread of white-nose syndrome (WNS), with the loss of at least 5.7 million bats in that time. Although this loss has hit residential cave hibernating bats the hardest, the potential mortality to migratory tree bats at wind farms has been well- documented, particularly in the Appalachian Mountains and the mid-Atlantic states, and concern for this additional mortality is elevated due to the confounding mortality from WNS. Bats seem to be attracted to turbines spinning at lower speeds, and recent terrestrial wind developments in Maine have required cut-in speeds be raised to 5.0 m/sec at dusk and dawn, from April to September, to reduce potential mortality. The US Fish and Wildlife Service is currently considering listing several species of bats that breed and pass through Maine because of these dramatic declines, making them of particular concern.
The most conspicuous potential risk to wildlife from wind facilities is collision with the rotors and associated structures. However, offshore wind facilities may have harmful effects on wildlife because of avoidance behaviors, barrier effects, and habitat alteration, all of which can be difficult to quantify and assess in the marine environment (Dreweitt and Langston, 2006) but are important considerations for the long-term survival of sea and water birds using the Gulf of Maine. Because these varying effects are difficult to measure, it is absolutely critical that the proposed test site is demonstrated not to be in a major migratory pathway or foraging area, and pre-construction surveys must cover not only the test site, but a wide area (1 km) around the site in order to detect potential displacement (Fox et al, 2006).
Given the extent and complexity of wildlife use in the area and the increase in size and scope of the project from the earlier proposed project at the same site, once again we strongly urge you to require a full EIS rather than the shorter EA to evaluate risks and alternatives.
If construction proceeds, we recommend that Aqua Ventus is cautious with lighting at the site through construction, maintenance, and operating phases. In order to minimize risks to migrating birds, we recommend that lighting is minimal, flashing, and red.
We appreciate the opportunity to provide comments and welcome any questions you may have about our recommendations.
Interim Executive Director
Stephen Kress, Ph.D.
Executive Director, Seabird Restoration Program
National Audubon Society
[March 22, 2017]
Burger, J., C. Gordon, J Lawrence, J. Newman, G. Forcey, L. Vlietstra. Risk evaluation for federally listed (roseate tern, piping plover) or candidate (red knot) bird species in offshore waters: A first step for managing the potential impacts of wind facility development on the Atlantic Outer Continental Shelf. Renewable Energy 36 (2011) 338-351.
Drewitt A.L. and R.H.W. Langston. Assessing the impacts of wind farms on birds. Ibis 148 (2006) 29-42.
Fox, A.D., M. Desholm, J. Kahlert, T.K. Christensen, I.K. Petersen, Information needs to support environmental impact assessment of the effects of European marine offshore wind farms on birds. Ibis 148 (2006) 129-144.
National Research Council – National Academy of Sciences. Environmental Impacts of Wind Energy Projects. (2007).
Author: Town of Freedom, Maine
9.1 Wind Turbine Classifications
Type 1 – Small Wind Turbine means a wind turbine with a nameplate capacity less than 10 kW, and a turbine height less than 150 feet.
Type 2 – Intermediate Wind Turbine means a wind turbine with a nameplate capacity between 10 kW and 100 kW, and a turbine height less than 150′.
Type 3 – Large Wind Turbine means up to three wind turbines with a nameplate capacity less than 1 MW, and a turbine height less than 300′, regardless of whether approval is required by the Department of Environmental Protection under 35-A M.R.S.A. §3451, et seq. (Expedited Permitting of Grid-Scale Wind Energy) or Title 38 M.R.S.A § 481, et seq. (Site Location of Development Act).
Type 4 – Industrial Wind Turbine means one or more wind turbines with a Nameplate capacity of greater than or equal to 1 MW, and/or a turbine height greater than 300′, regardless of whether approval is required by the Department of Environmental Protection under 35-A M.R.S.A. §3451, et seq. (Expedited Permitting of Grid-Scale Wind Energy) or Title 38 M.R.S.A § 481, et seq. (Site Location of Development Act).
13.1 Setback Standards
13.1.1 Setback standards for Type 1 Wind Turbines:
a. Non-participating Landowner Property Lines –Type 1 Wind Turbines less than or equal to 100′ shall be set back from the property line of any Nonparticipating Landowner a distance of no less than 1.5 times the turbine height. Type 1 Wind Turbines greater than 100′ and less than 150′ shall be set back from the property line of any Non-participating Landowner a distance of no less than 3 times the turbine height. Non-participating property owners may waive this setback with a written Mitigation Waiver. (See Section 13.4 -Mitigation Waiver), but in no event shall any Wind Turbine be located at a distance from an Occupied Building that is less than the height of the Turbine.
b. Public Roads – Type 1 Wind Turbines shall be set back from any public road, from the edge of the right of way, a distance no less than 1.5 times the turbine height.
13.1.2 Setback standards for Type 2, 3, and 4 wind turbines:
a. Non-participating Landowner Property Lines – Type 2, 3 and 4 Wind Turbines To protect the health, safety and welfare of the citizens of Freedom, Turbines shall be set back from the property line of any non-participating land owner a distance of no less than 13 times the turbine height. Nonparticipating property owners may waive this setback with a written Mitigation Waiver (see Section 13.4 – Mitigation Waiver), but in no event shall any WindTurbine be located at a distance from an Occupied Building that is less than the height of the Turbine.
b. Public Roads – Type 2, 3 and 4 Wind Turbines will be set back from any public road, from the edge of the right of way, a distance no less than 4 times the turbine height.
13.1.3 Setbacks from Scenic or Special Resources:
All Wind Turbines exceeding 80 feet or average tree height on site, whichever is greater, must be set back a minimum of 2,500 feet from any Scenic or Special Resource as defined in Section 8.
13.2 Noise Standards
13.2.1 Noise Standards for Type 1 and 2 wind turbines:
For Type 1and Type 2 Wind Turbines, audible noise levels (dBA)at any property line due to wind turbine operations shall not exceed 35 dB(A) from 6 AM (8 AM on Sundays) to 8:30 PM and 30 dB(A) from 8:30 PM to 6 AM (8 AM on Sundays). Property owners may waive this noise restriction with a written Mitigation Waiver. (see Section 13.4 -Mitigation Waiver).
13.2.2 Noise Standards for Type 3 and 4 wind turbines:
a. Audible noise levels (dBA) due to wind turbine operation shall not exceed either of the following two conditions:
1. The pre-construction ambient noise level by more than 5dBA as measured at any property line. Pre-construction ambient noise studies shall be conducted, by the applicant, for all properties located within 2 times the setback of proposed wind turbine site.
2. The audible noise levels will not exceed 40 dBA during the day or 35 dBA during the night.
b. Low frequency noise levels (dBC) due to wind turbine operation as measured inside an occupied building or at any property line will not exceed:
1. 20 decibels (measured as dBC) above the pre-construction ambient noise level (measured as dBA). Pre-construction ambient noise studies shall be conducted, by the applicant, for all properties located within 2 times the setback of proposed wind turbine site.
2. 50 dBC.
13.3.1 Wind Turbines shall be designed and sited so that shadow flicker and/or blade reflection will not fall on a shadow flicker receptor as defined in Section 8. The flicker or reflection shall not exceed 10 hours per year for any given receptor.
16.7.1 Wind Turbine Projects shall be sited and operated so that they do not interfere with emergency (fire, police/sheriff, ambulance) radio two way communications (base stations, mobile, and hand held radios, including digital) and/or paging, television, telephone (including cellular and digital), microwave, satellite (dish), navigational, internet or radio reception to neighboring areas. The Owner/operator of the project shall be responsible for the full cost of any remediation necessary to provide equivalent alternate service or correct any problems, including relocation or removal of the Wind Turbine, and any and all related transmission lines, transformers, and other components related to the interference.
23.0 Decommissioning Standards
23.1 The Owner/operator shall, at its expense, complete decommissioning of the Wind Turbine Project within:
1) twelve (12) months after the end of the useful life of the Wind Turbine as determined by the Owner/operator or;
2) as specified in the materials provided at the time of application or;
3) pursuant to remedies described in Section 22.8, The Wind Turbine will be presumed to be at the end of its useful life if no electricity is generated for a continuous period of twelve (12) months.
23.2 Decommissioning shall include removal of wind turbines and foundations to a depth of 36 inches. All buildings, cabling, electrical components, roads, and any other associated facilities shall be removed unless, at the end of the Turbine or Wind Turbine Project‟s useful life, as determined in accordance with section 23.1, the Applicant provides written evidence of plans for continued beneficial use of these components of the Wind Turbine Project.
23.3 Except as otherwise provided by section 23.2, disturbed earth shall be graded and re-seeded, unless the Participating Landowner of the affected land requests otherwise in writing. Any alterations to Town roads or property during decommissioning must be approved by the Town.
23.4 Special Decommissioning Standards for Type, 3 and 4 Wind Turbine Projects
23.4.1 An independent and certified Professional Engineer shall be retained to estimate the total cost of decommissioning (“Decommissioning Costs”) without regard to salvage value of the equipment and the cost of decommissioning net salvage value of the equipment (“Net Decommissioning Costs”). The Planning Board shall review the estimates and determine the amount of decommissioning funds that must be guaranteed prior to operation of the Wind Turbine Project. Additional estimates by an independent and certified Professional Engineer shall be submitted to the Code Enforcement Officer every fifth year after approval, along with the application for renewal of the Operational License, and additional funds shall be guaranteed at that time if necessary in accordance with the revised estimate.
23.4.2 The Owner/operator shall post and maintain decommissioning funds in an amount equal to Net Decommissioning Costs; provided that at no point shall decommissioning funds be less than twenty five percent (25%) of Decommissioning Costs. The decommissioning funds shall be posted and maintained with a bonding company or Federal or State-chartered lending institution chosen by the Owner/operator and Participating Landowner posting the financial security, provided that the bonding company or lending institution is authorized to conduct such business within the State and is approved by the Town of Freedom, whose approval shall not be unreasonably withheld. Adequate funds shall be posted or guaranteed before the Code Enforcement Officer may issue an Operational License to the Owner/operator.
Appendix A – Noise Measurement Standards and Procedures
1. A qualified independent acoustical consultant shall conduct all noise studies. The acoustical consultant shall be hired by and report to the Permitting Authority during the permitting review stage, and by the Code Enforcement Officer for review of any suspected violations or for review of an Operational License.
2. Sound level meters and calibration equipment must comply with the latest version of the American National Standards Institute “American Standard Specifications for General Purpose Sound Level Meters” (ANSI Standard S1.4) and shall have been calibrated at a recognized laboratory within one month prior to the initiation of the study.
3. Except as specifically noted otherwise, measurements shall be conducted in compliance with ANSI Standard S12.18-1994 “Outdoor Measurements of Sound Pressure.
4. Prior to permit application approval, a pre-construction ambient noise level study shall be conducted at each Occupied Building within 2 miles of any proposed Wind Turbine.
5. The tests shall be conducted using both an A-weighting scale (dBA) and low frequency C weighting scale (dBC).
6. Tests shall be reflective of seasonal changes to vegetation and atmospheric conditions. At a minimum one set of tests should be performed during each of the four (4) calendar seasons of the year.
7. All measuring points shall be located in consultation with the property owners and such that no significant obstruction blocks noise and vibration to the site.
8. Outdoor noise level measurements must be taken at 6 feet above the ground and at least 15 feet from any reflective surface.
9. Duration of measurements shall be a minimum of ten continuous minutes for each criteria at each location.
10. Measurements must be made when the wind levels are less than 4.5 mph and with appropriate wind screening for the recording device.
11. Measurements should be obtained during representative weather conditions when the Wind Turbine noise is most noticeable, including periods of temperature inversion most commonly occurring at night.
12. Measurements shall be taken at each of the following three time periods:
- Day (10 a.m. – 2p.m.)
- Evening (7p.m. -11 p.m.)
- Night (12 midnight – 4 a.m.)
13. Each measurement shall be replicated during the same time period over three different days within the same season for a total of 9 measurements per location per season (i.e., three daytime measurements in the winter, three evening measurements in the winter, three night time measurements in the winter). The lowest of the three measurements per time period, per season, will be used to determine the pre-construction ambient noise for that time period and season.
14. For each measurement the following minimum criteria will be recorded:
- Lmax, Leq, L10 and L90 in dBA (Lmax: the maximum noise level measured; Leq: average noise level for a given period time; L10: sound level exceeded 10% of the time; L90: sound level exceeded 90 % of the time, generally equivalent to ambient noise.)
- Lmax, Leq, L10 and L90 in dBC
- A narrative description of any intermittent noises registered during each measurement
- Wind speed and direction at time of measurement
- Description of weather conditions at time of measurement
- Description of topography and contours relative to proposed or actual Wind Turbines
15. A 5 dBA and/or a 5 dBC penalty shall be applied for short duration repetitive noise or repetitive impulse noise. This is a characteristic “thumping” or “whooshing” sometimes exhibited by larger Wind Turbines. Per Maine TA Bulletin #4, intermittent noise is a more serious nuisance than constant noise.
16. A 5 dBA penalty shall be applied for tonal noise. This is a single or limited frequency noise (vs. broadband noise) associated with mechanical noise artifacts (i.e. high pitched whining, screeching, buzzing). Per Maine TA Bulletin #4, noise over a narrow frequency is a more serious nuisance than broadband noise.
17. For sites being measured with existing Wind Turbines two sets of measurements are required: 1) one set with the Wind Turbine(s) off and; 2) one set with the Wind Turbine(s) running.
18. For nuisance complaints after the Wind Turbines are operational, the measurement points, season, time, and duration of measurements shall be selected in consultation with the affected property owner. If requested by the property owner, continuous measurements may be taken for longer periods of time to capture intermittent nuisance noise patterns.
19. When conducting their pre-construction noise prediction analysis, the Applicant shall make specific reference to: 1) the unique aspect of the mountainous contours and terrain of the area and its effect on noise predictability and 2) line source noise predictions ( emanating from a line of Wind Turbines) in addition to the traditional single point source predictions.
20. Any noise level falling between two (2) whole decibels shall be deemed the higher of the two.
Author: Dixfield, Maine
Section 11. Approval and Performance Standards
A WEFU or WEFS shall comply with the following setback requirements. If more than one (1) set back requirement applies, the greater set back distance shall be met. All measurements shall be based on horizontal distances.
11.1.1 All WEFUs shall be set back a horizontal distance of four thousand (4,000) feet from any Occupied Building in Dixfield and two thousand (2,000) feet from the boundaries of the Project Parcel unless the Applicant submits in writing: 1) a waiver of the Occupied Building setback signed by the pertinent abutting landowner and; 2) evidence such as operating protocols, safety programs, or recommendations from the manufacturer or a licensed professional engineer with appropriate expertise and experience with WEFUs, demonstrating that the reduced set back proposed by the Applicant will not cause the WEFU to violate any other approval standards of this Ordinance.
11.1.2 All WEFUs must be set back a minimum of four thousand (4,000) feet from any Scenic or Special Resource as defined in Section 4.0 of this Ordinance.
11.1.3 Each WEFU shall be equipped with an over-speed control system that: 1) includes both an aerodynamic control such as stall regulation, variable blade pitch or other similar system and a mechanical brake that operates in fail safe mode; or 2) has been designed by the manufacturer or a licensed engineer and found by the Board, based on its review of a written description of the design and function of the system, to meet the needs of public safety.
11.1.4 WEFUs shall be setback a horizontal distance equivalent to one hundred and fifty percent (150%) of the Turbine Height from Project Boundaries, Occupied Buildings, public and private rights-of-way and overhead utility lines that are not part of the proposed WEFS. No waiver of this standard is permitted. …
11.10.2 Sound Limits
No Permit shall be issued if the pre-permit information or sound study indicates that the proposed WEFU or WEFS will not comply with the following requirements, which are to apply at all Sensitive Receptors within four thousand (4,000) feet of any WEFU, except on Project Parcel(s) or on a Participating Parcel(s) which is subject to a Mitigation Waiver which specifies different sound limits than those below.
If pre-construction estimates of the post-construction sound levels exceed the limits below, then the WEFU or WEFS Application shall be denied; if these limits are exceeded after the WEFU or WEFS has been built, then the WEFU or WEFS will be in violation of this Ordinance:
A. The sound limits below are stated in terms of LeqA (post). Prior to construction of the WEFU or WEFS, the “pre” values are as measured and the “post” values are as calculated. After the WEFU or WEFS has been constructed, the “pre” values are the WEF-OFF values and the “post” values are the WEF-ON values.
B. Audible Sound Limit
1) No WEFU or WEFS shall be located so as to generate post-construction sound levels that exceed thirty-five (35) dBA at night (7:00 p.m. to 7:00 a.m.) or forty-five (45) dBA during the day (7:00 a.m. to 7:00 p.m.) anywhere in the Town beyond the boundaries of the Project Parcel and all Participating Parcels whose owners have waived noise restrictions.
2) No WEFU shall be allowed to operate if it exceeds fifty (50) dBC anywhere in the Town beyond the boundaries of the Project Parcel and all Participating Parcels whose owners have waived noise restrictions. …
D. Post-Construction Sound Measurements. Starting within twelve (12) months after the date when the WEFU or WEFS has begun operating, a post-construction sound study shall be performed for all WEFUs or WEFSs that are operating. Post-construction sound studies shall be conducted by a Qualified Independent Acoustical Consultant. The Permittee shall also pay for a Qualified Independent Acoustical Consultant chosen by the Planning Board to review the Permittee’s study. The Permittee shall deposit the estimated cost of such review upon notification by the Board. The Town’s consultant may observe the Permittee’s consultant’s monitoring. The Permittee shall provide all technical information required by the Board or Independent Qualified Acoustical Consultant before, during, and/or after any acoustical studies required by this document and for local area acoustical measurements. The Post-construction sound measurements shall be repeated every three (3) years throughout the life of the facility and submitted to the Code Enforcement Officer. The applicant may seek a waiver from the Code Enforcement Officer of all but the first post-construction measurements if no valid noise complaints are received during the previous three (3) year period.
E. Pre-construction and post-construction monitoring shall report sound levels in terms of LeqA, L90A, LeqC, and L90C for each hour of the monitoring period.
Author: Fox Islands Wind Neighbors
It is a sad spectacle for the citizens of the State of Maine (and more than that for the Fox Islands Wind Neighbors, the “Neighbors”) to see the Department of Environmental Protection (the “DEP”), the state agency charged with the responsibility to protect us from environmental harm, align itself with Fox Islands Wind, LLC (“FIW”) to grant a de facto exemption from the Noise Rule and then responding in court with claims that it has the absolute right to do so without judicial oversight. It is even worse that the Commissioner responsible for this was in a highly compromised position, having been employed as an industry lobbyist for the very same law firm asking for such special treatment weeks before she issued the Condition Compliance Order (the “CCO”) at issue in this appeal.
A. Issues about Excessive Noise in Connection with the Licensing of the Project.
B. Noise Complaints Following Commencement of Operations.
C. DEP’s Finding of Non-Compliance and FIW’s Refusal to Cooperate.
D. Events Leading to the Challenged Condition Compliance Order.
I. The Superior Court correctly ruled that it had jurisdiction over the petition for review and that the neighbors have standing.
II. The Superior Court correctly ruled that the CCO is unlawful.
III. The Superior Court erred by dismissing the neighbors’ First Amendment retaliation claim.
For the reasons stated above, the Neighbors respectfully request this Court to affirm the decision of the Superior Court that the CCO is invalid as a product of arbitrary and capricious action, without substantial evidence to support it, and an abuse of discretion and hold that the Neighbors have established a valid First Amendment retaliation claim under Rule 80C, with allowance for an award of attorney’s fees or, in the alternative, that they have set forth a plausible claim under Section 1983 of First Amendment retaliation that may proceed on as an independent claim. The Neighbors further request that the matter be remanded back to the Superior Court so that the matter can be remanded to the DEP with detailed instructions on the parameters of a valid CCO.
Dated: August 5, 2014
Rufus E. Brown, Esq.
BROWN & BURKE
Attorney for the Fox Islands Wind Neighbors and the Individual Petitioners