Competing property rights at heart of battles over wind farm regulation 

As wind farm development spreads outside sparsely populated western Oklahoma, local disputes over land use are flaring up and dragging state lawmakers into the mix.

A proposed wind farm in Craig County in northeastern Oklahoma is the latest project to draw opposition and spur calls for tighter regulation from the Legislature over siting and permitting.

Last year, opposition to the proposed Kingfisher wind farm development in northern Canadian County and southern Kingfisher County led to bills being introduced that would have imposed a moratorium on wind development in central Oklahoma. The dispute also included a council recall election in Piedmont and lawsuits over a city ordinance categorizing industrial wind turbines as a public nuisance within three miles of the city limits.

A new kind of fight

The localized battles are different than land disputes in the early days of the wind industry in Oklahoma, said Jennifer Ivester Berry, an attorney and director at Crowe & Dunlevy’s energy and natural resources practice group.

In the early 2000s, disagreement was over access to the surface between wind developers and oil and gas companies who had leased mineral rights, she said. Discussions over the next decade resulted in the Oklahoma Wind Energy Development Act, which went into effect in 2011 and established notice requirements for landowners and a process to decommission wind farms.

If there were opposition from certain landowners to a wind project, their concerns could usually be addressed by modifications to a lease agreement, Berry said. If landowners didn’t want to lease, the developers could work around them.

“If you had a large coalition of objectors, they tended to go elsewhere or redesign their project,” Berry said.

Berry, who has worked with wind developers and landowners, said many landowner concerns get worked out on an individual basis.

“The developers try to regulate themselves in terms of putting in their documentation that they’re not going to interfere with cattle operations or buildings,” Berry said. “The ones we’ve worked with go to great lengths to try to identify what’s going to be the least interference with the landowner’s use of the property. Most of these have been in these really remote areas where the only thing they’re bothering may be the cattle, and it’s not necessarily an in-my-backyard scenario.”

Now, with developments moving closer to suburban areas in central Oklahoma and reaching into northeastern Oklahoma, opposition to wind projects has grown.

Frank C. Robson, a commercial real estate developer in Claremore, said there are more than 50 landowners involved in the Oklahoma Property Rights Association. The group formed to fight a proposed wind farm by EDP Renewables North America in western Craig County.

“This is a David and Goliath battle,” Robson said. “The wind companies are Goliath, and we individual property owners out here are David. If we can’t get organized together, we have no chance whatsoever.”

Robson, the brother-in-law of Walmart founder Sam Walton, said the wind industry operates with few restrictions in Oklahoma, especially when it comes to nearby landowners who don’t want to lease to developers.

“If you had zoning, it would be different,” said Robson, whose family owns a 15,000 acre ranch in Craig County. “But they can do what want to, when they want to, where they want to and how they want to.”

Legislation proposed

Sen. Cliff Branan, R-Oklahoma City, addressed the group’s concerns by introducing Senate Bill 1559. It passed the Senate Energy Committee 12-2 last week and now goes to the full Senate for consideration.

SB 1559 would put tighter bonding requirements on wind projects for decommissioning and establishes a quarter-mile setback from homes or homes under construction. It also requires wind turbines to be no louder than 50 decibels from a distance of 1,000 feet. Branan said the bill is a work in progress.

The bill has drawn intense opposition from the wind industry, some business groups and environmentalists. David Ocamb, president of the Oklahoma Sierra Club, said SB 1559 could drive wind developers to nearby states.

“This bill would put such an amazing chill on the industry that I cannot imagine another turbine built in this state,” Ocamb said. “It just makes so much sense to go to Kansas or Texas, where you have the same wind resource and the same access to transmission. There’s no incentive whatsoever to go to Oklahoma where you have onerous regulations put in place by legislators who are responding to very parochial and very well-heeled special interests.”

The bill could also deter companies with renewable energy policies from further investments in Oklahoma, Ocamb said. Google, which operates a data center in Pryor, has been outspoken about its desire for renewable energy.

Representatives of EDP Renewables said the company’s Craig County project is still in the early stages. Developers have about 80 percent of the land they need for the wind farm. The company hasn’t yet contracted with a utility to buy the electricity.

Curt Roggow, a lobbyist for The Wind Coalition, said SB 1559 is different from bills introduced last year that affected development only in central Oklahoma and the Kingfisher wind farm.

“This year, the proposed legislation affects all developments,” Roggow said. “Here they are trying to stifle the wind development in Craig County and that one particular wind farm, but the proposed solution is a negative effect on all wind farms.”

Some resolution in the Kingfisher project came in December with an agreement between developers and a group called the Central Oklahoma Property Rights Association, but not before a series of contentious meetings before the Piedmont City Council and Canadian County commissioners.

The Kingfisher wind farm is a 300-megawatt development between Piedmont and Okarche by Apex Clean Energy Inc. The project is expected to be operational by 2015.