Wind energy moratorium may be unenforceable
Credit: By Eric Lindquist, Leader-Telegram staff | www.leadertelegram.com ~~
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The Clear Creek Town Board may have passed a one-year moratorium Monday night on construction of wind turbines, but that doesn’t necessarily mean the document will halt development of a wind farm proposed in the town.
Though the board dutifully approved the moratorium called for by the vast majority of residents who attended a special town meeting Nov. 5, state and local officials said their interpretation of state law is that local municipalities are prohibited from enacting regulations on large wind projects that are more restrictive than those laid out in the Wisconsin wind siting rules that took effect in 2012.
State Public Service Commission spokesman Matt Sweeney said the question is addressed in Wisconsin statutes, which state “no political subdivision may place any restriction, either directly or in effect, on the installation or use of a wind energy system that is more restrictive than rules promulgated by the commission.”
However, the statutes specify a few exceptions, including restrictions that serve “to preserve or protect the public health or safety.”
That is the exception the town is seizing upon, said Lotty Macik, Clear Creek town chairman, indicating his research since the issue blew up in the town in recent weeks shows that many neighbors of wind projects around the world claim to suffer from health problems.
“I believe it is enforceable if we can prove it’s definitely a health and safety issue,” Macik said Thursday. “We’re going to stick with it and see what happens.”
The newly passed ordinance imposes a one-year moratorium on issuance of land use or conditional use permits relating to construction of wind turbines in the town to give residents time to form a committee to study the environmental, financial, health and safety effects of wind energy development for the town.
The action came about in response to a proposal by Chicago-based RWE Renewables Americas to build a 200-megawatt wind farm in southern Eau Claire County. The project, which company officials have said would include 40 to 70 wind turbines that likely would be about 500 feet tall, would be the most productive wind energy project in Wisconsin.
RWE is exploring the possibility of building a wind farm valued at more than $200 million on about 20,000 acres of farmland in the towns of Clear Creek and Pleasant Valley. The proposed site is west of U.S. 53, east of Highway 93 and south of Cleghorn.
Eric Crawford, RWE’s wind development manager, said company officials selected the site because of the prevalence of agricultural land, adequate wind and a Wisconsin political climate viewed as supportive of pursuing sustainable energy sources.
“Our understanding about projects like this is that they are permitted at the state level, so a moratorium at the local level wouldn’t be enforceable,” Crawford said Thursday.
Rodney Eslinger, director of the Eau Claire County Planning and Development Department, said town leaders have indicated they want the county to enact a similar moratorium countywide as the county considers updates to the county code regarding wind siting rules.
But he also said it is his understanding that wind energy projects over 100 megawatts can’t be inhibited by local ordinance, adding, “We have to make sure any decisions we make are legal and defensible.”
That interpretation is shared by Gary Gibson, chairman of the County Board’s Planning and Development Committee.
“It looks like from state statutes that we have no authority at all,” Gibson said, acknowledging that county officials have been scurrying to research the issue because this is the first major wind energy project proposed in Eau Claire County. “You can pass a moratorium, but if there are no laws to uphold it, then it really doesn’t do any good.”
Eau Claire County attorney Timothy Sullivan said he planned to issue a formal opinion on the legality of a potential countywide moratorium before the end of the week.
Specific questions about whether a town can impose a moratorium based on health and safety concerns would be decided by the courts separately from the PSC’s approval process, Sweeney said.
“There is always that health and safety exception button to push, but the legal field generally views that as an extraordinarily high bar to hit,” said Mike Koles, executive director of the Wisconsin Towns Association.
Both Macik and Crawford acknowledged the dispute could end up in court.
“I know we have people in the township who will definitely go that far with it,” Macik said. “This is a big deal out here, and there are a lot of people who are really unhappy.”
The majority of residents who spoke at the special meeting expressed concerns about health and safety – mostly related to sound, light flicker and stray voltage – that have arisen among neighbors of other wind farms in Wisconsin and elsewhere. Others said they were worried about the impact on wildlife, water quality, aesthetics and relationships among divided town residents. A few residents talked about the benefits of renewable energy and payments to landowners.
At this point, RWE hasn’t yet applied for any permits with the county, Eslinger said, suggesting the first such action likely would involve a permit to put up a tower to gauge wind levels in the targeted area.
Koles said local governments may not be able to enforce a 12-month moratorium, but they do have at least seven months before development can occur because developers have to provide a three-month notice before applying for a permit and then a town has four months to decide whether to grant it.
RWE officials have said they don’t foresee starting construction on the Eau Claire County project before 2023.
In the meantime, Crawford said RWE will continue to educate people in the area about wind energy and promote the benefits of the proposal to landowners, some of whom have already signed contracts agreeing to host a turbine on their land.
“We are going to continue to do what we’ve been doing these past few months – reaching out to landowners,” Crawford said. “That is our priority. That is our focus.”
On top of lease payments to landowners who agree to allow the company to place turbines on their property, RWE projects it would make payments totaling about $26 million to Eau Claire County and the two towns over the 30-year life of the project, Crawford said recently. Plans call for 60 percent of that money to go to the county and 40 percent to the towns.
RWE’s proposal calls for placing turbines between a third of a mile and a full mile apart and setting them back at least 1,500 feet from the homes of neighbors who aren’t participating in the project, Crawford said.
The Eau Claire County Board passed a resolution in April setting a goal of obtaining 100 percent renewable energy and carbon neutrality by 2050 for county government.
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