One of the concerns that led to a moratorium on wind farm applications in Jefferson County is the cost of decommissioning wind turbines after they have outlived their usefulness.
On September 15, 2021, Jefferson County Commissioners voted unanimously to institute a six-month moratorium on wind farm applications, feeling it was necessary to review and possibly revise the various policies that govern the placing and operating of wind turbines within the county.
County commissioners have made it a priority to ensure there are sufficient funds available to decommission a wind turbine when it comes to the end of its usefulness and that county taxpayers not be on the hook for those expenses.
Planning and Zoning Committee Recommendation
At a meeting of the Jefferson County Planning and Zoning Committee, held the evening of Thursday, December 9, 2021, committee member Bruce Weise made clear his opposition to any decommissioning plan, “When commissioners brought this up to me, I don’t think that the county should be even in this because, if they (the company that builds the wind turbines) pick up and leave, I mean, why not leave it up to the landowner?”
Weise pointed out that the county required no decommissioning plan for any other type of construction.
NextEra Energy Resources is the company that owns and operates Steele Flats in Steele City. According to David Levy, an attorney with Baird Holm LLP, which represents NextEra, decommissioning is written into the lease.
“In the lease with the landowner, it says that the wind company, when they’re done with it, they have to come and take it out. That means take all the equipment out. That means take everything out that’s in the ground, typically to a depth of four feet, cover it over, grade it, smooth it out, pack it down, so you can farm over it,” said Levy.
“What protects the taxpayers then, as the zoning regulations require the developer, owner of the facility, typically after the 10th year of operation, to post some kind of financial security with the county, a bond, a letter of credit, something like that, drawn on very large, very reputable, very solid financial institution, so that if the developer up and disappears.”
Levy also noted that in the event of the company’s failure to decommission turbines, the State of Nebraska would take on the responsibility, rather than leaving it up to the county, “What state law says is that if the county doesn’t deal with this, the Nebraska Power Review Board has that responsibility.”
After a series of meetings in January 2022, the Planning and Zoning Committee opted to remove any regulations regarding decommissioning and leave it up to the state.
That decision has concerned a number of citizens.
A public hearing was held on Tuesday, March 1, 2022, to allow citizens input on the proposed regulations. Over 200 people attended and approximately 70 spoke. Decommissioning was brought up by several speakers.
“But today my big issue is decommissioning since you totally avoided it,” said Elizabeth Jergens.
“If the state does not act, your local governments will have to develop a plan to address the health and safety concerns of those wind tower sitings and operations and how the wind tower decommissioning will be handled. That’s up to you guys.”
Dustin Schwab of Plymouth noted that leaving decommissioning up to the state does not mean taxpayers will not foot the bill.
“If the state is required to pay for decommissioning the turbines, we will all pay for that,” said Schwab.
“Make no mistake, the decommissioning of a large wind turbine is a huge expense.”
“And one of the things that I know it is not worth tearing apart the fabric of this community for new gym (a reference to the wind farm tax money that schools receive). And the decommissioning is going to do that,” said Josh Wietzki. “Decommissioning should be understood to mean that the removal of the turbine and to restore site to preconstruction conditions.”
Wietzki said, “A developer’s plan needs to be adequate with regulatory requirements for taxpayers, both present and future and have it in writing prior to the approval by the county commissioners.”
Josh Wietzki is the husband of Jenna Wietzki, the founder and administrator of a Facebook group called the Jefferson County Alliance for Informed Wind Decisons (sic). The page was first created on June 30, 2021. Members of this group include Fairbury Mayor Spencer Brown and Fairbury City Councilperson Bradley Kuzelka.
Gregory Kratz, an attorney in Fairbury, also spoke. He did not indicate if he was representing himself or a client but he described himself as an attorney and a landowner in Jefferson County. Kratz said, “I’m asking you today to not approve the recommended regulations proposed by the planning and zoning committee. And I believe that the board and the planning and zoning committee need to reconsider, specifically the decommissioning regular regulations, or lack thereof. Specifically, I believe that they should require security for the decommissioning not rely on the state to do that.”
According to Kratz, “I have had the opportunity to review a number of lease agreements from NextEra. And there is a provision in there that says the parties specifically acknowledge and agree that a waiver of any security for the performance of the removal obligations was specifically negotiated and incorporated into the payment terms of this agreement provided. However, and not what state foregoing, the operator agrees to comply with any applicable local law requirements relating to decommissioning security. So here you have a situation where, yes, could be required, but it also could be waived by anybody signing the lease.”
FJN has not reviewed any lease agreements with NextEra or verified Kratz’s interpretation of said leases.
County Commissioners’ Position
Although the wind farm issue was not on the agenda, a group of individuals attended the meeting of the Jefferson County Commissioners on Tuesday, March 8, and they talked about wind farm regulations during the open public comments portion of the meeting and one of the topics commissioners were asked about was decommissioning.
“We’ll have it so that it’s not going to come back on taxpayers. One of the things that Gage County did in their regulation, they actually required the wind provider to fund the estimated total cost. They pay 10 percent the first year,” said commissioner chairman Mark Schoenrock said. “So by year 10 they have the complete estimated cost. And then they have to review that estimated cost every five years.”
Schoenrock said, “We’re going to make sure we’ve got it so that Jefferson County taxpayers are not going to pay for decommissioning.”
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