To: Commissioners, Maine Land Use Regulation Commission
cc: Marcia Spencer-Famous, Catherine Carroll
Dear LURC Commissioners:
We have been following the Commission’s discussions around TransCanada’s rulemaking petition and are encouraged that the Commission recognizes that TransCanada’s petition to expand the expedited permitting area will set important precedents for how all future petitions are considered. We appreciate that you are proceeding with careful and thorough deliberation.
As members of the Governor’s Task Force on Wind Power Development in Maine, and active participants in its deliberations, we offer our input regarding how the Commission should consider such petitions. Our intent is to address the more general question of process but not the substance of the specific petition from TransCanada in regard to Sisk Mountain now before the Commission.
Background
As you know, the Governor’s Wind Power Development Task Force recommended, and the legislation codified, a process for expanding the expedited area. This is described in Section A-8 of Public Law, Chapter 661 (2008), which provides for a full review of Maine’s progress toward wind power development goals (including the goal of developing 2,000 MW by 2015) to take place five years after enactment of the legislation, in 2013. Part of this review process is to make recommendations regarding “Identification of places within the State’s unorganized and deorganized areas for inclusion in the expedited permitting area.” (1) This comprehensive review, not the petition process, is the appropriate venue for determining whether broad areas should be brought into the expedited area. In the meantime, the expansion petition process should only be used to fine-tune the edges of the existing expedited permitting area when it can be demonstrated, through information not available to the Task Force, that a site meets the criteria in statute. However, the petition process should not be use to expand the expedited area in any significant way.
The Task Force exercised considerable thought and deliberation in delineating the expedited permitting area, but there were limits to the process—limited time and limited information about the location of viable wind resources and natural resources that should be protected. Developing a finely-detailed expedited permitting area that reflected the suitability or unsuitability of every potential site was beyond the scope of what the Task Force could accomplish. In most cases, the line drawn between the expedited and non-expedited areas follows township lines, although of course neither wind resources nor natural resources are distributed neatly along these boundaries. It was more efficient for the Task Force and the legislation to draw such boundaries, but LURC has the authority and opportunity to apply a finer lens to that line. Potential wind power sites (primarily ridgelines) often straddle township boundaries, partially within and partially outside of the expedited permitting area. Our understanding of the intent of the Task Force was that the expansion petition process was included in the legislation to deal with situations arising along the boundary, by applying these criteria:
1. Involve a logical geographic extension of the currently designated expedited permitting area;
2. Is important to meeting the state goals for wind energy development established in §3404; and
3. Would not compromise the principal values and the goals identified in the CLUP.
We recognize that the Commission is in the challenging position of responding to a request to expand the expedited area while developing its own guidance on what the criteria mean, and we appreciate that the Commission has crafted a public hearing and comment process to help address this.
Comments on Criteria
A core principle for considering an expansion petition is that the petition should not be a de facto determination of the suitability of a site for development. Granting an expansion petition should not bias the decision on the subsequent development application as to whether a site is suitable for development. Separating consideration of the expansion petition from the subsequent development application is the fine line that the Commission must walk. In summary, we believe the first criteria narrows the scope of applicability of an expansion, the second raises the question of whether it is necessary and desirable, and the third presents an essential threshold consideration of whether the site is broadly consistent with LURC policy.
Criteria One – logical geographic extension
The petition process in general is an appropriate tool to “tweak” the boundaries of the unexpedited/expedited portions of the state. Thus, for example, a petition to add an entire township to the expedited area should not be approved. The “logical geographic extension” criterion should only be applied at the individual site level on a case-by-case basis, not the broader regional (e.g., township) level.
“Logical geographic extension” should be limited to cases where a significant portion of a ridgeline and the proposed project development is within the currently designated expedited area, but a portion of the ridgeline (which presumably shares many of the same characteristics), is outside that area. “Significant” would be determined on a case by case basis, but clearly if 90% of the ridgeline proposed for development was in the expedited zone it would qualify for inclusion by petition, but if 90% were outside the area it should not qualify. The Commission would not need to categorically reject petitions where more than half of the proposed development lay outside the expedited area, but would need to weigh such a petition most carefully, particularly with regard to the other two criteria. Independent ridgelines lying entirely outside of, though proximate to, the expedited area should not qualify for expansion by petition.
Criteria Two – important to meeting state goals for wind energy development
When the Task Force recommended the boundaries of the expedited area, it did so after an analysis of what our overall wind power goals should be and an analysis of where the windy resources in Maine were—including in relation to parts of the jurisdiction where wind power was much less likely to be preferred. However, at the conclusion of the Task Force there remained some degree of uncertainty about whether the expedited area would be sufficient to meeting the wind power goals. This explains the review in 2013 and the existence of this criteria for interim minor expansion of the expedited area.
It is possible to give two simple, extreme interpretations of what this criterion means. First, one could argue that unless and until we’ve actually met the state goal of 2,000 MW, any developable windy land is important to meeting the goal. Alternatively, one could argue because there is still undeveloped windy land in the expedited area it is premature to add any land to the expedited area until 2015 (i.e. only after having failed to meet the statutory goal). Neither of these interpretations is particularly satisfactory or useful in deciding a petition. A better interpretation should require consideration of our progress toward achieving the state goals and consideration of the value of a piece of land, to determine whether additional areas are important.
The Commission should require the applicant to assert whether or not Maine is “on track” to meeting its statutorily established wind power goals. Because the state’s progress will not be linear or precisely predictable, this is not a black and white determination.(2) Furthermore, if we are not “on track”, we suggest that the applicant be required to provide some of the key reasons why this is true, and whether and why the inclusion of the petitioned area is an appropriate response to those reasons.
Wind power, like other forms of generation, has environmental impacts. The proper siting of wind power involves a trade-off between different goals and a balancing between clean energy generation (benefits) and environmental impacts. It is important to meeting the state’s goals that we use the land efficiently and allow development in the places where we can advance the goals with the least amount of harm. Under this criteria LURC should consider whether a piece of land may be important towards meeting our goals because it offers particular value in terms of benefits vs. impacts. In other words, is the land especially productive for wind power without posing large potential adverse environmental impacts? Or would development in the area make use of some existing infrastructure that, if duplicated elsewhere, would create greater adverse impacts?
Criteria Three -would not compromise the principle values and goals identified in the CLUP
In its consideration of this criteria, LURC must consider its four principal values:
• Economic value for food and fiber production
• Diverse and abundant recreational opportunities
• Diverse, abundant and unique high value natural resources and features
• Natural character values, including a largely undeveloped forest remote from population centers (CLUP p. 114)
The Commission’s three broad goals must also be considered:
• Support and promote the management of all the resources, based on the principles of sound planning and multiple use, and ensure the continued availability of outstanding quality in water, air, forest, wildlife and other natural values of the jurisdiction.
• Conserve, protect and enhance the natural resources of the jurisdiction primarily for fiber and food production, non-intensive outdoor recreation and fisheries and wildlife habitat.
• Maintain the natural character of certain areas within the jurisdiction having significant natural values and primitive recreation opportunities. (CLUP p. 134)
Furthermore, LURC’s specific goals and policies must be considered including those addressing Air Resources, Energy Resources, Forest Resources, Mountain Resources, Recreational Resources, Special Natural Areas, Wetland Resources, Wildlife and Fisheries Resources, and Scenic Resources.
After reviewing the CLUP values and goals and considering the criteria and the legislation, we recommend that the evaluation of the third criteria be considered akin to the rezoning standard (consistency with the CLUP and its purpose) and its process. This approach would allow for consideration of landscape level and significant high value resource issues without becoming duplicative of the final development permit review. (We note that projects located in the expedited area go directly to the final development permit and skip this process.)
Issues that should be considered under this criteria are those considered under the rezoning criteria and would include but should not be limited to: suitability of the area including the broader region or landscape around the petitioned site (both within and outside of the expedited area), significant ecological, recreational and/or scenic resources, the presence or absence of rare natural communities and ecosystem types, high value wildlife habitats, or endangered or threatened species or species of special concern that are reasonably likely to be negatively impacted by development, and whether this is a migration passageway for migratory species.
Our recommendation is consistent with the Task Force’s intent of delineating an expedited review process and accompanying expedited permitting area. Although the issues for petitions of areas on the fringe of the jurisdiction may be somewhat different than those in the core, both demand thorough review and consideration. For much of the non-expedited area the primary value is remoteness, while areas closer to the fringe of the jurisdiction were kept out of the expedited area because they comprise broad landscapes of high resource value. Such areas are those that possess multiple and broadly distributed significant ecological, recreational and/or scenic resources creating a geographically coherent high-value landscape, such that the overall integrity and value of the area would be degraded by the presence of significant development within it, even if the site-specific impacts of development in a particular location are not significant. It is entirely possible to have petitioned sites within such high-value areas that would be suitable for development if only site-specific impacts are considered in isolation, but whose petition should be rejected based on broader landscape-level considerations. Conversely, it would also be entirely consistent to grant a petition for expansion that is geographically logical and not located in a high-value area, but then deny the development permit on the basis of undue site-specific impacts.
Conclusion
We reiterate that these thoughts are only intended to give our perspective on how any petition for expansion should be considered, and do not reflect any position on the specifics of TransCanada’s petition for Sisk Mountain. We hope that these thoughts are useful to the Commission’s deliberations. We will continue to be actively involved in this matter and are prepared to contribute in any way that the Commission finds valuable.
Thank you for your consideration of these comments.
Sincerely,
Dylan Voorhees
Natural Resources Council of Maine
David Publicover
Appalachian Mountain Club
Jody Jones
Maine Audubon Society
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[1] Section A-8(1)(E)(3) of Public Law, Chapter 661 (2008).
[2] As an illustration, currently Maine has 177 MW of operating wind power, and an additional 200 MW under construction or having received permits (some of which are under appeal), for a total of about 380 MW, or about 20% of the way toward the 2015 goal. We are aware of 375-600 MW of additional projects in the near-term permitting or planning stages (which would bring us within 40-50% of the 2015 goal), but it is very unlikely that all of those will be constructed
