• Alternative Energy - Environmental
• Alternative Energy - Land Use

Legislative Process Begins on Wind Energy Siting Reform Bill

Beveridge & Diamond, P.C. - Massachusetts Alternative Energy Alert, June 23, 2009

On May 20, 2009, the Massachusetts General Court’s Joint Committee on Telecommunications, Utilities, and Energy held a public hearing on the Wind Energy Siting Reform Act (H.B. 3065, S.B. 1504) (the "Act"), which would establish "one-stop permitting" for wind energy facilities at local and state levels. If enacted, the proposed legislation would significantly alter the permitting and appeal landscape for wind projects.

The Act applies to land-based wind projects with a capacity of two or more megawatts (MW). Currently, one-stop permitting at the Energy Facilities Siting Board ("EFSB") is only available for projects with more than 100 MW of capacity, which is far greater than the capacity typically associated with renewable projects. Hoosac Wind, for example, currently one of the largest proposed wind projects in Massachusetts, has a potential capacity of 30 MW.

Offshore wind projects are governed by the Oceans Act of 2008 and would not be impacted by the Act.

The Act requires that, with the assistance of an Advisory Group, the EFSB establish regulations for siting wind energy facilities within six (6) months of the effective date of the Act. These regulatory standards, which may vary by region, must govern the following:

• lighting;
• setbacks from residential neighborhoods to minimize sound and health and safety impacts; and
• performance standards to avoid, minimize, or mitigate impacts to significant scenic or recreational areas, priority or estimated habitat for plant and animal species, populations of bird and bat species considered vulnerable to wind turbine operations, large unfragmented habitat blocks, and other ecologically sensitive areas.

Projects that satisfy the regulatory standards proceed under a fast-track approval process and must be approved subject to conditions. Compliance with the standards is not mandatory, however, and if a project complies to the maximum extent practicable, provides appropriate mitigation, and its benefits outweigh any detriments, it may be approved subject to conditions.

Projects need not comply with other local rules, regulations, policies or requirements, all of which can be waived by the local board. However, all permits must comply with the Massachusetts Environmental Policy Act and federal water, air and endangered species requirements. Local boards are expressly authorized to assess impact fees in accordance with a schedule set by the Department of Energy Resources ("DER") and enter into development agreements.

The Act would create a system where a single municipal-level permit and a single state-level permit would be required for the siting of wind energy facilities.

Permits at the local level will be issued by newly created “wind energy permitting boards,” which include members of the planning board, conservation commission, and zoning board of appeals in municipalities with “significant wind resource areas” as determined by DER.  In all other municipalities, the planning board will serve as the permit-granting authority.

Applicants must also secure a state-level approval from the EFSB.  Issuance of the EFSB permit precludes any other state agency or local government from mandating further approvals or applying additional laws or regulations to the construction or maintenance of the project.

Project proponents may appeal a local decision to the EFSB, which can hear appeals simultaneously with an application for the “one-stop” state permit.  Proponents also have the option to appeal the local decision directly to Superior Court or Land Court under the procedures of M.G.L. c. 40A, § 17.  “Persons aggrieved” by the local board’s decision must appeal to the EFSB.  The EFSB’s decision may supersede any permit conditions imposed by the local board which “significantly impairs” the ability to construct or maintain the facility.  However, a project proponent is only entitled to a reversal of a local permit denial if the EFSB finds that the proposed project satisfies the regulatory standards.

Both project proponents and other parties in interest have a right to appeal decisions of the EFSB directly to the Supreme Judicial Court.  Alternatively, if a local permit is denied and the EFSB finds the project does not satisfy the siting standards, the proponent may appeal that decision to Land Court or Superior Court under M.G.L. c. 40A, § 17. 

At the local level, the wind energy permitting board must issue a decision on an application within four months if the project complies with siting standards, or six months if it does not comply. Constructive approval is available if a local board does not meet the statutory time frames.

At the EFSB, if project complies with the siting standards, it can be approved within five to eight months. Approvals for projects not complying with regulatory standards would issue in approximately one year.

In addition to the Secretary of Energy and Environmental Affairs, Ian Bowles, individuals representing a wide spectrum of interests in the renewables industry testified in favor of the bill. Witnesses included the following: First Wind CEO, Paul Gaynor; Cape Light Compact Chairman, Bob Mahoney; National Grid VP Government Affairs, Jeff Newman; Union of Concerned Scientists Senior Analyst for Clean Energy Program, John Rogers; Mass Audubon Society Assistant Director of Legislative Affairs, Jennifer Ryan; Conservation Law Foundation Assistant Manager, Shannon Duncan; New England Power Generators Association, General Counsel, Christopher Sherman. The only testimony in opposition was offered by Green Berkshires member, Eleanor Tillinghast.

If you would like more information on Beveridge & Diamond’s Alternative Energy practice, please click on the following link: http://www.bdlaw.com/practices-133.html.

For a printable PDF of this article, please click here.