Siting And Permitting Changes Add Difficulty In Midwest

By carrying out well-planned outreach initiatives and education in the local community, developers can be proactive in combating NIMBYs and wind farm opposition.

BY WANDA DAVIES

Wind developers already recognize the many reasons to develop projects in the Midwest, such as the region’s abundant wind resources. However, recent changes in regulatory regimes and growing not-in-my-backyard (NIMBY) opposition have complicated developers’ work in securing their required civil permits.

Therefore, Midwest-based developers that had faced only limited opposition must now be smart, proactive and diligent if they are to earn public support for their projects. Not to mention, it is very difficult for public officials to support projects that face unrelenting opposition and scant public support.

Wind farm opponents in Illinois, Minnesota and Wisconsin are becoming more vocal, better organized and better funded. It is not uncommon to find individuals with strong views traveling to oppose projects and bolster the local anti-wind sentiment.

These opponents see the approval of any wind farm in their state as increasing the likelihood that another project will spring up closer to home.

Most opponents are not farmers; they are typically educated professionals who work in nearby cities or own second homes in rural areas. These are people who know how to work the political process and have money to fund sustained opposition campaigns.

Opposition is also surfacing earlier in the development process. For example, a developer’s permit for a meteorological tower in Stearns County, Minn., was denied because the town’s zoning board had concerns about the project. The permit was eventually granted, but not without delay and additional cost.

Even supportive local jurisdictions are becoming more demanding about what they require from developers. For example, many counties have increased building-permit fees to several thousand dollars per turbine. Some counties are requiring payments in lieu of taxes, in addition to mandating assessments as a condition of permit approval.

Lawsuits and appeals of local governments’ permit approvals are also becoming more common. Visual impacts are the number-one complaint, followed by health and property-value claims. To date, none of these NIMBY lawsuits has succeeded, but the cost in dollars and time is considerable. In response to these complaints, the permitting authorities now commonly require sound and blade shadow studies’ and sometimes even a property-value protection plan.

Law firms that specialize in suing wind farms are starting to appear, and people are hiring them. A single wealthy opponent may fund the legal battle, or a group of opponents may join forces to pay the legal costs. A well-conceived and successfully executed community support plan can reduce the pool of strong opponents so that a critical mass is not present for funding a lawsuit.

Sadly, long-standing assumptions about the ease of permitting in the Midwest are being proven wrong. In response to this changing siting and permitting environment, developers in the region are gearing up to invest more resources in order to earn public acceptance for their planned wind farms.

As a general rule, local decision-making is riskier for the developer and more vulnerable to the effects of a few vocal opponents. A special- or conditional-use permit has a high probability of resulting in a lawsuit. By contrast, a permitted-use process faces a lower risk, because the permit must be issued if compliance with the terms of the ordinance is demonstrated. In theory, a decision made by a state-level board of experts should be rational and consider the best interests of all parties. In reality, even state-level authorities are subject to pressure from persistent, effective opponents.

For the most part, the Dakotas and Iowa pose few problems for wind developers. Lower population density typically means fewer land-use conflicts. Nevertheless, local support should not be taken for granted, and increased wind development – even in these wind-friendly states – could spawn opposition.

In Minnesota, the state Public Utilities Commission (PUC) has siting authority for energy projects exceeding 5 MW. To date, wind farms have been allowed to go through what is called the informal process. However, recent contentious permitting battles in Goodhue County may signal a change in the PUC’s approach. As a result, developers will likely face higher costs and longer timelines.

Meanwhile, in response to complaints filed last year by anti-wind activists, the PUC is reviewing its evaluative criteria for proposed projects. Comments were accepted in fall 2009, and the PUC has yet to render a decision on whether it will adopt stricter sound standards and larger setbacks.

Wisconsin – a state with a history of many high-profile controversial wind farm projects – is in the midst of changing its permitting regimen. On Sept. 7, the Public Service Commission (PSC) sent to the state legislature its final rules for the siting and permitting of wind turbines. The PSC’s rules function as a uniform set of standards to guide the local regulation of wind siting, operation and decommissioning for projects smaller than 100 MW. The rules specify how a political subdivision can establish setback requirements, noise and shadow-flicker standards, and mechanisms that give nonparticipating landowners a stake in wind energy projects sited in their area.

Illinois, on the other hand, lacks a state permitting authority, and most Illinois counties require special-use permits for wind farms. Illinois law gives wide latitude to counties in how they treat special-use applications. This decentralized policy opens the door for local governments to require special concessions – financial or otherwise – from wind farm developers. Road-use agreements with the township road commissioners can be particularly difficult to negotiate, resulting in project delays and high costs. A notable exception is Winnebago County, which passed a permitted-use ordinance.

Unfortunately, a single wealthy opponent has the ordinance tied up in court. According to Kevin Borgia, executive director of the Illinois Wind Energy Association, the wind industry had given significant thought to creating uniform wind siting standards for Illinois. However, such a strategy could be seen as impeding a county’s overall authority.

In Michigan, permitting is a township function, which can mean several permits are needed for a single project. Strong opposition has not yet manifested in Michigan, possibly because only three relatively small wind farms have been permitted. However, a proposal for an offshore wind farm, to be located near Grand Haven, Mich., failed to receive endorsement from the Oceana County Plan Commission. In nearby Riga Township, Mich., a 12-month moratorium on wind development is being pushed by the planning commission. Whether or not this portends a change in permitting regulations remains to be seen.

In Indiana, the state utility regulatory commission usually declines jurisdiction over wind farm project siting. Instead, permits are obtained through the counties, primarily under what is known as a special exception. This process requires public hearings before a board of zoning appeals and a vote by that body to approve or deny a proposed project. To date, the state’s wind farms have obtained permits without the ugly battles seen in neighboring states, and no lawsuits have been filed. Recent consideration of a wind ordinance in Tippecanoe County, however, did generate vocal opposition.

Community initiatives

Developers should not assume a warm reception for a wind project, no matter where it is proposed. Every project will have some opponents and some supporters. To succeed, the developer needs to convince those who are undecided of the wind farm’s benefits. By targeting these people with an outreach program, developers can marginalize opponents before their disinformation campaign persuades others.

Attention to the potential host community should start early. Ideally, the developer should meet with local leaders and thoroughly understand community attitudes even before a meteorological tower is erected. Land-leasing activities offer an invaluable opportunity to take the pulse of the community. At each meeting, land agents should ask about local leaders and likely opponents.

Design outreach activities in such a way that opponents do not gain a forum to trumpet their views. For instance, an open house might be more effective than a formal presentation. Invite every voter living near the potential project, as well as the local leaders you have identified. Offering dinner will increase attendance, and people will feel a small obligation to hear you out.

Set up booths around the room to educate attendees about the project, and provide quality information to the local media. Building a quality website is also an affordable way to distribute concise but substantive information.

By following these steps and carrying out well-planned outreach initiatives and education in the local community, developers can be proactive in combating NIMBY s and wind farm opposition.

Wanda Davies is a director at Robert D. Kahn & Co., a St. Paul, Minn.based strategic communications consultancy. She can be reached at (651) 797-4729 or wdavies@rdkco.com.

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