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ZP 709 (Final)

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ZP 709 (Final) STATE OF MAINE DEPARTMENT OF CONSERVATION LAND USE REGULATION COMMISSION 22 STATE HOUSE STATION AUGUSTA, MAINE 04333-0022 JOHN ELIAS BALDACCI PATRICK McGOWAN GOVERNOR COMMISSIONER COMMISSION DECISION IN THE MATTER OF TransCanada Maine Wind Development, Inc. Zoning Petition ZP 709 Preliminary Development Plan Findings of Fact and Decision The Maine Land Use Regulation Commission, at a meeting of the Commission held on March 5, 2008, at Orono, Maine, after reviewing the application and supporting documents submitted by TransCanada Maine Wind Development, Inc. (hereinafter “TransCanada”) for Zoning Petition 709 and Preliminary Development Plan, public and Intervenor comments, agency review comments and other related materials on file, pursuant to 12 M.R.S.A. § 681, et seq. and the Commission's Standards and Rules, finds the following facts: 1. Petitioners: TransCanada Maine Wind Development, Inc. c/o Verrill Dana, LLP One Portland Square Portland, ME 04112-0586 Plum Creek Maine Timberlands, LLC 49 Mountain Avenue Fairfield, ME 04937 2. Completed Petition Accepted for Processing: April 25, 2007 3. Public Hearing: October 2 and 3, 2007 4. Public Hearing Record Closed: October 22, 2007 5. Location of Proposal: Kibby Township, Franklin County (rezoning) Skinner Township, Franklin County (rezoning) Chain of Ponds Township, Franklin County (roads) Jim Pond Township, Franklin County (transmission line) Coplin Plantation, Franklin County (transmission line) Wyman Township, Franklin County (transmission line) CATHERINE M. CARROLL, DIRECTOR PHONE: (207) 287-2631 FAX: (207) 287-7439 TTY: (207) 287-2213 ZP 709; TransCanada Page 2 of 79 Kibby Mountain: centroid - 70 31'57.02" W, 45 23'53.01" N Kibby Range: centroid -70 34'6.04" W, 45 20'25.94" N 6. Current Zoning: (P-MA) Mountain Area Protection Subdistrict (P-SL) Shoreland Protection Subdistrict (P-WL) Wetland Protection Subdistrict (M-GN) General Management Subdistrict 7. Proposed Zoning: (D-PD) Planned Development Subdistrict 8. Total size of area to be rezoned: Series A (Kibby Mountain) 810 acres (Map FR017) Series B (Kibby Range) 1,557 acres (Map FR013) 9. Waterbodies located within the watersheds or viewshed, but not within the parcel to be rezoned. Flagstaff Lake is a management class 2, resource class 1A, accessible, undeveloped lake with outstanding fisheries and wildlife values and significant scenic and shore character. Jim Pond is a management class 2, resource class 1A, accessible, undeveloped lake with outstanding fisheries, wildlife and scenic values and significant shore character. Hurricane Pond is a management class 7, resource class 2, inaccessible, undeveloped lake with significant wildlife value. Douglas Pond is a management class 7, resource class 3, inaccessible, undeveloped lake. Chain of Ponds is a management class 2, resource class 1A, accessible, undeveloped lake with outstanding fisheries, wildlife, scenic and physical values and significant shore and cultural character. Gold Brook, Kibby Stream, the Northwest Inlet to Jim Pond, and the North Branch of the Dead River are Class A flowing waters. The West Branch of Spencer Stream is a Class AA flowing water. 10. Administrative History: • Pre-application conference: September 7, 2006; • Application submitted (Vol. I – IV): January 7, 2007; • Transmission line application submitted (Vol. V – part of ZP 709): April 13, 2007; • Response to completeness check by staff: April 20, 2007; • Petitioners’ application accepted as complete for processing: April 25, 2007; • Petitioners submitted information regarding post-construction avian and bat ZP 709; TransCanada Page 3 of 79 mortality studies and information regarding conservation package: June 4, 2007; • Pre-hearing conference: June 25, 2007; • Petitioners’ response to agency review comments: July 25, 2007; • Pre-filed testimony submitted by Petitioners and Intervenors: August 28, 2007; • Site visit-LURC Commission and staff: September 6, 2007; • Pre-filed rebuttal testimony: September 11, 2007; • Petitioners submission regarding modified re-zone area: October 1, 2007; • Public hearing: October 2, 3, 2007; • Submittal of post-hearing comments and record closed: October 22, 2007; • Submittal of Findings of Facts and Conclusions of Law by Parties: November 21, 2007; and • Deliberative sessions held January 14, 2008 Proposal 11. Rezoning. The Petitioners propose to rezone approximately 2,367 acres1 to a (D-PD) Planned Development Subdistrict for the purpose of developing the 132 megawatt (MW) Kibby Wind Power Project (“Kibby Project” or “Project”). The area is currently zoned (P-MA) Mountain Area Protection Subdistrict, (1,495 acres) (P-SL) Shoreland Protection Subdistrict (34 acres), (P-WL) Wetland Protection Subdistrict (18 acres) and (M-GN) General Management Subdistrict (872 acres). The P-WL and P-SL are within the P-MA and M-GN zoned areas. The land to be re-zoned is owned by Plum Creek Maine Timberlands, LLC (hereinafter “Plum Creek”), a co-applicant to this proceeding. The boundaries of the proposed D-PD Subdistrict are a subset of the total area over which TransCanada has an easement agreement (“Option Agreement for a Wind Development Easement” – See Finding of Fact #15B) which would vest them with exclusive wind development rights. 12. Project Summary. The Kibby Project would be a 132 MW wind energy Project consisting of forty-four (44) turbines located along two ridgeline areas in the Boundary Mountains in Kibby and Skinner Townships, Franklin County, Maine. The first ridgeline is located along the southern portion of Kibby Mountain (highest elevation of 3,387 feet2 with proposed turbine locations ranging from 2,511 to 3,134) and is referenced as the “A Series” or “Kibby Mountain.” The second proposed area consists of a wish-bone shaped ridge area along Kibby Range (highest elevation of range is 3,287 with proposed turbine locations ranging from 2,507 to 3,210 feet in elevation) which is otherwise referenced as the “B Series.” Approximately 810 acres of rezoning are proposed for the A Series and 1,557 acres for the B Series. 1 In its initial application, Petitioner requested approval to rezone a total of 2,825 acres (910 acres on Kibby Mountain and 1,915 acres on Kibby Range). Through continuing project refinement, Petitioner reduced the size of the proposed rezone area and now proposes to rezone 2,367 acres (810 acres on Kibby Mountain and 1,557 on Kibby Range). There is no change in the location of roads, turbines or other project features associated with reduction of the rezone area. 2 Petitioner testified that the peak elevation is 3,638 feet, which is the highest point on the northwest portion of Kibby Mountain; however the turbines proposed for Kibby Mountain are in the southern portion, which has a highest peak elevation of 3,387 feet. ZP 709; TransCanada Page 4 of 79 The Petitioners would construct a new substation (“Kibby Substation”) in an area located between the Kibby Mountain and Kibby Range ridgelines. The Kibby Substation would be located on Wahl Road at an approximate elevation of 1,800 feet and would house transformers and connection points for incoming and outgoing power lines. The Substation would encompass approximately 3 acres within a fenced area. In addition, TransCanada would construct an Operation and Maintenance Building (“O&M Building”) to house the Project control center and to store tools, spare parts, and other maintenance equipment. The O&M Building would measure approximately 3,600 square feet and occupy a 1-acre lot. The Kibby Substation would connect to the existing Bigelow Substation in Carabassett Valley by a 115-kV electric transmission line approximately 27.6 miles in length, 17.2 miles of which would be located in the LURC jurisdiction. The transmission line corridor will consist of a 150-foot wide cleared right-of-way, pole structures, conductor wire, guy wires, and anchors. A. 10.4 miles of the 115 kilovolt (kV) transmission line are within the jurisdiction of the Maine Department of Environmental Protection (MDEP), which has permitted that section of the line [DEP Permit # L-23811-24-A-N and L-23811-TH-B-N dated October 12, 2007]. The towns of Eustis and Carrabassett Valley have had the opportunity to review the portion of the line within MDEP’s jurisdiction. The wetland impacts proposed for the entire Project, including both the turbines with associated development and the 115 kV transmission line, will be separately reviewed by the U.S. Army Corps of Engineers (“USACE”). B. The relevant review criteria contained within the Commission’s statute [12 MRSA, Sections 685-A(8-A) and 685-B(4)], Comprehensive Land Use Plan, and Land Use Districts and Standards, are attached as Appendix A, and incorporated herein by reference. 13. Existing conditions. The Project is sited on and surrounded by land that has historically and is currently utilized for forest management activities. Both the higher and lower elevations in the Project area have been harvested, with active harvesting generally below 2,700 feet in elevation. These areas are accessible under an open access policy for recreational use, including hunting and fishing. Commercial and industrial activities are generally limited to those associated with commercial forestry operations. A. There are no permanent residences located on the Project site or in its immediate vicinity. The closest residence is located approximately 1.2 miles southwest of the nearest proposed turbine location. A seasonal camp is located approximately 2 miles north of the Project site, on the western side of Kibby Mountain. Several seasonal camps are also located along the Chain of Ponds. The Town of Eustis is eight miles from the development site, and the closest point of the Appalachian Trail is 15.5 miles away. ZP 709; TransCanada Page 5 of 79 B. The Project area experiences relatively significant commercial and other motorized use that is compatible with the proposed development. C. In March 2006, the Petitioners installed three 197-foot meteorological data collection towers on the ridges within the Project area (see Development Permit DP 4728, eight towers were permitted, however only three were installed at the time the record closed); one tower on Kibby Mountain and two on Kibby Range.
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