From: Sarah McDaniel To: Beyer, Stacie R Subject: Milton Township petition submission Date: Monday, August 22, 2016 4:41:51 PM Attachments: PostHearingSubmission-McDaniel-082216.pdf 2015 Energy Plan Update Final.pdf Dear Stacie, Please enter the attached comments into the record and provide them to the Commissioners to guide in their rulemaking. Attached to this email is my testimony and the 2015 Energy Plan. I will send the other attachments by separate emails to ensure that they get through. Regards, Sarah ________________________________________________ Sarah A. McDaniel Douglas McDaniel Campo & Schools LLC, PA 90 Bridge Street, Suite 100 Westbrook ME 04092 (o) 207-591-5747, x 115 (f) 207-591-5752 [email protected] www.mainelandlaw.com www.douglasmcdaniel.com Confidentiality Notice: This communication is confidential and intended to be privileged pursuant to applicable law. 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STATE OF MAINE LAND USE PLANNING COMMISSION Substantive Review, Milton Township ) POST-HEARING SUBMISSION ON Petition to Remove Milton from the Expedited ) BEHALF OF PETITION CIRCULATOR Permitting Area for Wind Energy Development ) AND LOCAL RESIDENTS I represent Violetta Wierzbicki, landowner in Milton Township who was one of the lead circulators of the Petition to Remove Milton Township from the Expedited Permitting Area for Wind Energy Development. I also represent Peter Fetchko and Warren Hillquist, residents of Woodstock who both own land in Milton and Woodstock where they reside on the sides of Champlain Mountain. The substantive review process was instigated by Mr. Wayne Buck, on behalf of himself and EverPower Wind Holdings, Inc. (“EverPower”), the entity that might someday propose a wind project on Bryant and Champlain Mountains in Milton Township. However, all of EverPower’s testimony at the public hearing was focused on hypothetical details of a potential specific wind project, without any regard for the legal standards that the Commission must apply in this rulemaking proceeding. THE LEGAL STANDARDS FOR REMOVAL ARE SATISFIED In 2015, the Legislature elected to return to the unorganized territories a voice in determining whether wind power development is appropriate in their communities. In doing so, it mandated that LUPC remove any township from the expedited permitting area if 10% of the voting residents from the prior gubernatorial election petitioned for removal. 35-A M.R.S. § 3453-A(1) (“shall, by rule, remove” if there is no substantive review requested). Notably, this required removal has no substantive standards to guide the 1 Commission’s decision making if there is no objection filed. The Commission need not give consideration to accomplishment of the state’s wind energy goals, or to consistency with the Comprehensive Land Use Plan (“CLUP”). In contrast, if only one resident of the township requests “substantive review” of the petition (as happened here), the Legislature requires this Commission to apply the following two legal standards before rulemaking to remove the township from the expedited permitting area: (1) Does removal of Milton Township have an unreasonable adverse effect on the State’s ability to meet its wind capacity goals? (2) Is removal of Milton Township consistent with the principal values and goals of the Comprehensive Land Use Plan? 35-A M.R.S. § 3453-A(3). To apply these substantive standards, the Commission must first understand the legal consequences of removing Milton Township from the expedited permitting area. WHAT DOES REMOVAL MEAN? Removing Milton Township from the expedited permitting area does not mean that development of wind power is forever prohibited everywhere in the township. Unsurprisingly, EverPower framed its testimony as if such an extreme result would be the unavoidable consequence of removal. However, the Governor’s Task Force and the Legislature avoided the draconian approach of prohibiting wind development when it created the expedited permitting area. Instead of prohibiting wind development anywhere in the State, it established areas where wind power development would be encouraged by easing regulatory burdens. Consequently, all that removal does is return Milton Township 2 to its prior condition, with most of its land area in the General Management District (MGN). If a truly exceptional wind resource existed in Milton, any wind developer could at any time request to rezone its specific, required project area to a Development District, or request its re-addition back into the expedited permitting area. The business decision EverPower asserts it would make ~refusing to request either a rezoning or the re-addition of a discrete portion of Milton back into the expedited permitting area~ is irrelevant to the applicable legal standards for removal. Their assertion is certainly not legally binding on them, nor does it reflect the attitude of all wind developers who may be interested in Maine. While it is true that removal of Milton will no longer encourage the development of wind power there, its removal does not legally protect Milton’s unique wildlife habitat and valuable scenic resources forever. The legal consequence of removing Milton Township from the expedited permitting area is that any potential wind developer would need to first demonstrate that its specific project area “is important to meeting the state goals” for wind capacity and is consistent with the CLUP. 35-A M.R.S. § 3453(2) and (3). If that specific area is important and not inconsistent with the CLUP, then the development permit application could proceed. EverPower asserts that the standards to re-add an area into the expedited permitting area are “the same as” the standards to remove it. This is simply not true. First, the area to be re-added would be a discrete project area. In contrast, the current petition requests removal of the entire township of Milton.1 In a re-addition proceeding, the 1 If EverPower were to one day apply for re-addition, they would be presenting the Commission with specific information about the actual project area, and it would be an area that coincided with their proposed permit application. Here, EverPower’s written testimony keeps referencing only Bryant Mountain, but the maps showing their potential project area covers almost a third of the 3 substantive standards will be applied to only the discrete area necessary for the project. In this removal proceeding, the standards require the Commission to look at all of the values and resources throughout the entire township. Secondly, to re-add a specific area back into the expedited permitting area, EverPower would need to show that its specific project “is important to meeting the state goals” for wind capacity. This is a materially different question than whether removal of all of Milton will have “an unreasonable adverse effect” on the State’s ability to meet its goals. Lastly, when the standard that this Commission has to apply is “consistency with the CLUP” it is imperative that it asks the correct question. As a planning document, the CLUP contains both economic development and environmental protection goals that must be balanced when any proposal is to be implemented on the ground. All of EverPower’s testimony on this standard (presented primarily by its Stantec consultants) thus far in this proceeding have framed the question as if they want to re-add their project area back into the expedited permitting area. They try to get the Commission to ask whether “developing wind power on Bryant Mountain is consistent with the CLUP?”, but that is the wrong question. The question that this Commission must answer is whether “removal of Milton Township from the expedited permitting area is consistent with the CLUP.” Because removal of Milton Township is both consistent with the CLUP and will not have any unreasonably adverse effect on reaching the State’s wind capacity goals, the Commission should vote to remove Milton Township from the expedited permitting area. township, including both Bryant and Champlain Mountains. See Stantec testimony of June 29, 2016, Exhibit 2. 4 THERE IS NO UNREASONABLE ADVERSE EFFECT ON MAINE’S ABILITY TO MEET ITS WIND CAPACITY GOALS BY REMOVAL OF MILTON TOWNSHIP The Wind Energy Act enacted optimistic goals that were designed to encourage the development of appropriately sited wind power capacity in the State. By 2020, the State wants 3,000 MW of wind power capacity, of which at least 300 MW should be ocean-based. By 2030, the State wants 8,000 MW of wind power capacity, of which at least 5,000 MW should be ocean-based. 35-A M.R.S. § 3404 (2). Milton Township cannot contribute in any way to the ocean-based wind power goals, so it’s only potential role is in meeting the 2,700 MW of land-based wind power capacity by 2020, and 3,000 MW by 2030. EverPower implies that the loss of its one potential wind site on Bryant and Champlain Mountains would prevent these goals from being met. However, such an extreme viewpoint is not supported by the legislative history or the legal standard. The opportunity for removal of unorganized territories was enacted in 2015, at a time when the State had already failed to achieve its 2015 wind capacity goals.