More information on Lake Mattawamkeag scenic value

Dept of Environmental Protection

Augusta, ME

Summary of comments:

1.      The DEP has failed to prove that the adverse effects on a scenic resource of state or national significance are not unreasonable.   

2.      The DEP has failed to demonstrate that the project will protect the community from excessive noise.

 

SCENIC IMPACTS

The DEP has ignored critical evidence in its findings on the scenic impacts of this project.

The value of Mattawamkeag Lake as a scenic resource is elevated substantially by the acquisition in 2003 by the Bureau of Parks and Lands, using state and federal tax dollars, of conservation easements on 7 miles of lakefront,  3 miles of riverfront, and fee purchase of Big Island and 27 acres at Bible Point.   Both the applicant and Mr. Palmer fail to discuss the importance of this acquisition by the State of Maine and by doing so significantly undervalue the significance of Mattawamkeag Lake.   From the joint announcement of the US Forest Service and Maine Dept of Conservation about the acquisition:

 

“The three part acquisition valued at $894,700—a 3,148-acre conservation easement, the 126-acre fee purchase of Big Island, and the 64-acre fee purchase of Long Point—was acquired by the State of Maine with a Forest Legacy grant of $500,000 and a Land for Maine’s Future Program grant of $256,200. The remaining value was covered through a bargain sale by the landowners. Over 7 miles of undeveloped lakeshore is included in the purchase, along with 3 miles of frontage on the West Branch of the Mattawamkeag River. “Through this purchase, we have ensured that Lower Mattawamkeag Lake will forever retain its wild character and guaranteed future public access to these lands for fishing, hunting, boating, and camping,” stated Maine Department of Conservation Commissioner Patrick McGowan. “   http://www.na.fs.fed.us/legacy/legacy_places/me/pdfs/me_05_2003s.pdf

 

The Expedited Wind Act requires specific steps to evaluate a scenic resource of statewide significance:

 

“…whether the development significantly compromises views from a scenic resource of state or national significance such that the development has an unreasonable adverse effect on the scenic character or existing uses related to scenic character of the scenic resource of state or national significance.”  Ch 34-A, 3452 (1)

 

“Evaluation criteria. In making its determination pursuant to subsection 1, ….. the primary siting authority shall consider:

A. The significance of the potentially affected scenic resource of state or national significance”.

 

 

The DEP’s determination of the significance of the scenic resource value of Mattawamkeag Lake must take into account the commitment of the state and federal governments to enhance the protection of this lake.  In making this determination, it is not necessary that these conserved areas be identified as historic sites, or given any special designation by the Expedited Wind Act as Mr. Palmer contends in response to concerns about Bible Point. 

 

The DEP has a responsibility to recognize the importance of Mattawamkeag Lake while complying with the wind law!  It should fulfill that responsibility by:  

 

3.      Finding that Mattawamkeag Lake is protected by the wind law as a scenic resource of statewide significance and that adverse scenic impacts must be considered;

4.      Finding that the overwhelming majority of testimony from interested parties was in opposition to this project due to its effect on the lake, including respondents to a survey at the boat launch, and that this project therefore violates the sensibilities of the average person;

5.      Finding that there is no mitigation (screening by trees or topography) that could reduce the negative scenic impacts;

6.      Finding that this lake has extraordinary significance as a scenic resource of state or national significance as defined by the wind law.  It achieved this extraordinary significance as a “Legacy Place” and a place to be protected “in the future” by the expenditure of $756,200 of public funds.      

 

The wind law requires that a high standard be used to determine if a wind project has an “unreasonably adverse” effect on a resource of statewide significance:

 

“A finding by the primary siting authority that the development's generating facilities are a highly visible feature in the landscape is not a solely sufficient basis for determination that an expedited wind energy project has an unreasonable adverse effect on the scenic character and existing uses related to scenic character of a scenic resource of state or national significance.”  Ch 34-A, 3452

 

Mattawamkeag Lake meets this higher standard by virtue of its recognition as a “Legacy Place”, to be protected in the future by the actions of the state of Maine and the federal government on behalf of the citizens.   DEP and Mr. Palmer failed to provide a thorough and objective analysis of the impact of this project by overlooking the enhanced significance afforded by this acquisition. 

 

The conclusion by Mr. Palmer and the DEP that the adverse impacts of this project on a scenic resource of state or national significance are not unreasonable is not proven and conflicts with the facts.   The preponderance of the evidence and an objective interpretation of the intent of the wind law must lead to a denial of this permit on the basis of its unreasonably adverse effect on Mattawamkeag Lake.

 

NOISE

The DEP has ignored the changes voted by the BEP on September 15th, 2011 which reduce nighttime noise levels from 45 dBA to 42 dBA.    There  is  a  question evolving  with  assistant Attorney General Peggy Bensinger as  to whether  the new rules  voted by  the the BEP have  to  be  presented to the Legislature or not. The day of  the BEP vote, Peggy Bensinger ruled  that the new rules  are considered major substantive, a change from her previous opinion which was that the rules were routine technical.  We are waiting for a clarification on that subject.   Following is the position taken by attorney Rufus Brown, in a email to Peggy Bensinger, regarding her decision to bring those adopted rules  to the Legislature, please note that Mike Mullen came to a similar conclusion.

"I have been reviewing the same documents you have referenced but come to a different conclusion. The Noise Rule was adopted in 1989 under the general statutory authority of the BEP to issue rules, then 38 MRSA § 343, now 38 MRSA §341-D.1-B, not under Section 484.3. In fact, Section 484.3 as it now reads did not even mention noise until 1993. So when Section 484.3 now refers to “board rules relating to noise,” it means board rules enacted under the general rulemaking authority of the BEP (Section 341-D.1-B) not the Site Law (§484).  Thus the provisionally adopted  amendment to these rules should not be classified as “major substantive” because that classification required by Section 489-E is limited to Site Law rules, not rules under the general rulemaking authority of the BEP. The foregoing,  interestingly, is supported by Mike Mullen’s Memorandum to the Board Re: Provisional Adoption dated September 15 , 2011, which states in the first sentence that  “Chapter 375 Section 10 rules are adopted pursuant to general statutory authority at 38 M.R.SA.§341-D.(1).” "

We understand that he DEP needs to  finalize the permit  within 185  after  the application has  been  received  for processing, but the DEP has  the right to postpone a decision when the information is not sufficient at the statutory deadline, with the agreement of the applicant.

The DEP has a clear opportunity in this case  to use the precautionary principle  and the applicant the opportunity to be a good neighbor.

Please see  attached the memo sent to the Governor Task Force  by DEP Commissioner David Littell   recognizing the presence of Low Frequency Noise emitted  by turbines  (see  Littell recommendations  to the Task  Force , page 2).   At the time the use C scale for measurement of LFN was not recommended because consultant Warren Brown called it " preliminary and unrefined", but the need to adapt the noise regulations to the evolving science was recognized.

A recent peer reviewed study (see link below) correlates increasing LFN emission with increasing turbine size.  Quoting from the abstract of the study:

"As wind turbines get larger, worries have emerged that the turbine noise would move down in frequency and that the low-frequency noise would cause annoyance for the neighbors. The noise emission from 48 wind turbines with nominal electric power up to 3.6 MW is analyzed and discussed. The relative amount of low-frequency noise is higher for large turbines (2.3–3.6 MW) than for small turbines (≤ 2 MW), and the difference is statistically significant."  http://asadl.org/jasa/resource/1/jasman/v129/i6/p3727_s1?isAuthoriz...

Since 2008 the size of turbines installed in Maine has doubled from 1.5 MW (as proposed in the original application) to 3.0 MW (as is proposed for this project).  The component of LFN in these larger turbines is substantially greater than the turbines in use when the Task Force asked for Commissioner Littell's recommendations, yet the dBA levels reported by the developers has remained relatively constant, due to the filtering out of LFN by the use of the dBA scale.  

Turbine noise has becomes a major public health issue both involving the Maine Center For Disease Control and two committees of the legislature, with a hearing on the new noise rules in front of the Joint Natural Resource Committee, and the resolve on LD 1366 in front of the Energy, Utility and Technology Committee.

CONCLUSION

The DEP should deny the application due to the projects unreasonably adverse impact on a scenic resource of exceptional significance.   If a permit is granted it should contain a condition that the applicants comply with the provisionally adopted nighttime regulations if they receive final approval,  and also provide an analysis of the Low Frequency Noise from the newly proposed turbines.

  

 

Respectfully submitted,

Steve Thurston and Monique Aniel, co-chairs

Citizens Task Force on Wind Power

PO Box 345

Oquossoc, ME 04965