RoxWind - DEP Public Hearing on Jan 7, 2019

IN THE MATTER OF
ROXBURY WIND PROJECT ) APPLICATION FOR NATURAL RESOURCES
ROXBURY, ) PROTECTION ACT PERMIT, STORMWATER
OXFORD COUNTY ) PERMIT, AND SMALL-SCALE WIND
) CERTIFICATION
L-27863-ES-A-N )
L-27863-NJ-B-N ) PUBLIC HEARING
L-27863-TG-C-N ) SIXTH PROCEDURAL ORDER
INTRODUCTION
1. In the matter of the application by RoxWind, LLC (the applicant) for a Stormwater Permit, a Natural Resources Protection Act Permit, and a Small Scale Wind Certification, this Procedural Order (Order) addresses the applicant’s November 30, 2018, motion to strike and the applicant’s argument that Rumford Whitecap Mountain (Whitecap Mountain) and Rumford Whitecap Mountain Preserve (RWMP) are not scenic resources of state or national significance (SRSNS) as defined by the Wind Energy Act.
2. This Order also addresses, Friends of Maine’s Mountains’ (FMM or the intervenor) December 8, 2018, request for reconsideration of the Department’s allowance of evidence on salvage value as set forth in the Fifth Procedural Order.
WHITECAP MOUNTAIN AND RUMFORD WHITECAP MOUNTAIN PRESERVE
3. At the request of the Department of Environmental Protection (Department), LandWorks prepared a review of the applicant’s scenic impact analysis, and, on November 7, 2018, submitted a document entitled Review of the Roxwind LLC Project Scenic Resource Impact Assessment (Third-Party Review).
4. On November 30, 2018, the applicant submitted memoranda responding to issues raised in the Third-Party Review and requested that the Department strike certain portions of it. The basis of the request to strike is the applicant’s argument that Whitecap Mountain and Rumford Whitecap Mountain Preserve should not be considered SRSNS in the scenic impacts analysis under the Wind Energy Act.
5. The term “Scenic resource of state or national significance” is defined in 35-A M.R.S. §3451(9) as “an area or place owned by the public or to which the public has a legal right of access that is:
A. A national natural landmark, federally designated wilderness area or other comparable outstanding natural and cultural feature, such as the Orono Bog or Meddybemps Heath;
B. A property listed on the National Register of Historic Places pursuant to the National Historic Preservation Act of 1966 […];
C. A national or state park;
D. A great pond that is:
(1) One of the 66 great ponds located in the State's organized area identified as having outstanding or significant scenic quality in the "Maine's Finest Lakes" study […]; or
(2) One of the 280 great ponds in the State's unorganized or de-organized areas designated as outstanding or significant from a scenic perspective in the "Maine Wildlands Lakes Assessment" […];
E. A segment of a scenic river or stream identified as having unique or outstanding scenic attributes listed in Appendix G of the "Maine Rivers Study" […];
F. A scenic viewpoint located on state public reserved land or on a trail that is used exclusively for pedestrian use, such as the Appalachian Trail […];
G. A scenic turnout constructed by the Department of Transportation […] on a public road that has been designated by the Commissioner of Transportation […] as a scenic highway; or
H. Scenic viewpoints located in the coastal area […], that are ranked as having state or national significance in terms of scenic quality [...].”
6. Whitecap Mountain and RWMP were analyzed as SRSNS in the applicant’s Visual Impact Assessment (VIA) and the Third-Party Review under the category of “other comparable outstanding natural and cultural feature.”. The applicant asserts that however it is defined, this scenic resource is not comparable to other national natural landmarks or designated wilderness areas and should not be considered as a SRSNS. For the following reasons, the Department agrees.
7. The Wilderness Act, 16 U.S.C. 1131-1136, established the National Wilderness Preservation System, and defines wilderness as “an area where the earth and its community of life are untrammeled by man, [...] an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions.” Those areas are characterized by the influence of forces of nature as opposed to the forces of man; provide the opportunity for solitude or a primitive and unconfined type of recreation; contain at least five thousand acres or are of sufficient size as to make practicable their preservation and use in an unimpaired condition; and may contain features of ecological, geological, scientific, educational, scenic, or historical value. Even including the full 752 acres of RWMP and the privately-owned portion of Whitecap Mountain, the resource is of insufficient size and lacks the requisite primeval character to qualify as a wilderness area comparable to wilderness areas that are designated under the Wilderness Act.
8. The National Natural Landmarks Program is set forth in 36 C.F.R. §§ 62.1-62.9. National Natural Landmarks are evaluated on primary and secondary criteria. The primary criteria are illustrative character and present condition. The secondary criteria are diversity, rarity, and value for science and education. Whitecap Mountain has been identified by the Maine Natural Areas Program (MNAP) in conjunction with other Government and Non-Government organizations as a focus area of statewide ecological significance in part because of rare or exemplary natural communities including red pine woodland and mid-elevation bald. Though this classification identifies some degree of rarity (less than ten known occurrences in the state) and in the case of red pine woodland, recognition of state-wide scale significance (largest example of this community type currently known in the state), these attributes do not rise to the level of national significance equivalent to that of a national natural landmark. MNAP and other organizations quantify moderate statewide and global rarity but do not mention diversity and scientific value comparable to other national natural landmarks in Maine and recommends that conservation and education are necessary to mitigate human disturbance in the present condition. The Third-Party review identifies Whitecap as “one of the lowest elevation ‘balds’ or bedrock summits with alpine characteristics in New England,” and as having “some unique surficial geological features including unusual glacial striations;” however, the Department finds these descriptions to be comparable to “merely statistically representative” as contemplated by federal regulations, rather than “unusually illustrative […] as characteristic of a particular type of natural feature.” The Department finds that Whitecap Mountain does not meet the criteria articulated in 36 C.F.R. § 62.5 and is therefore not comparable to a national natural landmark.
9. Based on the findings above, the Department finds that Rumford Whitecap Mountain and Rumford Whitecap Mountain Preserve are not other natural and cultural features comparable to either a national natural landmark or a federally designated wilderness area; therefore, these resources do not meet the Department’s definition of Scenic Resources of State or National Significance. Therefore, the project’s impacts to the scenic character and uses related to scenic character of Whitecap Mountain and RWMP will not be taken into consideration in the Department’s review of the project.
APPLICANT’S MOTION TO STRIKE
10. The applicant requests that the Department strike certain portions of the Third-Party Review which the applicant characterizes as comments on engineering issues. The applicant contends that LandWorks lacks expertise on engineering issues and that those contested portions, on pages 6 and 7 of the Third-Party Review, are outside the scope an appropriate review of the VIA. The applicant also requests that the Department strike anecdotal references obtained by LandWorks from hikers to quantify changes in user experience, on pages 9 and 11 of the Third-Party Review. The applicant contends the anecdotal references lack supporting details to assess reliability and go beyond the scope of LandWorks’ contract for the review.
11. The standards for admissibility of evidence in a Department hearing are articulated in Chapter 3 §20(A): “Evidence will be admitted if it is relevant and material to the subject matter and is of a kind upon which reasonable persons are accustomed to rely in the conduct of serious affairs.” To the extent the Third-Party Review discusses engineering issues, that discussion is in the context of assessing the reliability of the applicant’s description of visual impacts from construction. Those comments are derived from the reviewer’s experience with constructed projects in Maine, New Hampshire and Vermont and are relevant and within the scope of the Third-Party Review. The Department finds this to be the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs and denies the motion as it relates to the contested portions of pages 6 and 7 of the Third-Party Review. The applicant had the opportunity to, and did submit testimony to rebut the comments made in the Third-Party Review.
12. The Department also finds that the anecdotal references to user experience are relevant and the type of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. As the applicant concedes, intercept surveys can be an effective tool for evaluating user expectations and the potential impact that a project will have on scenic quality. Issues of reliability, bias and statistical significance are credibility determinations for the Department to make. The Department therefore denies the applicant’s motion as it relates to the anecdotal references of user experience that are the contested portions of pages 9 and 11.
INTERVENOR’S MOTION FOR RECONSIDERATION
13. On December 19, 2018, the Department issued its Fifth Procedural Order responding to objections raised by the intervenor to certain portions of the applicant’s pre-filed testimony. On December 21, 2018, the intervenor requested reconsideration of the Department’s determinations in the Order on the applicability of Chapter 382 and specifically the allowance and consideration of evidence concerning salvage value.
14. The intervenor objects to the Department’s finding that the RoxWind application is a pending proceeding pursuant to 1 M.R.S. § 302. FMM contends that the language of § 302 defines “pending proceeding” to exclude the RoxWind application because no substantive review had occurred prior to the effective date of the rule.
15. The Department’s processing rules, in Chapter 2 §11(F), provide that, “Unless otherwise provided by law, all license applications […] are subject to the substantive laws and rules in effect on the date the application is complete for processing.” This interpretation of the language of 1 M.R.S. § 302 is consistent with the decisions of Maine courts that the Department’s review of an application and acceptance of the application as complete for processing is sufficient to trigger pending status under the law. To interpret otherwise would render this provision of § 302 meaningless in the case of most applications filed with the Department, as no application would be considered “pending” until a decision is issued. The Department finds its interpretation of the provisions of 1 M.R.S. § 302 to be consistent with the statutory language, relevant case law, and its rules, and therefore the Department denies the intervenor’s request for reconsideration of the ruling in the Fifth Procedural Order.
16. Despite the application’s status as a pending matter, in light of the Law Court’s opinion in Friends of Maine’s Mountains v. Board of Environmental Protection, 213 ME 25, the Department will, after analysis of all of the evidence on the issue of salvage value, consider whether any or all of the applicant’s claimed deduction for salvage value in determining the amount of financial assurance necessary for decommissioning should be allowed.

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Comment by Long Islander on January 5, 2019 at 2:38pm

As written the other day by Art Brigades:

Submit public comments immediately at the link.  Be specific:

1. Roxiwind doesn't want to install radar activated lights.  People should object, as the DEP has said it will require them for all projects since the FAA approved the technology.

2. Roxiwind doesn't consider Rumford Whitecap a "significant" natural resource worth analyzing for visual impact.  People should object and defend Rumford Whitecap as worthy of consideration.  

3. Roxiwind says they shouldn't be required to guarantee full decommissioning of a project that (even if they do flip it to a real wind developer) is going to be rusting mountain junk in very short order. People should object and require that DEP ignore scrap/salvage value.

http://www.windtaskforce.org/profiles/blogs/roxwind-dep-public-hear...

 

Maine as Third World Country:

CMP Transmission Rate Skyrockets 19.6% Due to Wind Power

 

Click here to read how the Maine ratepayer has been sold down the river by the Angus King cabal.

Maine Center For Public Interest Reporting – Three Part Series: A CRITICAL LOOK AT MAINE’S WIND ACT

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(excerpts) From Part 1 – On Maine’s Wind Law “Once the committee passed the wind energy bill on to the full House and Senate, lawmakers there didn’t even debate it. They passed it unanimously and with no discussion. House Majority Leader Hannah Pingree, a Democrat from North Haven, says legislators probably didn’t know how many turbines would be constructed in Maine if the law’s goals were met." . – Maine Center for Public Interest Reporting, August 2010 https://www.pinetreewatchdog.org/wind-power-bandwagon-hits-bumps-in-the-road-3/From Part 2 – On Wind and Oil Yet using wind energy doesn’t lower dependence on imported foreign oil. That’s because the majority of imported oil in Maine is used for heating and transportation. And switching our dependence from foreign oil to Maine-produced electricity isn’t likely to happen very soon, says Bartlett. “Right now, people can’t switch to electric cars and heating – if they did, we’d be in trouble.” So was one of the fundamental premises of the task force false, or at least misleading?" https://www.pinetreewatchdog.org/wind-swept-task-force-set-the-rules/From Part 3 – On Wind-Required New Transmission Lines Finally, the building of enormous, high-voltage transmission lines that the regional electricity system operator says are required to move substantial amounts of wind power to markets south of Maine was never even discussed by the task force – an omission that Mills said will come to haunt the state.“If you try to put 2,500 or 3,000 megawatts in northern or eastern Maine – oh, my god, try to build the transmission!” said Mills. “It’s not just the towers, it’s the lines – that’s when I begin to think that the goal is a little farfetched.” https://www.pinetreewatchdog.org/flaws-in-bill-like-skating-with-dull-skates/

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Hannah Pingree on the Maine expedited wind law

Hannah Pingree - Director of Maine's Office of Innovation and the Future

"Once the committee passed the wind energy bill on to the full House and Senate, lawmakers there didn’t even debate it. They passed it unanimously and with no discussion. House Majority Leader Hannah Pingree, a Democrat from North Haven, says legislators probably didn’t know how many turbines would be constructed in Maine."

https://pinetreewatch.org/wind-power-bandwagon-hits-bumps-in-the-road-3/

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