The anatomy of a wind farm ordinance
January 30, 2019
Campbell County South Dakota is in the throes of a proposed wind farm ordinance that inadequately addresses its temporary nature and the legal emergency which would justify its passage. The county, similar to other areas in the state, is considered a good location for wind energy development. Wind energy development does not come to us as free as the wind. The conversion of wind energy requires infrastructure on or close to property of county residents. Wind energy development has a direct effect on property owners, the economy and the county.
For six months or so Campbell County government studied a possible wind farm ordinance. It did this without public hearings on the terms or language to be found in an ordinance. A few days ago the county proposed an ordinance without public input from interest groups or from residents, whether pro or con, regarding legal language proposed in the 99 page ordinance. The proposed ordinance was written, as it were, in a closed room with no windows. Democracy certainly gives every elected county official the right to be his own best adversary, but I submit there is better way.
I will outline some of the problems with the proposed ordinance later in this opinion piece. But first I will say a few words about economic development. I want to dissuade any snap-judgement readers from embracing an opinion that I am anti-development. I am not. My clients are not. I am a third generation businessman. I have had the privilege of representing natural resource developers in my practice. I will advise readers: I represent landowners. Neither my clients nor I, however, are opposed to wind farm development. I made this point to the county in the very beginning of the process. I reported to the county straight up that 'we are not the enemy.' We meant it- we still do. This mattered little to the county – it went boldly forward, did its own negotiating with itself, and wrote a proposed temporary and emergency ordinance without public hearings on the ordinance terms or conditions. A single hearing for the commissioners to approve the 99 page ordinance is scheduled for February 7th.
Zoning laws have been around since the early twentieth century with the goal of managing growth and protecting property rights and values. For those who think zoning is socialized balderdash – please visit the city of Houston, or perhaps look at this website: https://www.chron.com/news/houston-texas/houston/article/Weirdest-images-from-Houston-s-lack-of-zoning-laws-9171688.php#photo-10775310 The extent to which a zoning ordinance helps or hurts a community is directly related to how much thought, review and sweat equity goes into its creation. The proposed ordinance is in considerable need of thought, review and sweat equity. As long as the writing of zoning ordinances is not arbitrary and capricious and as long as ordinances do not violate fundamental property rights and state statutes, zoning should be supported.
Let us review some of the proposed ordinance terms. A more complete analysis and review of the proposed ordinance can be found at the county auditor's office where my written memo to the county commissioners is on file. Or, the memo can be accessed through a blog/article on my website: https://www.lexenergy.net/ The comments in this opinion piece do not cover all the matters concerning the ordinance. In 2018 Campbell County and its landowners were approached to host a new wind farm. The county thought it wise last summer to write a zoning law regarding wind farms. Fair enough. Wind farms have their pros and cons. And a zoning law addressing wind farms is intended to balance the good things, the risks and the bad things. How would the Campbell County proposed ordinance effect the county? I will discuss some issues.
1. Decommissioning Plan. The ordinance has no requirement that a decommissioning plan be included with a permit application. At the time of approval of any permit application the county would be absent information on how a developer would dismantle a wind farm when and if that becomes necessary. The U S Department of Energy suggests that a model ordinance describe, at the time of permit application, the anticipated life of the wind project, the estimated decommissioning costs, the method for ensuring that funds will be available for decommissioning and restoration, and the manner in which a project would be decommissioned.
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2. Not a Temporary Ordinance. The proposed temporary ordinance is not a temporary ordinance under South Dakota law. The proposed ordinance is a fully integrated planning and zoning ordinance covering a good number of subjects wholly unrelated to a wind energy project.
3. Unsupportable Setbacks. The setback provisions in the proposed ordinance are unsupportable and inadequate. My memo to the commission discusses this critical issue in detail. The county gathered no public input and provided no studies or analysis on how it arrived at setback language and terms.
4. No Road Haul Agreements. The proposed ordinance does not protect county roads. The ordinance does not require a common written road haul agreement to be signed by a developer and the county under which a developer repairs any damaged roads.
5. No Site Plan Filing. The proposed ordinance has no requirement for filing site plans and engineering drawings at the time of a permit application. At the time of county approves a wind farm permit the county would not have a developer's site plan and engineering drawings. This is inadequate site plan review. A U S Department of Energy model ordinance suggests that a permit application should include a site plan showing the planned location of all wind turbines, property lines, setback lines, access roads, electrical cabling and other matters and include the location of structures and properties.
6. No Insurance Requirement. The proposed ordinance has no general liability insurance requirement covering property damage and bodily injury for the construction, operation and dismantling of a wind farm. Further, the proposed ordinance has no provision naming the county itself as an additional insured which would provide insurance coverage to the county.
7. No Wind Industry Standards. The proposed ordinance does not require that a developer conform to wind industry standards for construction, safety, operation and demolition of a wind farm project, other than some limited requirements for aircraft safety. It is a puzzlement that the proposed ordinance requires industry standards for other types of non–wind projects but provides a free pass for a wind farm project.
Alarm bells are what you get when reading the fine print in a proposed law, calamity is what you get when you don't address the errors in the law.
David Ganje of Ganje Law Offices practices in the area of natural resources, environmental and commercial law.