An Act To Improve the Permitting Process for Wind Energy Developments and To Protect Maine's Quality of Place
Maine Legislature, Session 125, LD 1443
Committee: Energy, Utilities and Technology
Sponsors: PATRICK
Amends: 12 MRSA §685-B, 12 MRSA §12709, 35-A MRSA §3453, 35-A MRSA §3454, 35-A MRSA §3456, 38 MRSA §344, 38 MRSA §484

Legislative Document 
No. 1443 
S.P. 450 
In Senate, April 12, 2011 
An Act To Improve the Permitting Process for Wind Energy 
Developments and To Protect Maine's Quality of Place 
Reference to the Committee on Energy, Utilities and Technology suggested and ordered 
printed. 
JOSEPH G. CARLETON, JR. 
Secretary of the Senate 
Presented by Senator PATRICK of Oxford. 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  12 MRSA §685-B, sub-§2-C, ¶A, as amended by PL 2009, c. 615, Pt. D, 
§3, is further amended to read: 
A.  The commission shall consider any wind energy development in the expedited 
permitting area under Title 35-A, chapter 34-A with a generating capacity of 100 
kilowatts or greater or a community-based offshore wind energy project a use 
requiring a permit, but not a special exception, within the affected districts or 
subdistricts.  For an offshore wind energy project that is proposed within one nautical 
mile of an island within the unorganized or deorganized areas, the commission shall 
review the proposed project to determine whether the project qualifies as a 
community-based offshore wind energy project and therefore is within the 
jurisdiction of the commission. The commission may require an applicant to provide 
a timely notice of filing prior to filing an application for, and may require the 
applicant to attend a public meeting during the review of, a wind energy development 
or a community-based offshore wind energy project.  The commission shall render its 
determination on an application for such a development or project within 185 270 
days after the commission determines that the application is complete, except that the 
commission shall render such a decision within 270 days if it holds a hearing on the 
application.  The chair of the Public Utilities Commission or the chair's designee shall 
serve as a nonvoting member of the commission and may participate fully but is not 
required to attend hearings when the commission considers an application for an 
expedited wind energy development or a community-based offshore wind energy 
project.  The chair's participation on the commission pursuant to this subsection does 
not affect the ability of the Public Utilities Commission to submit information into 
the record of the commission's proceedings.  For purposes of this subsection, 
"expedited permitting area," "expedited wind energy development" and "wind energy 
development" have the same meanings as in Title 35-A, section 3451. 
Sec. 2.  12 MRSA §685-B, sub-§4-B, as amended by PL 2009, c. 615, Pt. D, §5, 
is repealed. 
Sec. 3.  12 MRSA §685-B, sub-§4-C is enacted to read: 
4-C.  Special provisions; wind energy development or project.  In the case of a 
wind energy development, as defined in Title 35-A, section 3451, subsection 11, with a 
generating capacity greater than 100 kilowatts, or a community-based offshore wind 
energy project, the developer must demonstrate, in addition to the requirements under 
subsection 4: 
A.  That the proposed generating facilities, as defined in Title 35-A, section 3451, 
subsection 5: 
(1)  Will meet the requirements of the Board of Environmental Protection's noise 
control rules adopted pursuant to Title 38, chapter 3, subchapter 1, article 6; 
(2)  Will be designed and sited to avoid undue adverse shadow flicker effects; 
(3)  Will be constructed with minimum setback requirements, defined by rule by 
the Department of Environmental Protection pursuant to Title 38, section 484, 
subsection 10-A; 
(4)  If the wind energy development is located more than 1,000 feet above sea 
level, will not be greater than 75 feet in height; and 
(5)  Will not have a significant cumulative environmental impact, in accordance 
with rules adopted by the Department of Environmental Protection pursuant to 
Title 38, section 484, subsection 10-A; and 
B.  That the following conditions have been met: 
(1)  If the wind energy development is an expedited wind energy development, 
the development will provide significant tangible benefits, as defined in Title 
35-A, section 3451, subsection 10, within the State, as provided in Title 35-A, 
section 3454; 
(2)  An assessment of wildlife impacts by the Department of Inland Fisheries and 
Wildlife pursuant to section 12709 has been completed with respect to the 
development; and  
(3)  A decommissioning plan with respect to the development has been developed 
that includes a description of the circumstances under which the 
decommissioning would occur. An escrow account must be established to 
provide financial guarantees for the decommissioning of the development. The 
terms and conditions of the escrow account must be in accordance with rules 
adopted by the Department of Environmental Protection pursuant to Title 38, 
section 484, subsection 10-A. 
The Department of Labor, the Executive Department, State Planning Office and the 
Public Utilities Commission shall provide review comments if requested by the primary 
siting authority. For purposes of this subsection, "primary siting authority" and 
"expedited wind energy development" have the same meanings as in Title 35-A, section 
3451. 
Sec. 4.  12 MRSA §12709 is enacted to read: 
§12709.  Wildlife impacts of a wind energy development 
At the request of a developer of a proposed wind energy development, the department 
shall complete an assessment of the cumulative environmental impact and potential 
wildlife impacts of the proposed wind energy development. The department shall adopt 
rules to implement this section. Rules adopted pursuant to this section are routine 
technical rules as defined in Title 5, chapter 375, subchapter 2-A. The department may 
charge the developer a fee to cover the cost of the assessment. 
As used in this section,  "wind energy development" has the same meaning as in Title 
35-A, section 3451, subsection 11. 
Sec. 5.  35-A MRSA §3453, last ¶, as enacted by PL 2007, c. 661, Pt. A, §7, is 
amended to read: 
Rules adopted by the Maine Land Use Regulation Commission pursuant to this 
section are routine technical major substantive rules as defined in Title 5, chapter 375, 
subchapter 2-A. 
Sec. 6.  35-A MRSA §3454, sub-§2, as enacted by PL 2009, c. 642, Pt. A, §7, is 
amended to read: 
2.  Community benefits package requirement.  Except as provided in subsection 3, 
to demonstrate that an expedited wind energy development provides significant tangible 
benefits as required in Title 12, section 685-B, subsection 4-B 4-C and Title 38, section 
484, subsection 10 10-A, the applicant for an expedited wind energy development is 
required to establish a community benefits package valued at no less than $4,000 per year 
per wind turbine included in the expedited wind energy development, averaged over a 
20-year period.  This subsection does not affect the property tax obligations of an 
expedited wind energy development. 
Sec. 7.  35-A MRSA §3456, sub-§1, as enacted by PL 2007, c. 661, Pt. A, §7, is 
repealed. 
Sec. 8.  35-A MRSA §3456, sub-§1-A is enacted to read: 
1-A.  Construction and operation requirements.  A person may not construct or 
operate a wind energy development, other than a grid-scale wind energy development, 
that is located in the State's organized area without first obtaining a certification from the 
department that: 
A.  The generating facilities: 
(1)  Will meet the requirements of the noise control rules adopted by the Board of 
Environmental Protection pursuant to Title 38, chapter 3, subchapter 1, article 6; 
(2)  Will be designed and sited to avoid unreasonable adverse shadow flicker 
effects; 
(3)  Will be constructed with minimum setback requirements, defined by rule by 
the Department of Environmental Protection pursuant to Title 38, section 484, 
subsection 10-A; 
(4)  Will not have a significant cumulative environmental impact, in accordance 
with rules adopted by the Department of Environmental Protection pursuant to 
Title 38, section 484, subsection 10-A; and 
(5)  If the wind energy development is located more than 1,000 feet above sea 
level, will not be greater than 75 feet in height; and 
B.  That the following conditions have been met: 
(1)  An assessment of wildlife impacts by the Department of Inland Fisheries and 
Wildlife was completed pursuant to Title 12, section 12709 with respect to the 
development; and 
(2)  A decommissioning plan with respect to the development has been developed 
that includes a description of the circumstances under which the 
decommissioning would occur. An escrow account must be established to 
provide financial guarantees for the decommissioning of the development. The 
terms and conditions of the escrow account must be in accordance with rules 
adopted by the department pursuant to Title 38, section 484, subsection 10-A. 
A person proposing a wind energy development subject to certification under this section 
shall apply to the department for certification using an application provided by the 
department and may not begin construction until the certification is received. 
Sec. 9.  35-A MRSA §3456, sub-§3, as enacted by PL 2007, c. 661, Pt. A, §7, is 
amended to read: 
3.  Enforcement of standards.  Following certification under this section and during 
construction and operation, the standards in subsection 1 1-A for a wind energy 
development subject to certification under this section may be enforced by the 
municipality in which the generating facilities are located at the municipality's discretion 
pursuant to Title 30-A, section 4452.  The department is not responsible for enforcement 
of this section. 
Sec. 10.  38 MRSA §344, sub-§1-B is enacted to read: 
1-B.  Adjudicatory proceeding for approval.  Notwithstanding any other provision 
of law, the department shall conduct an adjudicatory proceeding pursuant to Title 5, 
chapter 375, subchapter 4 on an application for a license, permit or certification for a 
wind energy development as defined in Title 35-A, section 3451, subsection 11. 
Sec. 11.  38 MRSA §344, sub-§2-A, ¶A, as amended by PL 2009, c. 615, Pt. E, 
§3, is further amended to read: 
A.  Except as otherwise provided in this paragraph, the commissioner shall decide as 
expeditiously as possible if an application meets one or more of the criteria set forth 
in section 341-D, subsection 2 and shall request that the board assume jurisdiction of 
that application.  If at any subsequent time during the review of an application the 
commissioner decides that the application falls under section 341-D, subsection 2, the 
commissioner shall request that the board assume jurisdiction of the application. 
(1)  The commissioner may not request the board to assume jurisdiction of an 
application for any permit or other approval required for an expedited wind 
energy development, as defined in Title 35-A, section 3451, subsection 4, a 
certification pursuant to Title 35-A, section 3456 or a general permit pursuant to 
section 480-HH or section 636-A.  Except as provided in subparagraph (2), the 
commissioner shall issue a decision on an application for an expedited wind 
energy development, an offshore wind power project or a hydropower project, as 
defined in section 632, subsection 3, that uses tidal action as a source of electrical 
or mechanical power within 185 days of the date on which the department 
accepts the application as complete pursuant to this section or within 270 days of 
the department's acceptance of the application if the commissioner holds a 
hearing on the application pursuant to subsection 1-B or section 345-A, 
subsection 1-A. 
(2)  The expedited review periods of 185 days and 270 days specified in 
subparagraph (1) do not apply to the associated facilities, as defined in Title 
35-A, section 3451, subsection 1, of the development if the commissioner 
determines that an expedited review time is unreasonable due to the size, 
location, potential impacts, multiple agency jurisdiction or complexity of that 
portion of the development.  If an expedited review period does not apply, a 
review period specified pursuant to section 344-B applies. 
The commissioner may stop the processing time with the consent of the applicant for 
a period of time agreeable to the commissioner and the applicant. 
Sec. 12.  38 MRSA §484, sub-§10, as amended by PL 2009, c. 615, Pt. E, §18, is 
repealed. 
Sec. 13.  38 MRSA §484, sub-§10-A is enacted to read: 
10-A.  Special provisions; wind energy development or offshore wind power 
project.  In the case of a grid-scale wind energy development, as defined in Title 35-A, 
section 3451, subsection 6 or an offshore wind power project with an aggregate 
generating capacity of 3 megawatts or more, the developer demonstrates: 
A.  That the proposed generating facilities, defined in Title 35-A, section 3451, 
subsection 5: 
(1)  Will be designed and sited to avoid unreasonable adverse shadow flicker 
effects; 
(2)  Will be constructed with minimum setback requirements, defined by rule by 
the department; 
(3)  Will not have a significant cumulative environmental impact, as determined 
by rule by the department. For the purposes of this subparagraph, "cumulative 
environmental impact" means the impact on the environment that results from the 
incremental impact of the generating facilities when added to other past, present 
and reasonably foreseeable future actions; and 
(4)  If the grid-scale wind energy development is located more than 1,000 feet 
above sea level, will not be greater than 75 feet in height; and 
B.  That the following conditions have been met: 
(1)  The grid-scale wind energy development will provide significant tangible 
benefits, as defined in Title 35-A, section 3451, subsection 10, within the State, 
as provided in Title 35-A, section 3454, if the development is an expedited wind 
energy development; 
(2)  An assessment of wildlife impacts has been completed by the Department of 
Inland Fisheries and Wildlife pursuant to Title 12, section 12709 with respect to 
the development; and 
(3)  A decommissioning plan with respect to the development has been developed  
that includes the circumstances under which the decommissioning would need to 
occur. An escrow account must be established to provide financial guarantees for 
the decommissioning of the development. The terms and conditions of the escrow 
account must be in accordance with rules adopted by the department. 
The department shall adopt rules to implement this subsection. Rules adopted pursuant to 
this subsection are routine technical rules as defined in Title 5, chapter 375, subchapter 
2-A. 
Sec. 14.  Consideration of Town of Phillips ordinance.  When adopting rules 
for minimum setback requirements to implement the provisions of this Act, the 
Department of Environmental Protection shall consider the wind energy facility 
ordinance adopted by the Town of Phillips on September 16, 2010. 
SUMMARY 
This bill requires that all approvals for a license, permit or certification for wind 
energy developments be decided through an adjudicatory proceeding. The bill requires 
the consideration of cumulative environmental impact and impacts to wildlife when 
approving wind energy developments. It prohibits wind energy facilities constructed at 
1,000 feet or more above sea level from being greater than 75 feet in height. The bill 
requires all expansions of an expedited wind energy zone to be done through major 
substantive rulemaking rather than routine technical rulemaking and it requires wind 
energy developers to establish an escrow account for decommissioning.