An Act To Protect Maine's Scenic Character
Maine Legislature, Session 126, LD 1147
Committee Amendment CA_B_H738 (House)
Amends: 35-A MRSA §3451, 35-A MRSA §3452, 35-A MRSA §3454, 38 MRSA §346

COMMITTEE AMENDMENT .:B" to H.P. 812, L.D. 1147, Bill, "An Act To 
Protect Maine's Scenic Character" 
Amend the bill by striking out everything after the enacting clause and before the 
summary and inserting the following: 
'Sec. 1. 35-A MRSA §3451, sub-§§l-D and l-E are enacted to read: 
1-D. Combined observation. "Combined observation" means an observation of 
more than one group of generating facilities within the field of view of a stationary 
viewer. 
1-E. Cumulative scenic impact or effect. "Cumulative scenic impact or effect" 
means the potential adverse effect on the scenic character and existing uses related to the 
scenic character of scenic resources of state or national significance resulting from the 
incremental impact of a proposed wind energy development when added to the effects of 
other past or present wind energy developments within the viewshed of a scenic resource 
of state or national significance. A determination of cumulative scenic impact or effect 
may be based upon the combined observation, successive observation or sequential 
observation of wind energy developments by a viewer. 
Sec. 2. 35-A MRSA §3451, sub-§9, ~, as enacted by PL 2007, c. 661, Pt. A, 
§7, is amended to read: 
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 published by the Executive Department, State Planning Office in October 
1989;eF 
(2) One of the 280 great ponds in the State's unorganized or deorganized areas 
designated as outstanding or significant from a scenic perspective in the "Maine 
Wildlands Lakes Assessment" published by the Maine Land Use Regulation 
Commission in June 1987; 
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(3) One of the great ponds in the studies cited in subparagraphs 0) and (2) that is 
identified as having both outstanding fisheries and wildlife resources and on 
which there is located at least one commercial sporting camp that was established 
prior to 2007; or 
(4) One of the great ponds in the studies cited in subparagraphs (1) and (2) that is 
not identified in those studies as having outstanding or significant scenic quality 
but that the primary siting authority finds, based upon evidence presented during 
the course of reviewing an application for an expedited wind energy 
development: 
(a) Was not studied for its scenic values as part of either study, including but 
not limited to a great pond about which either study indicates there was 
missing information or a need for further field checking or no data were 
collected; and 
(b) 
Meets the minimum standards for significant or outstanding scenic 
quality using the scenic quality overview and standards provided in the study 
cited in subparagraph (1 ); 
Sec. 3. 35-A MRSA §3451, sub-§§9-A and 9-B are enacted to read: 
9-A. Sequential observation. "Sequential observation" means a view of more than 
one group of generating facilities as the viewer travels along a linear route, including but 
not limited to a hiking trail or river. 
9-B. Successive observation. "Successive observation" means views of more than 
one group of generating facilities from a single viewpoint as a result of the viewer turning 
the viewer's head or body. 
Sec. 4. 35-A MRSA §3451, sub-§10-A is enacted to read: 
to-A. Viewshed of a scenic resource. "Viewshed of a scenic resource" means the 
geographic area as viewed from a scenic resource of state or national significance that 
includes a proposed wind energy development. The view shed of a scenic resource may 
include the visible proposed wind energy development from a single viewer position or 
the visible proposed wind energy development from multiple viewer positions. The 
viewshed of a scenic resource is limited to the geographic area within 15 miles, measured 
horizontally, from the proposed wind energy development's generating facilities. 
Sec. 5. 35-A MRSA §3452, sub-§3, as enacted by PL 2007, c. 661, Pt. A, §7, is 
amended to read: 
3. Evaluation criteria. In making its determination pursuant to subsection 1, and in 
determining whether an applicant for an expedited wind energy development must 
provide a visual impact assessment in accordance with subsection 4, the primary siting 
authority shall consider: 
A. The significance of the potentially affected scenic resource of state or national 
significance; 
B. The existing character of the surrounding area; 
COMMITTEE AMENDMENT 
COMMITTEE AMENDMENT:B " to H.P. 812, L.D. 1147 
C. The expectations of the typical viewer; 
D. 
The expedited wind energy development's purpose and the context of the 
proposed activity; 
E. The extent, nature and duration of potentially affected public uses of the scenic 
resource of state or national significance and the potential effect of the generating 
facilities' pres.ence on the public's continued use and enjoyment of the scenic resource 
of state or national significance; if the generating facilities are located within 15 
miles, measured horizontally, from Acadia National Park, the Appalachian Trail, a 
federally designated wilderness area, Baxter State Park or the Allagash Wilderness 
Waterway, there is a rebuttable presumption that the generating facilities will have an 
unreasonable adverse effect on the scenic character of these areas; and 
F. The scope and scale of the potential effect of views of the generating facilities on 
the scenic resource of state or national significance, including but not limited to 
issues related to the number and extent of turbines visible from the scenic resource of 
state or national significance, the distance from the scenic resource of state or 
national significance and the effect of prominent features of the development on the 
landscape. 
In applying these evaluation criteria, the primary siting authority shall consider the 
primary impact and the cumulative scenic impact or effect of the development during 
both day and night on scenic resources of state or national 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. Ifl makiflg its determiflatiefl uflder subseetiefl 1, the primary siting autherity 
shall eonsider insignifieaHt the effeets of portions of the development's generating 
faeilities loeated more thaH g miles, measured horilwntally, frem a seenie resouree of 
state or natienal signifieaHee. 
Sec. 6. 35-A MRSA §3452, sub-§4, as enacted by PL 2007, c. 661, Pt. A, §7, is 
repealed and the following enacted in its place: 
4. 
Visual impact assessment; rebuttable presumption. 
An applicant for an 
expedited wind energy development shall provide the primary siting authority with a 
visual impact assessment of the development that addresses the evaluation criteria in 
subsection 3 as follows. 
A. If portions of the development's generating facilities are located within 8 miles, 
measured horizontally, from a scenic resource of state or national significance, a 
visual impact assessment is required. 
B. If portions of the development's generating facilities are located more than 8 miles 
and up to 15 miles, measured horizontally, from a scenic resource of state or national 
significance, there is a rebuttable presumption that a visual impact assessment is 
required. Information intended to rebut the presumption must be submitted to the 
primary siting authority by the applicant with the application. An interested person 
may respond to the applicant's rebuttal information within 30 days of the acceptance 
by the primary siting authority of the application as complete for processing. 
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COMMITTEE AMENDMENTd)" to H.P. 812, L.D. 1147 
C. The primary siting authority may require a visual impact assessment for portions 
of the development's generating facilities located more than 15 miles, measured 
horizontally, from a scenic resource of state or national significance if it finds that 
there is substantial evidence that a visual impact assessment is needed to determine if 
there is the potential for unreasonable adverse effects on scenic resources of state or 
national significance. Information intended to rebut or support the need for a visual 
impact assessment of effects on scenic resources more than 15 miles from the 
development's generating facilities must be submitted to the primary siting authority 
by the applicant or any interested person not later than 60 days after acceptance by 
the primary siting authority of the application as complete for processing. The 
II 
applicant has an additional 15 days to respond to information submitted by interested 
persons. 
The primary siting authority shall make decisions under this subsection based on a 
preponderance of evidence in the record. 
Sec. 7. 35-A MRSA §3454, sub-§l, as enacted by PL 2009, c. 642, Pt. A, §7, is 
amended to read: 
1. Documentation. As part of any permit application for an expedited wind energy 
development, the applicant shall include the following information regarding tangible 
benefits, except that the applieant may submit the iflfoflllatiofl required uflder paragraph 
as an addefldum to the eermit aeelieatiofl durim:! the Deriod ifl whieh the aeDlieatiofl is 
pefldiflg: 
A. 
Estimated jobs to be created statewide and in the host community or 
communities, as a result of construction, maintenance and operations of the project; 
B. Estimated annual generation of wind energy; 
C. Projected property tax payments; 
D. A description of the community benefits package, including but not limited to 
community benefit agreement payments, to be provided in accordance with the 
requirements of subsection 2; and 
E. Any other tangible benefits to be provided by the project. 
Sec. 8. 38 MRS A §341-D, sub-§4, ~, as amended by PL 2011, c. 304, Pt. H, 
§9, is further amended to read: 
D. License or permit decisions regarding an expedited wind energy development as 
defined in Title 35-A, section 3451, subsection 4 or a general permit pursuant to 
section 480-HH or section 636-A. In reviewing an appeal of a license or permit 
decision by the commissioner under this paragraph, the board shall base its decision 
on the administrative record of the department, including the record of any 
adjudicatory hearing held by the department, and any supplemental information 
allowed by the board for supplementation of the record. The board may remand the 
decision to the department for further proceedings if appropriate. The ehair of the 
Publie Utilities Commissiofl or the ehair's desigflee serves as a flOflYOtiflg member of 
the board and is efltitled to f1:ltl)' partieipate blit is flOt required to attefld heariflgs 
'""hefl the board eOflsiders afl appeal pursuant to this paragraph. 
The ehair's 
Dartieieatiofl Ofl the board Dursuant to this earae:raeh does flot affest the ability of the 
COMMITTEE AMENDMENT 
COMMITTEE AMENDMENT~ "to H.P. 812, L.D. 1147 
I 
Publie Utilities Commission to submit information to the department for inelusion in 
the reeord of any proeeeding before the department. 
Sec. 9. 38 MRSA §346, sub-§4, as repealed and replaced by PL 2011, c. 420, Pt. 
A, §34, is amended to read: 
4. 
Appeal of decision. 
A judicial appeal of final action by the board or 
commissioner regarding an application for an e~(pedited vlind energy deYelopment, as 
defined in Title 35 A, seetion 3451, subseetion 4, or a general permit pursuant to section 
480-HH or section 636-A must be taken to the Supreme Judicial Court sitting as the Law 
Court. The Law Court has exclusive jurisdiction over request for judicial review of final 
action by the commissioner or the board regarding expedited wind energy developments 
er a general permit pursuant to section 480-HH or section 636-A. These appeals to the 
Law Court must be taken in the manner provided in Title 5, chapter 375, subchapter 7 and 
the Maine Rules of Civil Procedure, Rule 80C.' 
SUMMARY 
IS 
This amendment makes changes to the bill, including: 
I. Creating several new definitions relating to the scenic impact of a wind energy 
development; 
2. Adding to the definition of "scenic resource of state or national significance" great 
ponds that were not studied for their scenic values in 1987 or 1989 and that the 
Department of Environmental Protection finds have outstanding or significant scenic 
quality using the assessment criteria in the 1989 Maine's Finest Lakes study; 
3. Removing from current law a requirement that judicial appeals of final action by 
the Board of Environmental Protection or the Commissioner of Environmental Protection 
regarding an expedited wind energy development be taken directly to the Supreme 
Judicial Court sitting as the Law Court; 
4. Removing the provisions of the bill that apply the scenic impact laws to scenic 
resources of local significance; and 
5. 
Creating a rebuttable presumption of unreasonable adverse effect on scenic 
character if a generating facility is located within 15 miles from certain scenic resources 
of state or national significance. 
FISCA.L ~OTE REQURED 
(See attached) 
COMMITTEE AMENDMENT 
Approved: 03/21114 
~ac:. 
LD 1147 
LR 767(03) 
An Act To Protect Maine's Scenic Character 
Fiscal Note for Bill as Amended by Committee Amendment 8' [l-l -73 f5') 
Committee: Energy, Utilities and Technology 
Fiscal Note Required: Yes 
Fiscal Note 
Minor cost increase - General Fund 
Minor cost increase - Other Special Revenue Funds 
Minor savings - General Fund (Courts) 
Correctional and Judicial Impact Statements 
Decreases the number of Law Court cases 
Fiscal Detail and Notes 
The amendment requires the Department of Environmental Protection and the Maine Land Use Planning Commission 
within the Department of Agriculture, Conservation and Forestry to consider new criteria when determining whether 
an applicant for an expedited wind energy development must provide a visual impact assessment. Any additional costs 
to these departments to consider the new criteria are expected to be minor and can be absorbed within existing 
budgeted resources. 
LR0767(03) - Fiscal Note - Page 1 of 1