HP0812, LD 1147, item 1, An Act To Protect Maine's Scenic Character

An Act To Protect Maine's Scenic Character

Be it enacted by the People of the State of Maine as follows:

Sec. 1. 35-A MRSA §3451, sub-§§1-D and 8-B are enacted to read:

1-D. 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 national, state or local significance resulting from the incremental impact of a proposed wind energy development when added to the effects of other past, present and reasonably foreseeable wind energy developments within the viewshed of a scenic resource of national, state or local significance. A determination of cumulative scenic impact or effect may be based upon the combined, successive or sequential observation of wind energy developments by the viewer.

8-B. Scenic resource of local significance. "Scenic resource of local significance" means those areas of a municipality that have been identified in the municipality's comprehensive plan or comparable document as having special scenic or historic value and that are protected from the effects of inappropriate development by public ownership, ownership by a land trust or similar nonprofit organization or land use controls.

Sec. 2. 35-A MRSA §3451, sub-§9, ¶D, 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; or

(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; or

(3) One of the great ponds in the studies cited in subparagraphs (1) 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;

Sec. 3. 35-A MRSA §3451, sub-§10-A is enacted to read:

10-A. Viewshed of a scenic resource. "Viewshed of a scenic resource" means the geographic area as viewed from a scenic resource of national, state or local significance that includes a proposed wind energy development. The viewshed may include the visible proposed development from a single observer position or the visible proposed development from multiple observer positions.

Sec. 4. 35-A MRSA §3452, sub-§§1 and 3, as enacted by PL 2007, c. 661, Pt. A, §7, are amended to read:

1. Application of standard. In making findings regarding the effect of an expedited wind energy development on scenic character and existing uses related to scenic character pursuant to Title 12, section 685-B, subsection 4 or Title 38, section 484, subsection 3 or section 480-D, the primary siting authority shall determine, in the manner provided in subsection 3, whether the development significantly compromises views from a scenic resource of national, state or national local 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 national, state or national local significance. Except as otherwise provided in subsection 2, determination that a wind energy development fits harmoniously into the existing natural environment in terms of potential effects on scenic character and existing uses related to scenic character is not required for approval under either Title 12, section 685-B, subsection 4, paragraph C or Title 38, section 484, subsection 3.

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 national, state or national local significance;

B. The existing character of the surrounding area;

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 national, state or national local significance and the potential effect of the generating facilities' presence on the public's continued use and enjoyment of the scenic resource of national, state or national local significance ; if the generating facilities are located within 15 miles, measured horizontally, of 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 national, state or national local significance, including but not limited to issues related to the number and extent of turbines visible from the scenic resource of national, state or national local significance, the distance from the scenic resource of national, state or national local 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 national, state and local 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 national, state or national local significance. In making its determination under subsection 1, the primary siting authority shall consider insignificant the effects of portions of the development's generating facilities located more than 8 miles, measured horizontally, from a scenic resource of state or national significance.

Sec. 5. 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 assessments; 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 national, state or local 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 national, state or local 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.

C. The primary siting authority may require a visual impact assessment for portions of the development's generating facilities located more than 15 miles from a scenic resource of national, state or local significance if it finds that there is substantial evidence that a visual impact assessment is needed to determine if there is the potential for significant adverse effects on scenic resources of national, state or local 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 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 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. 6. 35-A MRSA §3457, sub-§3 is enacted to read:

3. Decommissioning plans. The Department of Environmental Protection shall adopt rules to require that decommissioning plans be submitted to and approved by the department as a condition of approval in all grid-scale wind energy development. These rules must include, at a minimum, requirements for full funding for the removal of all components of the wind energy development, vegetative restoration of the development area and maintenance of public safety and environmental protection during decommissioning. The department may require the use of letters of credit, performance bonds, segregated funds, corporate parent guarantees and other forms of financial assurance to ensure that funds are available regardless of what point in the history of the development decommissioning becomes necessary.

Sec. 7. Directive to update great ponds studies. The Maine Land Use Planning Commission shall reevaluate and update the scenic resources sections of the "Maine Wildlands Lakes Assessment," published by the Maine Land Use Regulation Commission in June 1987, and the Department of Environmental Protection shall reevaluate and update the scenic resources sections of "Maine's Finest Lakes," published by the Executive Department, State Planning Office in October 1989. The Maine Land Use Planning Commission shall undertake this work using existing resources. Prior to completion of these updates, an interested party may, within 30 days of the acceptance of the application as complete for processing under the Maine Revised Statutes, Title 35-A, chapter 34-A, submit information to the primary siting authority that a great pond within the regulated viewshed of a proposed project that is not protected on the effective date of this Act under Title 35-A, section 3451, subsection 9, paragraph D meets the minimum standards for protection. The primary siting authority shall make a determination pursuant to this section within 30 days of its receipt of this information.

summary

This bill makes several changes to the scenic impact provisions of the laws governing expedited permitting of grid-scale wind energy development enacted in 2008. It offers the possibility of protecting scenic resources that have been identified as significant by municipalities in their comprehensive plans and the scenic resources of certain great ponds on which there are commercial sporting camps; increases from 8 miles to 15 miles the jurisdictional distance for requiring visual impact assessments; and creates a rebuttable presumption that proposed grid-scale wind energy development projects within 15 miles of Acadia National Park, Baxter State Park, the Appalachian Trail, a federally designated wilderness area or the Allagash Wilderness Waterway will have an unreasonable adverse effect on a scenic resource. It requires the Department of Environmental Protection to consider the cumulative impacts of development when permitting grid-scale wind energy development projects under the laws governing expedited permitting of grid-scale wind energy development. It requires the Department of Environmental Protection to undertake rulemaking with respect to required decommissioning plans and directs updates of the great ponds studies done in 1987 and 1989.

HP0812 LD 1147	Session - 126th Maine Legislature		LR 767 Item 1
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