Wind Siting Rules: Kevon Martis Testimony to the Ohio Power Siting Board

By Robert Bradley Jr. -- June 9, 2016

“Chief Justice Oliver Wendell Holmes once stated that ‘The right to swing my fist end’s where the other fellow’s nose begins’. If the State of Ohio deems wind development a worthy prospect, then– at bare minimum — Ohio’s rural residents should first give consent and then receive compensation for the ‘bloodied noses’ from the loss of amenity pervasive wind development brings.”

“By creating siting guidelines that protect private property rights at the property line rather than forcibly donating unleased property to utility scale wind developers, each landowner can determine for themselves what their loss of amenity is worth to them…. Wind developers claim that such reasonable regulations raise the cost of wind energy. So be it.”

My name is Kevon Martis. I am the Executive Director of the Interstate Informed Citizens’ Coalition (IICC) of Blissfield MI. I am also a Senior Policy Fellow of the Energy and Environment Legal Institute in Washington DC. Both positions are voluntary. I am also the former vice-chairman of the Riga Township Planning Commission in Lenawee County, MI.

I am here today on the behalf of thousands of interested rural residents of the State of Ohio.

In my role as director of the IICC , I have testified numerous times before the Ohio House and Senate Public Utilities Committees. And I have testified on wind energy land use issues across the Midwest, including OH, IL, MI and Kentucky as well as in Nebraska and North Dakota. I have also been invited to testify before members of Congress in Washington DC.

My experience with wind energy land use issues began in 2008 when I was a planning commissioner in my home township in SE Michigan. The issues we faced then, such as conflicting land uses, visual impacts, noise and safety setbacks are the same at the township level as the issues that confront us at the state level today in this hearing.

Michigan has far more utility scale wind development than Ohio. In fact Huron County Michigan hosts more wind turbines than the entire State of Ohio combined. And since the regulation of turbine placement is established at the township or county level in Michigan, I have had the opportunity to sit through hundreds of hours of hearings across the State. And I have observed the consternation of local commissioners as they sift through the often conflicting data and evidence brought forth by the wind developers and by the local citizens.

My point? I have sat on your side of the table and I know what it is like to be tasked with rendering such difficult policy decisions.

Now in my case, an error in turbine siting would potentially harm “only” a single township. But in your case, thousands of Ohio townships may be harmed. That is a grave responsibility.

There is good news, however.

Since 2011, I have been promoting an equitable means of zoning for wind development that lifts from regulators the burden of making such complex decisions for so many distant rural residents.

These recommended turbine siting regulations are based upon the private property principles of consent and compensation.

In a nutshell, my proposed siting guidelines establish low noise limits and large setbacks for wind turbines at the property line of unleased neighboring landowners. But we also set noise limits that are much higher for leased property owners and the setbacks much smaller.

Permissive setbacks and higher noise limits at unleased landowners’ homes can be acquired by the wind developer by simply negotiating a waiver with each landowner within the project footprint. The value for the nuisance and safety easement needed to develop the project is then negotiated privately between the wind developer and the affected landowners. By establishing protective limits to non-participating property lines, every landowner’s negotiating ability to establish a fair value for the loss of amenity wind turbine placement brings is preserved because adjacent landowner’s wellbeing can no longer be discounted.

Trespass Zoning

By establishing these protective regulations at the property line, another grievous error is avoided, that of trespass zoning.

When regulations measure noise and setback distances to neighboring unleased homes rather than property lines, the portion of the neighboring property inside this setback radius has essentially been donated to the neighboring large landowner’s tenant to be used as an uncompensated nuisance and noise easement. This is fundamentally unjust and can only be remedied by measuring those distances and noise levels from the property line.

Recommendation

I recommend a multiple of turbine height instead of a fixed distance for turbine setbacks. I typically recommend 4 times the height to the tip of the rotor. This is important because turbine heights are increasing dramatically. Michigan’s first wind turbines were less than 300’ tall. By 2009, when I was still a planning commissioner, 390’ turbines were the new standard. The next jump was to the 494’ class. But now we see 660’ turbines proposed for Ohio. There is no doubt that a 660’ turbine has a much greater community impact than a 250’ turbine. Thus a multiple of turbine height is eminently reasonable as turbine heights march ever closer to 1,000’.

There is much more to this topic than these few paragraphs and our limited time can cover. This forum does not permit me to dominate the discussion for an hour or two. But my zoning talks are available on YouTube, and I highly recommend that people take the time to watch the expanded and well documented form of these recommendations.

Land Use

One of the reasons wind development has such profound land use controversy is that wind energy has strikingly high land use per unit of energy generated. This means that wind development involves many more neighbors than conventional generators.

Consider this: Ohio has approximately 30,000MW of generating capacity from dispatchable sources. This power is generated from 21 coal, gas and nuclear power plants. At the rate of one conventional power plant per square mile, Ohio’s entire generation fleet could be placed inside only one 36 square mile township with 15 square miles left over for a buffer zone.

Let me say it again: all of Ohio’s dispatchable electricity is being generated on a land mass that is smaller than one township.

To generate that same amount of energy on an annualized basis from wind energy would require blanketing nearly 600 townships with wind turbines. In other words, 40 counties the size of Van Wert County would need to host two 2.0MW turbines in every single square mile. This land mass is nearly equal to half the land mass of the State of Ohio.

And at the township level, simple math shows us that the energy generated by one township worth of wind turbines could be generated from a single semi-trailer mounted gas turbine that fits neatly inside an average dairy barn.

My point? No other mode of generation requires such disparate access to such a high percentage of Ohio’s rural landscape.

Indeed, can we name any industry that has ever demanded land use regulations granting them unfettered access to such massive amounts of rural landscape? Improperly designed state-level wind turbine siting regulations have the potential to cause harm over a stupendous quantity of land. Regulations designed to restore some level of local control by establishing the zoning recommendations above can make sure that communities are equitably compensated for the loss of amenity wind development entails.

Experience: Wind Developers are Unreliable Source for Turbine Siting

By virtue of being involved with the regulation of wind development involving perhaps a dozen different wind developers, I have learned that their statements regarding safe setbacks and noise limits must be largely disregarded. That is a strong statement but it is defensible.

Consider this: in 2010, two different wind developers had acquired ground for development in my township, juwi Wind and Exelon Wind. They both approached my planning commission with proposed regulations for turbine siting. Juwi Wind spoke first. They recommended 1,000’setbacks to homes and a 55dBa noise limit. Then Exelon’s acoustic consultant spoke. He recommended 1,320’ setbacks to homes and a 45dBa noise limit. I asked this consultant if he was prepared to say that juwi’s less stringent recommendations are unsafe. He said “Yes I am!” One might conclude that this was an honorable man indeed.

But a quick web search revealed that this same acoustic consultant had testified in Vermont that turbines very similar to those proposed for my township would cause harm to people more than a mile away.

And imagine my consternation when this same fellow approved of turbines being placed closer than 1,000’ feet from homes in Mason County Michigan only 1 year after stating categorically that such distances were unsafe in my community.

As my YouTube presentation clearly shows, we know that the safe noise limit for wind turbine noise is less than 40dBa. People simply should not be compelled to live inside that noise contour.

Wind Developer Claims that Safe Siting Uneconomical is Without Basis

One of the most persistent claims made by the wind industry is that developing wind projects that keep people outside of the 40dBA noise contour are unreasonably expensive.

In 2013, acoustician Robert Rand testified before the OH Senate Public Utilities Committee about noise impacts from wind development. In the past he had worked for Stone & Webster, a major power plant engineering and construction firm. Mr. Rand observed that “(f)or power generation, noise control budgets at Stone & Webster typically ran between 5 and 20 percent of the total build cost.” The percentage varied depending on whether the power plant was being built in an industrial area or a quiet rural area.

He then analyzed the Blue Creek Wind project in Van Wert County. He discovered that there are 622 homes inside the 40dBa footprint. Employing a 2013 average home value in Van Wert of $85,000 per home in this rural region, a forced buyout at market value of every home inside that footprint would have cost $52.9 million dollars. This is only 8.8% of the total project price tag of $600 million. This is well within the standard range of cost associated with being good acoustic neighbors for any other power plant.

One of the reasons wind energy is constructed is to reduce the “external costs” of conventional generation. Noise pollution is an external cost of wind generation. In view of the fact that generating anything more than trivial amounts of energy from wind turbines must, due to their low energy density, subject hundreds of thousands of rural Ohioans to these annoying and sometimes harmful noise emissions, it is not reasonable to allow the wind industry to escape responsibility for those externalities by adopting regulations that give them unfettered access to neighboring properties without consent or compensation.

Conclusion

The OPSB Mission Statement reads as follows:

“Our mission is to support sound energy policies that provide for the installation of energy capacity and transmission infrastructure for the benefit of the Ohio citizens, promoting the state’s economic interests, and protecting the environment and land use.”

Due to wind generation’s low energy density, the land use and environmental impacts spread across many hundreds of square miles. And since Ohio has relatively high population densities in rural areas compared to the Prairie States, hundreds of thousands of people stand to have their visual and aural landscapes dramatically impacted.

Chief Justice Oliver Wendell Holmes once stated that “The right to swing my fist end’s where the other fellow’s nose begins.”

If the State of Ohio deems wind development a worthy prospect, then- at bare minimum- Ohio’s rural residents should first give consent and then receive compensation for the “bloodied noses” from the loss of amenity pervasive wind development brings.

By creating siting guidelines that protect private property rights at the property line rather than forcibly donating unleased property to utility scale wind developers, each landowner can determine for themselves what their loss of amenity is worth to them.

This is preferable than leaving that decision for the entire state in the hands of the fine people in this room.

Wind developers claim that such reasonable regulations raise the cost of wind energy. So be it.

Reducing externalities from any source of generation always comes at the ratepayers’ expense. Wind development should not be exempted and all ratepayers should bear this cost, not just a subset of rural Ohioans.

Respectfully, Kevon Martis [Director, IICC, Blissfield, MI; Senior Policy Fellow, E&E Legal, Washington, DC]