Denial of development permit for the Bowers Wind project

SCENIC CHARACTER IMPACT CONCLUSIONS

Based on the above, with respect to the Bowers Wind Project proposal, the Commission finds and concludes that:

23. Wind power projects must be evaluated on the basis of the provisions of the Commission's statute, as revised in accordance with provisions of PL 2007, Ch. 661 (the Task Force Act). The Applicant has not carried its legal burden of proof in showing that the criteria of the Commission's statute, 12 M.R.S., § 685-A(4), or the criteria of 35-A M.R.S., Ch. 34-A, § 3452 have been met. The Commission recognizes the BWP's high visibility in the landscape is not a solely sufficient basis for determining that this project would have an unreasonable adverse scenic impact. 35-A M.R.S. § 3452(3). For all of the reasons discussed below, however, the Applicant has failed to demonstrate that the scope and scale of the BWP will not significantly compromise views from the SRSNS such that the BWP would have an unreasonable adverse effect on the scenic character or existing uses related to scenic character of the SRSNS.

The Commission notes that the more than 10 million acres under its jurisdiction are characterized not only by natural character and recreational opportunities, but also by maintained forests and farmlands. (2010 CLUP at 2). Thus, much of the jurisdiction is a working landscape, and limiting a finding of unreasonable adverse impacts to only pristine landscapes or unique vistas would be inconsistent with Title 12, the Task Force Act, and the CLUP as it would be insufficiently protective of resources with high scenic value. On this record, the scenic impacts to this Downeast lakes region do not satisfy the applicable criteria.

A. Project assessment. The Applicant conducted a scenic assessment in accordance with Title 35-A, chapter 34-A, § 3452 of scenic resources of state or national significance (Title 35-A, § 3451(9)) within 8 miles of the proposed BWP. Within 8 miles of the proposed turbine locations, the area in which the Applicant must prepare a visual impact assessment, there are 9 scenic resources of state or national significance that will have views of the project. Based upon the Applicant's commitment to retrofit the BWP with nighttime lighting mitigation technology, if feasible and approved by the FAA, the Commission has limited concerned about the potential of the BWP to have an unreasonable adverse scenic impact on night skies. Within the Commission's approximately 10.5 million-acre jurisdiction, however, these 9 lakes are among only 280 lakes that have either significant or outstanding scenic ratings, thus resulting in the BWP having a significant impact on the scenic lakes in the Commission's jurisdiction. Importantly, 4 of these lakes are within notable proximity to turbines, that is, within 3 miles of the project.

The BWP significantly compromises views such that it has an unreasonable adverse effect on Pleasant, Shaw, Junior, and Scraggly Lakes due to the number of turbines visible from these lakes and their proximity to the turbines: Pleasant Lake (all 27 turbines visible with the closest being within 2.16 miles), Shaw Lake (up to 25 turbines visible with the closest being within 2.6 miles), Junior Lake (up to 23 turbines visible with the closest being within 2.9 miles), and Scraggly Lake (up to 26 turbines with the closest being within 3.3 miles). Of these 4 lakes the effects to Pleasant Lake are particularly notable as this is a lake that, pursuant to the Commission's comprehensive Lake Management Program assessment, received the highest scenic rating of "outstanding." All 27 turbines of the BWP would be visible from Pleasant Lake.

The effect of the BWP is also particularly adverse as the record shows that the 9 lakes collectively represent water trails that receive significant use as recreational resources by the public, including the clients of guides and sporting camp owners from the Grand Lake Stream area. As users travel though the 9-lake waterway, there would be repeated views of the BWP turbines. The fact that some of the 9 lakes are connected only by a shallow stream or a portage trail (e.g. Scraggly to Shaw Lake), is not compelling since the Commission considers portaging a common practice in following canoe trails. Such evidence includes the testimony of guides and sporting camp owners, the AMC canoe guide, and the testimony of NRCM.

B. Evidence regarding impact on uses related to scenic character: Title 35-A directs the Commission to consider specific criteria in evaluating effects on scenic character and related existing uses, and user survey data may be helpful with regard to some, but not all, of the criteria. User data, which is not limited to user survey data, can assist in the Commission's consideration of the expectations of the typical viewer, the effect on the public's continued use and enjoyment, and the duration of the impact. 35-A M.R.S.A. §§ 3452(3)(C) & (E). The record for the BWP indicates that the scope and scale of the impacts of this project on the typical viewer and on the public's continued use and enjoyment of the SRSNS would be significant.

On this record as a whole, the Commission was not persuaded by the Applicant's submissions for the reasons explained by Dr. Palmer. See Finding 20(C). Given the significant scenic impacts of the BWP, the Commission finds the more credible evidence in the record to be that provided by testimony and comment from the public and by the Grand Lake Stream area guides and sporting camp owners. This evidence shows the likely impact on the recreational uses of these SRSNS, including the impact on the client base of the guides and camp owners, from the extensive scenic impact of the project. Notably, the community in and around the Grand Lake Stream area has more Registered Maine Guides than any place in Maine. Accordingly, the Commission was not convinced by the evidence presented by the Applicant that the expectations of, and the continued use by, those that recreate in this area would not be unreasonably adversely effected by the BWP.

C. Remote recreational experiences and low levels of use. As discussed above, under certain circumstances the Commission has determined that resources which provide remote recreational opportunities and resultant low levels of use are valuable, and thus in those situations it will consider low levels of public use as contributing to the value of the resource. Without this adjustment to customary VIA's, such VIA's are best suited to more urban areas than to areas such as the Commission's jurisdiction.
As noted in finding 21 above, the Commission concludes that there is substantial evidence in the record that remote recreational values and associated low levels of use are integral to the experience of the typical user of Shaw Lake. Thus the primitive recreational values of Shaw Lake and its resultant low use are judged to contribute to the value of that Lake. Thus the impact to Shaw Lake was greater than that estimated by both the Applicant and the Commission's scenic consultant because both discounted the impact due to low use, contrary to the Commission's long standing policy on remoteness. While on this record, in view of the other significant impacts on the other 8 SSRNS, this conclusion is not essential to a finding of an unreasonable adverse impact, the discussion, findings, and conclusions regarding Shaw Lake reflect a harmonization of the traditional VIA approach and the Task Force Act with the Commission's long-held policy on valuing remote recreational experiences and consequential low levels of public use.

D. Summary. Views from all 9 of the SRSNS will be significantly compromised by the BWP such that the development would have an unreasonable adverse effect on the scenic character and existing uses related to scenic character. The adverse effect is unreasonable due to turbine number, extent of turbine visibility, turbine proximity to the resources, the nature of the views as users travel though the SSRNS, the scenic significance of the SRSNS, and the evidence showing the scenic impacts will have an adverse impact on uses related to the SSRNS. While the scope and scale of the BWP is less visible from Duck, Keg, Bottle, Sysladobsis, and Pug Lakes, see Table 1 above, the adverse effect on the views from the SRSNS is unreasonable due to the nature of the views as users travel through the SSRNS water trail. The Commission therefore concludes the BWP would have an unreasonable adverse effect on the scenic character and existing uses related to scenic character of the SSRNS located within 8 miles of the project.

24. For all the reasons discussed herein, the Commission concludes that at this development location there are overriding scenic and public values, that the BWP has not minimized its intrusion on these existing scenic and public values, and that therefore the BWP is not in conformance with the polices and goals of the Commission's CLUP.

While the 2010 CLUP expressly recognizes the statutory changes made by the Task Force Act with respect to wind energy development in the expedited permitting area, the CLUP provides for the environmentally sound and socially beneficial utilization of indigenous energy resources where there are not overriding public values that require protection, and it clarifies that it seeks to accommodate energy generation installations that are consistent with the State's energy policies, are suitable for the proposed location(s), and minimize intrusion on natural and cultural resources and values. The CLUP specifically recognizes that sporting camps are recreational and cultural resources, worthy of protection from incompatible development and land uses. The CLUP identifies the need to protect the values of the jurisdiction that provide residents and visitors with a unique array of recreational experiences, especially high-value natural resources and remoteness where they exist. (2010 CLUP at pages 17, 265 - 267). Finally, the CLUP is consistent with the Task Force Act in that, while it recognizes the Act's goal of facilitating the siting of wind power, the CLUP continues to protect the state's quality of place and natural resources (p. 188) and pursues a policy of identifying and protecting areas that possess scenic features and values of state or national significance (p. 18).

For all the reasons stated in these Conclusions and based upon the record before it, the Commission finds the BWP, with respect to scenic and recreational resource impacts would not be in conformance with the above-identified goals and polices of the 2010 CLUP.

FINAL CONCLUSIONS

A number of other issues were raised concerning conformity of the proposed BWP with applicable provisions of Titles 12 and 35-A, the Commission's Standards, and its CLUP. The above conclusions require the Commission to deny the application, and thus the Commission does not make finding and conclusions on those other issues. The Commission noted during its deliberations, however, that this proceeding primarily turned on whether the BWP application met the scenic impact review criteria, and therefore it did not see a need to engage in an extended deliberation on the other applicable criteria.

The Commission appreciates the professional manner in which the Applicant prepared and presented its application for the BWP, as well as the thorough participation by the Intervenors and members of the public. While the proceedings to process expedited wind energy development proposals in the Commission's jurisdiction have proven to be necessarily complex, the Commission's evaluation of such proposals are clearly guided by its statutory permitting authority, as modified by PL 2007, Ch. 661 (codified in part in Title 12 and in part in Title 35-A), the Commission's Chapter 10 standards & rules, and it's Comprehensive Land Use Plan (CLUP). Based on the findings set forth above, and in addition to the conclusions set forth above, the Commission concludes that, with respect to the 27-turbine Bowers Wind Project (BWP) proposal, the Applicant has not met its burden of demonstrating that the BWP is in conformance with the applicable statutory and regulatory requirements, and that it is not consistent with the goals and policies of the CLUP. (12 M.R.S. §§ 685-B(2-B), (4) and (4-B); 35-A M.R.S. §§ 3401-3404, 3451-3458; applicable provisions of the Commission's Chapter 10 standards and rules; Comprehensive Land Use Plan (2010 CLUP)).

Therefore, the Commission DENIES Development Permit DP 4889, submitted by Champlain Wind, LLC for the 27-turbine Bowers Wind Project, as proposed.