May 2, 2014

Maine BEP Conditionally Votes to Deny Proposed Bowers Mountain Wind Project

Environmental Alert

On May 1, 2014, the Maine Board of Environmental Protection voted to affirm the Maine DEP's August 5, 2013, order denying Champlain Wind LLC's proposed Bowers Wind Project. The final language of the decision will be approved at the Board's next meeting on June 5, 2014.

DEP originally denied the proposed 16 turbine (48 megawatt facility)—located in the Washington County township of Kossuth and Carroll Plantation in Penobscot County, roughly 30 miles east of Lincoln, Maine—based on its determination that the proposed activity would significantly compromise views from eight lakes designated as Scenic Resources of State or National Significance (SRSNS), resulting in an unreasonable adverse impact on the scenic character and existing uses of those resources.

Both DEP and Champlain Wind utilized experts to conduct Visual Impact Assessments based on Maine's Wind Energy Act criteria to determine the level of adverse visual impacts affecting the SRSNS lakes within eight miles of the proposed project. DEP concluded that the medium level of scenic impact on these lakes, plus additional evidence in the record (e.g., user survey results and public comments (especially by impacted parties)), supported the finding that the proposed project would have an unreasonable adverse effect on the scenic character and existing uses of the SRSNS resources.

On appeal to the BEP, Champlain Wind argued that DEP had improperly "aggregated" the scenic impacts of the eight SRSNS lakes to create a new scenic standard not supported by statute. In addition, the developer argued that DEP had not appropriately balanced the project's scenic impacts against the project's potential benefits. Although some BEP members voiced frustration regarding the difficulty of applying the visual impact standard, the Board was not swayed by either of these two objections and voted to uphold the DEP's decision to deny the application.

This is the BEP's second recent wind licensing decision focusing on scenic impacts. In March 2013, BEP reversed DEP's determination that a wind project proposed at Passadumkeag Mountain would cause unreasonable scenic impacts (thereby allowing that project to move forward). That case, however, did not involve an SRSNS.

Yesterday's decision underscores three crucial lessons regarding permitting wind projects in Maine: (1) robust and detailed visual impact assessments are of critical importance when calculating scenic impacts on an SRSNS; (2) user survey results are highly relevant to the DEP's analysis of impacts to scenic character; and (3) the DEP will place more weight on public comments in the record by those most impacted by the proposed project.

For additional information regarding wind permitting in Maine, please contact David Van Slyke in Preti Flaherty's Environmental Practice Group.

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