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WIND ENERGY LEGAL ISSUES by qpn10303

VIEWS: 6 PAGES: 33

									WIND ENERGY LEGAL
      ISSUES
                Jeffrey A. Easterday
 Barrett, Easterday, Cunningham & Eselgroth, LLP
           7269 Sawmill Road, Suite 100
                 Dublin, OH 43016
                   614 210-1840
           jeasterday@farmlawyers.com
       Outline of Discussion
• Ohio Legislative Objectives/Mandates for
  Wind and other renewable Energy
• Utility Scale Wind Regulation
• Small (Home) Scale Wind Regulation
• Contract Considerations for Wind Leases
  or Easements
  STATE OF OHIO MANDATE
• Ohio Revised Code 4928.64
• 25% of electricity shall be provided from
  Alternative Energy Resources by 2025
• Half of the 25% may be advanced energy
  resources (improved process or
  equipment, or clean coal technology)
• At least half of the 25% renewable energy
  resources including 0.5% solar
• Renewable energy resources and solar
  energy mandate steps up gradually from
  2009 to 2025
• Renewable energy resource includes solar
  photovoltaic, solar thermal, wind,
  hydroelectric, geothermal, fuel derived
  from solid wastes, biomass, biologically
  derived methane gas, fuel cell, etc
      UTILITY SCALE WIND
• Ohio Revised Code Chapter 4906 – Power
  Siting Board
• Power Siting Board is within Public Utilities
  Commission
• Power Siting Board is one-stop shop for
  utility scale wind projects
• Power Siting Board certificate required for
  construction of economically significant
  wind farm
    Power Siting Board Members
•   Chairman of PUCO
•   Director of environmental protection
•   Director of Health
•   Director of Development
•   Director of Natural Resources
•   Director of Agriculture
•   Public representative engineer appointed
    by Governor
  Power Siting Board Members
• 4 legislative members as nonvoting
  members
• Members of the Board may designate a
  representative to attend when he or she is
  not available
• A quorum is a majority of its voting
  members
 CERTIFICATE APPLICATION
• Application for Certificate must include:
• Description of facility and its location
• Summary of studies of environmental
  impact
• Statement explaining the need for the
  facility
• Statement why location best suited for
  facility
• Statement of how facility fits into
  applicant’s forecasts as reported in ORC
  4935.04
• Other information considered relevant or
  required by the Board’s rules
• Application must be filed between one and
  five years prior to commencement of
  construction.
• Application must be served on each
  municipality, county, and head of each
  public agency charged with protecting
  environment and land use planning in the
  area in which any portion of the facility is
  to be located.
• Provide public notice in each municipality
  and county within 15 days of filing
• Public Hearing shall be set between 60
  and 90 days after receipt of application.
     CERTIFICATION CONSIDERATIONS

•   Project Description
•   Project Area Location – acres, owners
•   Wind Turbines – number, type, capacity
•   Turbine Foundations
•   Electric Substations
•   Buildings, Staging Areas
•   Access roads, Electric Collection Systems
• Application begins process and results in
  an administrative case similar to a court
  case with filings and orders
• Public Information Meetings
• Public Hearing
CRITERIA FOR CONSIDERATION
• Finding of basis of need for facility
• Nature of environmental impact
• Finding that facility represents minimum
  adverse environmental impact
• Finding that facility is consistent with
  regional plan for electric power grid
• Finding that facility will comply with
  applicable Ohio laws
• Finding that facility will serve public
  interest, convenience & necessity
• Determine impact on viability of
  agricultural land or agricultural district
• Finding that facility incorporates maximum
  feasible water conservation practices,
  considering technology and alternatives.
EXAMPLE OF STAFF REPORT
• One year construction phase
• Emissions type and volume during
  construction
• Wetlands
• Impact on Streams – nature of crossings
• Access Roads
• Areas to be cleared of trees/vegetation
• Nature of land use in project area
• Threatened or endangered species in area
  (plants, birds, reptiles and amphibians,
  mammals, aquatic species)
• Construction Best Management Practices
  (silt fencing, reseeding, straw bales) and
  Storm Water Pollution Prevention Plan
• Adverse Traffic Impact
• Literature review and evaluation of cultural
  resource surveys, visual impact
  assessment on cultural resources
• Cultural resources, National Register of
  Historic Places
• Impact of height of turbines 400 ft on
  cultural resources
• Ohio Historic Inventory Sites
• Dwellings or structures to be removed
• Noise study (50 dBA goal at property
  lines)
• Number and proximity of residences
• Minimum set back for turbine is 1.1 times
  maximum height of turbine to blade tip
• Minimum 750 feet from horizontal
  extended blade tip to nearest residence
• Identify recreational use sites
• Employment created by project
• Effect/conflict on known local or regional
  development projects or land use plans
• One project addressed Indiana Bat –
  Habitat Conservation Plan
• Blade shear considerations (blade breaks
  and is thrown)
• Ice Throw considerations
• Shadow flicker considerations
• Communication System Interference
• Radar interference
• Traffic Impacts
• Status of landowner leases (cost, term)
• Decommissioning (financial assurance)
• Issuance of Certificate and Conditions
SMALL SCALE WIND POWER
• Major constraints on small (home or farm)
  scale wind projects are financial, physical,
  social, and regulatory
• Connection to Power Grid (Public Utility
  Regulatory Policies Act of 1978 generally
  require utilities to connect with and
  purchase power from small wind energy
  systems)
               ZONING
• Many Zoning codes may not specifically
  address Windmills
• Permitted Use, Conditional Use? Often all
  other uses are prohibited unless exempt.
• Is small wind an agricultural use?
• Is small wind an accessory use?
• Telecommunications towers are often
  addressed
• Height Limitations
    WIND LEASE/EASEMENT
• A lease or easement will affect title of real
  property – rights and/or encumbrance
• A lease or easement may also affect
  personal rights – confidentiality
    LEASE/EASEMENT CONSIDERATIONS

•   Parties – authority to sign
•   Effective Date
•   Property subject to Lease
•   Use of property
•   Location of facilities
•   Ingress and Egress - maintenance
•   Retained Uses
•   Is easement exclusive?
•   Who holds title?
•   Compensation – rent, royalty
•   Payment for damage
•   Term of lease or easement
•   Renewal of lease or easement
•   Termination of lease or easement
•   Warranties and representations
•   Title warranties – title insurance
•   Conditions and contingencies
•   Arbitration
•   Property tax
•   Construction
•   Insurance, Indemnification,
• Mechanic’s liens
• Compliance with laws and regulations
• Environmental
• Effect of title encumbrances – tenants,
  mortgages, other easements, etc
• Rights to assign or sublet
• Leasehold financing
• Right of property owner to mortgage
• Effect on existing mortgage –
  subordination, agreement to restrictions
• Default and remedies
• How to document termination
• Removal of facilities - decommissioning
• Reversion of rights to owner
• Sound restrictions/limits
• Confidentiality
• Payment to brokers/agents
• Recent Licking Co Appellate case held
  that certain rights that are outside the
  period covered by the marketable title act
  are effectively terminated.
         Jeffrey A. Easterday
    jeasterday@farmlawyers.com
• This material and presentation is for
  education and general information
  purposes only. The presenter is not
  providing specific legal advice and no
  attorney-client relationship is established
  with any person who attends the
  presentation or views the materials. You
  should consult with your professional
  advisor on all matters related to this
  subject.

								
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