Siting Wind Energy Facilities on Private Land in Colorado A

Document Sample
Siting Wind Energy Facilities on Private Land in Colorado A Powered By Docstoc

About the Authors

This article was written by Roger Freeman and Ben Kass.

Mr. Freeman is a partner with Davis Graham & Stubbs, LLP and is active in numerous
renewable energy and transportation projects and groups throughout the Rocky
Mountain West and California. He has worked with a variety of cleantech entities,
including solar and waste-to-energy companies, on government relations and legislative
initiatives. Mr. Freeman uses his experience to help expedite project steps and creatively
overcome legal constraints to the development of renewable and advanced transportation
projects. Among his other pursuits including teaching at the University of Denver Law
School of Law and various Board memberships. He was appointed by Governor Ritter in
2008 to the Colorado Solid and Hazardous Waste Commission, where he has focused
particularly on waste minimization and recycling issues.

Mr. Kass is an associate with Davis Graham & Stubbs, LLP, specializing in civil
litigation, environmental, and renewable energy law.

The development of medium to large-scale wind energy facilities is poised to grow
substantially over the next several years. This article surveys common legal issues
associated with siting these developments on private lands in Colorado.

        On February 17th, 2009 at the Denver Museum of Nature & Science, President
Obama signed into law the American Reinvestment and Recovery Act of 2009
(“ARRA”), shining the spotlight of the nation’s “New Energy Economy” on Colorado
and the Rocky Mountain West.i ARRA authorized nearly $50 billion dollars in direct
funding, tax incentives, and loan guarantees designed to fast track the development and
implementation of renewable energy technologies.ii In signing this bill, President Obama
predicted a doubling of renewable energy production over the next three years, resulting
in a “remaking of the American landscape.”iii Over one year later, while the economic
slowdown has hampered the overall growth of the renewable industry, wind development
in particular stands to benefit from the stimulus package.iv Across the nation, from the
halls of academia to the cubicles of federal, state and local government, many are
working to convert President Obama’s new landscape into reality.

       Wind energy facilities, and renewable energy sources in general, have certain
environmental benefits over traditional energy sources such as coal, petroleum, and
nuclear power. Yet, like any other energy generation facility, wind energy developments
have measurable impacts on the natural environment and neighboring landowners, and
are subject to basic physical constraints such as access to transmission lines and conflicts
with other land uses. Moreover, as those in the industry know so well, siting and
developing a windfarm is much more complicated than just finding a windy location and

erecting turbines. This is compounded by the fact that there is currently no
comprehensive federal or Colorado-based authority governing the siting of wind energy

        Instead, the legal construct guiding wind energy development is currently a
curious mix of federal, state and local statutes, regulations, guidance, and ordinances –
with a few “rules of thumb” thrown in for good measure. This article discusses legal and
practical constraints associated with siting medium to large-scale wind energy
developments on private lands in Colorado.v It is intended to be a survey of these matters
rather than an in-depth analysis. Colorado-specific references are provided whenever
possible to help lead readers to sources for more detail on individual topics.


        Colorado currently ranks eleventh in the nation for wind energy development
potential,vi receiving enough wind to produce over 600 million megawatt-hours of
electricity annually.vii The state ranks eighth in the nation in wind energy production,
generating over 1241 megawatts of electricity from at least 17 different utility-scale
installations.viii Colorado has over 6 million acres of “windy” lands suitable for such
development, located mostly on private lands on the eastern plains near the cities of
Lamar, Burlington and Sterling, as well as in rural areas north of the city of Fort Collins.ix
Moreover, Colorado has earned a national reputation for encouraging cleantech research
and development, including wind resources; harnessing this potential is the centerpiece of
the New Energy Economy.


        In addition to the strong government support and public demand for cleaner
energy technologies, wind energy development is currently driven by a mix of federal,
state and local incentives and mandates. At the federal level, the Production Tax Credit
(“PTC”) is one of the most important incentives for wind developers. Recently extended
as part of the ARRA, the PTC provides a 2-cent per kilowatt-hour credit for wind energy
producers through December 31, 2012.x The federal government also offers an
Investment Tax Credit (“ITC”), which helps individuals, businesses, and utilities offset
up to 30% of the cost of purchasing wind turbines for small-scale energy production.xi At
the state level, the Colorado State Legislature, Governor’s Energy Office (“GEO”), and
local governments currently offer a variety of grant programs, property tax benefits, and
incentives for small wind projects, with more programs likely in the works.xii

       Additionally, Colorado is one of at least 29 states that have enacted a statewide
Renewable Portfolio Standard (“RPS”) mandating that utilities purchase certain
percentages of renewable energy to compliment their current use of coal, natural gas, and
non-renewable energy sources. First passed by voter referendum as Amendment 37 in
2004, Colorado’s RPS currently mandates an incremental increase in renewable energy to
20% by 2020 for Investor-Owned Utilities (“IOUs”), and 10% by 2020 for rural electric
cooperatives.xiii As this article goes to press, The Colorado legislature is considering a

far-ranging bill that, among other provisions, extends the RPS to 30% in Colorado.
Congress is also considering a national renewable energy standard as part of a
comprehensive climate change bill.xiv


        Issues swirling around national wind energy projects at Cape Wind in
Massachusetts, Altamont Pass in California, and Wabaunsee County, Kansas typify the
political, social, legal and environmental complications in converting wind energy ideals
to actuality.

        Once slated to become the first off-shore wind development in the United States,
Cape Wind was proposed to include 130 wind turbines with 420 foot high rotor blades
spread across approximately 26 miles of Horseshoe Shoals in Nantucket Sound, an area
known for its historic and tourist resources as well its wealthy and famous occupants.xv
The turbines would be placed directly in the middle of a popular commercial fishing and
sailing area and would be clearly visible from the shores of Nantucket Island.xvi Despite
its potential to provide 75% of the energy needs for Cape Cod and the nearby islands and
to offset nearly one million tons of carbon dioxide, Cape Wind has drawn fire from
environmental groups, neighboring landowners, and high-ranking politicians.xvii Cape
Wind has been embroiled in at least three different lawsuits alleging adverse impacts to
everything from avian and aquatic wildlife to navigation, fisheries operations, tourism,
viewsheds, and property values.xviii Despite an originally projected operation date of
2005, as of December 2009, construction on Cape Wind has not yet commenced.xix In
addition to these issues, the controversy over Cape Wind is complicated by the lack of a
clear siting authority, as several federal, state, and local agencies compete to assert
jurisdiction over various aspects of the project.xx

        In contrast, the Altamont Pass Wind Resource Area (“APWRA”) controversy
concerns one of the oldest (circa 1982) operating wind energy facilities in the United
States. Housing 5,400 wind turbines, the APWRA project is often disparaged as the
nation’s most poorly sited wind energy facility due to its enormous impacts on avian
wildlife.xxi Located in one of the most heavily used flyways for birds of prey in North
America, it is estimated that the turbines at APWRA kill thousands of birds each year,
many of which are relatively rare, and/or protected by federal and state laws.xxii Several
legal actions have been filed by a variety of organizations attempting to enforce these

        Closer to Colorado, concerns over the potential impacts of several large-scale
wind developments recently prompted the Board of Commissioners of Wabaunsee
County, Kansas to impose an outright ban on commercial wind energy installations
across 791 square miles of mostly private land in the central part of the state.xxiv In what
is being called the “prairie rebellion,” several environmental groups and hundreds of
local landowners raised concerns that numerous wind developments planned on private
land in Wabaunsee County would result in substantial damage to the area’s rural

character, would harm the federally threatened lesser prairie chicken, and would degrade
the Flint Hills, one of North America’s last remnants of native tallgrass prairie.xxv In
November of 2009, the Kansas Supreme Court unanimously upheld the ban, citing the
county’s right to protect the “undisturbed vistas of their wind-swept countryside.”xxvi As
the ban effectively terminated several planned wind developments on private lands,
arguments are scheduled for January 2010 to determine whether the ban constitutes an
illegal taking without just compensation.xxvii

        The controversies surrounding Cape Wind, APWRA and in particular Wabaunsee
County highlight the importance of care and diligence in siting wind energy facilities, and
the associated legal, financial, and environmental consequences. Although arising under
diverse circumstances, these controversies set the framework for reviewing similar
concerns arising here in Colorado.


    Environmental Considerations under Federal Law

        Despite generally being considered more “environmentally friendly” than
traditional energy sources, wind energy resources have their share of environmental
impacts. For example, like any other new construction project, wind energy facilities
require new roads and tower pads in undisturbed areas; can trigger storm-water runoff
concerns; may adversely impact or destroy wetlands areas; and often trigger hazardous
material handling issues. In siting wind energy facilities, developers must chart sensitive
ecological resources and configure the project to adhere to legal authority governing
impacts to these resources. Below is an overview of environmental laws pertaining to the
impacts of wind energy development – again focusing on projects not predominantly
located on federal lands.

           o National Environmental Policy Act

        The National Environmental Policy Act of 1970 (“NEPA”) is a procedural statute
requiring federal agencies to consider the environmental impacts of their proposed
actions before making decisions.xxviii NEPA is required for all “federal actions”
“significantly affecting” the “human environment.”xxix In the context of wind energy
projects, even where the turbines are not actually on federal land, NEPA may be triggered
where a project:

      Receives federal fundingxxx

      Requires a right-of-way or special use permit from a federal land management

      Needs to interconnect with a federal power authority transmission line or
      substationxxxii, such as the Western Area Power Administration (“WAPA”)

      Enters into a power purchase agreement with WAPAxxxiii

      Requires a permit under the federal Clean Water Actxxxiv

      May impact a federally threatened or endangered speciesxxxv

        Once NEPA is triggered, the environmental review process may last anywhere
from several months for an “Environmental Assessment,” to two years for an
“Environmental Impact Statement,” depending on a number of factors (including the size
of the project and the extent of the potential impacts).xxxvi As a procedural statute, the
NEPA review process only requires a full review of environmental impacts and potential
mitigation measures, but does not require any specific action be taken regarding those
impacts.xxxvii However, if any portion of the NEPA review process is not completed or is
inadequate, concerned citizens may sue to obtain an injunction halting the project and/or
forcing the agency or developer to retrace the NEPA steps.xxxviii For projects impacting
federal lands, the United States Forest Service (“USFS”) and Bureau of Land
Management (“BLM”) have recently completed Programmatic Environmental Impact
Statements, generally evaluating the impacts of a variety of renewable energy
developments.xxxix These documents can be utilized to streamline the NEPA process;
developers may “piggyback” off these documents in preparing individual environmental

           o NEPA “Fast-Tracking”

         In an effort to overcome the lengthy delays in the standard environmental review
process, federal agencies have developed a “fast-tracking” process to expedite and
coordinate environmental review for proposed renewable energy projects. Under
initiatives announced by the Department of the Interior (“DOI”) and the BLM, federal
and state agencies will work together to designate large renewable energy study areas
across western United States.xl Administered by several Renewable Energy Coordination
Offices (“RECOs”), these regional study areas will be evaluated for their renewable
energy generation potential, environmental qualities, presence of sensitive plant or animal
species, and proximity to residential areas, among other factors.xli Renewable energy
developers proposing projects in these study areas receive highest priority in processing
their permitting applications because much of the environmental review process has
already been completed.xlii Currently applicable only to projects on federal lands, the fast-
tracking process may be applied to renewable energy projects on private lands in the

       The current NEPA process can impose substantial delays and costs on an
unsuspecting wind energy developer. Developers often retain specialized advice to help
determine whether NEPA is likely to be triggered by a proposed project, and how to best
proceed with environmental impact studies for a project site.

           o Federal Wildlife Laws

         The development of wind energy facilities has the potential to impact aquatic,
terrestrial, and airborne wildlife. The most common impacts are to bird and bat species
and include collisions, electrocution, habitat removal, habitat fragmentation, and

displacement.xliv It is estimated that approximately 10,000 to 40,000 birds are killed each
year by the wind turbines currently operating in the United States.xlv In comparison,
approximately 60 to 80 million bird deaths each year are attributed to motor vehicles, and
40 to 50 million deaths are attributed to impacts collisions with communication towers.xlvi
While these numbers tend to downplay the impact of wind turbines on birds, wind energy
projects are still much more likely to kill threatened or endangered species than vehicle
collisions.xlvii Despite the threat to birds posed by wind energy development, several
national environmental organizations, including the Audubon Society, have stated their
support for the expansion of the wind energy industry under certain conditions.xlviii

       While the national debate continues about the policy tradeoffs of expanding wind
development despite avian mortality, the question here is the overall legal constraints
faced by a wind developer in Colorado. The following is an overview of wildlife laws
and regulations most relevant to wind energy development in this state.

                       Endangered Species Act

        Arguably the most stringent of the federal environmental laws, the Endangered
Species Act (“ESA”) provides for the conservation and protection of endangered and
threatened species and their ecosystems.xlix Colorado currently provides habitat for at
least three species of endangered birds, the Whooping Crane, Least Tern, and Southwest
Willow Flycatcher, and two threatened birds, the Piping Plover and the Mexican Spotted
Owl.l The endangered Black-Footed Ferret and the threatened Prebles Meadow Jumping
Mouse are also listed in Congress intended that endangered species be given
the highest priority under the ESA, and thus courts readily grant injunctive relief for
violations of the ESA, notwithstanding the potential costs involved.lii

        The ESA has three provisions most applicable to the construction and operation of
wind energy facilities. Section 9 of the ESA prohibits any person from “taking”
endangered or threatened species, which includes harming a listed species, or harassing a
listed species by significantly disturbing normal behavior patterns, such as breeding,
feeding or sheltering.liii Thus, where development of a wind energy project site or
operation of the turbines harms or harasses a protected species, wind energy developers
may be subject to stiff penalties and possibly an injunction halting the project. While
Section 10 of the ESA allows the FWS to issue “incidental take” permits, allowing
certain activities to proceed despite the potential for harm to a species, these permits are
not easily obtained.liv

           Section 7 of the ESA requires that all federal agencies insure that their actions not
jeopardize the continued existence of any endangered or threatened species or result in
the destruction or adverse modification of designated critical By way of
example, then, wind energy projects are affected where the project requires a federal
approval,lvi utilizes federal funding,lvii or involves a connection to a federal transmission

        Although the exact definition of “federal action” under the ESA is subject to
varying court interpretations, agency consultation is typically warranted even for smaller-
scale wind energy projects. As mentioned, Section 9 of the ESA is a strict liability
provision that does not require intent or knowledge of a violation. Further, as discussed
below, Colorado regulations require consultation with the Colorado Division of Wildlife
(“CDOW”) for all wind projects seeking to sell power to regulated utilities. Thus,
consultation with the FWS and CDOW prior to commencing a project is the most
effective way for wind project developers to avoid costly delay and coordinate the
sequence and timing of its activities, a pivotal part of the planning process.

                          Migratory Bird Treaty Act

        The Migratory Bird Treaty Act (“MBTA”) establishes protections for birds
migrating through U.S. airspace. The MTBA protects over 800 species of birds, many of
which are found in Colorado.lix The MTBA makes it illegal to take, capture or kill
migratory birds and imposes fines up to $15,000 or imprisonment on “any person,
association, partnership, or corporation” who violates its provisions.lx The MTBA is
distinct from the ESA because it protects migratory bird species that are not necessarily
threatened or endangered. Like the ESA, knowledge or intent is not required for liability
to attach under the MTBA.lxi Thus, the MTBA is a strict liability statute and does not
provide for incidental take permits to cover accidental impacts from a wind energy

        Several aspects of wind development may be subject to the MTBA provisions,
including site clearing, construction of towers to gather metrological data, and wind
turbine operation. Because the MTBA is implemented and enforced by the FWS,
consultation regarding the ESA and MTBA can often be completed concurrently.
Consultation will typically include an analysis of potential impacts of proposed wind
projects on bird species protected under the MTBA.

                          Bald and Golden Eagle Protection Act

        The Bald and Golden Eagle Protection Act (“BGEPA”) was passed in 1940 to
prevent the extinction of the bald eagle, and was amended in 1962 to include protection
of golden eagles.lxii The BGEPA makes it unlawful to “take” any bald or golden eagle,
their parts, nests or eggs by shooting at, poisoning, wounding, killing, capturing,
trapping, collecting, molesting, or disturbing the eagles.lxiii Although the bald eagle was
removed from endangered and threatened species list in July of 2007, it still receives
protection under the BGEPA.lxiv The BGEPA imposes substantial fines or imprisonment
for violations of the Act’s provisions.lxv

         Like the ESA and the MTBA, provisions of the BGEPA apply to nearly all
aspects of a wind energy project, including site clearing, gathering of meteorological
data, and construction and operation of wind turbines. While a “take” permit is available
to move a golden eagle nest in order to prevent harm to the nest or eggs, the BGEPA is a
strict liability statute and does not provide exceptions for accidental impacts from wind

projects.lxvi The BGEPA is implemented and enforced by the FWS, and consultation
regarding the impacts of a particular wind project can be completed concurrently with the

               o Other Wildlife Considerations: Sage Grouse

        Arguably one of the greatest wildlife concerns for western wind developers is the
sage grouse. A chicken-like land bird, the sage grouse relies on sagebrush habitat in the
west’s flat windy plains for shelter and food.lxvii Unfortunately, many of the west’s “core
sage grouse areas” are also prime locations for wind energy development.lxviii The
conflict between wind development and sage grouse protection has been most prominent
in south-central Wyoming, where dozens of large-scale wind projects are proposed
among roughly 14 million acres of “core sage grouse areas.”lxix Following an
announcement from the FWS that it is considering listing the sage grouse as endangered
under the ESA and would look unfavorably upon any wind power project built in a core
sage grouse area, many wind developers have stalled or cancelled their projects in those
regions.lxx Colorado is home to two species of sage grouse, the Greater Sage Grouse and
the Gunnison Sage Grouse.lxxi While the Greater Sage Grouse is legally hunted in several
parts of the state, the Gunnison Sage Grouse is a candidate for listing under the ESA and
is located in isolated sagebrush plains in south-central Colorado.lxxii

               o Water and Wetlands Laws

    The federal Clean Water Act (“CWA”) regulates all discharges into the “waters of the
United States,” a term which has been interpreted over the years to include rivers, lakes,
wetlands, intermittent streams, fens, ditches, swales, and any significant tributary to these
water bodies.lxxiii Additionally, any action that may result in a discharge of dredge or fill
material into wetlands requires a Section 404 permit from the Army Corp of Engineers
prior to commencing action.lxxiv Typical wind energy project actions requiring a CWA
Section 404 permit include clearing and grading, construction of access roads, culvert
replacements, or road or bridge improvements. The CWA also regulates the stormwater
discharges and requires permits for runoff from construction activities and possibly for
the operation of the wind energy facility itself.lxxv

        Interference with Air Traffic, Radar and Communication Towers

       Since wind turbines and their associated meteorological towers often extend
hundreds of feet into the sky, the siting process must include considerations for impacts
far above ground level. Beyond restrictions integrated into local land use rules, wind
developers must comply with federal regulations implemented by the Federal Aviation
Administration (“FAA”), the Department of Defense (“DOD”), and the Federal
Communication Commission (“FCC”).lxxvi

        The FAA has jurisdiction over any object that may interfere with navigable
airspace or communications technologies used in air travel operations.lxxvii For any
structure extending higher than 200 feet above ground level, and some lower structures in

close proximity to runways, the FAA requires a developer to file a Notice of Proposed
Construction (“NPC”) prior to breaking ground on the development.lxxviii The NPC will
also include a plan for affixing appropriate marking and lighting to all applicable
structures. After receiving an NPC the FAA will conduct a study to determine whether
the proposed action will create a hazard to navigable airspace, and issue a Determination
of No Hazard (“DNH”) or a Notice of Proposed Hazard (“NPH”).lxxix The issuance of an
NPH may result in a costly process of negotiation and appeal with the agency.

        Pursuant to a Congressional mandate, the Department of Defense (“DOD”) has
released a study detailing the effects of wind turbines on both civilian and military radar
systems.lxxx The report found that wind farms located within the line-of-sight between
radar equipment and an air defense facility may impair the effectiveness of the radar
systems. The impact is caused by the mere presence of the turbine structures and the
rotational movement of the blades, causing “shadowing” effects due to “clutters” of
turbines.lxxxi The report notes that the precise magnitude and extent of the impacts are still
somewhat unknown, and vary dramatically by location and number of turbines.lxxxii
While a study of the effects of a wind project on radar are usually included in the FAA
NPC study,lxxxiii wind developers should consult with the DOD or the National
Telecommunications and Information Administration (“NTIA”) early in the siting

        Historical and Cultural Resource Laws

       Many rural lands suitable for wind energy development house valuable and
protected historical, cultural, tribal, and paleontological resources. The following is an
overview of historical and cultural laws relevant to wind energy development.

               o National Historic Preservation Act

        The National Historic Preservation Act (“NHPA”) provides for the protection,
rehabilitation, restoration and reconstruction of “districts, sites, buildings, structures, and
objects significant in American history, architecture, archaeology, or culture.”lxxxiv The
NHPA requires the head of any Federal agency to consider the effects of agency
decisions on properties on, or eligible for listing on the National Register of Historic
Places, prior to the issuance of funding or approval of permits.lxxxv Under Section 106 of
the NHPA, federal agencies must consult with a state’s Historic Preservation Officer
(“SPHO”) or Tribal Historic Preservation Officer (“THPO”) to determine a project’s
potential effect on historic and cultural resources of state and tribal significance. Wind
energy developers may be required to sponsor studies necessary to assist a federal agency
in determining whether a project may affect historic properties or cultural resources that
qualify for listing in the NRHP.lxxxvi

       Although sometimes overlooked in the selection of a project site, wind developers
should be aware of protected historical or cultural resources in order to avoid
enforcement actions and costly delays. What appears at first glance to be a dilapidated
old barn might well be a protected resource!

        Electricity Transmission Issues

        There is a general consensus that the greatest limiting factor for all renewable
energy development is access to transmission so that energy can be transported to
consumers. This is a rapidly evolving area, and any detailed discussion of issues
associated with transmission is beyond the scope of this article. Generally, the two
greatest problems with transmission for renewable energy are physical access to
transmission lines and a lack of capacity on the current grid system.lxxxvii For wind energy
this problem is compounded by the fact that the wind blows intermittently, and wind
power cannot yet be stored efficiently.lxxxviii Thus, energy from wind facilities must be fed
into the grid and can only be used when it is immediately available.

        Federal law generally governs the siting of electric transmission lines, although
that authority is currently being challenged in court.lxxxix The 2005 Energy Policy Act
(“EP Act 2005”) empowered the Department of Energy (“DOE”) to create “national
interest electric transmission corridors” and gave the Federal Energy Regulatory
Commission (“FERC”) authority to site transmission projects when states did not act on a
project within one year.xc The EP Act 2005 also required DOE and DOI to create western
energy corridors to fast-track siting of transmission corridors and other energy
infrastructure, and the energy corridor plan is being challenged in court as well.xci The
Colorado Governor’s Energy Office recently released a detailed report outlining
Colorado’s renewable energy related transmission needs going forward.xcii

        While siting wind facilities in close proximity to transmission lines is an obvious
necessity, developers must also be sure to acquire transmission capacity on the grid as
well. In Colorado, the Western Area Power Administration (“WAPA”) provides a
website where developers can apply for interconnection to the transmission grid as well
as monitor available capacity.xciii


        Many states blessed with wind resources have now implemented comprehensive
statewide siting policies for wind energy facilities.xciv Colorado, however, continues to
site these facilities through a combination of county or municipal land use, planning, and
zoning administrations and a diverse group of state permitting agencies. While a federal
siting authority may be created in the near future, a hodge-podge of state and local land
use laws and policies currently govern the location and approval processes for wind
energy facilities in Colorado.

        Colorado Wildlife Regulations

        The Colorado Public Utilities Commission (“PUC”) has promulgated regulations
to address the impact of renewable energy resources on wildlife. For renewable energy
projects larger than two megawatts with wind turbine structures greater than 50 feet in
height, project developers are required to provide documentation showing consultation
with CDOW and FWS regarding the project’s impacts on state and federally listed

                                           - 10 -
wildlife species, as well as species and habitats of concern.xcv Further, prior to achieving
commercial operation, developers of these projects must certify that the developer has
performed and made publicly available site-specific avian and other wildlife surveys
conducted on the proposed site.xcvi The developer must also certify that the results of
these surveys were used in the design, placement, and management of the project to
ensure minimal impacts to state and federally listed species and species of special
concern, sites shown to be local bird migration pathways, critical habitat and areas where
birds or other wildlife are highly concentrated or are considered at risk.xcvii These
regulations will likely undergo revision later in 2010.xcviii

        Thus, wind energy developers should be aware that mitigating the potential
impact to wildlife of the project cuts across several regulatory schemes and requires
integrated planning and sequencing of regulatory approvals. While some of these impacts
can be mitigated by utilizing certain technologies, locating wind developments away
from known habitats and heavily used migration zones remain the most effective method
of avoiding impacts to protected wildlife species. Several useful wildlife maps are
available to aid wind developers in finding project sites that best balance these various

        Conflicts with Oil and Gas Development

        Attorneys and rural landowners in Colorado are all too familiar with the legal
issues associated with the split in ownership between the underlying mineral estate and
the surface owner. Under this regime, mineral estate owners have a right to a reasonable
use of the surface to access their minerals, often to the detriment of the surface occupant.c

         Some of the risks to wind energy proponents from oil and gas developments are
obvious, while others are less apparent. The most obvious risk to a wind energy
development is that an oil and gas developer will decide to drill or place equipment
where wind energy infrastructure is planned or currently exists. While the relatively small
footprint of the turbines allows some flexibility in placement, the siting of transmission
lines is harder to readjust, as is the location of oil and gas infrastructures such as tank
batteries or Further, the placement of oil and gas equipment upwind of
turbines has the potential to dramatically affect the quality of the wind resource.cii

        Colorado law requires notification of owners of severed mineral rights prior to the
first hearing on development of the overlying surface. ciii Owners can be identified from a
search of public records and notice must be sent by first class mail at least 30 days before
the date scheduled for the first public hearing.civ Wind developers should begin
identifying oil and gas interests early to avoid lengthy and costly delays down the road.

        Colorado Historic Preservation Laws

        Even where no federal funding or permits are required, wind energy developers
must consult with the Colorado SHPO to determine whether a proposed project will
affect properties listed on the state’s historic properties Similar to federal

                                           - 11 -
actions under the NHPA, any development receiving state funding or permitting
approval, which may adversely affect a property fifty or more years old, requires an
assessment by the Colorado State Historic Society of whether the property is of historical
significance and potential impacts.cvi


        One or more local approvals and/or state permits are necessary for nearly all wind
energy projects. Often overlooked, this step is most critical because local authorities
usually exercise the greatest level of control over the specifics of the project and hold the
authority to approve or deny its overall construction. In Colorado, permits typically
required for a wind energy development include:

               o County Conditional or Special Use Permits
               o County Building Permits
               o County Septic System Permits
               o State of Colorado Storm Water Permit (Construction)
               o State of Colorado Dust Control Permit (Construction)
               o State of Colorado Highway Access & Encroachment Permit (Tower
                 and blade transportation)
               o State of Colorado Water Well Permit (For office or other structures)

        Though procedures will vary throughout the state, most projects will need at least
a conditional or special use permit, a building permit and a road permit. Many county
zoning ordinances allow for “Wind Energy Conversion Systems” (“WECS”) as
conditional uses in agricultural or industrial districts, and account for WECS in their
comprehensive or master plans. Typically, wind developers must demonstrate that a
project will be consistent with the master plan and surrounding land uses, and can meet
the general height and setback requirements. Kit Carson, Yuma counties in Colorado
have for example, has recently drafted comprehensive zoning regulations governing wind
energy facilities. These regulations lay out a host of requirements such as pre-
development site plans, utility interconnections, size, location and number of turbines,
setbacks from roads and inhabited structures, environmental and public health
considerations, and decommissioning procedures.cvii These regulations often raise thorny
issues surrounding the staging of wind project approvals, as many projects unfold as a
series of windfarms rather than a single construction event.


        Impacts to Neighboring Landowners

        As with most new developments, proponents must consider the project’s impact
on neighboring landowners as well its overall standing in the court of public opinion. The
importance of neighboring landowner concerns should never be underestimated,
particularly where a local land use approval is required. Along with opposition from
environmental and wildlife groups, lawsuits brought by neighboring landowners are the

                                           - 12 -
most common form of opposition to wind farms, although they have achieved mixed
success.cviii The following is a summary of common concerns voiced by neighboring
landowners, and associated legal issues.

               o Visual and Aesthetics

        Visual and aesthetic concerns are some of the most commonly litigated issues
stemming from the construction and operation of wind projects.cix Federal, state and local
governmental agencies often require a formal assessment of the visual compatibility of
the wind farm with the surrounding These assessments typically include a
study of the extent of the proposed wind farm’s adverse visual impacts on historic
properties or important vistas, and the extent to which the proposed wind farm is
consistent with applicable laws, regulations and comprehensive plans.cxi Although visual
and aesthetic issues are inherently subjective, the BLM has devised a system for
quantifying scenic values to determine the impact of various types of developments on
federal lands.cxii It provides very useful guidance for gauging visual impacts of wind
farms, even if located on private lands.

               o Shadow Flicker, Ice Throw, and Noise

        The term “shadow flicker” is used to describe the effect of the sun striking
moving wind turbines at a certain angle, casting flickering shadows up to two kilometers
from the turbine.cxiii Though typically lasting less than twenty minutes (the first moments
of sunrise and last moments of sunset), shadow flicker has been raised as a concern in
lawsuits brought against wind energy facilities.cxiv Computer modeling software is now
available to help map the extent of shadow flicker on neighboring properties.

        Wind turbines also pose the risk of accumulating ice at certain temperatures with
high humidity, and under the right conditions can shed ice fragments hundreds of meters
from the tower. The risk of wind turbines shedding ice is usually limited to the area
immediately beneath the turbine and therefore the risk of ice impacts can be mitigated by
locating turbines away from any occupied structure, road, or public use area.cxv
Nevertheless, the risk of ice throws has been cited as an issue in litigation against wind

         The noise generated by the rotating blades and moving parts of wind turbines is a
cause for concern among neighboring landowners. Engineers have made dramatic strides
towards lowering noise impacts in modern wind turbines; fortunately, much of the sound
generated by modern wind facilities is now masked by the whistle of the wind itself.cxvii
Still, the sound produced by modern turbines has been described as somewhere between a
quiet bedroom and a car traveling at 40 mph from 100 meters, and the persistent
“swooshing” noise has been raised in several lawsuits against wind development
projects.cxviii Just as setbacks can mitigate shadow flicker and ice throw, strategic
positioning from residences can aid in eliminating noise generation concerns.

                                           - 13 -
               o Common Law Actions: Nuisance

        When neighboring landowners cannot mitigate their concerns about a wind
energy project through negotiated solutions, many have resorted to common law nuisance
actions. While no there is no reported case law addressing nuisance claims for wind
projects in Colorado, cases from other states demonstrate that wind developers must
make a conscious effort to avoid or mitigate the effects of turbine noise on residential

        One of the earliest nuisance claims against a wind energy project involved just a
single turbine.cxix In Rose v. Chaikin, the court found that the sustained 50 decibel noise
produced by the turbine was offensive and constituted an actionable nuisance,
particularly where the turbine was located in a residential neighborhood where occupants
were accustomed to the sounds of “the sea, the shore birds, [and] the ocean breeze.”cxx
Notably, in balancing the social utility of the turbine as a source of clean, renewable
energy against the health and comfort of the plaintiffs, the court found the use of the
turbine to be “unreasonable” and not a substantial social utility.cxxi Ten years later,
however, a court in North Dakota found that a single wind turbine did not constitute an
unreasonable interference with the plaintiff’s use and enjoyment of their property despite
creating sustained noises between 50 and 69 decibels and being located forty feet from
plaintiff’s house.cxxii

         Although manufacturers have made great strides in reducing the sound produced
by wind turbines in the decades since these cases were decided, private nuisance actions
against wind energy projects are still popping up. In one particularly contentious case,
seven homeowners in West Virginia sued to enjoin the construction of a 200 wind turbine
facility, claiming that the operation would produce offensive levels of noise; create
shadow flicker; pose a danger from broken blades, ice throws, and collapsing towers; and
lower property values.cxxiii

        The Supreme Court of West Virginia sided with the landowners, finding their
allegations sufficient to state a claim to prospectively enjoin a nuisance.cxxiv The Court
found that under West Virginia law, the “unusual and recurring noise” of wind turbines,
when located in a residential district, constitutes a cognizable nuisance.cxxv Further, the
Court found while “unsightliness” alone rarely justifies a nuisance suit, an unsightly
activity may be actionable when it occurs in a residential area and is accompanied by
other nuisances.cxxvi Finally, the Court found that plaintiffs may recover for diminution in
property values resulting from an activity that creates interferences with the use and
enjoyment of their property.cxxvii

         By contrast, a Texas appellate court recently rejected a similar nuisance claim on
the grounds that the plaintiffs’ “emotional response” to a wind energy project did not
constitute a nuisance.cxxviii In response to the developer’s plans to construct a 400-turbine
wind energy project on 47,000 acres of land, a group of neighboring landowners brought
suit alleging the development would adversely affect their viewsheds and way of life.cxxix
The court found that aesthetics, projected decreases in property values, and other fears

                                            - 14 -
associated with the wind development were not sufficient to constitute a nuisance, stating
“[i]f Plaintiffs have the right to bring a nuisance action because a neighbor’s lawful
activity substantially interferes with their view, they have, in effect, the right to zone the
surrounding property.”cxxx

                  o General Nuisance Cases in Colorado

        In Colorado, as in most other states, a private nuisance is defined as unreasonable
negligent or intentional interference with another’s use and enjoyment of his real
property, and is so substantial that it is offensive or causes inconvenience or annoyance to
a reasonable person in the community.cxxxi A public nuisance, on the other hand, is an act
or omission that injuriously affects the safety, health, or morals of the public or works
substantial annoyance, inconvenience, or injury to the public.cxxxii Generally, distress
arising out of physical discomfort, irritation, or inconvenience caused by odors, pests, and
noise are recoverable under Colorado nuisance law.cxxxiii

         Case law dealing with private nuisance actions for noise is relatively sparse in
Colorado.cxxxiv However, for public nuisance claims, Colorado has established maximum
noise levels by statute, and Colorado courts have found a public nuisance where noise is
generated in excess of the statutory limits, as measured near the property boundary
line.cxxxv On the issue of viewsheds and aesthetics, Colorado law is generally in accord
with other jurisdictions in finding that a loss of view does not, by itself, make a structure
a nuisance.cxxxvi


       The demand for wind energy development seems destined to accelerate at a
substantial pace over the next few years. Eventually, comprehensive state and federal
regimes may be established to create a streamlined siting process in Colorado and/or
nationwide. In the meantime, it is clear that the successful siting of these facilities
requires diligence and planning in order to navigate the complex legal, political,
ecological and social issues involved.

   “New Energy Economy” is a phrase coined by Governor Ritter during his first gubernatorial campaign in
2006. It is sometimes used to describe the transition to renewable energy production as a means of energy
independence, environmentalism, and job creation, see; Karen Crummy and Allison Sherry Obama Signs
Stimulus Bill, The Denver Post, February 18, 2009, available at
    Id.; American Council on Renewable Energy (ACORE), Overview: Renewable Energy Provisions:
American Recovery and Reinvestment Act of 2009, available at
     Allison Sherry, Obama: We are Remaking the American Landscape, The Denver Post, February 17th,
2009, available at
    Joel Kirkland, Stimulus Package Slowly Pushes Wind Industry Out of the Doldrums, ClimateWire,
October 21, 2009.
    While much of this paper is equally applicable to siting wind facilities on federal or state lands, certain
issues involving projects on public lands are best suited to full discussion in a separate article. Further,

                                                    - 15 -
negotiating an agreement with a private landowner is a substantial aspect of siting wind energy facilities,
and is also best given separate treatment.
    As of June 27, 2009. See American Wind Energy Association (“AWEA), Resources, Projects, Colorado, (last visited December 6, 2009).
     United States Wind Energy Atlas, (last visited October 15, 2009).
     AWEA website, supra, note 6.
     Federal Wind Energy Siting Center, Colorado Wind Resources Map, (last visited October 15, 2009).
   For the full text of ARRA, see (last visited October 15, 2009).
    Under the ARRA, wind project developers may choose between the PTC, ITC or a cash grant, depending
on the project’s total energy capacity and size. See Mark Bolinger et. al, PTC, ITC or Cash Grant? An
Analysis of the Choice Facing Renewable Power Projects in the United States, National Renewable Energy
Laboratory, March 2009. There is an option to convert the ITC into a grant for qualifying projects placed
into service before 2013, which eliminates the need to sell tax credits in an unfavorable market. See Wind
Industry Update: The impact of the American Recovery and Reinvestment Act, Green, Manning and Bunch
Investment Banking, 2 (Feb. 2009).
     See Colorado Incentives for Renewable Energy, Database of State Incentives for Renewables &
Efficiency (“DSIRE”), (last
visited October 12, 2009). In a seminar held at Davis Graham & Stubbs on March 5, 2009 discussing the
effect of the ARRA on renewable energy development in Colorado, GEO representatives noted that more
grant funding will likely become available as the United States Department of Energy begins delivering
funding from the ARRA to the states.
     Colorado Renewable Energy Standard, DSIRE,
eID=1&RE=1&EE=1 (last visited October 12, 2009).
     See e.g., Sens. Boxer, Kerry Brace for Delicate Talks as Climate Bill Emerges Today, (September 30,
2009), available at,
    See Alliance to Protect Nantucket Sound, Inc. v. U.S. Dep’t of the Army, 288 F. Supp. 2d 64, 68 (D.
Mass. 2003), aff’d 398 F.3d 105 (1st Cir. 2005).
     For a good discussion of these issues, see Iva Ziza, Siting of Renewable Energy Facilities and
Adversarial Legalism: Lessons from Cape Cod, 42 New Eng. L. Rev. 591, 595 (2008).
     See Cape Wind website,
    Supra note 5, at 608-11, 613-29, see also Annie Jia and Evan Lehmann, Cape Wind Enters Into
Agreement With Power Purchaser, ClimateWire, December 03, 2009 (noting Cape Wind’s “8-year
permitting slog”).
     See e.g. Fact Sheet on Altamont Pass Bird Kills, Center for Biological Diversity,,
citing California Energy Commission, A Roadmap for PIER Research on Avian Collisions with Wind
Turbines in California, CEC Energy Related Environmental Research (December 2002).
       See e.g. Kerncrest Audubon Society v. City of Los Angeles, 2007 WL 2208806 (Cal. Ct. App. Aug. 2,
2007); Center for Biological Diversity, Inc. v. FPL Group Inc., 2006 WL 2987634 (Cal. Super. Ct. Oct. 13,
       See Scott Streater, Wind Industry Faces “Prairie Rebellion” in Kansas County, Land Letter, November
5, 2009.
       See Wind Power: Kan. Supreme Court upholds ban on commercial farms, Greenwire, November 2,
        See 42 U.S.C. 4321 et. seq. (2006).

                                                  - 16 -
       See 42 U.S.C. §4332(2)(c) (2006); Kleppe v. Sierra Club, 427 U.S. 390, 421 (1976) (Marshall, J.
      50 C.F.R. § 1508.18(a) & (b) (2007).
         AWEA Siting Handbook, supra note 23, at 4.1.1.
          See e.g. Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989).
          See 42 U.S.C. §6972 (2006).
         BLM Energy Corridor PEIS,; USFS Record of Decision on Energy
Corridors in 10 Western States, available at (last visited October 23, 2009).
     The first of these renewable energy study areas is for solar energy, with wind likely to follow in the near
future. See Solar Energy Study Areas, available at:
     See, U.S. DOI Fast-Tracking Initiatives for Solar Energy on Federal
Lands, available at:
       For instance, the State of California and the DOI have entered into a Memorandum of Understanding to
fast-track all renewable energy projects in the state by creating a Renewable Energy Policy Group
(“REPG”) to oversee and coordinate the permitting processes of all involved federal and state agencies.
The goal of the MOU is to put qualifying projects on track to begin construction before ARRA’s December
1, 2010 deadline to qualify for grants and incentives. See Memorandum of Understanding Between the
State of California and the Department of the Interior on Renewable Energy, available at,
       American Wind Energy Association, Wind Energy Siting Handbook, 5.1 (Feb. 2008), available at, [hereinafter
AWEA Siting Handbook].
      Id. at
         See Michelle Nijhuis, Alternative Energy: Selling the Wind, Audubon, Sept./Oct. 2006, available at (last visited October 19, 2009) (wildlife organization
supporting wind power along with more research on bird/bat impacts, better project planning and more
stringent oversight of project approval); see also Carl Levesque, For the Birds: Audubon Society Stands Up
in Support of Wind Energy (December 14, 2006) available at,
in-support-of-wind-energy-46840 (last visited October 19, 2009).
       See 16 U.S.C. § 1531(b) (2006).
   See Colorado Division of Wildlife Threatened and Endangered Species List, available at
AndEndangeredSpecies.htm (last visited October 23, 2009).
     See e.g. Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978) (ESA prohibited the completion of virtually
finished dam which, if completed, would eradicate population of protected fish species).
     See 50 C.F.R. §17.3 (2007).
     See 16 U.S.C. §1539(a)(1)(B) (2006).
     See 16 U.S.C. §1538(a)(1)(B).
     16 U.S.C. §1536(a)(2).
     See 50 C.F.R. §10.13 (2007).

                                                    - 17 -
   16 U.S.C. § 707(a) (2006).
     AWEA Siting Handbook, supra note 23, at
      16 U.S.C. §668 et. seq. (2006).
       See AWEA Siting Handbook, supra note 23, at
     16 U.S.C. 668(a).
        Scott Streater, Wind Power Industry Retreating from Wyo., Citing Grouse Concerns, Greenwire, August
6, 2009.
       See Colorado Department of Wildlife website,
        See Colorado Department of Wildlife website,
        33 U.S.C. 1251 et. seq (2006). The exact definition of “waters of the United States” is constantly
evolving. For a good discussion, see Stephen Louthan and Steve Dougherty, EPA and Corps Guidance on
Clean Water Act Jurisdiction, 37 The Colorado Lawyer 1 (January 2008).
        33 U.S.C. §1344 et. seq. (2006).
       33 U.S.C. §§1342(p) (2006).
        See, e.g. 47 C.F.R. 15 (2009).
         FAA Form 7460-1, available at,
        See 14 C.F.R. 77.1 et. seq. (2007).
      Office of Director of Defense Research and Engineering, Report to the Congressional Defense
Committees: Effect of Windmill Farms on Military Readiness (September 27, 2006), available at,
          AWEA Siting Handbook, supra note 23,
         See 16 U.S.C. §470(a)(1)(A) (2006); 36 C.F.R. 800 et. seq. (2007).
         16 U.S.C. §470b(a).
         AWEA Siting Handbook, supra note 23, at
          See e.g. Alborz Nowamooz, Inadequacy of Transmission Lines: A Major Barrier to Development of
Renewable Energy, 3 Envt’l & Energy L. & Pol’y J. 176 (Summer 2008).
           See e.g. Steven Ferrey, Law of Independent Power §2.1 (21st ed. 2007) (wind subsection); National
Renewable Energy Laboratory, Energy Storage and Wind Power, (last visited October 23, 2009).
         See Piedmont Environmental Council v. Federal Regulatory Commission, 558 F.3d 304 (4th Cir.
2009) (environmental organizations, utilities, and states challenge FERC’s authority to issue permits for the
construction of transmission facilities).
    See Katherine Ling, Supreme Court Asked to Review Ruling on FERC Transmission Siting, Greenwire,
September 30, 2009.
      See Renewable Energy Development Infrastructure (REDI) report, December 2, 2009, available at,
       WAPA Open Access Same-time Information System,
       See e.g. Minnesota Public Utilities Commission, Wind Turbine Siting, (last visited October 15, 2009); Michigan Wind Energy
Siting Guidelines
      4 Colo. Code Regs. §723-3656(b) (2007).
        4 Colo. Code Regs. §723-3656(c).

                                                   - 18 -
      Conversation with Celia Greenman, Northeast Energy Coordinator for the Colorado Department of
Wildlife. See Docket No. 08R-424E, Decision No. R08-1148-I, available at (last visited October 23, 2009).
     See e.g. Natural Resources Defense Council Renewable Energy Siting Tool, (last visited October 23, 2009).
   See e.g. Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913 (Colo. 1997) (mineral estate owner may make
reasonable and necessary use of the surface)
    See Becky H. Diffen, Energy From Above and Below: Who Wins When a Wind Farm And Oil & Gas
Operations Conflict?, 3 Tex. J. Oil, Gas & Energy L. 240, 242 (2008).
  See Colo. Rev. Stat. § 24-65.5-103; see also Colorado Oil and Gas Commission
Homepage, (last visited October 19, 2009).
    See 24 Colo. Rev. Stat. §80.1-101 et. seq. (2008).
     24 Colo. Rev. Stat. 80.1-104.
      Kit Carson County Wind Farm Planning Regulations, available at See also , (links to model county ordinances for
Minnesota, Massachusetts, Michigan, Oregon, North Carolina, and Pennsylvania) (last visited October 15,
       See cases below.
     See e.g. Residents Opposed to Kittitas Turbines v. State Energy Facility Site Evaluation Council, 197
P.3d 1153, 1160 (Wash. 2008) (Plaintiffs citing visual effects of wind turbines in opposition to project);
Ecogen, LLC v. Town of Italy, 438 F. Supp. 2d 149, 158 (W.D.N.Y. 2006) (town’s moratorium on
construction of windmills did not violate wind developer’s substantive due process rights because “town
had interest in preserving its aesthetic character”)
    AWEA Siting Handbook, supra note 23, at 5.3.1.
      BLM Visual Resource Management, available at
 (last visited May 6, 2009).
       AWEA Siting Handbook, supra note 23, 5.4.1.
       See e.g. Residents Opposed to Kittias Turbines, 197 P.3d at 1160; Burch v. Nedpower Mount Storm,
LLC, 647 S.E.2d 879, 885 (W.Va. 2007).
      See David Wahl and Philippe Giguere, Ice Shedding and Ice Throw – Risk and Mitigation, GE Energy
(2006), available at
       See Burch, 647 S.E.2d at 885; Bomba v. Zoning Bd. of Appeals of Town of Princeton, 2005 WL
2106162, at *2 (Mass. Land. Ct. 2005) (describing ice chunks up to eight feet long thrown over 300 feet
from windmills).
        British Wind Energy Association, Noise From Wind Turbines: The Facts (2000), available at
       Rose v. Chaikin, 453 A.2d 1378 (N.J. Super. Ct. Ch. Div. 1982).
      Id. at 1382.
       Id. at 1383.
        Rassier v. Houim, 488 N.W.2d 635, 638 (N.D. 1992) (finding that wind turbine did not cause
unreasonable interference with plaintiff’s property because plaintiff purchased property two years after
turbine was constructed, no other neighbors complained of noise issues, and defendant offered evidence of
safety features and structural integrity of wind tower).
        Burch, 647 S.E.2d at 885.
        Id. at 891.
        Id. at 892.
          Rankin v. FPL Energy, LLC, 266 S.W.3d 506, 512 (Tex. App. 2008).

                                                  - 19 -
       Id. at 511.
      Id. at 512.
       Public Service Co. v. Van Wyk, 27 P.3d 377, 391 (Colo. 2001).
        See e.g. Echave v. City of Grand Junction, 193 P.2d 277, 280 (1948).
        Van Wyk v. Public Serv. Co. of Colorado, 996 P.2d 193, 197 (Colo. App. 1999) (overruled on other
        See e.g. Woodward v. Bd. of Directors of Tamarron Ass’n of Condominiums, 155 P.3d 621, 629 (Colo.
App. 2007) (acknowledging noise as a type of nuisance, citing the limited Colorado authority on the
        Colo. Rev. Stat. §25-12-101 et seq.; see also Davis v. Izaak Walton League of America, 717 P.2d 984,
986 (Colo. App. 1985) (interpreting public nuisance under Colorado noise statute in context of firing
        Woodward, 155 P.3d at 628, citing Northwest Water Corp. v. Pennetta, 479 P.2d 398, 400 (1970).

                                                  - 20 -