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A Shift in the Prevailing Winds

Locating new commercial wind developments in Oregon is getting more difficult, not just because the premier locations are now festooned with towers, but because opponents, with the support of local governments, are favoring strict standards on towers over the revenue and green energy they also provide.  On June 29, the Umatilla Board of County Commissioners adopted one of the broadest and most sweeping regulations limiting the location of wind turbines across the state. 

The purpose of the regulation is ostensibly protecting water, air and critical winter deer and elk habitat, but the amendments are directed solely at limiting commercial wind generation activities in areas with generation potential when other agriculture or industrial uses would be permitted. 

In recent years, the Blue and the Wallowa Mountains have become ground zero in a battle over wind.  Although certain areas of Umatilla County provide second tier wind generation locations, arguably the potential is 20% of what it is in areas of Wyoming, the area is attractive to green energy generation folks because its wind capture rate is better in the winter, the opposite of the primary capture rate in the Columbia Gorge where spring winds are optimal.   Meanwhile, opponents have become more sophisticated: rather than relying on difficult to legislate and highly discretionary aesthetic restrictions, they have pursued new clear and objective regulations rooted in minimizing impacts to water quality and wildlife resources, although casting a much larger net.  Putting aside the non-sequitur of assuming wind turbines are a major contributor to soil erosion, impacts to water quality or deer and elk migration habits to a greater extent than any other conditional, industrial-type use that could be permitted in a farm or forest zone, this decision appears largely political and may indicate a sea change by those who are most burdened by renewable power generation.  The Blue Mountain Alliance, a proponent group of residents, submitted a petition containing 3,400 signatures supporting the restrictions on wind power development.

Although the final adopted language has not yet been released, the draft approved by the County Commissioners requires a wind proposal applicant to provide “preliminary information about the application components” at the pre-application meeting.  In other words, investments in creating mitigation, re-vegetation and monitoring plans, emergency management plans, and socioeconomic impact assessments must be done, at least in conceptual form, long before an application is even filed.  Turbine towers can be located no closer than two miles from a city urban growth boundary and at least two miles from all rural residences, unless the “homeowner” consents to a reduced setback.  Turbine towers must be setback from county roads at least 110% of the overall tower height, presumably to protect vehicles from toppling towers, a risk that is not quantified.  The amendment regulations are not limited to towers.  New electrical transmission lines may not be closer than 500 feet to an existing residence, without consent of the “homeowner.”  

In the Walla Walla watershed east of Highway 11, the amendments preclude the location of turbines, transmission lines or access roads on soils identified as highly erodible or within habitats areas designated as Critical Winter Range, where the facility may conflict with an existing Goal 5 resource (including vaguely identified “scenic resources”), two miles from all streams and tributaries that contain threatened or endangered species and result in no runoff into streams.       

As is often the case, there is a battle amongst the experts as to extent to which turbines impact migratory deer and elk populations.  Proponents of the limitations note that elk are highly sensitive to vibrations and would be adversely affected by the addition of new access roads in the area.  The wind industry asserts that there are not actual studies on the impacts of wind generation on big game and that the local biologists elevated big game management requirements to levels that exceed protections for endangered species, a classification that does not include elk and deer.  Certainly roads necessitated by farm or forest uses can continue to be built.  

Cited as pivotal to the Board of County Commissioners support of these amendments were the mutual consent requirements for waiving the two mile setbacks from rural residences.   In this era of compensation for regulation, this ordinance raises the efficacy of allowing neighboring homeowners to ransom their consent to the highest wind generation bidder when the consent, or the windfall realized by these neighbors, does nothing to further the environmental objectives identified in the ordinance that both sides appear to share, either in terms of water quality, natural habitat, or green energy.

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We regularly update clients about changes in real estate law and on industry trends. This includes briefing clients on legislative proposals in the federal tax, housing and other legal areas affecting their businesses. Staying current enables you to anticipate and prevent legal problems as well as capitalize on new developments.
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