Iowans worry proposed rule changes could let wind energy developers seize private land

Source: by Donnelle Eller, Des Moines Register • Posted: Tuesday, July 28, 2020

Gene Leerberg worries that proposed changes to the state’s rules for building wind and solar farms would let developers and big utilities grab part of his 310-acre farm and 40-acre timber lot for their renewable energy projects.

“If someone a mile away wants to put turbines up, that’s their business,” said Leerberg, who lives near Hubbard, in central Iowa. “I think they’re getting paid pretty well to do it. … But I don’t want them on or near my property.”

Leerberg and hundreds of other Iowans have written the Iowa Utilities Board, expressing concern that the proposed rules would give large companies pursuing renewable energy projects the power to take their land without their consent through a process called eminent domain.

The companies, for their own reasons, also are wary of the change.

The state board, which has received about 550 public comments on the proposed rules, says Iowa law already gives developers access to eminent domain when energy projects are required to have a generating certificate.

Large wind projects in Iowa so far have avoided using that requirement. But that would change under the proposal. Big wind projects would need state certificates, and critics say that process would prompt increased use of eminent domain

“It’s extremely upsetting to think that an energy company could step in, dig up my farm and plant (a wind turbine) where I don’t want one,” said Mary Ellen Fischer, who owns farmland in Audubon County. Her family agreed to one turbine but doesn’t want more.

Some groups say it’s unlikely renewable energy projects could qualify for eminent domain under Iowa law. But they back greater safeguards.

The proposed rules also would shift decisions about whether wind and solar projects should be built from county supervisors to the three-person Iowa Utilities Board. The governor appoints the utilities board members, who require state Senate confirmation.

The move comes at a time when some county leaders are imposing or considering restrictions or moratoriums on wind development.

Jack Seward, a Washington County supervisor, says renewable energy project decisions need to be left to local government. “An unelected board 120 miles from the project at hand will not have the priorities most important to the people impacted, and should not be the final authority for what goes on between neighbors and in neighborhoods,” Seward wrote to the state board.

Although the board says the change would streamline the approval process, the proposed rules also have failed to gain favor with big investor-owned utilities or wind energy developers. They’re concerned the board’s proposal would create unneeded regulations, increase renewable energy costs and delays, and hinder development and construction.

Over about 20 years, companies have invested $19 billion in wind energy in Iowa and employ about 9,000 people, proponents say. Iowa now gets the largest percentage of its energy from wind, surpassing coal last year.

Amshore, a Texas developer that’s working on a $200 million project in Kossuth County, warned that “such a drastic change in policy” could “cast uncertainty on billions of dollars in existing and planned wind energy development projects.”

“Moreover, the lost revenues to landowners, state and local governments, and school districts across Iowa would be colossal,” the company wrote the board.

Why the change?

Wind farms in Iowa can generate hundreds of megawatts of electricity. But the state weighs only whether turbines send more than 25 megawatts to a single gathering line, even though a project can have several of them.

If each gathering line carries less than 25 megawatts, utilities and developers need only gain approval from county supervisors to develop a wind farm. Most of the state’s wind farms have been developed under that approach.

But the proposed rules say the Iowa Utilities Board would look at the power generated in the “entire area of a proposed project … regardless of the number” of megawatts on each gathering line.

That shift would require developers of utility-sized projects to go to the state board for generating certificates and approval.

Chicago-based Invenergy said it’s unclear why the board has proposed the change. “There is a very real risk of ‘fixing’ a process that is not broken,” the renewable energy developer said in its comments.

The American Wind Energy Association and other industry proponents told the board that Iowa’s “light regulatory touch has created a climate for the state’s wind industry to grow and thrive.”

Iowa’s investor-owned utilities, along with wind developers, have built an estimated 5,100 wind turbines, mostly in rural Iowa. The projects annually generate $61 million in tax revenues for local governments and $69 million in land lease payments to farmers and landowners, the groups said.

Last year, Iowa received 42% of its electricity from wind — the largest share for any state — surpassing coal at 35%.

Wind energy’s rapid development also has created a growing group of opponents, concerned about the noise from wind turbines, light flickering from the turning blades and health problems they link to the turbines.

Leerberg worries that the noise from the turbines would scare away wildlife. He and his wife have worked for a dozen years reforesting 40 acres that are now home to turkey, deer, eagles and other animals.

The possibility of wind developers having eminent domain powers worries him. “I’m afraid if they circumvent the supervisors and leave it up to the utilities board, we lose local control completely,” he said.

Concerns about eminent domain

The utilities board says it “has never granted and no wind farm developer has ever requested the power of eminent domain for wind turbines.”

Companies like MidAmerican Energy and Alliant Energy have found landowners willing to lease them land for their growing investment in wind and solar projects.

“MidAmerican firmly believes the current approach, which relies on voluntary landowner participation and local approval, is the superior approach,” the Des Moines utility said in its comments.

But the company, owned by billionaire investor Warren Buffett, said if the board pushes forward with statewide siting rules, it should come with eminent domain powers for companies.

The proposed rules, MidAmerican said, give companies less flexibility when siting turbines, and they may need eminent domain to complete a project. “That’s not our preferred approach,” the company said.

“Should the board act as the final authority for siting decisions, inevitably there will be landowners whose personal interests will be found lacking relative to societal interests and eminent domain will be necessary,” the company said.

The Iowa Farm Bureau Federation, a longtime advocate for property owners’ rights, said it believes that most renewable energy projects would be unable to meet the requirements to use eminent domain.

“It would be a rare occurrence,” said the Farm Bureau, which this year supported statewide regulations that guide where large-scale wind and solar farms can be built, given concerns about the loss of valuable farmland to renewable energy projects.

Many Iowans have not been reassured. Landowners “should be able to say yes or no” to a project without a state board trying to “circumvent those rights,” Michael Kollasch of Whittemore told the board. “Perhaps we need to take up protesting. It seems to be effective.”

Jennifer Easler, Iowa’s state-appointed consumer advocate for utilities issues, said the board should address residents’ concerns and revise the rules to explain when it would “grant eminent domain authority for renewable energy generation projects.”

Maintaining local control

Utilities, wind developers, county officials and residents told the state board that decisions about large wind projects should remain with local leaders.

“In those initial comments, whether a few lines or many pages, nearly everyone —renewables developers, utilities, counties, equipment manufacturers, even local objectors — agrees that the current, familiar county-based system makes more sense in most cases than a new, fundamentally different, centralized system,” Invenergy wrote.

Iowa’s current approach has survived repeated legal challenges, several groups said, and an Iowa Supreme Court ruling last year affirmed the state’s policies.

Apex Clean Energy, a Virginia company that plans to build a wind project in Boone and Hamilton counties, said it’s concerned the proposed rules would require it to go through a new approval process after years of work.

Several companies urged the board to expand the projects that would be grandfathered or eligible to get approval under the current process.

“For Great Pathfinder and likely other pending developments as well, this is a worst-case scenario and this is Apex’s single biggest concern with the proposed rules,” the company wrote. “In addition to the wasted resources, the much bigger issue is the delay this would create.

“Having to start over in a new generating certificate process … could jeopardize commercial agreements, tax credit qualifications, and accordingly the financing for this and other projects,” the company said.

David and Shelley Marsh, wind opponents who live in Dexter, compared the board’s renewable energy efforts to lawmakers’ decision in 2002 to set statewide standards for locating confined animal feeding operations. Among critics’ complaints: Manure from the facilities runs off from farm fields and pollutes Iowa waterways.

“To state you are streamlining the application process and removing the burden from the county level is the same verbiage used when the state took control of hog confinements from the counties,” the couple wrote the board. “This act of state control has turned into a disaster for certain counties and have damaged some counties beyond repair.”

But Joshua Mandelbaum, an Environmental Law & Policy Center attorney, said renewable energy proponents are concerned about a patchwork of requirements across Iowa’s 99 counties.

For example, Madison and Hardin counties have approved moratoriums on new wind development, and Adair County capped how many turbines could be installed, effectively stopping new construction.

“You could end up with 99 different sets of regulations to navigate, which could be very onerous and limit development,” Mandelbaum said. “That’s potentially an advantage of the board’s proposed rulemaking and providing universal guidance and level of certainty.”

Mandelbaum said it’s unclear what step the Iowa Utilities Board might take with the proposed rules — whether the board will decide to seek more comments, revise the rules, propose new rules or drop them.

“They have a lot of flexibility,” he said, adding that he would be surprised if the board seeks to finalize the proposed rules, given widespread opposition.

Donnelle Eller covers agriculture, the environment and energy for the Register. Reach her at or 515-284-8457