New siting provision could bring hard times for Ohio wind power

Source: Nathanael Massey, E&E reporter • Posted: Monday, June 23, 2014

Ohio made headlines last week after its governor, John Kasich (R), signed a bill into law making his state the first in the nation to freeze its renewable portfolio standard (ClimateWire, June 13). Green groups and some industries immediately fired back, saying the move could hamstring their markets and hinder state actions on future greenhouse gas standards from U.S. EPA.

Much less attention was given to a separate bill, issued with little fanfare just before the state Legislature went into summer recess. Yet that bill, H.B. 483, may include an even greater challenge for renewable energy in Ohio than the RPS freeze, according to renewable energy advocates.

A provision of the bill concerns wind power — currently Ohio’s largest source of renewable energy — and, more specifically, the “setback” distance between new turbines and adjacent private property. Prior to the law, a minimum 1,125-foot setback was required between new turbines and the nearest habitable structure. The provision in question moves the start of that setback from the nearest habitable structure to the nearest property line.

While that might seem like a passing detail to a casual observer, the effects of the provision could be “devastating” to Ohio’s wind power industry, said Dayna Baird Payne, Ohio lobbyist for the American Wind Power Association.

“Effectively, it’s going to be nearly impossible to develop new wind power in Ohio,” she said.

As an example of the law’s potential impact, she cited the Iberdrola-owned Blue Creek Windfarm, a sprawling operation that spans multiple townships and two counties in the northwest corner of the state. With 152 turbines — each capable of 2 megawatts of output — it is the state’s largest renewable energy project.

Had it been built after the passage of H.B. 483, however, those 152 wind turbines would have been constrained to 12, Payne said.

A bill without a public comment period

The language concerning wind farm siting is a footnote in H.B. 483, which also includes provisions for the state penal museum, fingerprinting and the need to replace the words “handicapped” with “accessible” on state signs, among many others. H.B. 483 was passed as part of the governor’s budget review and, as such, did not require a public comment period.

As part of the budget review, the governor also had the authority to line-item veto the wind farm siting provision while passing the rest of the bill, Payne said.

Originally introduced by Senate President Keith Faber (R), the provision was added as an amendment to the bill just before it arrived at the Senate in May. It received support from state Sen. Bill Seitz (R), who previously played a role in advancing the RPS freeze through H.B. 310.

“There was really no debate and no time to educate lawmakers about the impact,” said Trish Demeter, managing director of energy and clean air programs at the Ohio Environmental Council. “I think a lot of people are still scratching their heads over this.”

Neither Faber’s nor Kasich’s offices returned a request for comment.

Some uncertainty for planned projects as well

Wind developers that currently have permits for their projects but have not yet broken ground also are expressing concerns.

According to the provision, those early permits can be grandfathered in, but only to the extent that common law provides. For developers, that’s a less-than-comforting assurance.

“We definitely have some concerns,” said Mike Speerschneider, director of permitting and governmental affairs with the company EverPower Wind Holdings, which has three projects proposed in Ohio. “The language seems to state that if you’re a current permit holder the original setbacks apply, but if your contract is amended then you could be subject to the newer setbacks.”

That’s troubling, because contracts are often amended to make improvements or correct for updated information, he said.

Now, EverPower and other companies eyeing Ohio’s significant wind power potential will have to consider whether the legal actions likely necessary to sort these issues out are worth the cost, especially considering the money already spent getting projects permitted. About 900 megawatts of wind power capacity is currently awaiting approval by the Ohio Power Siting Board, according to Payne.

With the provision of the bill suspended by a 90-day wait period and the state Legislature in recess for the summer, it will be some time before any of the issues raised by H.B. 483 are resolved.