WINDHAM — The state Public Service Board (PSB) has issued a Certificate of Public Good for three meteorological test towers (METs) on 5,000 acres straddling a hilltop between Grafton and Windham.
The board handed down this decision despite opposition from the town of Windham and other organizations, paving the way for the towers to be built by the end of January.
The Dec. 20 ruling approved a “246 permit” - named for the section of state law that governs meteorological towers and is designed to fast-track the process - to Meadowsend Timberlands Limited, a New Hampshire company and Atlantic Wind, a subsidiary of Iberdrola Renewables.
The Certificate of Public Good was issued against the recommendations of both the state Department of Public Service (DPS) and Gov. Peter Shumlin.
“We appreciate the Board's willingness to see the value in measuring the wind,” Iberdrola's corporate communications manager Paul Copleman said.
Copleman said that the company anticipates “working with the towns of Windham and Grafton in a collaborative way to pursue a future that works for the communities and the region.”
“These are temporary structures with no foundation that come in on a pick-up truck,” he said. “No wide loads and no heavy equipment are required.”
“Given the minimal impacts of these towers, there is simply no basis to conclude that the project will interfere with the orderly development of the Town of Windham, much less unduly interfere with the orderly development of the region as a whole,” the PSB wrote in its ruling.
The PSB continued, “We note that [section] 246 leaves the Board no discretion to deny approval of a meteorological tower that meets the applicable criteria.”
In spite of Windham's objection based on their town plan, the PSB argued that “the Board recognizes that compliance or non-compliance with a particular town plan within a region might well be used to support an argument regarding whether a project would have adverse impacts for the region as a whole. However, in this case, no party has advanced such an argument.”
Language and the law
Windham Selectboard Chair Mary Boyer was stumped by the decision.
“It puzzles us why the PSB, faced with a clear explanation, has chosen to take the path they did,” said Boyer.
“The [DPS] understood and accepted our explanation without reservation. The attorneys understood, and our town planners understood,” she said.
“The [PSB] did not accept our explanation and has not chosen to share their reasoning,” Boyer added.
While Grafton officials remained silent, officials in Windham, where two of the three MET towers will be located, hired attorney Gerald Tarrant of Montpelier to work in Windham's defense.
In an Oct. 31 letter to the PSB, Tarrant offered Windham's town plan as the town's first line of defense.
The town plan had been specifically updated regarding commercial wind farms in 2008, following a situation with another company wanting to site wind turbines “on the Londonderry side” of Windham, the Glebe Mountain project.
“It is the policy of the Town of Windham that commercial wind energy systems are prohibited throughout all of town,” the plan says. “Commercial wind is neither a permitted or conditional use in the Zoning Bylaw, therefore it is prohibited.”
At the time of the writing of the town plan, and in accordance with state law, Windham defined commercial wind energy systems or wind farms as “those that are regulated under Section 248 of Title 30 of the Vermont Statutes” but specifically excluded “temporary meteorological towers” from the town's definition.
The language isn't as cut and dried as it might seem.
Boyer said the wording “was supplied by technical people who were advising us in 2007 when the rules regarding Section 248 were changing.”
She said that the language “reflects the lack of clarity at that time in how sections 246 and 248 were to be referenced.”
Boyer said the Windham Town Plan “acknowledges that we were aware that MET towers would be excluded from the Act 248 application process but it was still unclear how the 246 process would work.”
According to Tarrant, Section 246 “is sort of derivative of Section 248 and was adopted to take the MET towers out of the broader denser more restrictive requirements of 248.”
“[Section] 246 was a response by the Vermont legislature, prompted by the industry to give them an easier time to obtain approvals for MET towers,” he said.
While the PSB in its ruling stated that “the Town Plan is clear in its prohibition of commercial wind projects,” it also stated that “it, however, is also clear on its exemption of meteorological towers from that prohibition.”
Tarrant argued that in approving the CPG, the PSB ran directly into the argument that “if commercial wind towers are prohibited, and clearly there is agreement from the Department of Public Service and the town of Windham, it makes no sense to approve MET towers.”
Tarrant said the PSB “sort of sidestepped that” in the ruling.
“So maybe the town plan isn't clear on this and it does allow for MET towers, but it still doesn't make a lot of sense to, as it doesn't seem to be consistent with the policy of the town,” Tarrant noted.
He said the PSB seemed to be “advocating our position to express the town's clear policy for commercial wind [but saying] 'we understand that but we're going approve' the permit anyway.”
Due consideration?
In an Oct. 9 letter to the PSB, Department of Public Service Special Counsel Aaron Kisicki issued a strongly worded opinion to the Public Service Board, saying that the board is “required to give due consideration to the Town Plan” regarding the state statute governing “orderly development of the region” and urging the PSB to consider the matter settled.
“As a result, the Board should reject Atlantic Wind's application,” the letter concludes.
According to the PSB's ruling, the board gave “due consideration” to the “recommendations of the municipal and regional planning commissions, the recommendations of municipal legislative bodies, and the land conservation measures contained in the plan of any affected municipality.”
The Windham Regional Commission, in comments to the PSB, also expressed the desire that the board “defer to the guidance offered by the municipal plans approved by our member towns.”
The PSB concluded: “Given the minimal impacts of these towers, there is simply no basis to conclude that the Project will interfere with the orderly development of the Town of Windham, much less unduly interfere with the orderly development of the region as a whole.”
The PSB also added in its ruling, that while MET towers are needed to determine the viability of a larger, commercial project, the approval of a MET tower permit did not automatically guarantee the PSB would permit a commercial wind farm.
The permit was issued 10 days before the renewable energy tax incentive deadline ran out on Dec. 31. The program's future is in question given the financial stalemate in Congress.