Wind Farm Siting Criteria Proposed By WDNR

Wisconsin Department of Natural Resource (WDNR) has issued recommended guidelines for the environmentally-sound siting of utility-scale wind-electric generating facilities. These guidelines are intended to identify and characterize the presence of resources that are considered sensitive to windfarm development in the area under consideration.

Some of the key siting criteria WDNR recommends include:

1. Wildlife Areas
2. Migration Corridors
3. Current or Proposed Major State Ecosystem Acquisition & Restoration Projects
4. State and Local Parks and Recreation Areas
5. Active Landfills
6. Wetlands
7. Wooded Corridors
8. Major Tourist/Scenic Areas
9. Airport/Landing Strip Clear Zones and other lighted facilities

Site Characterization Studies
WDNR belives that a site characterization study is an important step in considering and evaluating potential windfarm locations. A baseline wildlife evaluation should be conducted for each site under serious consideration for windfarm development. To allow comparison with other studies, this evaluation should follow accepted standard protocols for windfarm evaluations.

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WDNR Report On Authorities Needed To Minimize Impacts of Wind Energy Projects

The Wisconsin Department of Natural Resources (WDNR) has submitted a report to the Wisconsin Legislature in November 2010 regarding the agency’s authority to protect wildlife and natural resources from wind project impacts. The WDNR report was submitted in response to 2009 Wisconsin Act 40, which required the agency to determine if its “statutory authority is sufficient to adequately protect wildlife and the environment from any adverse effect from the siting, construction, or operation of wind energy systems.”

WDNR made four recommendations to enhance its current authority to minimize potential impacts from wind projects:

1. Require WDNR to prepare a formal “biological opinion” and require the Public Service Commission of Wisconsin (PSCW) to consider that opinion before PSCW approves a wind project; this opinion would 1) describe the potential impacts of the project to wildlife and natural resources; 2) identify potential conflicts with wildlife protection laws; 3) reach a conclusion as to whether the project has the potential to cause a significant adverse impact to habitat and fish and wildlife resources; and 4) reach a conclusion as to whether mitigation measures can be implemented to substantially reduce those impacts below the level of significance;

2. Require a wind project developer to obtain Incidental Take Permits or Authorizations under the Wisconsin Endangered Species Law before constructing a wind project; currently, developers are encouraged but not required to obtain such authorizations;

3. Expand the Wisconsin Endangered Species Law to protect endangered and threatened species habitat, as currently included the Federal Endangered Species Act; and

4. Require easements for wind facilities to authorize access to those properties for the conduct of biological studies by developers, WDNR personnel and/or authorized agents.

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WDNR Environmental Assessment of Vessel General Permit

The Wisconsin DNR (WDNR) has recently completed its environmental assessment for the proposed issuance of a general permit to regulate the discharge of ballast water from ships into the waters of the State. This assessment, completed to comply with the Wisconsin Environmental Policy Act (WEPA) clears the way for WDNR to issue its final discharge permit.

On February 23, 2009, the WDNR public noticed a general permit for commercial vessels which includes effluent discharge standards for ballast water. This permit also included an aggressive compliance schedule for implementation. The permit specifies biological effluent discharge standards and biocide effluent limits that, based upon best professional judgment, represent the best practicable technology currently available pursuant to § NR 220.21, Wis. Adm. Code. WDNR believes a permit for regulating ballast water beyond what EPA has developed is necessary to prevent the release of additional aquatic invasive species (AIS) and protect water quality standards in Wisconsin. The 2010-11 biennial budget bill signed by Governor Doyle in July 2009 provided for statutory authority to establish a discharge performance standard for ballast water.

Wisconsin’s General Permit will require discharges of ballast water to meet numeric technology based effluent limits based upon the number of living organisms in the discharge by 2014 for all existing ocean-going ships. Vessels constructed on or after January 1, 2012 would have to meet these requirements prior to operation. The permit is intended to minimize the further release of aquatic invasive species. The general permit requires all ocean-going vessels to meet discharge standards set at 100 times more stringent than the IMO standards. This discharge standard is similar to that adopted by New York in its § 401 Water Quality Certification. Plans and specifications of the treatment systems would require approval by the Department, to confirm the treatment has been approved by the USCG or an equivalent approval process, is effective and would comply with the discharge standards.

There is an exemption in this permit when ballast water is pumped from a vessel off-ship for treatment on another vessel or to a ballast water treatment system on-shore. Additionally, the permit allows for an alternative discharge limit, if the technology is not available to meet the discharge standards by December 31, 2011.

The federal general permit (VGP), effective December 19, 2008, that applies to all discharges incidental to the normal operation of a vessel1 includes a technology based standard for all ocean-going vessels. This standard has been required by the United States Coast Guard (USCG) for all vessels that enter the St. Lawrence Seaway since March 2008 and has proven ineffective as the introduction of aquatic invasive species has continued. On August 28, 2009, the USCG published in the federal register a new proposed ballast water discharge standard rule which requires a phased approach to ballast water discharge standards, with IMO being required in phase-one, and up to 1000 times IMO standards in phase-two. WDNR general permit contains technology based effluent limitations that represent the best practicable control technology currently available.

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Wisconsin Environmental Policy Act WEPA

The Wisconsin Environmental Policy Act (WEPA) is a state law designed to encourage environmentally sensitive decision making by state agencies. WEPA spells out the state's environmental policy and requires the WDNR and other state agencies to consider the environmental effects of their actions to the extent possible under their other statutory authorities. It also establishes the principle that broad citizen participation should be part of environmental decision-making. WEPA imposes procedural and analytical responsibilities on the DNR and other agencies, but does not provide authority to protect the environment. While this law does not apply to local government decisions, local projects involving state financial assistance or regulatory oversight are affected by it.

WEPA requires the WDNR and other state agencies to gather relevant environmental information and use it in their decision-making. Agencies must also look at appropriate alternatives to the particular course of action they are proposing. If the action is a "major action significantly affecting the quality of the human environment," the law requires agencies to consult with other agencies about possible environmental impacts, prepare and circulate an environmental impact statement (EIS), and hold a public hearing.

WEPA applies only to the actions of state agencies. The law does not apply to local governments or private parties unless their actions involve state agency regulation or funding. Application of the law in state agency decision making has limitations, including not allowing the agency to substitute an alternative to what is proposed.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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