Current through 2024-38, September 18, 2024
A wind energy development must not significantly compromise
views from a Scenic Resource of State or National Significance (SRSNS) as
defined in
35-A M.R.S.
§3451(9) such that the
development has an unreasonable adverse effect on the scenic character or
existing uses related to scenic character of the SRSNS. When evaluating
potential impacts to scenic character, the Department will take into
consideration all relevant evidence, including but not limited to user
intercept surveys and/or systematic field observations conducted and recorded
using generally accepted professional standards, written public comments
submitted by users of the SRSNS or other interested persons, oral statements
made at Department public meetings held pursuant to
38 M.R.S.
§345-A(5), and sworn
testimony at public hearings held pursuant to Chapter 3 of the Department's
Rules.
A.
Review of scenic
impacts of associated facilities. Impacts to scenic character from a
wind energy development's associated facilities are generally evaluated in the
manner set forth in the WEA,
35-A
M.R.S. §3452(1) &
(3). However, if the Department determines that application of the WEA
evaluation criteria to the development may result in unreasonable adverse
effects due to the scope, scale, location or other characteristics of the
associated facilities, scenic impacts of the development's associated
facilities will be evaluated solely under the standards of the Site
Location of Development Act,
38 M.R.S.
§484(3) or other
applicable standards in the manner provided for evaluation of scenic impacts
from development other than wind energy development. If an interested person
wishes to submit information regarding the determination of which standards
should be applied, that information must be received by the Department within
20 days of acceptance of the permit application as complete for processing. If
the Department finds that it is necessary to apply the standards of the
Site Location of Development Act or other applicable standards
to the scenic impacts of the associated facilities, it shall make that
determination within 30 days of its acceptance of the application as complete
for processing (
35-A
M.R.S. §3452(2)
).
B.
Significance of a
potentially affected SRSNS. When evaluating whether a proposed
development would significantly compromise views from a SRSNS such that the
development would have an unreasonable adverse effect on scenic character or
existing uses related to scenic character of an SRSNS, the Department will take
into consideration all relevant evidence in the record regarding the
significance of the SRSNS. In this assessment, the Department will be guided by
considerations including but not limited to the following.
(1) Any assessment of the scenic character of
the SRSNS through a formal assessment process such as the Maine's
Finest Lakes Study, the Maine Wildland Lakes
Assessment, a Coastal Scenic Inventory published by DACF, or other
federal, state or local government assessment process.
(2) If a property is designated as an SRSNS
due to its listing on the National Register of Historic Places, evidence
regarding the consideration of the scenic character or uses related to the
scenic character of the property as factors in the listing process.
(3) The character, landscape context, unique
features, usage patterns, and other relevant characteristics of the
SRSNS.
(4) Evidence of the high
scenic value of the viewshed from the SRSNS or of the protection of the
viewshed through public ownership, conservation easements or other restrictions
put in place for purposes specifically including protection of the scenic
values of the area. Such evidence may increase the significance of an
SRSNS.
(5) Evidence of the
degradation of the scenic character of the SRSNS by factors such as
incompatible development in the viewshed. Such evidence may decrease the
significance of an SRSNS.
C.
Existing character of the
surrounding area. The existing character of the surrounding area will be
taken into consideration by the Department when determining whether the
proposed development would have an unreasonable adverse effect on scenic
character or existing uses related to scenic character of the SRSNS. When
evaluating the existing character of the surrounding area, the Department will
take into consideration all relevant evidence, including but not limited to the
following.
(1) The visible aspects of the
natural character of the viewshed of the SRSNS, including but not limited to:
landscape scale, vegetation and forest cover types; variations in topography
and geology; prominent natural features (cliffs, mountains); and
waterbodies.
(2) The type and
amount of development in the viewshed of the SRSNS, including but not limited
to: roads, buildings and other structures, utility lines, communication towers,
and nighttime lighting.
Areas of cutting and removal of trees for commercial logging
or forestry management activities in the viewshed of the SRSNS, where the
forest will be allowed to regenerate naturally or through silviculture
activities, will not generally be considered incompatible development which
detracts from the scenic character of the SRSNS for the purposes of this
evaluation, but visible roads or permanent structures related to commercial
logging or forestry management activities may be generally considered to be
development which detracts from the scenic character of the SRSNS. The
Department will assess specific evidence on this issue on a case-by-case
basis.
D.
Expectations of the typical viewer. The expectations of the
typical viewer will be taken into consideration by the Department when
determining whether the proposed development would have an unreasonable adverse
effect on scenic character or existing uses related to scenic character of the
SRSNS. When evaluating the expectations of the typical viewer, the Department
will take into consideration all relevant evidence including but not limited to
user intercept surveys, written public comments submitted by users of the
SRSNS, oral statements made at Department public meetings held pursuant to
38 M.R.S.
§345-A(5), and sworn
testimony at public hearings held pursuant to Chapter 3 of the Department's
Rules.
(1) Viewer expectations will be
considered to be high at an SRSNS which is valued for its setting in a
naturally scenic landscape. Viewer expectations may be considered to belowered
by substantive evidence of degradation of the scenic values of the SRSNS since
its designation as a scenic resource, or a lack of scenic value in a particular
location.
(2) Viewer expectations
will be considered to be low at an SRSNS which qualifies as an SRSNS for
reasons not primarily related to its scenic value, e.g. historic sites which
are listed on the National Register of Historic Places due to reasons
unassociated with their scenic character.
E.
Purpose and context of the proposed
activity. The purpose and context of the proposed wind energy
development are taken into consideration by the Department as factors in the
assessment of whether the proposed development would have an unreasonable
adverse effect on scenic character or existing uses related to scenic character
of an SRSNS. Generating energy from a renewable resource is a purpose
encouraged in the enactment of the Wind Energy Act, and will
be considered a factor mitigating some extent of scenic impacts; however,
energy production alone will not be considered as a significant mitigating
factor. The context of the proposed development will be considered both in the
physical sense and in the practical sense. The physical context of the proposed
development includes the topography and existing characteristics of the area.
The practical context of the proposed development includes factors specific to
the location of the proposed development, such as the magnitude and reliability
of the wind resource present, and the proximity to transmission infrastructure.
When considering the purpose and context of the proposed activity, the
Department will take into consideration all relevant evidence, including but
not limited to the following.
(1) Data
related to the magnitude and reliability of the wind resource at the proposed
development site, and the potential energy output expected from the
development, as compared with any alternative sites in Maine investigated by
the applicant.
(2) The location of
the proposed development in relation to existing transmission lines, roads or
other infrastructure.
(3) The
topography and existing characteristics of the area surrounding the proposed
development.
(4) The existence of
any other permitted wind energy development in the viewshed of any affected
SRSNS.
(5) Evidence of any
mitigation proposals, such as improved access to the affected SRSNS, or
improvements to the quality of the resource.
F.
Public use and enjoyment of a
potentially affected SRSNS. The extent, nature, and duration of public
use of an SRSNS, and the likely effect of a proposed wind energy development on
continued public use and enjoyment of the SRSNS, will be taken into
consideration by the Department when determining whether the proposed
development would have an unreasonable adverse effect on scenic character or
existing uses related to scenic character of the SRSNS. The Department will
take into consideration all relevant evidence to that effect, including but not
limited to the following.
(1) Evidence of the
extent, nature, and duration of existing public uses of the SRSNS where the
scenic character of the SRSNS is an important part of the enjoyment of the
activity.
(2) Evidence of the
extent, nature and duration of existing public uses of the SRSNS where the
natural, undeveloped character of the area surrounding the SNSRS is an
important part of the enjoyment of the activity. For such uses, low use levels
will not necessarily be found to decrease the significance of potential impacts
to existing uses related to scenic character.
(3) Evidence of tourism-related businesses or
recreational clubs or organizations whose purpose or viability is related to
the public use and enjoyment of the SRSNS.
G.
Scope and scale of the potential
effect. When evaluating the scope and scale of the potential effect of
views of proposed generating facilities on scenic character or existing uses
related to scenic character of an SRSNS, the Department will take into
consideration all relevant evidence to that effect, including but not limited
to the following.
(1) Evidence of the number
of turbines and portions of turbines that would be visible from various
viewpoints for users of the SRSNS. When a Visual Impact Assessment (VIA) is
required or provided by an applicant, it must identify all areas of the SRSNS
from which the project is visible using a bare terrain model, and must include
photo simulations of views of the project from the SNSRS. A VIA that considers
the screening effect of land cover may also be prepared using a digital surface
model that measures the elevation of topographic elements, such as building
roofs and forest canopies. A height of 40 feet may be assigned to forest cover
in the absence of a true digital surface model.
(2) Evidence of the distance to turbines in
the viewshed from view points within the SRSNS.
(a) There is a rebuttable presumption that
placement of turbines within three miles of viewpoints within the SRSNS would
cause a high impact to the scenic character of the SRSNS. This presumption may
be rebutted by evidence showing that views of the turbines would be limited by
intervening topographic features, or other mitigating factors.
(b) Turbines beyond eight miles from the
SRSNS are considered insignificant in the scenic impact assessment process (
35-A
M.R.S. §3452(3)
).
(3) Evidence of the
portion of the SRSNS from which there would be visibility of any of the
generating facilities.
(4) Evidence
of the horizontal view angle encompassing all visible turbines in the proposed
wind energy development from the most affected viewpoints in the
SRSNS.
H.
Cumulative scenic impact or effect. When assessing the potential
adverse scenic impact of a proposed wind energy development, the Department
will take into consideration the cumulative scenic impact or effect of the
proposed development under both daytime and nighttime conditions in conjunction
with scenic impacts from other wind energy developments located within eight
miles of each SRSNS addressed by the applicant's VIA, if one has been
submitted. The Department will also take into consideration the cumulative
impact of the proposed wind energy development on multiple SRSNSs.
(1) When assessing the cumulative scenic
impacts of multiple wind energy developments on a single SRSNS, the Department
will take into consideration potential and actual scenic impacts from any wind
energy developments that are existing, any wind energy developments that have
been permitted pursuant to the WEA but not yet constructed, and any proposed
wind energy developments for which an application has been determined to be
complete for processing by the Department, that are located within eight miles
of any portion of any SRSNS addressed by the applicant's VIA. Existing or
permitted small-scale wind energy developments pursuant to
35-A
M.R.S. §3456, or small-scale wind energy
developments whose applications have been approved for processing by the
Department, as well as any other existing nonresidential wind energy
developments, will also be included in this assessment. The analysis will take
into account the full build-out of any such existing, permitted, and proposed
wind energy developments, and will consider impacts from any portion of those
developments that is or would be within eight miles of any portion of any SRSNS
within eight miles of the proposed development under review.
(2) When multiple SRSNSs are related to each
other by common use (i.e., a user of one SRSNS in a group is likely to use one
or more other SRSNSs in that group during the same visit), physical connection,
or relationship in the landscape, the Department will consider the cumulative
impacts of the proposed wind energy development on these SRSNSs as a group, as
well as individually, to the extent that the SRSNSs are located within eight
miles of the proposed wind energy development.
(3) An applicant's VIA must identify any
areas of combined, sequential or successive observation, as defined in
35-A M.R.S.
§3451, for each SRSNS within eight miles
of the proposed wind energy development. When evaluating cumulative scenic
impact or effect associated with sequential observation, the department will
consider the distance between viewpoints on a linear route and other forms of
development along the linear route that affect the expectations of the user of
the SRSNS. When evaluating the significance of such impacts, the Department
will consider all relevant evidence to that effect, including but not limited
to photographic evidence of existing development and photo simulations of
proposed development under both daylight and night time
conditions.
I.
Unreasonable adverse effect on scenic character. In evaluating
whether the development significantly compromises views from an SRSNS such that
the development has an unreasonable adverse effect on the scenic character or
existing uses related to scenic character of the SRSNS, the Department will
consider evidence regarding the significance of the SRSNS; the existing
character of the area surrounding the SRSNS; and the expectations of the
typical user of the SRSNS, to inform a rating of the value of the SRSNS as low,
medium, or high.
The Department will also evaluate the evidence regarding the
purpose and context of the proposed wind energy development; the extent, nature
and duration of public uses of the SRSNS and the potential effect of the
proposed development on that public use and enjoyment; the scope and scale of
the potential impacts of the proposed development; and any cumulative impacts
on the scenic character or existing uses related to scenic character of the
SRSNS, to inform a rating of the significance of the impacts as low, medium, or
high. In making the final determination of the reasonableness of an impact, the
Department will be directed by the following considerations:
(1)
High Value SRSNS. A
Department finding of high or medium scenic impact to an SRSNS with high value
will be considered to constitute an unreasonable adverse effect on the scenic
character or existing uses related to scenic character of the SRSNS. A
Department finding of low scenic impact to an SRSNS with high value will be
considered to not constitute an unreasonable adverse effect on the scenic
character or existing uses related to scenic character of the SRSNS.
(2)
Medium Value SRSNS. A
Department finding of high scenic impact to an SRSNS with medium value will be
considered to constitute an unreasonable adverse effect on the scenic character
or existing uses related to scenic character of the SRSNS. A finding of medium
scenic impact to an SRSNS with medium value will require further evaluation by
the Department of the evidence to make a determination as to whether the
proposed impact would be unreasonably adverse. A Department finding of low
scenic impact to an SRSNS with medium value will be considered to not
constitute an unreasonable adverse effect on the scenic character or existing
uses related to scenic character of the SRSNS.
(3)
Low Value SRSNS. A
Department finding of medium or low scenic impact to an SRSNS with low value
will be considered to not constitute an unreasonable adverse effect on the
scenic character or existing uses related to scenic character of the SRSNS. A
Department finding of high scenic impact to an SRSNS with low value will
require further evaluation by the Department of the evidence to make a
determination as to whether the proposed impact would be unreasonably
adverse.
(4)
Highly Visible
Feature. A Department finding of high or medium impact to any SRSNS in
accordance with this section will constitute a finding that the generating
facilities are more than merely a highly visible feature in the landscape (
35-A
M.R.S. §3452) .
(5)
Multiple Impacts. When the
Department finds that a proposed wind energy development would present multiple
impacts in the medium and/or high range to multiple SRSNSs which are rated
medium and/or high for value, the Department may combine these individual
impacts to increase the total level of impact presented by the proposed
development.
(6)
Multiple
Resources. When the Department finds that a proposed wind energy
development would present impacts to multiple medium and/or high value SRSNSs
that are related to each other by common use, physical connection, or
relationship in the landscape, the Department may increase the significance of
the SRSNSs as a group.
(7)
Finding on Scenic Character. A Department finding that a proposed
wind energy development would cause an unreasonable adverse effect on scenic
character or existing uses related to scenic character on a single SRSNS is
sufficient grounds for denial of the proposed wind energy
development.
