County Considers Revising Wind Farm Regulations

By Gordon HopkinsA meeting of the Jefferson County Planning and Zoning Committee was held the evening of Thursday, December 9, at the Jefferson County Courthouse to discuss possible changes to regulations governing wind farms.With the possibility of future wind farm applications, on September 15, Jefferson County Commissioners voted unanimously to institute a six-month moratorium on wind farm applications, feeling it was necessary to review and possibly revise the policies that govern the placing of wind turbines within the county. At that time, commissioner Mark Schoenrock said the primary driver of this decision is the changing technology. Newer wind turbines can be considerably taller that they were at the time regulations were originally written.Commissioners requested that the committee review three factors: noise levels, setbacks and decommissioning. The meeting was open to the public and people were allowed to speak, but discussion was limited to the three topics mentioned above. Approximately 30 members of the public attended, including landowners and representatives of NextEra, the company behind the Steele Flats wind farm in Steele City.Noise LevelsBruce Weise of the Planning and Zoning Committee noted, “Current regs say it cannot exceed 60 decibels.”Dr. Chris Olsen spoke at the meeting, “Candidly, the 60 decibel sound limit, you’ve got your current ordinance is too high.”Olsen indicated he helped draft a letter to the committee from Baird Holm LLP, a law firm that represents NextEra, “I would suggest 50 decibels is the right number. There’s been a lot of studies both here in the U.S., as well as around the world, Canada, Australia and Europe, that suggests that 50 decibels is a good number. Why? Because it makes sure that people can still get a good night’s sleep. They’re not going to be overly disturbed in their property or in their home itself, even with the windows open in the summertime.”Committee Secretary Dustin Fairley asked, “But who’s going to enforce that?David Levy with Baird Holm answered, “The county.”Fairley asked, “With what? How?”“By revoking the special use permit, that they’re relying on to operate a multi-hundred-million dollar project,” said Fairley. “If you don’t have a special use permit, you can’t operate that investment. So the county, through its police power, has the ability to enforce that requirement. Just like anybody else. If I was operating a feedlot or an industrial plant or something like that, and had a special use permit, and I would violate that and I got revoked, I couldn’t operate anymore.”Dakota Beals, a senior wind technician at Steele Flats, also spoke, “I’ve been there for five years, and never have we had a landowner or a non-participant come in and complain about the wind towers being too loud or too noisy.”Committee member Kevin Banahan said, “Well, I’ve had a few people complain to me, but I think they felt like there’s nothing they could do about it.”SetbacksThe next issue was setbacks. A setback is the minimum distance which a building or structure must be set back from a street or road, a river or other stream, or other property boundary.According to Weise, the current regulations require wind turbines, “maintain a minimum setback distance from a property line of non-participating owners at 600 feet and 1320 feet from an outside dwelling as a non-participating property owner from an exterior wall of the dwelling.”Matthew Jones, a developer for NextEra, said the company has an internal requirement of 1,400 feet, even if the county’s regulations allow for less.John McKee, Emergency Manager for Jefferson and Saline Counties, said, “The County Board wants the zoning committee to address these previously mentioned bullet points to determine what is the right balance, and they stressed that to me, the right balance, for participating and non-participating landowners of Jefferson County. From our office, Zoning office, we received numerous calls from landowners in the county. Their concern has been that non-participating landowners could control their land, depending on the setback that you might come up with.”DecommissioningCounty Commissioners have expressed concern in the past that there be a way to ensure sufficient funds to decommission a wind turbine when it comes to the end of its usefulness.Weise said he is against requiring a decommissioning plan, “ When Commissioners brought this up to me, I don’t think that the County should be even in this because, if they (the company that builds the wind turbines) pick up and leave, I mean, why not leave it up to the landowner?”Levy said, “In the lease with the landowner, it says that the wind company, when they’re done with it, they have to come and take it out. That means take all the equipment out. That means take everything out that’s in the ground, typically to a depth of four feet, cover it over, grade it, smooth it out, pack it down, so you can farm over it.”Levy explained, “What protects the taxpayers then, as the zoning regulations require the developer, owner of the facility, typically after the 10th year of operation, to post some kind of financial security with the county, a bond, a letter of credit, something like that, drawn on very large, very reputable, very solid financial institution, so that if the developer up and disappears.”Levy added, “What state law says is that if the county doesn’t deal with this, the Nebraska Power Review Board has that responsibility.”Weise asked, “So why would a county put that decommissioning in there when the state will take over and do that? Why should the county get involved in that process?”“You know, that’s a good question. Nobody’s ever asked me that before,” Levy said. “I’ve never had a county say, you know, we don’t want to do it, we’re going to purposefully leave decommissioning out of our zoning regulations, so that the statute makes it default to the Power Review Board.”No decisions were made at the meeting. Additional meetings are scheduled for January, 2022.

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