NextEra Responds To Calls For Changes To Wind Energy Regulations

By Gordon Hopkins“With all respect, that’s changing the rules after the game has started.”That was the response of David Levy, an attorney representing NextEra, to the suggestion that the Steele Flats Wind Farm be required to obtain a new or modified Special Use Permit for a proposed repowering project. At a meeting with Jefferson County Commissioners on Tuesday, June 11, local attorney Gregory Kratz recommended that NextEra be required to apply for an amended Special Use Permit. He did not say if he was representing himself or a client.NextEra Energy, the company that owns and operates the Steele Flats Wind Farm in Jefferson and Gage counties, is looking to upgrade existing wind turbines, a project called “repowering,” which means retrofitting existing wind turbines with new or refurbished technology, such as turbines or blades or even making the tower taller, which can in turn increase the energy output.Steele Flats went up in 2013, which is when the original Special Use Permit, following zoning regulations in place at that time. Since that time, the county has amended zoning regulations for wind turbines, making those regulations more restrictive.NextEra’s Response On June 18, Levy appeared before the commissioners to respond to the request for a new Special Use Permit, “There’s no need to do that.”“You as a county board, and the county already accounted for this very situation previously in 2018, and again in 2022, where you added section 6.611 to the zoning regulations that says existing CWECS (Commercial Wind Energy Conversion Systems),” said Levy. “Shall be subject only to the zoning regulations applicable at the time Jefferson County approved the Special Use Permit and shall not be subject to any zoning regulations or amendments.”Levy described the repowering project as, “Maintenance and modernization of an existing operating facility that complies with its Special Use Permit. There is no legal basis to go back and make them amend their special use permit. They’re not changing the land use.”Levy also pointed out that the repowering project will come with benefits to the county, not just the increased tax revenue to the county but also new lights that will only activate in the presence of aircraft, “So, the airline warning lights will be off the vast majority of the time.” Non-Conforming UseThe crux of the debate is wether or not increasing the height of the wind towers and the size of the turbine blades should be considered a non-conforming use, meaning it does not conform to the permit or the regulations.Kratz said, “I believe that it does go outside the scope of the special use permit is because it specifically states in the special use permit the height and parameters of the towers that they were constructing at that time. They want to go beyond that. And so they’re no longer in conformity with that special use permit.”Levy responded that the regulations did not and do not have a height restriction, “There’s nothing where the county said you are limited to this height of turbine in that Special Use Permit. The county said you’re limited to 32 turbines with two alternates. And we agree if we were adding a 33rd turbine that would be different. That would require its own new special use permit. Everything in the four corners of the permit that the county actually granted is still complied with after the repower. “Levy described the heights listed on the permits as strictly, “informational” and not a requirement of the permit. Amending Special Use PermitsKratz has recommended creating a new process by which existing Special Use Permits can be amended but still allowing the project to follow 2013 regulations.Kratz said, “So, the county is essentially, I guess, faced with the question of, they can either now, you know, adopt a repowering regulation that allows the special use to be amended while still still holding on to that special use and still be being subjected to the 2013 regulations, or you can roll the dice and see how the Board of Adjustment would determine what non conformity is. or perhaps even the District Court.”Levy responded, “And all the hand waving about non-conforming uses and the threats of litigation talking about the district court, all of that is obfuscation. This is very simple. This project has a valid and existing special use permit as modernized and maintained repowered, it will still comply with that permit and the regulations that are applicable to it. It’s really that simple.”NextEra is required to obtain a building permit from Planning and Zoning Administrator John McKee.Kratz said, “So, once the building permit signed, according to your zoning regulations, there’s 10 days to appeal that decision, and whether it’s approved or disapproved. And then, within that 10 days, if there’s an appeal filed, it goes before the Board of Adjustment to make a determination.”Levy said, “This discussion confirms that there is already a process and a Board of Adjustment process is a public hearing. If Mr. Kratz or whoever his clients are don’t like what Mr. McKee does, under the current law, then they have a process already in law through the board of adjustment that involves a public hearing.” Who is Asking for Amended Permits?David Levy said, “I appreciate Mr. Kratz, his request and I don’t know who he’s representing. I don’t know if we’ve clarified that yet.”Kratz has denied having a client in this matter. He advised FJN via email, “I am acting on my own behalf. I have spoken with many people regarding their concerns in this matter but just because I have spoken with them does not make them apart (sic) of some anonymous group.”When FJN asked about the people he had spoken to or if he had been paid anything, Kratz said he could not answer, “I am an attorney authorized by the Nebraska Supreme Court to practice law in the State of Nebraska. As such I am required to follow the Nebraska Court Rules of Professional Conduct. Those rules do not allow me to disclose conversations I have with people in my professional capacity, nor do they allow me to disclose the names of individuals to which I have professional conversations with without their consent. I simply cannot legally answer your questions.”

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