Better Plan, Wisconsin

Calumet County Board supervisors approved changes to the county’s wind ordinance when they met last Tuesday, March 18.

Among the biggest changes to Chapter 79 of the county’s ordinances is boosting the setback distance for wind turbines from the existing 1,000 feet to 1,800 feet.

Public participation at the meeting included residents from the New Holstein area speaking to the 1,800-foot setback requirement. Speakers said they felt citizens surrounding the farm property no longer had a voice. “Implications of not passing the ordinance will have self evident effects,” one speaker said. The construction of wind turbines was described as “the most contentious issue” this county has faced in years.

Randy Jaeckels, general manager of New Holstein Utilities, spoke on behalf of Wisconsin Public Power, Inc. and the proposed five turbines within New Holstein’s service territory. He addressed points about calls he has received over the past few weeks.

New Holstein project on hold

“At this point there is not going to be an abandonment of the project, it is just placed on hold because of county ordinances,” he said. He further explained his position on the construction of the turbines. “If it’s too restrictive (ordinances and setbacks) then it will be too impossible to proceed with,” he said. He encouraged board members to vote against the more restrictive ordinances in an effort to encourage the construction of wind energy.

Jaeckels also mentioned turbines could not be built near the New Holstein Airport per Federal Aviation Administration restrictions. He also said he spoke with Chilton Mayor Bill Engler Jr. on the issue. “We want to be good neighbors,” Jaeckels said. “Renewable energy needs to be part of the solution. I encourage supporting wind energy systems.”

Engler addressed the board for the third time regarding how wind turbines could impact the City of Chilton. He said, “We stated affirmatively no wind turbines within a mile and a half of the city (about 8,000 feet)-you give us 1,000 feet. Isn’t government supposed to work with each other?”

Engler added, “Power companies come here with money and a promise to help in the name of wind energy. They have a legal staff and threaten lawsuits. They set friends against friends. Do they have to be here? Why Calumet County? Are we really the windiest? Wind is along Lake Michigan. Why here? Money follows the area of least resistance. We need to stand up for citizens. We are elected for this, and I ask to support the advisory recommendations to support ordinance amendments,” he said.

Several other speakers, most residents of Calumet County, used their allotted three minutes to publicly speak for and against wind turbine construction in the Calumet County areas. The Johnsburg project seated on the northern most portion of Fond Du Lac County was also mentioned. Everyone agreed that the day’s votes would have a major impact on the future of the county.

Noise, setbacks and erosion

Of the 10 ordinances on the agenda pertaining to wind turbine energy, the three most talked about over the past few years are noise, setbacks and construction site erosion control. Prior to discussing the proposals-which started with an ad hoc committee and then were reviewed by the county’s Planning and Zoning Committee-Chairman Merlin Gentz removed himself from the chair.Supervisor Bill Barribeau took the place of Gentz, and two other supervisors excused themselves from the votes.

In discussing the proposed noise ordinance, sound expert Rick James from E-Coustic Solutions was in attendance to answer questions regarding noise and decibel levels. Supervisor Alice Connors said, “The Public Service Commission has to take into account all of the ordinances and issues brought about. The (state) bill was delayed to give people the time to look at everything, pass ordinances to say ‘yes we are concerned about noise and setbacks.’ To do nothing would be ridiculous.”

“No more time and energy on this,” said Supervisor Christopher Krause. “Let’s do something now.” Gentz encouraged supervisors to study the Dodge County and Johnsburg projects. “I’m on the side of caution,” he said. “The Public Service Commission is going to come in and what we do here makes no difference,” said Supervisor Chester Dietzen about 138 turbines proposed for the area.

By Gina Kabat
TC News correspondent

Tri-County News

26 March 2008

WEDNESDAY! 4-7pm! COME AND SPEAK TO GOVERNOR JIM DOYLE'S TASK FORCE ON GLOBAL WARMING.

WHAT'S THIS  ABOUT?

The public is asked to comment on the interim report from the task force.
One of the most surprising things about the report is the only renewable energy source it recommends for the state of Wisconsin is wind energy.

It recommends wind turbine siting reform. This will take control from local government over siting and regulation of wind farms and give it to the PSC. This same recommendation is what lead to the 11th-hour legislative bill so many of us went up to Madison to protest.

Why is it important that I comment? 

If you believe your local government will do a better job of protecting your concerns than the Public Service Commission, it's important you say so.

Studies from several Wisconsin townships and counties in Wisconsin show that the PSC's is wrong in its belief that a 40 story wind turbine placed 1000 feet from your door will not cause problems, and that 50 decibels of noise won't be hard to live with. They can't tell us why they believe this, or what it's based on.

Our local governments that have studied the issue and have written ordinances to protect their residents by increasing the set back and lowering the noise limit, can tell you immediately what these set backs and noise recommendations are based on. They have sound medical and scientific reports to back up their ordinances.

If the task force's recommendation is passed into law, those ordinances will be no longer be valid, protection for residents will be lost, and the Public Service Commission will decide where industrial turbines can go in our community. This also opens the door for the PSC to decide what other industries can come into our townships and counties.

Also, there is no mention at all of protection of wildlife and natural areas in this recommendation. This is a concern because recent reports show the impacts of industrial wind turbines on birds, bats and natural habitat are more severe than previously thought. (This is one of the reasons the Madison chapter of the Audubon society opposed the bill.)

And if we don't like what the PSC decides for us, or if there is trouble down the road after the turbines are installed, guess who we have to go to complain?

The PSC.

In effect, this recommendation makes the PSC "The Decider". They'll make the rules that will affect our lives, property, community, farmlands and natural areas and they are also the ones who decide if our complaints about these rules are valid.

Our local government will be completely out of the picture and the system of checks and balances that democracy is based on will be gone.

The PSC will be both the rule maker and the complaints department. If this recommendation becomes law, it will require the hens to go to the fox to complain about the fox eating hens.

Your comment will let the task force know this is not acceptable.

But what about global warming?
How effective are wind farms on reducing carbon emissions?
There are big questions now being raised in Europe about how much wind farms actually reduce the gasses that contribute to global warming. Even our own National Academies of Sciences questions the impact of wind farms on reduction of green house gasses.

Wind energy must rely on thermal power plants in order to operate. This means burning coal or using nuclear plants owned by the power companies.

More wind farms can mean construction of even more coal burning or nuclear plants.

It's one of the reasons the BPRC Research Nerd believes there is wide support by power companies for wind farms. They help keep coal burning and nuclear power plants in business. Other renewable energy sources reduce power company profits. It's significant to note that wind power is the only renewable energy source recommended in this report which seems to have been written largely by representatives of power companies and wind lobbyists.

Why would they do this?
Profit. One of the most disturbing things we discovered in the interim report is how power companies interests are placed above serious environmental concerns. In the section on Energy Conservation and Efficiency we are told conservation and efficiency should be a high priority because it will have the most immediate effect on reduction greenhouse gasses. It's something that can be done right now.

Then we are told that the down side of conservation and efficiency is that it will harm the profits of the power companies. In other words, using less electricity and and using it more efficiently is not seen as a good thing. Here's how they put it in the report:

 "Increased conservation and efficiency has the potential impact to erode a utility’s current earnings and diminish its future profitability for two primary reasons. First, in the short term (between rate cases), to the extent energy sales are less than forecasted in the test year, the utility will under recover its fixed costs (which include a profit margin).

Second, to the extent that aggressive conservation and efficiency (or innovative rate designs) reduces sales, this will reduce the need for capital expenditures on future utility infrastructure. While this reduction provides societal benefits, it also lowers earnings growth opportunities for utilities, since they are only allowed to earn a return on capital investment. If an entity can only earn on one type of investment, it is encouraged to make that type of investment even if another option would be less costly to its customers and society. Click here to read this at the source. Scroll to page 37)

 And this brings us back to the the industrial wind farms. We believe the reason they are the only renewable energy option in this report is because they are the only type of renewable energy investment that will turn a profit for the power companies, even if other options -- in the very words of this report--- "would be less costly to customers and to society"

If you'd like to read the entire report, make a big pot of coffee and then click here. 

 The BPRC Research Nerd read the whole thing and came away not just unimpressed, but deeply troubled. If Wisconsin wants to lead the way in reducing global warming, this is not the right plan.

If Wisconsin wants to lead the way in making things easier for power companies to turn a profit while taking away the rights of citizens, taking away power from local government, taking away protection of wildlife, natural habitat, farmlands and rural communities, we'd say this plan is ideal.

We want a renewable energy plan that takes global warming seriously. We want the state to look into manure digesters, solar power, biomass and conservation and efficiency measures  that don't put power company profits first.

If you agree with this, please come to Madison or send an email or do both. And it wouldn't hurt to let your representative and senator know how you feel about this as well. Your voice is needed.

HERE'S THE CONTACT INFORMATION:

This session will take place simultaneously by video-conference in Madison, Milwaukee, Green Bay and Lacrosse.  

LOCATION IN MADISON!
Public Service Commission of Wisconsin
Amnicon Falls Hearing Room,
1st Floor
610 North Whitney Way, Madison

LOCATION IN LA CROSSE!
UW-La Crosse
Wing Hall, Room 102
1705 State Street, La Crosse

LOCATION IN MILWAUKEE!
Milwaukee Area Technical College
Student Services Building, Room S120
700 West State Street, Milwaukee

LOCATION IN GREEN BAY!
UW-Green Bay
Mary Ann Cofrin Hall, Room 137
2420 Nicolet Drive, Green Bay

For those who cannot attend, please e-mail comments to  DNRGLOBALWARMTFCOMMENTS@wisconsin.gov.

For more information, call 608-266-9600
Or E-mail the PSC here:  Amanda.Wollin@psc.state.wi.us
Or visit the DNR page by clicking here

We need people to speak up about wind energy issues on or before Wednesday, either by attending in person, attending via teleconference, or by sending an email. 

We need to let this task force know there are much better renewable energy options for Wisconsin. (The BPRC Research Nerd especially likes manure digesters because it is the only renewable energy source that actually solves other environmental problems as it works!)
It's important we communicate with this group because they are the ones that proposed what later became SB 544 and AB 899 (which was based on wind lobbyist Michael Vickerman’s proposal to them).  They are already “pro-wind” but we think they have mostly heard from the wind developers, the pro-wind environmentalists who are based mostly in urban areas, RENEW, and the utilities who are under the gun to meet RPS standards.  They need to hear from people who aren't getting paid and whose lives will be affected.
 
One thing we need to point out to the Task Force is that if this really is about global warming, more wind energy development in Wisconsin will do virtually nothing to reduce carbon emissions--and will  do virtually nothing to stop the global warming and climate change. How green is an energy source that will always rely on a coal fired power plant for back up?

Want to know why we say this? CLICK HERE! 

Enclosure

Note from the BPRC Research Nerd: We had heard the contracts wind developers are asking folks to sign were pretty bad, but nothing prepared us for the one we were sent.

The farmer who made it available did so at considerable risk. The contract forbids him to share it or speak about it for the next 40 years or face a lawsuit he will never win. 

He didn't know he was not just signing away the right to use of the land he agreed to lease, but he also the easement rights to every inch of the rest of his property. He didn't know this 30 year contract will actually be binding for the next 40 years.

What happens if this farmer wants to sell his land someday? The easement agreement remains in place. Would you buy property that you don't have the easement rights to? Would you buy property that requires you to get permission from a corporation before you could plant a tree or put in bushes or build any structure?

The easement gives the wind farm company the right to drive onto your property any time they want, it means they can haul big equipment over your property any time they want, and it also means if you aren't happy about it, too bad. You can't say you a word. Why? Because the other thing this contract included was a gag-order. Any future buyer of your property has to agree all the terms of the contract too, including the gag-order. And you can't tell the buyer what these terms of this contract are until after he has made you an offer. Who would make an offer on a piece of property without knowing what the terms are?

Would you? Or would you just keep on driving down the road and to find a place that would really and truly be yours?

The BPRC Research Nerd is happy to help you understand what your contract really means. If there is a contract you'd like to share with us, we will be happy to research the terms of it, run it by qualified legal council, and return it to you with our comments. We can't offer you any legal advice, but the BPRC Research Nerd likes reading contracts to find the questions you'll need your lawyer to answer. Unfortunately for the farmer who made his contract available for review, it's too late. He already signed it. He signed it without knowing what it really said and has found out the hard way that it's iron-clad. What looked like easy money has become a source of misery.

 What kinds of contract questions should you ask your lawyer to help you answer? Here is the what the Univerisity of Iowa's Center for Agricultural Law and Taxation tells us in an article called

"Wind Energy Production: Legal Issues and Related Concerns for Landowners"

(Click here for source) 

Clearly, wind farming has the potential to provide significant economic benefits for rural landowners. However, sub­stantial peril exists that landowners who don’t carefully evaluate proposed agreements with developers can be taken advantage of significantly.  Landowners should have any proposed agreement evaluated by legal counsel and attempt to negotiate any unfavorable terms.  Failure to do so could result in many years of dissatisfaction for landowners.

Legal Issues for Landowners

A wind energy agreement should never be negotiated without first having the agreement reviewed by legal counsel. Wind energy agreements are long-term agreements that will impact the land subject to the agreement for many years, likely beyond the lifetime of the landowner who executes the agreement. The following is a list of questions that landown­ers should ask when analyzing any wind energy agreement:

• How much of the land will be subject to the agreement?
• How long will the land subject to the agreement be affected?
• Based on the property rights that are given up, are the proposed payments adequate for the present time and for the life of the agreement? (Note: The answer to this question requires an understanding of the mechanics and economics of wind energy production.)
•  If the agreement offers an up-front lump-sum payment, is the payment representative of a fair amount for the rights involved?
• What are the tax consequences of the wind energy payments that will be paid under the agreement? (Note: The answer to this question depends on tax changes at the federal and state levels; the area is in an almost constant state of flux.)
•  Does the developer want to develop the land or simply use a portion of the surface for a term of years?
•  Does the agreement guarantee that a set number of wind energy turbines will be constructed on the land by a specific date and, if not, is the developer willing to guarantee a minimum amount of payments?
• Are payments under the agreement based on revenues generated by the wind turbines?  Can the landowner get infor­mation as to how the owner’s revenue will be calculated?

•  Is the developer able to sell or transfer without the landowner’s consent any of the land use rights obtained under the agreement? If so, will the original developer remain liable if the new developer or holder of the easement right does not pay the landowner or otherwise defaults?
• What events trigger the developer’s right to terminate the contract? Can the developer terminate the contract at any time without cause? If so, how are payments due under the agreement to be handled?
• What termination rights does the landowner have? How does the landowner exercise those rights?
•  If the agreement is terminated, whether by agreement of the parties or otherwise, what happens to the wind energy structures and located facilities erected on the property? What is the developer required to remove? How soon must structures be removed? Who pays for their removal?

When a wind energy agreement is being negotiated, certain issues are critical to the creation of an equitable agreement. Unfortunately, a common problem with many wind energy agreements is that once they are proposed and submitted to a landowner, the company wanting to execute an agreement tends to refuse to negotiate changes to the terms of the agree­ment.  The company’s ability to refuse to negotiate terms of the proposed agreement will depend largely on whether a landowner has meaningful options and competent legal representation.6  Key provisions to a wind energy agreement that require careful attention by legal counsel for landowners contemplating a wind farm include the following:

• Is the proposed contract a lease or an easement?  If a lease is involved, it should be long enough for the developer to recoup its investment (probably at least 20 years).  Does the developer have a right of renewal?  If so, does the landowner have the right to renegotiate any of the lease terms?  Any lease should not be perpetual — a violation of the rule against perpetuities might be involved (at least in those states that have retained the rule).
• If an easement is involved, does the easement include turbine sites, substations, air space, buffer areas, vegetation restrictions, building restrictions, transmissions, and associated rights of way?
• Is a sale of the land contemplated? If so, how is the selling price computed?  Any sale price should consist of the fair market value of the land plus the wind energy value.
• What is the amount of compensation to be paid?  Take care to ensure that the definition of “gross revenue” is done properly. Is it defined as the sale of electrons or the sale of green credits, or is it calculated in some other manner?
  
• Is the revenue to be a flat amount annually, an annual payment per tower, a percentage of gross proceeds, a payment of a certain amount of kilowatt hours generated annually, or an amount based on the selling price of megawatts per year, whichever amount is greater?
• Is an inflationary factor built into the contract payment provisions? To protect the landowner’s interest, there should be.
• Does the agreement cover land that will not be needed for the wind farm and related structures?  From the landowner’s perspective, there shouldn’t be such coverage.
• An up-front lump-sum payment has tax consequences — make sure they are understood.
• What are the intentions of the developer concerning the use of the land?  That makes understanding the use provisions of the agreement of primary importance.  The construction clause should limit the construction of wind energy structures to not more than 3 or 4 years with adequate compensation paid to the landowner for restricting the use of the land during that time.
• Can the developer assign the agreement?  If so, a clause should be inserted that ensures the original developer’s liability if the assignee defaults under the terms of the agreement. (Note: Developers want the ability to assign the agreement and subordination language.)
• Is the landowner willing to consent to a mortgagee of the developer?  If so, a clause should be included that limits the landowner’s obligations to the mortgagee.
• Consider including an indemnification clause that indemnifies the landowner for any liability incurred as a result of permissive activities (such as crop tenants, custom harvesters, and subsurface tenants) on the property subject to the wind energy agreement.
• What are the landowner’s rights concerning usage of the property?
• Consider the use of a clause that requires the landowner to be treated as favorably as neighbors (consider how to define “neighbor”) executing similar agreements.
• Include a clause requiring the removal of all improvements the developer makes upon termination (whether voluntary or otherwise) of the agreement.  Relatedly, for developments in the Flint Hills, include a provision specifying which party gets the rock that gets excavated to build the wind energy structures.
• Require the agreement to be recorded (not just a memorandum of the agreement) to eliminate the necessity of having to locate a copy of the lease in the event of sale or mortgage of the property. 
• Never agree to confidentiality clauses concerning the terms and conditions of the agreement.
• Have the contract reviewed by the landowner’s insurance agent for analysis of any additional risks created by the wind energy project.
• Will the agreement violate any USDA land-use restrictions if the subject land is enrolled in a USDA program?  If such a possibility exists, consider including in the agreement a clause requiring the developer to indemnify the landowner for any lost government payments or the imposition of any penalties.
• Evaluate the agreement with an eye toward the risk faced by the landowner.  That includes environmental concerns, issues that could be raised by neighbors (i.e., nuisance-related concerns), and potential violation of applicable zon­ing and set-back requirements.