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Bar News - September 16, 2011

Environmental & Natural Resources: Assessing Environmental Impacts of Wind Energy Installations in New Hampshire


Peter C.L. Roth
Since 2006, New Hampshire has seen the development of three utility-scale wind-powered electrical generating facilities. While only one of these projects has been completed and is producing power, the impacts of all three projects have been vetted and approvals obtained. The largest project, in northern Coos County, began construction this summer. These facilities, while relatively costly, provide emission-free electricity to the grid; properly sited, wind energy can make a meaningful contribution to our energy supply.

Considering Wind Power

There are a number of considerations to be made in deciding where to locate a wind turbine. The first and most obvious of these is, wind. Wind turbines must be constructed where the wind blows powerfully, frequently, and reliably. In New Hampshire, for the most part, the wind is on high-elevation ridges and mountains, and this is where developers are focusing their development efforts. These locations are generally remote from grid infrastructure and load. More importantly, though, the windy locations in New Hampshire are environmentally sensitive in some cases and close to communities in others.

The process for assessing the impacts of wind turbine placement is governed by RSA 162-H and is conducted by the Site Evaluation Committee in an adjudicative setting including public meetings and evidentiary hearings designed to find a balance between the state’s need for energy sources and the environmental impacts of those projects. RSA 162-H:1, 3, 5 & 10. Successful developers receive certificates of site and facility allowing them to construct and operate the projects subject to conditions imposed. RSA 162-H:16, VI.

Populated Areas

The impacts that are most felt in populated areas are noise and view. Wind turbines make noises that can be heard for over a mile under the right conditions. Wind turbine noise can be a disturbing mechanical intrusion in what are often otherwise very quiet locations. While there have been anecdotal reports that wind turbine noise may cause loss of sleep, anxiety, and other serious medical problems, the scientific basis for such claims has not yet been established. Under EPA and WHO guidelines for a particular noise source to become annoying or harmful, its loudness needs to exceed 60 decibels, comparable to an air conditioner at 100 feet away. There is no state law that sets the maximum noise levels that may be emitted by a wind turbine. FERC regulations, while not strictly applicable, have established 55 db as the limit for energy facilities. See, e.g., 18 C.F.R. 380.12(k)(4)(v)(A). Industry analysis shows that noise levels of this magnitude are unlikely to be experienced more than a few hundred feet from a tower. The Site Evaluation Committee has imposed a 55 db daytime and 45 db nighttime limit at the outside of a dwelling, or 5 db over baseline, if the baseline is already 55 db or higher. (See Decision Granting Certificate of Site and Facility, Application of Groton Wind, LLC, No. 2010-01, dated, May 6, 2011 at 85-86 ("Groton Decision").

In the field, actual experience is uncertain and topography can play a significant role in sound propagation. Significantly, even at distances, some people who are accustomed to quiet natural environments may discover that the presence of this new mechanical noise source is highly disturbing and annoying to them. Expert opinion after rigorous background sampling under appropriate conditions to establish a baseline prior to construction is required. Modeling that is designed to protect the public from annoyance can provide important information that may be predictive. Post-construction operational monitoring should also be undertaken to ensure that the facility operates in compliance with license parameters.

Wind turbines are also very tall and massive. From base to blade-tip, each machine approaches 400 feet in height. When the wind turbine is placed on a ridge top, it is most advantageous for energy production that it be unblocked by trees or landscape. In other words, they stick out quite prominently. People either love them or hate them. To the beholder, they can represent either the bright future of a green planet or the heedless violation of a pristine natural landscape by corporate greed. When placed in context, moreover, the visual impact of a wind turbine can increase or decrease. For example, few would argue that a view of wind turbines above and in the background behind a shopping center is a detrimental impact. But similarly, few would argue that the view of a group of wind turbines around a scenic natural lake would not be a negative impact. Developers retain visual impacts consultants who use modeling to create an expected viewshed. Using the viewshed they conduct surveys to estimate what the views will be like from particular points in the viewshed. The analysis is then conducted to determine whether a particular view, in context, will have an "unreasonable adverse effect" on local aesthetics. See RSA 162-H:16, IV, (c). So far in New Hampshire, no wind turbine site has been determined to have such an impact.

Unpopulated Areas

High-elevation natural areas provide valuable habitat for a wide variety of birds, mammals, and reptiles. Some of these creatures, such as Bicknell’s thrush, American three-toed woodpecker, Pine martin, Bald eagle, Golden eagle, Peregrine falcon and others are listed as threatened or endangered. While an existing wind turbine facility may have little or no impact on many species (they adapt or move on) the destruction of habitat resulting from forest clearing, wetlands filling, and road building for wind turbine installation can be significant and can dislocate and extinguish important numbers of these animals. In addition, there is a shortage of statistically valid evidence to make a meaningful and verifiable claim that operating wind turbines will have no impact on resident and migrating avian species.

Consultants in this field will state without qualification that preconstruction studies are not predictive of the impacts a project may have on avian species. This means that the most accurate way to measure impacts is to build the project and begin to count the bird and bat kills with rigorous post-construction mortality surveys. See Groton Decision at 68-71. The US Fish and Wildlife Service is in the process of revamping comprehensive guidelines for locating wind farms so as to minimize the impacts on migratory and breeding birds and eagles. See 76 Fed. Reg. 9590 (Feb. 18, 2011). These Guidelines, while not of a binding nature, propose an analytic approach for determining whether a particular location is suitable for wind turbine installation. As the risks of harm increase, the Guidelines propose increasingly stringent requirements or recommend against placement.

New Hampshire’s ridges are used by many species of birds and raptors to guide the fall and spring migrations. Birds that roost, forage and breed near operating turbines are also at risk of strike impacts with blade tips reaching speeds of 150 mph. While wind turbines are required to have lights to warn airplane crews to avoid them, no such technology exists to keep birds and bats away. As a result there is a mortality associated with turbines operating in or near migration pathways and local avian users. Post construction surveys on other sites in the northeast have indicated a relatively low rate of mortality, but each site is different and there is yet to be developed a consensus over the standard against which to measure the mortality encountered. See Groton Decision at 68-71. Is an impact "unreasonable" only if it would effect the global population? Or would an impact that posed a risk of extirpating the entire local population be significant enough?

Public policy encourages development of wind energy but some of the rules protective of the environments in which they are constructed are being developed on a case-by-case basis rather than statewide. The uncertainty of outcomes can make the process difficult for developers and the public. Perhaps guidelines or siting rules with specific parameters concerning noise, aesthetics, and wildlife impacts would be helpful but will be some time in the making.

Peter Roth is a Senior Assistant Attorney General with the New Hampshire Department of Justice. He is a member of the Environmental Protection Bureau, where he frequently serves as Counsel for the Public in Site Evaluation proceedings.

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