Bar News - September 20, 2017
Environmental, Telecomm, Utilities & Energy Law: Antrim Wind: Testing the SEC’s New Rules on Aesthetics
By: William J. Dodge and Heidi Trimarco
The March 2017 decision of the New Hampshire Site Evaluation Committee (SEC) to issue a Certificate of Site and Facility to the 28.8 megawatt Antrim Wind renewable energy project (Antrim II) marked the first application of a set of administrative rules that, among other goals, sought to protect against unreasonable adverse effects on aesthetics.
Aesthetics was only one statutory element affected by the new rules adopted in 2015, which interpreted the 2015 version of RSA 162-H:16 (IV)(c) (see Susan Geiger’s article in the Sept. 21, 2016 issue of Bar News). Yet given that the SEC rejected the first Antrim Wind application in April 2013 primarily on aesthetics grounds (Antrim I), and considering the SEC’s decision in crafting the new rule to import and modify the so-called “Quechee test” from Vermont land-use permitting jurisprudence, the SEC’s decision will likely serve as a benchmark for evaluating future siting applications.
Aesthetics and the First Antrim Wind Application
In Antrim I (Docket No. 2012-01), the SEC rejected the developer’s application to install 10 large wind turbines, 4 miles of new road, and associated infrastructure off of Tuttle Hill in Antrim. The SEC focused on the facility’s visual impact to deny the project based on its unreasonable adverse impact on aesthetics, including its “out of scale” effect on the landscape, and the project’s “significant qualitative impact” on several identified scenic resources.
Critical to the SEC’s Antrim I determination was testimony of aesthetics expert Jean Vissering on behalf of the NH Attorney General’s Office as counsel for the public (CFP) regarding techniques for visual mitigation that had not been incorporated into the project. Although the applicant later attempted, through a motion for reconsideration, to incorporate the recommended mitigation measures, along with other changes, the motion was denied on grounds that the changes effectively amounted to a new application.
New Aesthetics Rule and the Quechee Test
The “unreasonable adverse effect on aesthetics” criteria has been in the SEC’s governing statute for review of energy projects since 1971, closely mirroring language adopted in Vermont energy and land use law from statutes passed in 1970. Until recently, the SEC did not have a working definition or test for what constituted an “unreasonable adverse effect.” This changed as a result of the General Court’s passage of SB99 in 2013 in order to reform the SEC process.
A 2014 working group on aesthetics looked closely at Vermont’s Quechee test as a starting point. A simplified statement of that test focuses on three criteria for when a project’s adverse visual effect becomes “undue” (as distinct from “unreasonable”): 1) does the project violate a clear, written community standard intended to preserve the aesthetics or scenic beauty of an area; 2) is the project shocking and offensive to the average person; and 3) has the applicant failed to take generally available mitigating steps which a reasonable person would take to improve the harmony of the project with its surroundings?
Vissering – an aesthetics expert well-known to Vermont land use practitioners, and often credited with shaping the Quechee test in the 1980s – successfully advocated within the working group for a modified Quechee test. The New Hampshire test places greater emphasis on evaluating impacts from certain scenic resources, and requires a resource-specific visual impact assessment (VIA) to rate a project’s predominance.
The new rules became effective in December 2015. The “unreasonable adverse effect on aesthetics” test in Site 301.14 now requires the SEC to consider:
- The existing character of the area of potential visual impact;
- The significance of affected scenic resources and their distance from the proposed facility;
- The extent, nature, and duration of public uses of affected scenic resources;
- The scope and scale of the change in the landscape visible from affected scenic resources;
- The evaluation of the overall daytime and nighttime visual impacts of the facility as described in the [VIA]…;
- The extent to which the proposed facility would be a dominant and prominent feature within a natural or cultural landscape of high scenic quality or as viewed from scenic resources of high value or sensitivity; and
- The effectiveness of the measures proposed by the applicant to avoid, minimize, or mitigate unreasonable adverse effects on aesthetics, and the extent to which such measures represent best practical measures.”
The rules include a specific definition of “scenic resource” that emphasizes publicly-accessible resources designated in community planning documents, or resources maintained through public funds or by local government.
The Second Antrim Wind Application
The new rule was tested for the first time when Antrim Wind filed its second application with the SEC in October 2015 (Docket No. 2015-02). The applicant made several modifications to the original project designed to conform to the new siting criteria in SEC 301.14, including removing turbine 10, reducing the height of turbine 9, changing the turbine design to a sleeker model, employing a radar-activated lighting system (subject to FAA approval), and implementing a landscaping plan for the project’s substation and control building.
The applicant also committed to permanently conserve 980 acres of forest in the project area, including 100 percent of the Tuttle Hill ridgeline, while paying $40,000 to the Town of Antrim to enhance the Gregg Lake recreational area, pledging a $5,000 per annum scholarship donation to the town for the project’s operational life, and making a $100,000 payment to the New England Forestry Foundation to acquire additional conservation lands in the area.
The applicant’s aesthetics expert – David Raphael (another well-known name in Vermont land use permitting) – completed a comprehensive VIA that is described in meticulous detail in the SEC’s decision. Using GIS data, guidebooks, maps, and public documents, he identified 290 scenic resources within a 10-mile radius of the project, found potential visibility for only 30, and determined that 10 of those were “sensitive,” with the potential for having “moderate-high” or “high” visual sensitivity vis-à-vis the project.
Raphael used each turbine’s nacelle as the VIA’s primary focus point (not the moving blades), and explained his criteria for the rating system, including remoteness, duration of view, extent of use of the scenic resource, and type of activity. Finding only one scenic resource to have high visibility/predominance, he concluded that the overall project was scaled appropriately, and that the applicant had employed suitable mitigation.
In opposition, the CFP from the Attorney General’s Office provided its own visual analysis, based on a rating system prepared by multiple landscape architects. Critically, however, only one member of the rating panel actually visited the sites. Members of the panel were not provided empirical information regarding the common types of usage of the rated resources or information regarding surrounding areas. Further, the panel did not establish a scenic inventory from public documents (relying instead on areas identified by parties as sensitive during the proceedings). And at least one of the resources alleged to be highly impacted by the project was shown on cross-examination to have no public access (thus disqualifying it from consideration under the rule).
Other intervenors argued more generally that the project was “out of scale” (relying on the Antrim I decision), or that property values would be adversely affected (despite there being no such criterion in the aesthetics rule). One project proponent also compared the visual experience at the existing wind facility in Lempster to the Antrim proposal, and concluded by analogy that scenic resources had not been diminished by wind turbines. The SEC also noted the Antrim Board of Selectmen’s general conclusion that the project would not have an unreasonable adverse effect on aesthetics of the region.
The SEC’s aesthetics analysis in Antrim II is shorter than its articulation of the methodology and evidence used by each party’s witnesses to present the case for compliance with the new rule. Deliberations focused primarily on the SEC subcommittee members’ own sense of reasonableness, noting the conflicting expert opinions. The subcommittee addressed impacts from seven specific public resources, describing the distance of each from the turbines, and weighing the comparative sense of the project’s predominance.
The SEC listed the physical changes to the project from Antrim I as part of the mitigation efforts, and noted the “indirect” effectiveness of the conservation easements and payments to preserve rural and forest uses in the view-shed (though making no mention of the municipal payments). In a passage not unlike decisions from Quechee jurisprudence, the SEC ended by concluding that “while the Project may have adverse visual impacts, the Project will not have an unreasonable adverse visual impact on any of the scenic resources.”
The Antrim II decision marks the first major test of the new rules outlining when a project has an unreasonable adverse effect on aesthetics, a question previously answered without clear regulatory guidance. Though presently being challenged at the state Supreme Court, Antrim II is likely to guide future siting decisions at the SEC, if nothing else for the clear outline of what is required to prepare and defend a comprehensive VIA, as well as to the strong indicia of suitable mitigation for large energy projects, and the importance of selectmen support in the host municipality. Though the Quechee test served a critical role in fashioning the new rule, the SEC has clearly charted a new course for balancing the need for energy projects with the preservation of New Hampshire’s sensitive landscapes.
William J. Dodge is the chair of the Regulated Entities Group at regional law firm Downs Rachlin Martin. Heidi Trimarco is of counsel in DRM’s Lebanon, New Hampshire, office.