Wind Energy Laws

The United States Fish and Wildlife Service (USFWS) is the agency responsible for protecting protected wildlife and enforcing federal wildlife laws. The most important federal wildlife and wind energy legislation is the Migratory Birds Contracts Act, the Bald Eagles and Golden Eagles Act, and the Endangered Species Act. The removal of wildlife species and protection from habitat destruction falls under the federal wildlife laws noted above. The protections provided by these laws involve actions that harm wildlife. In the construction, development and maintenance of energy sources – both renewable and traditional fossil fuels – wildlife can be damaged by direct impacts such as injury or kill, or indirectly by habitat disturbance. Summary The Public Utilities Commission is responsible for selecting the energy location of utilities with a capacity greater than 75 MW. Local governments regulate the location of small institutions. Some States are also considering policies that would create additional barriers in the site approval process. For example, Ohio considered legislation in 2019 and 2020 to allow for community referendums on new wind farms after receiving approval from the Ohio Power Siting Board. These types of initiatives can create additional barriers to project development and create uncertainty for proponents, but it should be noted that not all dual permitting processes impede wind growth. For example, the permitting process between two states and Colorado local authorities described above has been shown not to stifle wind development, as Colorado is among the top 10 wind producing states in the country.

Summary The Public Utilities Commission issues permits for the construction of electricity generation facilities, including renewable energy generation facilities with a capacity of more than 70 MW. Laws mandating a local zoning authority direct local authorities to make zoning decisions in a way that promotes wind and solar energy systems alongside other land use goals. State law also prohibits local governments from issuing ordinances that unduly restrict wind energy development. Summary In South Dakota, any construction of a wind turbine larger than 5 MW must inform the Public Utilities Commission of the location, size and type of connection of the plant. No person may begin to build a wind turbine with a capacity of 100 MW or more without first obtaining permission from the PUC. The PUC must make a final decision on a wind energy licence within nine months of submitting the licence application. Communities with abundant farmland also tend to experience increased growth in wind generation as they are able to support large-scale wind projects that require large amounts of open land. Wind projects also provide a secure income for farmers, who experience lower income stability due to weather fluctuations and commodity price fluctuations.

Farmers are able to take full advantage of the surrounding land by planting crops and grazing livestock at the base of a wind turbine. According to the American Wind Energy Association, after a wind turbine is installed on a farm, 98% of the land remains intact. This allows the land to have almost complete agricultural production and be used to produce wind energy. A Michigan survey found that most landowners owning farms and wind turbines had more positive than negative effects of wind on their properties. Wind energy ordinances passed by counties, cities, and other types of communities are one of the best ways for local governments to identify conditions and priorities for all types of wind development. These regulations regulate certain aspects of wind energy projects such as location, permitting procedures and construction. The standards set out in the regulations provide clarity to wind developers and the public. Regulations may also address community impact issues such as land use, noise standards and safety. Summary The Public Service Commission has the primary selection site for wind energy projects. Large-scale wind projects must obtain a certificate of public opportunity and necessity from the Commission prior to construction.

Wind projects with a capacity of less than 70 MW still need to be approved by the Commission. The Board is required to consider local zoning by-laws when granting permits for major renewable energy projects. At least 41 states have installed large-scale wind turbines — and all have related regulations and laws that establish removal requirements, site processes, and site authorities. A state`s approach to developing location rules can significantly affect wind development in a state. Small wind turbines are generally under local jurisdiction. State law also prohibits municipalities from issuing inappropriate ordinances or regulations regarding the generation of small winds, including passing ordinances that require setbacks of more than 150% of the height of the property boundary system.