My goal today is to clarify for you what our organizations mean when we say that the recommendation from LURC staff conflicts with applicable legal standards, and LURC’s own Comprehensive Land Use Plan for the region.

But before I go further, I would like to stress strongly a fact that is highly significant: By saying no to Redington, LURC does not have to say no to all wind power projects in Maine.

Our organizations believe that when LURC’s commissioners review the staff recommendation, they will find page after page of it astounding. The pages of this recommendation do not reflect the careful process and credible judgments of the LURC that Maine has come to know.

The LURC staff recommendation fails to address the most important questions reaised by this development and is written with such high deference to the developer, that the precedent it would create would make it difficult for LURC to reject almost any development proposal. The low bar it creates would allow every future project to walk right over it.

In order to be approved for a rezoning petition—in order to meet legal requirements—an applicant’s proposal must show that it will create no “undue, adverse impacts” and is consistent with LURC’s Comprehensive Land Use Plan.

In our judgment, the applicant has not done that.

We have documented examples.

1. One of the legal standards that must be met for the requested rezoning is that the proposal would provide a level of protection that is substantially equivalent to the current level, which is “protected mountain area” zoning.

* To support the assertion that this standard has been met, the staff recommendation points out that the current protected mountain zoning allows, by special exception, mineral exploration, telecom towers, and ski areas—and that this project is no worse.

* The recommendation even states that the potential threat of a road or telecom tower to kill birds and bats is “similar” to the potential threat caused by 30 wind turbines—each with the circumference of a 747 aircraft and blade tips spinning at 200 mph.

* These assertions are neither reasonable nor objective—but are examples of assumptions and conclusions in the recommendation that don’t make sense—and don’t meet legal standards.

2. Another example of an unmet legal requirement within the recommendation has to do with scenic impacts on the experience of using the Appalachian Trail that is barely a mile from the proposed project site.

* Under LURC’s laws and regulations, scenic impacts are on the same footing as other environmental concerns such as soil and water. Yet the staff recommendation completely dismisses testimony on negative scenic impacts that came from a host of experts including the National Park Service and U.S. Forest Service. It also makes no mention of documentation of negative scenic impacts that was presented during the hearings by national and local organizations that maintain the Appalachian Trail in that area.

* What the recommendation cites instead is the applicant’s own flawed scenic assessment, as well as a few letters from people who identify themselves as hikers.

* That’s it—that’s what the recommendation uses as the basis for concluding the project will not have an undue adverse impact on the Appalachian Trail.

* Again, the concern for scenic impacts is not fanciful—it’s Maine law.

3. A third example of the recommendation’s failure to show that the project will create no undue adverse impacts on existing uses or resources is its reference to one of Maine’s listed threatened species.

* The recommendation makes a startling demand that the opponents provide “definitive” evidence regarding the need to require protection for the northern bog lemming—a species that already is listed by the state of Maine. Requiring this evidence from the opponents is not the current legal standard—and shifts the burden of proof away from the applicant onto the opponents. This burden shifting and raising the bar by requiring “definitive evidence” would set a precedent that makes it harder for Maine’s endangered and threatened species to be protected.

Comprehensive Land Use Plan Principles:

* The recommendation is a clear sell-out of the core principles the LURC commissioners have championed steadily in the Comprehensive Land Use Plan.

* Again, to be in compliance with Maine law, the proposal must be consistent with the Comprehensive Land Use Plan. I will provide multiple reasons why the proposal is not consistent with the plan and how the recommendation falls short in this area.

* The Comprehensive Land Use Plan states that “Remoteness and the relative absence of development” are “perhaps the most distinctive of the jurisdiction’s principal values.” (P. 114) Yet the staff recommendation simply dismisses these values. Instead, it embracesa “human dominated landscape” as a suitable substitute for the rare, remoteness of the western mountains.

* The first broad goal of the Comprehensive Land Use Plan is to “Support and promote the management of all the resources, based on the principles of sound planning and multiple use, … to ensure the separation of incompatible uses, and to ensure the continued availability of outstanding quality water, air, forest, wildlife and other natural resources values of the jurisdiction.” (P. 134)

* Yet, the recommendation accepts bird and bat migration studies from the applicant that fail to meet current wind industry standards; [altitude and not all of project area]

* Further, the recommendation accepts something the applicant calls “the tool box approach” to the most challenging engineering and construction project ever undertaken in the mountains of Maine.

* What is the “tool box approach?” That’s not clear—it is the phrase the applicant uses in lieu of a detailed, verifiable description of how engineers and architects who admit they have never designed and built roadways at elevations over 2,700 feet will do the job in an incredibly fragile environment.

* The third broad goal is to “Maintain the natural character of certain areas within the jurisdiction having significant natural values and primitive recreation opportunities.” (P. 134)

* The recommendation fails to deal with "primitive" by saying that the "opportunity to use the AT would not be altered" but misses the point that this section of the AT is known for its sense of remoteness. While hiking itself is a primitive experience, the recommendation misses the point that an important component of a primitive experience is lost when it occurs in full view of a industrial wind plant.

* Furthermore, One of the Plan’s two policies for Mountain Resources is to “Identify and protect high mountain resources with particularly high natural resource values or sensitivity which are not appropriate for most development.” Amazingly, despite its relevance to the evaluation of this project, this policy is never mentioned in the staff analysis.

By recommending approval of a wind-power project in an area that is as exceptional as this one, LURC staff is essentially setting a precedent that gives a free pass, regardless of environmental impacts, to a range of projects seeking approval in zoned protected areas.

Again, by saying no to Redington, LURC does not have to say no to all wind power projects. Because of the outstanding character of Redington, denial of the project could be written narrowly to keep the door open for other wind projects.

We are encouraged that the LURC commissioners will see that the staff recommendation does not meet Maine’s legal standards, and they will therefore deny the project application.

The commissioners have made clear in their recent discussions about revisions to the Comprehensive Land Use Plan that a sell out of LURC’s core principles is not in the cards.

Windpower development that makes sense for Maine can be sited in far lower-value natural areas. Redington clearly does not fall into this category.

MAINE AUDUBON works to conserve Maine's wildlife and wildlife habitat by engaging people of all ages in education, conservation, and action. With a 160-year history, Maine Audubon today is affiliated with Audubon’s national organization and has seven local chapters in the state. Support for Maine Audubon comes from 11,000 member households and donors, including individuals, foundations and corporations.

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Statement of Jenn Burns, Maine Audubon staff attorney and advocate

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Statement of Jenn Burns,
Maine Audubon staff attorney and advocate