Maine DEP Developing New Rule For Wind Power Projects

by Pierce Atwood LLP

The Maine Department of Environmental Protection has announced that it is developing a new Site Law rule that will address certain development standards for wind projects. The standards that will be addressed by the new rule are in the Wind Energy Act, but are not addressed in current DEP rules.  To help facilitate the development of the new rule, DEP has released a pre-rulemaking draft for public comment.

As currently drafted, the new rule will apply to any grid scale wind energy development that is proposed for location within an expedited permitting area, and certain standards will also apply to small scale wind energy developments. Under the Maine Wind Energy Act, such developments must be reviewed for impacts related to scenic character, shadow flicker, public safety, tangible benefits, and decommissioning.  The new rule will lay out the considerations DEP will use when reviewing a project under these standards.  The draft rule will not address best practical mitigation measures, which will be the subject of a future rulemaking proposal.

Under the new rule, when reviewing projects for impacts to scenic character, DEP will consider the following: (1) scenic impacts of a development’s associated facilities; (2) the level of significance of any potentially affected Scenic Resource of State or National Significance (SRSNS); (3) the existing character of the surrounding area; (4) the expectations of a typical viewer; (5) the purpose and context of the proposed wind energy development; (6) the extent of the public’s use and enjoyment of any affected SRSNS; (7) the scope and scale of any effect on a SRSNS; (8) the cumulative scenic impact or effect when combined with other wind energy developments located within eight miles of any affected SRSNS; and (9) whether there is any unreasonable adverse effect on scenic character.

Importantly, with respect to scenic impacts, the proposed rule would allow DEP to apply traditional Site Law standards to a proposed wind power project if DEP determines the project “may result in unreasonable adverse effects.” 

With respect to shadow flicker, the new rule will require applicants to demonstrate that a proposed wind energy development has been designed to avoid unreasonable adverse shadow flicker effects at any occupied building located on property not owned by the applicant. This will require the submission of a shadow flicker analysis using WindPRO or other modeling software provided by DEP.

Applicants will need to demonstrate that proposed projects will maintain public safety through construction with adequate setbacks (the rule provides required minimums) and other considerations such as safety design standards and fire prevention measures.

The tangible benefits provisions will require applicants to show that a proposed development will establish environmental and economic improvements or benefits to the citizens of Maine that are attributable to the construction, operation, and maintenance of the proposed development.

Finally, the decommissioning provisions will require applicants to demonstrate adequate financial capacity to decommission the proposed development at any time during construction or operation of the development, or upon termination of development operations for any reason.

Click here to access a full copy of the pre-rulemaking draft.  Written comments on the pre-rulemaking draft may be submitted to Mark Margerum and must be received no later than 5:00 p.m. on Monday, August 8, 2016.

If you have questions about this proposed rule, or would like assistance or input in drafting comments for submission, please contact Matt Manahan (207-791-1189), Tom Doyle (207-791-1214), or John Formella (603-373-2010).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Pierce Atwood LLP | Attorney Advertising

Written by:

Pierce Atwood LLP

Pierce Atwood LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.