Timbertop Wind: SEC declines taking jurisdiction from Temple and New Ipswich 

CONCORD – New Ipswich and Temple boards have retained jurisdiction in a proposed wind farm spanning their two towns. But the project may now be dead in the water, as the developer claims the towns’ regulations make wind development impossible.

During a public hearing at the Public Utilities Commission in Concord on Monday, the state’s Site Evaluation Committee heard the views of both towns and the developer, Timbertop Wind, before deciding whether the towns would retain control of the decision process, or whether the state should step in. According to counsel for the SEC, Mike Iacapino, the committee made its decision based on the fact that the towns of New Ipswich and Temple have ordinances in place that deal with the pertinent issues, and the committee wasn’t inclined to assert jurisdiction under those circumstances, among other considerations.

Adam Cohen, the CEO of Pioneer Green Energy, Timbertop Wind’s parent company, said in an interview Wednesday that he was disappointed with the decision. “We think it’s a bad decision,” he said. “The SEC is set up to provide a level playing field, and in this case they didn’t do that.”

Cohen has argued that it is appropriate for the SEC to step in and take over the decision process for Timbertop wind for multiple reasons, including the fact that the project straddles two towns, each of which has its own large-scale wind system ordinance. Also, he says Timbertop Wind has been in negotiations for a wind facility in New Ipswich for almost four years. It wasn’t until 2010 that New Ipswich first adopted a large -scale wind ordinance, and then amended that ordinance for stricter sound regulations in 2011. At the same time, Temple adopted an ordinance based on New Ipswich’s, with the same sound restrictions.

Cohen said Wednesday that the requirements eliminate the possibility of a large wind facility in either town. “We can’t move forward on the local level,” said Cohen. “We’ve spent a lot of money in that area in the past four years, but the [New Ipswich]Planning Board chose to change the rules midway through. The sound used to be 45 dB in New Ipswich, which we could meet. Changing the goalposts halfway through is no way to do business.”

Jim Parison, a New Ipswich resident and state representative, agreed with Cohen’s assessment, saying that he felt SEC jurisdiction would be more appropriate in this case, as well. He said the lowered sound restriction is too low. “It’s a random, capricious number that doesn’t have foundation in protecting public safety. A company shouldn’t have the rules changed on them halfway through, and I think the company hasn’t been treated fairly in that respect. And because the project spans more than one town, I think the SEC should have looked at it.”

The SEC is required to review projects that have the capability of producing 30 megawatts or more of energy. The proposed five turbines for Kidder Mountain would have only produced a total of 15 megawatts.

Parison said he did not think the project would have been approved even if the SEC had decided to accept jurisdiction, citing concerns for impacts on views, potential impacts on the migration of hawks on the Wapack Trail, among other things. “But I’m an advocate for fair process, and I don’t think the process has been fair,” he said.

But representatives of the local boards argue that they drafted the ordinances and made amendments with an eye to protecting citizens, not to zone out wind. They could have simply disallowed large-scale systems in their ordinances – but that wasn’t what they chose to do, said Rose Lowry, Temple’s Planning Board chair.

“We have a well-developed ordinance in accordance with laws. We did it properly and transparently and with support of the residents,” said Lowry. “Everything on our side was in place. The developer was not happy with our ordinances and thought the state oversight would be a smoother process. But we did our part well, and ultimately the state agreed. That was super confirming for our board, to have the state agree that the local process is the way to go.”

Ed Dekker, chair of the New Ipswich Planning Board, agreed. “We were very pleased that the SEC has decided to uphold the principal of local zoning. If we wanted to, the Legislature allows us to set a much lower limit or disallow large wind altogether. [Cohen] disagrees with the sound level, but he doesn’t live here. We have two local governing boards where volunteer officials spent thousands of hours researching and writing these ordinances. One might disagree with them, but the regulations were approved by New Ipswich and Temple by a large margin. If we’re not allowed to apply local control, what town could?”

Cohen had argued that the differences in the ordinances and dealing with multiple boards made a singular approach through the Site Evaluation Committee more appropriate. Temple’s ordinance is based on New Ipswich’s, but they do differ in two areas: height and setback. While New Ipswich requires the board take into account the terrain of a site, and requires an engineer to determine proper setbacks to eliminate risk of ice from wind turbine blades, Temple sets more specific limits on height and setback.

The boards had agreed to meet with Timbertop Wind jointly for review of a proposed facility, but Cohen argued that did not guarantee that both boards would reach the same conclusion. Cohen said height and setback are among the chief concerns of developers, and a joint meeting doesn’t ultimately solve the issue of two towns and two standards.