MVC weighs new rules for the sky above
By Steve Myrick
Published: September 24, 2009
At its meeting next Thursday, the Martha's Vineyard Commission (MVC) is set to accept an unusual nomination for a district of critical planning concern (DCPC). Accepting the nomination - all but a certainty, according to commission members and staff - would trigger an immediate moratorium on any development 200 feet above Island land or above the three-mile territorial limit of state waters. Development below that 200-foot level would not be affected by the moratorium. The wording of the proposal is a consolidation of formal requests for a nomination from the Chilmark selectmen and the Chilmark planning board. The Tisbury selectmen and planning board, the Oak Bluffs selectmen, and the county commissioners also submitted requests.
Such a DCPC would provide a framework for regulating large-scale wind turbines, according to the MVC. The possibility of near-shore wind farms has attracted intense attention since the recent release of a draft Ocean Management Plan by state regulators. The plan designates areas south and west of Nomans Land and west of Cuttyhunk as the only places in Massachusetts waters where utility-scale wind farms would be allowed. The plan also would allow developments of 10 turbines or less immediately off the Island's coastline.
"My sense is within the commission itself, it's an issue of appropriate wind development," said Christina Brown of Edgartown, chairman of the MVC. "I think the sense of the commission is that a comprehensive planning effort for the state ocean waters is an important framework for future development, and that it is important for the commission and the Island to increase renewable energy and to acknowledge that the ocean is a major source of that."
If, as expected, the MVC accepts the nomination of the airspace above 200 feet as a DCPC, the commission will have 60 days to hold public hearings, write regulation guidelines, and vote whether to designate the airspace as a DCPC. If the commission goes forward with the designation, the moratorium is automatically extended for one year. During that time, the commission would work closely with each Island town to write proposed bylaws, which would then have to be approved by two thirds of voters in each town's annual town meeting.
Change of plan
The commission's enabling legislation provides the land use regulatory body with broad powers to control development. The enabling legislation carries a lot of weight in state courts. Though challenged often, the courts have ruled in favor of the commission on every dispute over a DCPC, according to the commission staff. The Ocean Management Plan acknowledges a role for the MVC in regulating near-shore waters, but appears to establish a route of appeal through the Energy Facilities Siting Board (EFSB), not through the courts.
"The EFSB is a political, not a judicial, body," write Ron Rappaport and Eric Wodlinger in an OpEd on Page 13 of today's Times. Mr. Rappaport is counsel to five Island towns, and Mr. Wodlinger is an attorney who advises the MVC. They point out that every member of the siting board is appointed by the governor, or serves during the same term as the governor, and has with only a minor exception, never rejected a license for any electric generating station. "For a utility or an electric power developer, this is the permitting body of your dreams," the attorneys write.
On this issue, the MVC and many other elected Island officials hope to influence the state Department of Environmental Protection as it formulates the final draft of the Ocean Management Plan. The final public hearing in the comment phase of the state's process is scheduled for tonight at 6 pm, at the Katharine Cornell Theater in Vineyard Haven.
Several local elected officials say that it comes down to a matter of where the final authority lies, with the siting board, or with the MVC.
"Everyone at the state level is willing to talk," Ms. Brown said, adding that she is confident the MVC will have a role in the process. "What that role will be, legally or functionally, we're still working out. The commission is not opposed to the ocean plan. We're concerned about how some of the elements of the ocean plan will play out."
Air speed
The MVC is moving very quickly on the issue of regulating wind power. Ms. Brown said the commission welcomes letters and email comments from Island residents, and sent a letter on September 18 requesting comments from Island boards of selectmen and planning boards. While no public hearing is required on the issue of accepting the nomination, Ms. Brown said the commission would listen informally to public comments at its October 1 meeting. "Issues haven't been fully articulated yet," Ms. Brown said. "Part of the nomination process is to get the discussions going. We will certainly listen and read anything people have written to us, anything that is relative and important."
One person already weighing in is David McGlinchey, of the Vineyard Energy Project. That group is promoting a cooperatively owned wind utility, and is keeping close tabs on the MVC's actions.
"It's certainly on my radar," Mr. McGlinchey said. "We believe it's just good policy that local communities retain control of wind farms that are being developed in those communities."
Mr. McGlinchey said he is not concerned about the swiftness of the commission's process.
"The time line that a DCPC would put in place does not really affect offshore development," Mr. McGlinchey said. "There's nothing going in the water in that time frame."
One project that could be affected is the land-based wind turbine project at the Edgartown wastewater treatment plant, projected to provide power for much of the town's municipal buildings. Unless the MVC can find a way to grant an exception for that project, a moratorium could have a significant impact. "My hope is to have their regulation, but exempt municipal wastewater treatment plants from it," plant manager Joe Alosso said. "We have a project that is moving ahead, so 12 months would seriously jeopardize the grant funding and all the work that's been done so far. If I'm not able to move forward, they're going to give that money to someone else." Mr. Alosso said if regulatory approval for the turbine is granted by various town, state, and federal agencies, the town may be looking for funding and a building permit next spring.
