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SANMIGUELCOUNTY

ORDINANCE NO. SMC-10-14-03-ORD, RELATING TO AND REGULATING THE PLACEMENT, CONSTRUCTION AND MODIFICATION OF RENEWABLE ENERGY FACILITIES THAT GENERATE ELECTRICAL ENERGY BY MEANS OF ZERO-EMISSIONS GENERATION TECHNOLOGY USING WIND AS AN ENERGY SOURCE; IMPOSING PENALTIES FOR VIOLATION AND PROVIDING AND EFFECTIVE DATE.

ADOPTED ______, 2003

BY THE BOARD OF COUNTYCOMMISSIONERS

OF SANMIGUELCOUNTY, NEW MEXICO

EFFECTIVE ______, 2003

SANMIGUEL COUNTY

ORDINANCE NO. SMC-______, RELATING TO AND REGULATING THE PERMITTING, PLACEMENT, CONSTRUCTION AND MODIFICATION OF RENEWABLE ENERGY FACILITIES THAT GENERATE ELECTRICAL ENERGY BY MEANS OF ZERO-EMISSIONS GENERATION TECHNOLOGY USING WIND AS AN ENERGY SOURCE; IMPOSING PENALTIES FOR VIOLATION AND PROVIDING AN EFFECTIVE DATE. THIS ORDINANCE AMENDS ORDINANCE NO. SMC-10-14-03-ORD.

ADOPTED ON ______, 200____, BY THE BOARD OF COUNTYCOMMISSIONERS OF SANMIGUELCOUNTY, NEW MEXICO.

EFFECTIVE: ______, 200_____.

Underlined indicates new language

TABLE OF CONTENTS

Section 1. Title

Section 2. Authority

Section 3. Purpose

Section 4. Definitions

Section 5. Exemptions

Section 6. Application and Procedure

Section 7. Setbacks

Section 8. Procedure for Notice and Hearing Before Planning and Zoning Commission

Section 9. Procedure for Notice and Hearing Before Board of CountyCommission

Section 10. Appeal

Section 11. Indemnification

Section 12. Use of Permit: Expiration and Extension of Time

Section 13. Removal of Abandoned Wind Generation Facility and Equipment

Section 14. Penalty

Section 15. Effective Date of Ordinance

ORDINANCE NO. SMC-______

WIND ENERGY FACILITY ORDINANCE

WHEREAS, pursuant to Sections 3-21-1, 3-21-13, 4-37-7 and 4-38-1, NMSA 1978, the Board of County Commissioners of San Miguel County, New Mexico, is vested with and granted those powers necessary and proper to protect and promote the public health and safety, and advance the general welfare of the citizens of San Miguel County; and

WHEREAS, this Ordinance hereby amends and revises Ordinance No. SMC-10-14-03-ORD; and

WHEREAS, the New Mexico Renewable Energy Act, 62-16-2, NMSA, provides, among other things, that use of renewable energy by public utilities can bring significant economic benefits to New Mexico and it may serve the public interest for public utilities to participate in national or regional renewable energy trading; and

WHEREAS, Title 17 Public Utilities and Utility Services, Chapter 9 Electric Services, Part 570 Governing Cogeneration and Small Power Production (17.9.570 NMAC), provides, among other things, for reasonable costs of connection and transmission distribution; and

WHEREAS, State of New Mexico Executive Order 2007-053, provides, among other things, that increasing the efficiency of energy use in western states will provide a broad range of benefits including reducing dependence on imported fuel sources; supporting local businesses and stimulating economic development; enabling avoidance of the most controversial energy supply projects; and increasing the efficiency of energy use which will benefit all consumers, including low income populations; and

WHEREAS, it is in keeping with the spirit and intent of the above Acts and Executive Order that this Ordinance is enacted pursuant to the foregoing grant of power and authority vested in the Board of County Commissioners that Ordinance No. SMC-10-14-03-ORD is hereby revised and amended.

THEREFORE BE IT RESOLVED AND ORDAINED, by the Board of CountyCommissioners of SanMiguelCounty, New Mexico, that Ordinance No.______, is hereby approved and adopted this ______day of ______, 20____.

Section 1. Title: This Ordinance relates to and regulates the placement, construction and modification of renewable energy facilities that generate electrical energy by means of zero-emissions generation technology using wind as an energy source within the unincorporated areas and boundaries of San Miguel County; provides an effective date and shall be known and cited as the “Wind Energy Facility Ordinance” of San Miguel County, New Mexico.

Section 2. Authority: This Ordinance is adopted pursuant to and in accordance with the enabling provisions of Sections 3-21-1, 3-21-13, 4-37-7, and 4-38-1, NMSA, 1978.

Section 3. Purpose: This Ordinance shall apply to and regulate the application, review and granting of conditional use permits for the locating, construction, maintenance and modification of renewable energy facilities that generate electrical energy by means of zero-emissions generation technology using wind as an energy source within the unincorporated areas and boundaries of San Miguel County. The purpose of this Ordinance is to provide for the health and safety, and promote the general welfare of the citizens of San MiguelCounty, and to:

3.1. Locate Industrial Wind Energy Facilities in appropriate areas where there are sufficient and adequate wind speeds to support commercial wind energy development.

3.2. Analyze the impact of wind energy projects and protect the private property rights of residential property owners adjacent to proposed wind energy facility sites.

3.3. Provide adequate set-back requirements to prevent any potential damage to adjoining landowners and their property. For purposes of this ordinance, an adequate setback shallbe a minimum of three (3) miles from any continuously occupied residence, town, village or traditional community.

3.4. Further the goals of the County’s Comprehensive Plan, and promote orderly economic development within the County, with minimal impact on existing uses.

3.5. Protect and preserve the historic, scenic, archeological, cultural and visual character of SanMiguelCountyas provided under the County’s Comprehensive Plan.

3.6. Protect and preserve endangered or threatened species, and migratory bird species by ensuring that wind energy facilities have no adverse impacts on such species.

3.7. Protect and preserve the habitat and natural resources for wild and domesticated animals.

3.8. To provide a reasonable process that allows renewable energy companies to recover costs incurred for procuring or generating renewable energy and to compete in the open market.

Section 4. Definitions: The following definitions shall apply to and control all matters relating to wind energy facilities under this Ordinance and shall supercede any other or different definition used in San Miguel County Ordinance No. 86-2, or otherwise.

*As used in the Electric Utility Industry Restructuring Act of 1999 (62-3A-1 to 62-3A-23, NMSA, 1978):

  1. “ancillary services” mean those services that are auxiliary to basic generation, transmission or distribution services, but are determined by the (New Mexico Public Regulation Commission) to be necessary for the provision of the basic generation, transmission or distribution service being provided;*
  1. “applicant” means any person, partnership, company, or intermediary who files an application for a conditional use permit necessary to install, construct, maintain, or operate a wind energy facility;*
  1. “blade throw calculations” means a report from a qualified professional registered engineer that calculates the maximum distance that pieces of turbine blades can be thrown;
  1. “catastrophic tower failure” means a report from the turbine manufacturer indicating wind speed and conditions the turbine is designed to withstand and the incidence of catastrophic failures and the conditions reported at the time of failure;
  1. “computer simulation or drawings” means one or more detailed computer or photographic simulation drawings showing the site fully developed with all proposed wind turbines and accessory structures;
  1. “conditional use” means those uses which have special impact or uniqueness such that their effect on the surrounding environment cannot be determined in advance of the use being proposed for a particular location and, therefore, are subject to special standards and conditions as required and imposed by the Board of County Commissioners of San Miguel County. A use that would not be appropriate generally or without restriction throughout a particular zoning district that would not adversely affect the public health, safety, comfort, good order, appearance, convenience, morals or general welfare if controlled by special permitting within a particular district in regard to location, number, area, relationship to the surrounding neighborhood or other appropriate respects;
  1. “CountyCommission” is the Board of County Commissioners of SanMiguelCounty;
  1. “distribution company” means any person who owns, operates, leases or controls distribution facilities for distribution of electricity to or for the public and is regulated by the PRC;*
  1. “distribution facility or facilities” means a facility or facilities by and through which electricity is distributed to the customer and that are owned, operated, leased or controlled by a distribution company;*
  1. “design” means the appearance of a wind energy facility as noted on a site plan, engineering specification, computer simulation or drawings, or any similar document;
  1. “energy related service” means any competitive service that relates to or supports the provision of electric energy, but does not include supply service’*
  1. “FAA Notification” a copy of written notification to the Federal Aviation Administration;
  1. “height” is the distance measured from base of tower structure to the highest point the tower or highest radius of tower wind blade even if the highest point is a lightening rod;
  1. “historic area or resource” is an area or resource identified by a governmental agency such as the State of New Mexico Historic Preservation Division or Indian Tribe as having significant value as a historic or archaeological resource or district and any areas identified as such in the County’s Comprehensive Plan;
  1. “ice throw calculations” means a report prepared by a qualified registered professional engineer that calculates the maximum distance that ice from turbine blades can be thrown;
  1. “P&Z Commission” is the Planning and Zoning Commission appointed by the Board of County Commissioners of SanMiguelCounty;
  1. “person” means an individual, association, joint venture, organization, partnership, firm, syndicate, corporation, cooperative or any other legal entity;*
  1. “PRC” means the public regulation commission or, before January 1, 1999, the New Mexico public utility commission;*
  1. “renewable energy” means electrical energy generated by means of a low or zero-emissions generation technology that has substantial long-term production potential and may include solar, wind…renewable energy does not include fossil fuel or nuclear energy;*
  1. “siting” the method and form of placement, locale, location, place, position or spot;
  1. “Wind Energy Conversion System” or “WECS” is used to indicate setbacks as a multiple of rotor diameter or specified distance.

V. “L90” means the quietest six (6) minutes out of every hour of background noise

level measured at a distance of two (2) miles from the proposed facility.

W. “ANSI Type 1 sound level meter” is a meter which is capable of measuring both

audible and inaudible frequencies of sound.

Section 5. Exemptions: The following wind generation facilities shall be exempt from the provisions of this ordinance:

5.1. Wind generation facilities that produce electricity for personal residential use and not for commercial use or for re-sale to an unrelated person.

5.2. Wind generation facilities that utilize a single tower for personal residential use less than fifty (50) feet one hundred (100) feet in height including rotary blade diameter.

Section 6. Application and Procedure:

The following provisions shall apply to and control all applications for conditional use permits for Wind Energy Facilities, and any notice, hearing or other provision relating to conditional use permits as may be contained in Ordinance No. 86-2, inclusive of Article 7 shall not apply and is hereby expressly superceded.

6.1. The following fees shall apply. Fees are non-refundable.

  • Application Fee: $10,000.00 plus ($1,000.00 per tower upon approval)
  • Technical Review Application Fee :$10,000.00 minimum
  • Publication and Notification Fee: $ 246.00 (Planning & Zoning Commission)
  • Publication and Notification Fee:$ 246.00 (CountyCommission)
  • Appeal:$ 1,000.00
  • Technical Review Appeal Fee :$ 5,000.00 minimum
  • Publication and Notification Appeal: $ 246.00
  • Extension of Time Fee:$ 2,500.00

Note: Technical Review Application Fee is a minimum amount required at time of application and serves to defray the administrative costs incurred by SanMiguelCounty in ensuring compliance with all matters relating to this Ordinance. Applicant will be responsible for all additional costs above said minimum amount and will be invoiced by SanMiguelCounty. Any unexpended amount shall be refunded by the County to the applicant.

Note: Technical Review Appeal Fee is a minimum amount required at time of appeal and serves to defray the administrative costs incurred by SanMiguelCounty for technical review of such appeal and services relative to such appeal as determined by SanMiguelCounty.

6.2. Each application for a conditional use permit for a wind energy facility, and for each such facility, shall include the following documents:

  1. Conditional use permit application form with a letter of intent and application fee, technical review fee, and publication and notification fees.
  1. A detailed written statement explaining in full the proposed project.
  1. A site plan drawn in sufficient detail to clearly describe the following:
  2. Dimensions of the property, existing structures and proposed structures
  3. Location of existing and proposed electrical transmission lines and facilities
  4. Location of proposed and/or obtained easements for such electrical lines and facilities
  5. Existing topographical features
  6. Plan for grading and removal of existing vegetation
  7. Site restoration plan
  8. Wind characteristics and dominant wind direction
  9. Proposed setbacks
  10. Proposed ingress and egress to proposed project site
  11. Location and distance to all towns or villages within a three (3) mile radius of the proposed site.
  12. Location and distance to nearest watercourse (river, creek, acequia, springs, streams, canals, drains, natural or man-made ponds, lakes, reservoirs or wetlands) that may be impacted by the proposed project.
  13. Dust control plan
  14. Location of cultural, historical, and archaeological features
  15. Location of proposed roads within the project site to include ingress andegress.
  16. Transportation Plan to include a listing of all required equipment needed for construction of facility (i.e. cranes, trucks, bulldozers, loaders, etc); specifications for road construction if applicable; specifications for lighting, signage, speed limits and appropriate traffic control signals.
  17. Storm Water Prevention Plan
  18. Pollution Prevention Plan
  19. Safety Plan to include traffic control during construction; fire protection during construction and upon completion of facility; blasting and explosion; lightening strikes of facility.
  20. Inventory remediation plan of County roads to be utilized during the construction phase, such inventory to indicate the condition of such County roads prior to construction and how such County roads will be restored to the condition as existed prior to construction of the facility.
  1. Facility specifications to include at a minimum:
  2. Turbine information: size, type, height, rotor material, rated power input, performance safety, noise characteristics, tower and electrical transmission equipment.
  3. Turbine drawings of each turbine model including the tower and foundation.
  4. Computer simulation or drawings showing the site fully developed with all proposed wind turbines and accessory structures.
  5. Ice throw calculations
  6. Blade throw calculations
  7. Catastrophic tower failure calculations
  8. Foundation design for all proposed structures
  9. Projected useful life of facility
  1. Noise report to include at a minimum:
  2. Noise producing features including range of noise levels expected.
  3. Map of any noise sensitive environment (residences, hospitals, schools, places of worship, etc) within two (2) miles of the proposed facility.
  4. Report prepared by a qualified and certified acoustical engineer that analyzes and determines the pre-existing pre-development noise regime level within two (2) miles of the proposed facility to includenoise measurements taken over the period of one (1) month during the months of July, August or September for six (6) minutes out of every hour at the quietest time of the night, such time to be between the hours of 11:00 p.m, to 4:00 a.m., utilizing ANZI Type I sound level meter Model 831 or equivalent with both A-weighted and C-weighted frequency measurement capabilities. Noise measurements should indicate wind speed at time of measurement. Such report shall establish existing noise levels.
  5. Noise complaint resolution program if complaints are received by developer in regard to documented noise levels above the pre-development background L90 level as indicated in such report prepared by qualified and certified acoustical engineer.
  6. Description of potential noise impact and noise control features, developer’s noise complaint resolution program.
  1. Avian Impact Study Plan:
  2. Shall provide available information on the impact of the facility on local migratory and non-migratory bird species of SanMiguelCounty and of whose migratory paths traverse through SanMiguelCounty
  3. A mitigation plan for impact on such migratory bird species with a process of how such plan will be revised as industry standards and research becomes available.
  4. Shall indicate such migratory bird species..
  5. Shall indicate all seasonal migratory routes of such bird species.
  1. Decommission and Removal Plan of Facility:
  2. Must include a provision that indicates who will be responsible for said decommission and removal in the event that applicant/owner of said wind generation facility cannot or will not decommission and remove facility, or will not or cannot complete decommission and removal of facility.
  3. Must include a signed and notarized statement between applicant and owner(s) of property or properties that wind generation facility or facilities is or are located that indicates and ensures said owner(s) of property or properties will be responsible for decommission and removal of facility, including all costs associated with said decommission and removal incurred by said owner(s) and incurred by San Miguel County. Said statement must be approved by the Board of County Commissioners and recorded in the office of the San Miguel County Clerk.
  4. Financial assurance in the form of a surety bond or other financial assurance acceptable to the Board of County Commissioners for the life of the facility that ensures decommission and removal in the event that ownership of facility should change. A deposit of funds into an interest bearing escrow account within an FDIC insured financial institution for the life of the facility and earmarked for such decommission and removal is one form of such financial assurance.
  1. Soils report.
  • An overlay map of the natural features showing the location of each soil type.
  • Description of the soil types.
  • Interpretations of the limitations for each soil type for the intended land use common to the facility.
  • Soil survey will be as per national standards as set forth by the USDA National Resources Conservation Service.
  1. Protection of Cultural Properties, Archaeological Sites and Unmarked Burials Plan, such Plan subject to review and comment by New Mexico State Historic Preservation Division.
  1. Construction Schedule:
  • Start date and finish date for all clearing and grading activity.
  • Duration of exposure of all disturbed areas.
  • Stabilization date for all disturbed areas.
  • Construction and installation road system.
  • Start date and finish date for wind towers, related structures and accessory buildings.
  1. Copy of tax map and parcel identification code number of the proposed property on which the proposed facility is to be located.
  1. A project comment review letter from the New Mexico State Historic Preservation Division indicating approval or no impact. Developer shall consult with State Historic Preservation Division to determine if the project will impact a historic or culturally significant structure or site. Such consultation must be documented in writing and developer must allow State Historic Preservation Division not less than thirty (30) days to review. This consultation may be combined with above Item No. 9.
  1. A project comment review letter from the Soil and Water Conservation District to include written documentation that developer has allowed Soil and Water Conservation District not less than thirty (30) days to review.
  1. A project comment review letter from the New Mexico Game and Fish Department indicating if the project is likely or not likely to jeopardize the continued existence of an endangered or threaten species or habitat of suchspeciesto include written documentation that developer has allowed at least thirty (30) days for such review.
  1. A project comment review letter from the Land Grant Board of Trustees when the proposed facility is within a recognized and duly organized land grant, to include written documentation that developer has allowed Land Grant Board of Trustees not less than thirty (30) days for such review.
  1. A project comment review letter from the U. S. Forest Service to include written documentation that developer has allowed U. S. Forest Service not less than thirty (30) days for such review.

17.A project comment review letter from the New Mexico Department of Transportation concerning possible impact to State Highway(s) to include written documentation that developer has allowed Department of Transportation not less than thirty (30) days for such review.