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Northern and downeast Maine should be excluded from aspects of rules intended to protect large undeveloped tracts of land from the development of solar, wind and high-impact transmission lines, members of the Board of Environmental Protection recommended at a meeting earlier this month.

The rules are part of new fee programs being developed by the Department of Environmental Protection and the Department of Agriculture, Conservation and Forestry that would require certain large-scale energy projects to pay for impacts to high-value habitat or large swaths of undeveloped land in an effort to direct development away from those areas.

“I’m not sure we gain anything by defining large, undeveloped habitat blocks – for this purpose, for the purpose of renewable energy – when the likelihood of, you know, tens of miles of transmission lines going into some of these places seems very remote to me,” said board member Robert Marvinney. 

“I’m more concerned about how we approach this in southern and central Maine, where more of the pressure is for this kind of development.”

In directing DEP staff to remove northern and downeast Maine from part of the proposal, board members also reasoned that the state already has mechanisms in place to compensate for impacts, such as for alteration to wetlands under its in-lieu fee compensation program. 

Central Maine Power paid more than $2.5 million under that program as part of its development of the New England Clean Energy Connect project; large solar projects have paid fees in the hundreds of thousands of dollars, according to state data.

A number of large landowners and renewable energy developers have pushed back against the changes proposed by DEP. Solar developers argued that the additional fees could make developing utility-scale solar in Maine “almost impossible” while large landowners say they were blindsided by the proposal and that the changes penalize forest owners who have been responsibly maintaining their lands.

“When we account for the compounding effect of the Department of Agriculture, Conservation and Forestry’s (“DACF”) parallel rulemaking, it is hard to see a future for utility-scale solar in Maine,” wrote Robert Cleaves of Dirigo Solar in comments to the board.

Most new utility-scale projects will be large enough to require compensation under the new rules, Cleaves wrote, and the fees “are likely prohibitive to solar projects.” The protected areas account for nearly 80 percent of the forested land in Maine, Cleaves wrote.

“Ultimately, identifying feasible sites near remaining interconnection capacity that do not impact these areas will be very challenging, if not impossible.”

York County landowner Nathaniel Sewell said the proposal penalizes landowners who manage forestland “for the generations of hard work and sacrifice that have gone into preserving and adding to their land.” 

The rulemaking is underway as sprawl of all kinds threatens farmland and forest. Critics say the new rules unfairly target renewable energy, while ignoring the threat of low-density housing and urban sprawl.

A screenshot of some of the habitat blocks in southern Maine that could be affected by the new rules. Source: Maine DEP.

A draft presented to the board in October treats blocks in southern and central Maine differently than the northern and downeast areas of the state. In the “ecoregions” of southern and midcoast Maine, large blocks would be those that can fit an “inscribed circle larger than 250 acres” in the south and 500 acres in the midcoast. 

In the northern and downeast parts of the state, as the draft stood last month, the blocks would be defined by proximity to a road. Those that are farther than a half mile would be considered core habitat. Fees proposed by DEP staff would vary depending on how much land is impacted by a project and whether it is high-value habitat or home to threatened or endangered species.

The Nature Conservancy, the Sportsman’s Alliance of Maine, Maine Coast Heritage Trust and Maine Audubon signed a letter in support of the draft rule changes, which they said will provide clarity and give developers more flexibility in how they mitigate impacts by offering a new fee option in addition to the “traditional” method of conserving land elsewhere. 

“This option does not create a new mitigation requirement. Instead, it provides a new way of meeting the law’s requirements, an option that is currently only available to solar, wind, and transmission developers,” the letter states.

At their meeting, board members wrestled with how to define large undeveloped blocks of habitat, what counts as a road and whether the rules should account for different kinds of habitat and be applied across the state or just in the areas with the most development pressure. 

“What the Legislature has done is told you to make it a standard that doesn't exist without any guidance as to what they were thinking,” said board member Robert Duchesne, referring to the lack of definition around what constitutes a large habitat block.

“We have to invent something out of whole cloth and that's proving difficult to do because the whole state is not the same.”

Ultimately, members directed staff to remove northern and eastern Maine from the draft proposal. Rob Wood, director of the Bureau of Land Resources, told board members that defining large habitat blocks in that area in proximity to certain roads would actually "take out a whole lot of area that the Department and the Board have determined is extremely valuable for habitat connectivity," and could limit DEP's ability to determine effective compensation in those places.

The rules will eventually go back to lawmakers for review. 

“I think that the level at which we're struggling with it will be reflected in the Legislature when it goes back," said BEP board chair Susan Lessard. “If they hate it, they can send it back.”

This week I'm listening to this episode of the Volts podcast on the "wonky but vital topic of performance-based utility regulation," a proposal rejected by Maine lawmakers earlier this year but increasing in popularity around the country.

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