The continuing enactment of renewable portfolio standards (“RPS”) across the nation is increasingly driving investment in wind energy projects. Some states are leasing state-owned land for such projects while other states are studying the issue. Pennsylvania, for instance, is among the latest to consider leasing state forest land to wind farm developers.

In Vermont, interest in the development of large-scale wind farms prompted the drafting of the “Agency of Natural Resources (ANR) Policy: Wind Energy and Other Renewable Energy Development on ANR Lands,” dated December, 2004 (“ANR Policy”). The new policy applies only to state-owned lands under the jurisdiction of the ANR; is intended to provide guidelines for the use of ANR lands for both small and large projects; and extends to wind and other renewable energy development, including solar and biomass. The policy does not apply to private, federal or municipal land.

For purposes of this policy, large-scale renewable energy projects are defined as those that will directly disturb an area larger than one acre in size; have the potential to impact area wildlife, recreation and other natural resources; and will be visible from the surrounding area and/ or will otherwise create significant visual impacts within the surrounding area. Large-scale projects are characterized as being designed and intended to generate electricity for commercial purposes; for example, a commercial wind farm with multiple turbines. Small-scale renewable energy projects are those that disturb less than one acre of land and do not significantly impact area wildlife, recreation, natural or scenic resources. Small-scale projects are those primarily intended to provide electricity for a specific facility and would include net-metered facilities. Under the ANR Policy, a project involving a single wind turbine less than 120 feet tall generating less than 10 kw is considered a small-scale project; a project that involves at least several wind turbines that could be over 300 feet tall and capable of generating up to 1.5 MW of electricity is considered a large-scale project.

Pursuant to the new policy, the ANR will actively explore developing small-scale renewable energy projects such as net-metered wind or solar generation systems and other renewable technologies at appropriate sites on ANR lands. Large-scale commercial or industrial renewable energy projects are not allowed on ANR lands, including all state parks, state forests and wildlife management areas. This prohibition extends to temporary wind measurement towers and other exploratory uses that are designed to evaluate the feasibility of future renewable projects.

While acknowledging the current interest in large-scale projects, the agency has determined that the development of large-scale projects such as commercial wind farms would not be compatible with the uses of ANR lands or the purposes for which they were acquired. The rationale underlying the ANR Policy includes i) the expressed public concern about developing ANR land for large-scale projects; ii) a determination that less than 1% of ANR land actually contains a commercially viable wind resource and is not otherwise encumbered with restrictions prohibiting such development and, moreover, that ample private lands are available; and iii) the conclusion that development of large-scale, commercial renewable energy projects falls outside the ANR’s area of responsibility.

Particularly with respect to large-scale renewable energy projects, the ANR Policy states that the agency may at some later time consider revising the policy in the event that a future statewide assessment demonstrates that the best sites for such projects are on ANR lands.

Robert A. Olson is a partner in the law firm of Brown, Olson & Gould P.C. which maintains a nationwide practice in energy law, public utility law and related commercial transactions. He can be reached at:

Brown, Olson & Gould, PC
2 Delta Drive, Suite 301
Concord, NH 03301

rolson@bowlaw.com | (603) 225-9716