Chapter 20.14
WIND ENERGY SYSTEMS

Sections:

20.14.010    Purpose.

20.14.020    Definitions.

20.14.030    Applicability.

20.14.040    Regulatory framework.

20.14.050    General requirements for SWES and WES.

20.14.060    Sound levels and measurement.

20.14.070    Safety.

20.14.080    Sound modeling and measurements.

20.14.090    Complaint process.

20.14.100    Abandonment, insurance, and decommissioning for WES.

20.14.110    Federal, state and local requirements.

20.14.010 Purpose.

The purpose of this chapter is to regulate the installation and operation of wind energy conversion systems in Whatcom County for private landowners, subject to reasonable restrictions. (Ord. 2012-041 § 1 (Exh. A), 2012; Ord. 2008-043 § 1, 2008).

20.14.020 Definitions.

As used in this chapter, the following terms shall have the meanings indicated:

(1) “County” shall mean the Whatcom County government.

(2) “Decibel” means a unit of measure of sound pressure.

(3) “dB(a)” means A-weighted sound pressure scale.

(4) “dB(c)” means C-weighted sound pressure scale.

(5) “FAA” shall mean the Federal Aviation Administration.

(6) “Flicker” or “shadow flicker” means the moving shadow cast by the rotating blades of a SWES/WES, or any intermittent, repetitive, or rhythmic lighting effect that is a direct result of rotating SWES/WES blades.

(7) “Flicker analysis” means a study showing the duration and location of flicker potential.

(8) “Hub height” means the distance from the ground to the center axis of the rotor.

(9) “Qualified independent acoustical consultant” means a private, third-party individual with full membership in the Institute of Noise Control Engineers (INCE), or other demonstrated acoustical engineering certification.

(10) “MET tower” or “meteorological tower” means a structure designed to support the gathering of wind energy resource data, and includes the tower, base plate, anchors, guy cables and hardware, anemometers (wind speed indicators), wind direction vanes, booms to hold equipment, anemometers and vanes, data logger, instrument wiring, and any telemetry devices that are used to monitor or transmit wind speed and wind flow characteristics over a period of time for either instantaneous wind information or to characterize the wind resource at a given location.

(11) “Rotor” means a system of airfoils designed to provide a reaction force relative to the movement of the surrounding air. The rotor is connected to a hub that rotates around an axis.

(12) “Small wind energy system (SWES)” means a wind energy conversion system, with a rated output up to and including 50 kW, consisting of: wind turbine, tower, base and associated control or conversion electronics, as well as all anchors, guy cables and hardware.

(13) “Total height” means the distance measured from the grade plane (WCC 20.97.162) to the tip of the SWES/WES rotor blade extended to its highest point. The support tower structure may be freestanding, guyed, or a monopole.

(14) “Tower height” means the distance measured from the grade plane (WCC 20.97.162) to the hub height of the wind turbine. This structure may be freestanding, guyed, or a monopole.

(15) “Upwind turbine design” means a SWES/WES that has rotors and towers aligned such that the wind encounters the rotors before the tower. The tower will always be downwind of the rotors.

(16) “Wind turbine” means the parts of the wind energy conversion system including the blades, generator and tail.

(17) “Wind energy system (WES)” means a wind energy conversion system with a rated output greater than 50 kW consisting of: wind turbine, tower, base and associated control or conversion electronics, as well as anchors, guy cables, and hardware. (Ord. 2012-041 § 1 (Exh. A), 2012; Ord. 2008-043 § 1, 2008).

20.14.030 Applicability.

(1) The requirements set forth in this chapter shall govern the siting of wind energy conversion systems used to generate mechanical or electrical energy to perform work, and which may be connected to the utility grid pursuant to Chapter 80.60 RCW, Net Metering of Electricity, and serve as an independent source of energy, or serve as part of a hybrid system.

(2) The requirements of this chapter shall apply to all small wind energy systems (SWES) and wind energy systems (WES) proposed after the effective date of the ordinance codified in this chapter. Any SWES/WES for which a required permit has been properly issued prior to the effective date of the ordinance codified in this chapter shall not be required to meet the requirements of this chapter; provided, however, that any such pre-existing SWES/WES that is not producing energy for a continuous period of 12 months shall meet the requirements of this chapter prior to recommencing production of energy. No modification that increases the height of the system or increases the system output more than 25 percent shall be allowed without full compliance with this chapter. (Ord. 2012-041 § 1 (Exh. A), 2012; Ord. 2008-043 § 1, 2008).

20.14.040 Regulatory framework.

.041 Permits and Zoning.

System Type

Required Permit

Zones

MET tower

Outright permitted1

All – for up to 24 months

One or multiple SWES with a cumulative rated output up to and including 50 kW

Outright permitted1

All

One WES with a rated output greater than 50 kW up to and including 500 kW

Administrative permit2

HII

One or multiple WES with a rated output greater than 500 kW

Conditional use permit2

HII

Multiple WES per parcel with a cumulative rated output greater than 50 kW

Conditional use permit3

HII

SWES/WES

Not permitted

Within and 1,000 feet beyond the boundaries of the Lake Whatcom Watershed that are recognized and approved by Whatcom County, except that roof-mounted SWES that do not exceed a total height of five feet above the highest roof peak of the building on which they are mounted are allowed.

1    SWES, WES and MET towers are required to be in compliance with but not limited to WCC Title 15, Buildings and Construction, and acquire the necessary building permits.

2    Administrative permit, WCC 20.84.235.

3    Conditional use permit, WCC 20.84.200.

.042 Principal or Accessory Use.

A SWES/WES may be considered either as a principal or accessory use. A different existing use or an existing structure on the same lot shall not preclude the installation of a SWES/WES or a part of such facility on such lot. Any SWES/WES that is constructed and installed in accordance with the provisions of this chapter shall not be deemed to constitute the expansion of a nonconforming use or structure. (Ord. 2012-041 § 1 (Exh. A), 2012; Ord. 2011-013 § 2 Exh. B, 2011; Ord. 2008-043 § 1, 2008).

20.14.050 General requirements for SWES and WES.

.051 Visual Appearance – Lighting – Power Lines.

(1) Wind turbines shall be painted a nonreflective, nonobtrusive color such as the manufacturer’s default color option or a color that conforms to the environment and architecture of the community, unless FAA standards require otherwise. The zoning administrator may require a photo of a SWES/WES, of the same model as that proposed in the landowner’s application, adjacent to a building or some other object illustrating scale (e.g., manufacturer’s photo).

(2) At SWES/WES sites, the design of the buildings and related structures shall, to the extent reasonably possible, use materials, colors, textures, screening and landscaping that will blend the SWES/WES to the natural setting and the existing environment.

(3) No SWES/WES shall be artificially lighted, except to the extent required by the FAA or other applicable authority.

(4) No SWES/WES shall be used for displaying any advertising except for reasonable identification of the manufacturer or operator of the wind turbine.

(5) Electrical controls, control wiring and power lines shall be wireless or underground, except where SWES/WES wiring is brought together for connection to the transmission or distribution network adjacent to that network, and except that in the Agricultural Zone the minimum installation depth for electrical controls, control wiring and power lines is 48 inches below finish grade.

(6) The road access to the proposed site must be rated to carry an axle load sufficient to bear the weight of all materials, vehicles, and equipment delivered to the site.

(7) The compatibility of the foundation, tower, and generating unit (including rotor and rotor-related equipment) shall be certified in writing by a professional engineer licensed in Washington State. The engineer shall certify compliance with established engineering practices and compliance with all applicable adopted codes and regulations. For all SWES/WES, the manufacturer’s engineer or another qualified engineer shall certify that the turbine, foundation and tower design of the SWES/WES are compatible and within accepted professional standards, given local design criteria per WCC Title 15.

(8) The electrical system design shall be certified in writing by an electrical engineer licensed in Washington State unless waived by the building official. All SWES/WES electrical systems shall comply with requirements per the Washington State Department of Labor and Industries and the current adopted edition of the National Electrical Code when and where applicable.

(9) All SWES/WES shall meet requirements per the applicable sections of WCC 20.80.630, 20.80.634, and 20.80.635 for erosion control and stormwater management.

(10) Violation of any part of this chapter of the code shall be subject to the provisions of WCC 15.04.050.

.052 Setback Requirements.

The following setback requirements shall apply to all SWES/WES and MET towers. All setbacks are measured from the property lines of the property on which the project is located:

(1) Setbacks Table.

System Size

Setback Requirement

Up to and including 50 kW

1.2 times total height, to a maximum of total height plus 20 feet.1

Greater than 50 kW

1,320 feet (one quarter mile) from a property line of any property in a non-HII Zone. If the neighboring property is an HII Zone the setback is 1.2 times the total height from the property line.1

Footnote 1. A reduction in setbacks may be approved if appropriate easements from neighboring property owners or appropriate mitigation acceptable to neighboring property owners is approved by the zoning administrator or hearing examiner and recorded against the applicable deed(s).

(2) Communication and Electrical Lines. Each SWES/WES shall be set back from the nearest above-ground public or private nonparticipating utility a distance no less than 1.2 times its tower height, up to a maximum of tower height plus 20 feet, determined from the existing power line or telephone line.

(3) Setbacks shall be measured to the outer edge of the base of the SWES/WES structure towers. Guy cables and other accessory support structures may be located within setback areas.

(4) Setback to Other WES. A WES may not be placed such that it substantially disturbs the wind flow into another WES. A new WES may not be placed such that another nonparticipating WES falls within an egg-shaped exclusion zone around the new WES defined by an axis along the primary wind direction. In the upwind direction the exclusion zone shall have a semi-circular shape with a radius three times the rotor diameter of the new WES. In the downwind direction the exclusion zone shall have a semi-elliptical shape extending eight times the rotor diameter of the new WES along the axis downwind and extending three times the rotor diameter of the new WES in a direction perpendicular to the axis. In this way the new WES will be at least three of its rotor diameters behind, three to the side of, and eight in front of a pre-existing WES.

.053 Height Limitations.

(1) The total height of a WES shall not exceed 500 feet. MET towers cannot exceed a maximum height of 100 feet except in the Agricultural, Rural Forestry and Commercial Forestry Zones.

(2) SWES with a total height taller than 100 feet must obtain an administrative permit, except within the AG, CF and HII Zones.

(a) All SWES with a total height greater than 100 feet must provide in writing that the height requested is the minimum height necessary for the SWES to operate efficiently, and provide approved justification for the proposed height and analysis according to recognized industry standards. (Ord. 2012-041 § 1 (Exh. A), 2012; Ord. 2008-043 § 1, 2008).

20.14.060 Sound levels and measurement.

.061 SWES Sound Levels, Performance, and Measurement Standards.

Audible sound is not to exceed 20 dB(a) above ambient background noise or 45 dB(a), whichever is greater, at any point beyond the project property line. Detectable infrasound or C-weighted sound pressure is not to exceed 20 dB(c) above ambient background noise or a maximum of 45 dB(c), whichever is greater, except that there is no infrasound or C-weighted sound pressure requirement at property lines adjacent to HII Zones.

.062 WES with a Cumulative Output Greater Than 50 kW Sound Level, Performance, and Measurement Standards.

Audible sound is to not exceed 10 dB(a) above ambient background noise or 45 dB(a), whichever is greater, at any point beyond the project property line. Detectable infrasound or C-weighted sound pressure is not to exceed 20 dB(c) above ambient background noise or a maximum of 45 dB(c), whichever is greater, except that there is no infrasound or C-weighted sound pressure requirement at property lines adjacent to HII zones.

.063 Upwind design shall be used on all WES greater than 50 kW, unless it can be demonstrated that no detectable infrasound or C-weighted sound pressure is generated above 20 dB(c) and A-weighted sound pressure standard can be met, as required per WCC 20.14.061 and 20.14.062. (Ord. 2012-041 § 1 (Exh. A), 2012; Ord. 2008-043 § 1, 2008).

20.14.070 Safety.

.071 General Provisions for SWES/WES.

(1) Wind turbine towers shall not provide step bolts or a ladder readily accessible to the public and shall be a minimum height of 10 feet above ground level.

(2) All electrical equipment shall be safely and appropriately enclosed from unintentional access by means such as barrier fencing, equipment cabinetry or similar approved barriers. All access doors to wind turbine towers and electrical equipment shall remain locked except when access is necessary.

(3) Appropriate warning signage (e.g., electrical hazards) shall be placed on wind turbine towers, electrical equipment, and SWES/WES.

(4) Any SWES/WES found to be unsafe by the building official shall be repaired by the landowner and/or project owner to meet federal, state and local safety standards, according to the regulatory authority of the building official and applicable provisions per WCC Title 15.

.072 Blade Tip Height.

(1) The blade tip of any SWES with a cumulative rated output up to and including 50 kW shall, at its lowest point, have ground clearance of no less than 20 feet, as measured at the lowest point of the arc of the blades.

(2) WES with a cumulative rated output greater than 50 kW shall, at its lowest point, have ground clearance of no less than 30 feet, as measured at the lowest point of the arc of the blades.

.073 Over-Speed Controls.

All SWES/WES shall be equipped with over-speed controls to limit rotation of blades to speed below the designed limits of the system. No changes or alterations from the certified design shall be permitted unless accompanied by a licensed professional engineer’s statement of certification.

.074 Flicker Analysis for WES.

A flicker analysis is required for all WES. The analysis shall include the duration and location of flicker potential for all buildings and for roadways within a one-mile radius of each turbine within a project. The applicant shall provide a site map identifying the locations of shadow flicker that may be caused by the project and the expected durations of the flicker at these locations from sunrise to sunset over the course of a year. The analysis shall account for topography but not for obstacles such as accessory structures and trees. Flicker at any building shall not exceed 30 hours per year within the analysis area. Flicker in excess of the limits established in this chapter shall be grounds for the county or his/her designee to order operational adjustments, which may include mitigation measures requiring cessation of operation during periods when flicker affects any building, for all noncompliant WES.

.075 Wildlife Protection for WES.

Prior to permit approval provide documentation from a qualified professional wildlife biologist (Chapter 16.16 WCC, Article 8, Definitions) verifying the following:

(1) Endangered or Threatened Species. Development and operation of a WES shall not have a significant adverse impact on endangered or threatened fish, wildlife, plant species, their critical habitats, or other significant habitats identified in the Whatcom County Comprehensive Plan and/or other current studies or plans relevant to the region and recognized by the county.

(2) Other Species. The project development and/or operation plan shall be sited, designed, operated and monitored to prevent WES from having a significant adverse impact on migratory birds, raptors and bats. (Ord. 2012-041 § 1 (Exh. A), 2012; Ord. 2008-043 § 1, 2008).

20.14.080 Sound modeling and measurements.

.081 Sound Modeling.

As part of the conditional use permit process, all WES proponents shall provide a report by a qualified independent acoustical consultant approved by Whatcom County PDS and in accordance with standard industry best practices, that models the sound transmission of the proposed WES at the project property lines and indicates that the WES, when operated properly, will conform to the sound performance requirements of this chapter. (Ord. 2012-041 § 1 (Exh. A), 2012).

20.14.090 Complaint process.

If two or more complaints from different households are received within two weeks of each other, and documented at a particular site, a sound measurement will be conducted within 10 business days by a qualified consultant approved by Whatcom County.

The cost of the sound measurement shall be the responsibility of the WES owner/operator. The operator shall reimburse the county for the expense within 10 days of billing.

Measurements shall be conducted where the complaints were documented.

If an evaluation shows that the WES is operating outside of its permitted sound performance standards, the operator will have 30 days to adjust the system(s) or terminate operations.

To avoid frivolous complaints, any household(s) that registers a complaint against a WES that is proven to be in compliance shall be responsible for the costs of any future complaints originating from the same household(s) for two years unless the WES project has expanded and/or proven to be in violation of the sound performance standards. At the discretion of Whatcom County PDS, if it appears residents are abusing the complaint process, complaints may be compiled for three months at a time and then a sound study conducted at all of the locations. No WES project shall be required to conduct more than two sound measurements at any one adjacent property per year unless the WES project has expanded and/or proven to be in violation of the sound performance standards.

Complaints originating from properties located farther than one mile from a WES project do not trigger the complaint process. (Ord. 2012-041 § 1 (Exh. A), 2012).

20.14.100 Abandonment, insurance, and decommissioning for WES.

.101 Abandonment.

Absent notice of a proposed date of decommissioning, WES project shall be considered abandoned when the project fails to operate for more than one year without the written approval of the director or designee. The director or designee shall determine in its decision what proportion of the project is inoperable for the project to be considered abandoned and shall notify the property owner. Within 120 days of receipt of notice of abandonment or within 120 days of providing notice of termination of operations to the county, the owner of a wind energy system must comply with the removal requirements in WCC 20.14.102. If the property owner/project owner fails to remove the WES in accordance with the requirements of this section within 120 days of notice of abandonment, the county shall have the authority to enter the property and physically remove the WES. Financial surety funds shall be used to pay for removal and restoration.

.102 Removal Requirements.

When a SWES (with a total height that exceeds the height of the underlying zone) or a WES is scheduled to be decommissioned, the project owner/property owner shall notify the county by certified mail of the proposed date of discontinued operations and plans for removal. Within 120 days of receipt of notice of abandonment or within 120 days of providing notice of termination of operations, the owner of a wind energy system must:

(1) Remove all wind turbines, above-ground improvements, and outdoor storage. Property owners of WES in the HII Zone, and SWES in the AG and CF Zones, may choose to leave foundations in place and intact, partially or in whole, for approved, permitted reuse, except that in the AG Zone foundations left in place must be located such that the distance between SWES foundations and foundations of existing buildings shall not exceed 50 feet.

(2) Remove all hazardous material from the property and dispose of the hazardous material in accordance with federal, state and local law.

(3) In addition to removing the wind turbine generator, the owner shall restore the site by planting native or other approved vegetation to minimize erosion.

.103 Insurance.

Proof of continuous liability insurance shall be submitted to Whatcom County indicating coverage for potential damages or injury to landowners, occupants, or other third parties. For WES with a rated output greater than 50 kW the required insurance is $2,000,000 aggregate and $1,000,000 per occurrence. Whatcom County shall be named on the liability policy as additional insured. The insurance carrier shall be instructed to notify all applicable governmental authorities of any delinquency in payment of premiums. The liability policy shall be endorsed to notify the county of any cancellation 30 days in advance. Failure to provide such insurances shall be considered abandonment and full and sufficient grounds for termination of the permit and disposal of the equipment and appurtenances as stated herein.

.104 Financial Surety.

As a condition of WES permit approval, the applicant shall be required to provide a form of surety (i.e., post a bond, or establish an escrow account or other means) at the amount of 150 percent of the estimated full cost of project decommissioning less the approved, documented salvage value of any applicable project materials and equipment, naming Whatcom County as the beneficiary, with 50 percent due prior to final project approval, 25 percent due within 12 months of the date of final project approval, and 25 percent due within 24 months of the date of final project approval, to cover costs of WES removal in the event the county must remove the facility. Nothing may prevent the county from seeking reimbursement from the WES project owner. The project owner is responsible to the county for any costs related to decommissioning that exceed the amount of financial surety.

As part of the decommissioning plan, the applicant shall submit a fully inclusive estimate of the costs associated with removal, accounting for reasonable salvage value of any applicable project materials and equipment, prepared by a qualified professional. The decommissioning plan shall provide that the decommissioning funds shall be reevaluated every five years from the date of substantial completion of the WES to ensure sufficient funds for decommissioning and, upon mutual agreement by the applicant and the county at that time, the amount of decommissioning funds shall be adjusted accordingly.

Prior to permit issuance, the applicant shall provide the county with a copy of the financial surety device or another approved mechanism.

.105 Decommissioning Plan.

As part of the permit approval process, a decommissioning plan shall outline the anticipated means and cost of removing WES at the end of their serviceable life or upon becoming a discontinued use. The cost estimates shall be made by a competent party, such as a professional engineer, a licensed contractor capable of decommissioning or a person, firm, partnership, corporation or other entity with suitable expertise or experience with decommissioning, as determined by the building official or designee. The plan shall also identify financial surety to pay for the decommissioning and removal of the WES and accessory facilities. The plan shall also address road maintenance during and after the decommissioning. (Ord. 2012-041 § 1 (Exh. A), 2012).

20.14.110 Federal, state and local requirements.

(1) SWES/WES shall comply with all current adopted Whatcom County codes and ordinances, including but not limited to WCC Titles 15, 16 and 23.

(2) SWES/WES must comply with regulations of the Federal Aviation Administration (FAA), along with requirements within WCC 20.80.675, Height limitations surrounding airports.

(a) If necessary, an applicant may be required to submit the following information for analysis of airspace obstructions in relation to WCC 20.80.675: mean sea level (MSL) of adjacent airports; MSL of proposed site; Euclidean distance from adjacent airports to proposed site; total elevation/height of SWES/WES structure.

(3) All SWES/WES electrical systems shall comply with requirements per the Washington State Department of Labor and Industries and the current adopted edition of the National Electrical Code (NEC) when and where applicable.

(4) All SWES/WES with the intention to tie to their respective utility provider’s grid system shall meet the requirements of Chapter 80.60 RCW, Net Metering of Electricity. (Ord. 2012-041 § 1 (Exh. A), 2012; Ord. 2008-043 § 1, 2008. Formerly 20.14.080).