Wind turbines: the 110%, the 150% and the farm next door

It is Chapter 9.3 of Joint Regulation No. 9473, inside the infrastructure and environment volume. Its purpose is to guide and control the siting, construction, installation and operation of wind energy generation systems throughout Puerto Rico, setting the applicable criteria, requirements and procedures so their development is fostered while public health and safety are guaranteed. Its provisions apply to siting, construction, installation and operation projects for wind energy generation systems within Puerto Rico’s territorial limits.

Scale decides who resolves it and where it may go. Large-scale projects, with capacity greater than one megawatt, are considered a project of regional impact and may be considered only by the Planning Board or OGPe’s Adjudicative Board through the Consulta de Ubicación mechanism. Small- and medium-scale ones are not regional projects and may be considered by OGPe’s Secretario Auxiliar or the hierarchy I-III autonomous municipalities, provided they sit in the districts the chapter names. Meteorological towers may be sited in all districts where their use is permitted; small-scale systems in all districts where their construction is authorised; medium-scale ones in agricultural and industrial districts, and in C-L, C-I and RC districts via exception; large-scale ones in agricultural and industrial districts. Any project, whatever its size, to be sited in other districts or in non-qualified areas may be considered only through a Consulta de Ubicación.

• Keeping the minimum setbacks corresponding to the scale: at least one hundred and ten per cent of the tower’s total height for small scale; at least one hundred and fifty per cent of total height from a third party’s dwelling or occupied structure for medium and large scale; and, for medium scale, at least one hundred and ten per cent of the rotor’s radius from third parties’ abutting farm boundaries.Verified against the official source
• For meteorological towers: certifying before OGPe, through a licensed professional, that they meet the manufacturer’s design requirements or the applicable Building Code, even though they need no construction or use permit.Verified against the official source
• That the electrical connections between turbines be underground, as a general rule and save some special circumstance.Verified against the official source
• That turbines have brake or control systems to prevent uncontrolled rotation, overspeed and pressure on their components, and that the blades keep a minimum distance from the ground guaranteeing the safety of persons with access.Verified against the official source
• Keeping turbine entry doors locked and electrical equipment locked or fenced; and, on guyed lattice towers that can easily be climbed, installing a security fence around the foundations with a locked gate and DANGER and no-entry signs.Verified against the official source
• Installing the sign at the property’s main entrance within two days of filing the application; and, for medium and large scale, a sign at least five days before the authorised activity begins, remaining until construction ends.Verified against the official source
• For medium and large scale: keeping a public liability policy of not less than one million dollars per occurrence and one million in the aggregate, save the exemptions for inverter-based systems under three hundred kilowatts and for a customer authorised by the AEE to interconnect an inverter-based DG of up to one megawatt, who must sign a waiver agreement.Verified against the official source

• For medium and large scale: an explanatory memorial with the project, its location, approximate total nominal generation capacity, number of turbines, each one’s nominal capacity and total height, its dimensions and the proposed accessory works.
• Documents evidencing the proponent was authorised by the properties’ owner to file the application, and a description of the farm or farms where the action is proposed.
• GIS identification of the properties the project covers, including those where accessory works are proposed.
• A plan illustrating each turbine’s proposed location, boundaries, setbacks, accesses, substations, temporary or permanent meteorological towers, transmission lines, distribution lines and other accessory works; plans at a scale adequate for the foundations, trenches and ditches; and a plan of the areas to be used temporarily during the system’s erection.
• A general description of the proposed electrical schemes; the turbines’ make, model, type and characteristics; an estimate of the works’ value; and identification of all state or local roads to be used during the project’s construction, operation and maintenance.
• For small scale, in place of the above: an authorised professional’s certification that the system’s turbines are approved by a certification programme accepted or recognised by the American Wind Energy Association and that the turbine was installed per the manufacturer’s instructions as to foundations, tower and operation.
• Reliable evidence of DRNA compliance where habitat-modification mitigation entailing a conservation easement, land transfer or monetary compensation was required; and an AEE recommendation where the system will interconnect or electrical line easements encumber the land.

1. 1

   Step 1: Scale decides who resolves it

   Siting, construction, installation and operation projects for large-scale systems — that is, with capacity greater than one megawatt — are considered a project of regional impact, and may be considered only by the Planning Board or OGPe’s Adjudicative Board, as applicable, through the Consulta de Ubicación mechanism. Small- and medium-scale projects are not considered regional projects, and so may be considered by OGPe’s Secretario Auxiliar or the hierarchy I-III autonomous municipalities, provided they sit in the districts the chapter itself names. And a rule that catches many: projects over one megawatt to be sited in districts other than those authorised, or in non-qualified areas, likewise go through a consulta de ubicación before OGPe. A note from the source: the regulation writes in one inciso "un megavatio (1MV)", with MV instead of MW; we flag it without correcting it.

2. 2

   Step 2: Where each size may go

   Meteorological towers — the measuring ones — may be sited in all districts where their use is permitted. Small-scale systems may be sited and installed in all districts where their construction is authorised. Medium-scale ones may be sited in agricultural and industrial districts under the qualification maps the Board adopts, and in municipalities with a Territorial Plan duly approved under Act 81, where they are considered ministerial; siting is also permitted in C-L, C-I and RC districts via exception, provided the required criteria are met. Large-scale ones may be sited in agricultural and industrial districts under the qualification maps, and in municipalities with a Territorial Plan approved under Act 81-1991 they are ministerial. And accessory works have a generous rule: any construction accessory to a wind energy system may be sited in any district and may be on a farm or a contiguous lot, though not necessarily abutting.

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   Step 3: The setbacks: the 110% and the 150%

   Setbacks are measured not in fixed metres but as percentages of the tower’s height, and they vary by scale. Meteorological towers have no setback distance restrictions, but their installation is subject to a professional certification showing compliance with the manufacturer’s design requirements or the applicable Building Code. Small-scale systems must keep a minimum setback of at least one hundred and ten per cent of the tower’s total height, measured from the base, to any dwelling or occupied structure. At medium scale, each turbine must keep a minimum distance from any third party’s dwelling or occupied structure of at least one hundred and fifty per cent of its total height, measured from the centre of each tower’s base; and they must also keep a minimum setback from third parties’ abutting farm boundaries of at least one hundred and ten per cent of the rotor’s radius, measured from the tower’s base. At large scale, each turbine must keep a minimum setback from the nearest third-party dwelling or occupied structure of at least one hundred and fifty per cent of its total height, measured from the centre of the base. And every large-scale installation must be made outside state forests, nature reserves, areas of high ecological value, areas containing natural ecosystems and the buffer zone the DRNA designates for ecologically sensitive and protected areas, unless the DRNA has commented favourably on the proposal; the minimum distance from the buffer zone’s limits is at least one hundred and ten per cent of the total height. This section’s list appears with run-together numbering in the document; we present each rule as the text states it.

4. 4

   Step 4: What counts as a dwelling, and when a neighbour may consent

   The definition matters: for this section’s purposes, "dwelling" and "occupied structure" mean buildings built and occupied on properties or farms belonging to third parties adjacent to the property where the system will be installed; they do not mean dwellings on the parcel where the system will sit. There are three ways out of the setback. First: a turbine not meeting the setbacks is permitted where the turbine’s owner and the owner of the affected farm, property or structure are the same titleholder; or, even being different owners, where the titleholder authorises and consents to the siting by an agreement signed in a sworn statement or duly authorised public deed, and provided there is no other existing dwelling within the prescribed radius. Second: the requirement does not apply if the non-compliance was not created by the tower’s owner but by later developments approved by the empowered bodies; in that case the tower may remain where it is. Third: systems are exempt from setbacks relative to adjacent parcels holding turbines of the same project or forming part of it through a lease, wind access agreement or other contract or easement.

5. 5

   Step 5: How a turbine must look and behave

   Meteorological towers need no construction or use permit in districts where their construction is authorised, but every construction and installation must be certified before OGPe by a licensed professional stating they meet the manufacturer’s design requirements or the applicable Building Code. Wind systems must meet the Building Code in force so far as applicable. All electrical components meet the relevant codes, and as a general rule — save some special circumstance — the electrical connections between turbines must be underground. All turbines have brake or control systems to prevent uncontrolled rotation, overspeed and pressure on their components. They are painted an unobtrusive colour such as white or grey, except where the FAA requires otherwise; colour accents on the blades to increase visibility for birds are permitted, and this restriction does not apply to small-scale systems, which may keep the manufacturer’s colour. They have no exterior artificial lighting except where the FAA requires it. No advertising may be displayed on turbines, except reasonable identification of the manufacturer, owner and operator with their telephones and addresses. Every substation or transformer must carry clearly visible warnings showing the word PELIGRO. Turbine entry doors must be locked and electrical equipment always locked or fenced; where the tower is a guyed lattice type that can easily be climbed, a security fence around the foundations with a locked gate and DANGER and no-entry signs is required. The blades must keep a minimum distance from the ground guaranteeing the safety of those with access. And turbines must meet the parameters the DRNA requires by regulation to minimise noise pollution.

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   Step 6: The variance and its two years

   Unlike gasoline stations, a variance is available here: OGPe’s Secretario Auxiliar may grant variances to this chapter’s design and construction requirements. The applicant must submit, with the permit application, a sworn statement justifying the variance and showing that particular circumstances create a practical difficulty preventing compliance with the minimum setback, or that the variance’s magnitude is necessary to ensure the permitted use’s viability and is not contrary to the public interest. In addition, the variance is requested by the project’s owner or authorised representative, an explanatory memorial discussing the criteria is submitted, and an analysis of the alternatives considered is submitted stating why the one selected best serves the public interest. Authorised variances state their nature and extent and the necessary conditions. And there is a clock: any favourable decision on a variance related to a construction or use permit becomes ineffective if the corresponding permit is not obtained within two years of its authorisation. The term may be extended at an interested party’s request where the extension is not considered contrary to the public interest, provided the extension is requested not less than thirty days before the expiry date, stating the grounds and with evidence of the progress made on the plans, studies and documents.

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   Step 7: The sign: two days and five days

   Once the application for a project to install or site turbines or a wind energy system is filed, the works’ owner must install a sign at the main entrance of the property where the works will be carried out, within two days of filing the application. And the owner of every medium- or large-scale installation must install a sign at the property at least five days before the authorised activity begins, and that sign stays there until construction ends, unless the law provides otherwise. The sign must meet the requirements and carry the information Rule 2.1.19 of Chapter 2.1 in Volume II of the regulation states, which we did not read for this guide.

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   Step 8: Easements, leasing and non-conformity

   The chapter authorises creating legal easements recordable in the Property Registry to protect turbine-related rights against third parties, provided the Civil Code is met. For the Registrar to record them it suffices to present a public deed duly authorised by a notary containing the description of the agreement or real title of the easement created — or an authentic document issued by a judicial authority or competent officer — a certified copy of the approved permit issued by the government or municipal entity concerned stating the farm where the turbine is installed and recording the farms affected, the owners, the easement’s nature and the titleholders concerned, and, where applicable, planos de inscripción approved by OGPe or an Authorised Professional graphically illustrating the easements. On the land: leasing a portion of a farm to site one or more turbines and their accessory works is not considered a segregation under Act No. 75 and Act 161-2009. And on what already exists: turbines already built or approved for which permits were validly obtained before the regulation took effect are considered legally non-conforming; nonetheless, any later structural alteration must conform to the chapter.

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   Step 9: The insurance and its two exemptions

   Every owner or operator of medium- or large-scale wind systems must keep a public liability policy covering property and personal damage of not less than one million dollars per occurrence and one million dollars in the aggregate. The cover is in effect throughout construction and operation. Evidence is required before construction or use permits are issued, but not as a prerequisite to filing a permit application. If the system will be interconnected to the AEE’s electrical system, that agency is included in the policy, which must meet the requirements of the AEE’s applicable regulation. And there are two ways out: inverter-based systems with capacity under three hundred kilowatts are exempt from the requirement, in which case the customer must sign a waiver agreement; and a customer receiving AEE authorisation to interconnect an inverter-based distributed generator of up to one megawatt is exempt from the general public liability policy, likewise signing a waiver agreement.

It depends on scale. Large-scale projects, over one megawatt, go to the Planning Board or OGPe’s Adjudicative Board through a Consulta de Ubicación, being of regional impact. Small- and medium-scale ones are considered by OGPe’s Secretario Auxiliar or the hierarchy I-III autonomous municipality, if they sit in the permitted districts. Variances to the design and construction requirements are granted by OGPe’s Secretario Auxiliar. Meteorological tower certifications are submitted to OGPe. Where the system interconnects with the AEE or electrical line easements encumber the land, an AEE recommendation is needed, whose filing requirements the chapter locates in Chapter 9.2, the renewable systems one. Easements are recorded in the Property Registry.

• Measuring the setback in fixed metres instead of percentages of the tower’s total height.
• Counting as a protected dwelling one that sits on the project’s own parcel.
• Forgetting, at medium scale, the extra setback of one hundred and ten per cent of the rotor’s radius from abutting farms.
• Installing a meteorological tower without the professional certification before OGPe, thinking needing no permit is enough.
• Not posting the sign within two days of filing the application.
• Letting a variance’s two years lapse without obtaining the permit, or requesting the extension with less than thirty days.
• Assuming a project over one megawatt can be resolved outside the Consulta de Ubicación.
• Counting on the insurance exemption without signing the waiver agreement the chapter requires.

These are the government pages this guide is based on.

• Oficina de Gerencia de Permisos (OGPe)

  OGPe

  docs.pr.gov

• Permit Management Office

  ogpe

  ogpe.pr.gov