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As wind energy continues its major expansion in the U.S., the allocation and definition of property rights related to wind could rival the historical "water wars" of the West. Defining the legal boundaries of wind rights and how they will be allocated is emerging as a major policy issue for state legislatures and regulators.
In determining the allocation of wind rights, it is important to recognize that the land on which a turbine is located does not produce the wind, so any effort to establish a legal wind right to the surface estate needs to be considered thoroughly by all stakeholders. Currently wind project payments to landowners for wind leases are primarily for use of the surface estate, not for the wind itself. However, claims to uninterrupted flow of this natural resource could constrain development of this important resource and slow efforts to achieve national energy security.
Although wind is considered "free," the task of defining rights to the energy in those flowing air molecules is only now coming on the radar screen of risk managers (and trial attorneys). State legislatures will have to act soon to define wind rights, or inefficient litigation will provide that definition through the courts. If that happens, the legal risks of litigation over property boundary wind rights will seriously inhibit the ability of wind developers to build wind projects in many areas.
Separately, "viewshed" and noise concerns will also need to be addressed, as these issues are often used to oppose wind projects. The potential severance of wind rights from the surface estate can also raise future hurdles for wind development as landowners are impacted by a wind installation, while others receive the benefit.
The main issue arises from the fact that the large wind turbines produce a downwind effect (wake) on the airflow as it passes the turbine blades. This downwind effect reduces the amount of energy that could be extracted by nearby downwind turbines. The original level of energy in the wind stream is not fully reconstituted until some distance downwind from the turbine. When this downwind effect crosses property boundaries, the determination of who has priority rights to the energy in that airflow becomes an issue. Thus far, it has been simply assumed that obtaining a regulatory permit and investment of significant expenditures somehow vests such rights in a wind project. However, the uncertainty of that tenuous principle invites almost certain litigation.
In addition to the reduction in available energy to nearby turbines, the downwind effect of additional turbulence in the airstream can produce additional stresses on nearby wind turbines. Where turbines have insufficient spacing, turbine manufacturers dictate operating limits to mitigate the stresses caused by the turbulence. In turn, that reduces production.
Both energy loss and turbulence diminish rapidly with distance, but as a general rule of thumb, wind developers typically try to space wind turbines apart by a distance of at least five to 10 times the diameter of the turbine rotor, in the direction of the predominant winds. From an engineering and economic perspective, this downstream effect is considered to be reduced to an acceptable level at that spacing. Crosswind spacing in the non-predominant wind direction can be closer, but even then spacing should be three rotor diameters or more. For example, a common size wind turbine of 1.5 megawatts can be expected to have a 70- to 77-meter rotor diameter (230 to 252 feet) or even larger. Selecting even the minimum five-rotor-diameter spacing prevents the installation of any other turbine within a distance of 385 meters (1,260 feet) from the turbine.
Unfortunately, this need for spacing between wind turbines does not address property boundaries. As a result, property rights to the flowing airstream and allocation of those rights to different property owners becomes a contentious issue.
In some regulatory arenas, five-rotor-diameter-spacing has been established as a required setback distance from property lines. Such a setback requirement makes it difficult to develop wind projects in areas that do not involve extremely large landowner and contiguous holdings. This constraint is almost universal in most areas of the country since property holdings are often in quarter-sections or smaller.
The illustration below shows the constraints established with a setback of five rotor diameters. Such a setback limits the location of a turbine to the center of a quarter-section. As can be seen from Figure 1 below, the only allowable space on a quarter-section of land would be a small square 120 feet by 120 feet. It is also very likely that such a small location could be a poor wind site or unbuildable. Essentially, such a setback requirement limits wind projects to only large landholders, with smaller landowners unable to erect even a single turbine on their property.
Even a minimal setback, such as the "fall distance" of a turbine will sterilize major swaths of land from developing its wind resource. For instance a setback of the "fall distance" from property lines within an area is divided into quarter-sections, will sterilize more than 50 percent of that area preventing wind development.
Since it is critical to locate turbines in the best possible location to optimize their production, wind developers need as much flexibility as possible to properly site turbines. This need to site turbines in optimal locations is driven by the physics of wind energy.
The available energy in wind is a function of the cube of the wind speed, which means that doubling the wind speed will increase the amount of available energy by eight times (2 x 2 x 2 = 8). In practical terms, the wind speed is affected by topography, not property boundaries. Moving a turbine just a few hundred feet can cause a significant change in average annual wind speed. For example, a mere 1 mph change in the average annual wind speed can change the production of a wind turbine by 15 percent. Such a supposedly minor difference in wind speed can spell the difference between success and failure for a wind project.
The downwind impact of a large wind turbine also raises the issue of equity among landowners if an adjacent landowner is inhibited from economically erecting a turbine when a neighbor has already erected a large turbine. In such an instance, the existing turbine, if located near the property line can affect the economic viability of another wind turbine nearby the opposite side of the property line.
This equity issue is complicated by the importance of wind turbine placement and the adjacent property may or may not have a viable turbine location within the zone of influence from the initial turbine. For instance, the adjacent property may contain a valley, a wetland or an even higher hill. The valley or wetland would preclude a viable turbine, while a higher hill may be an even better location.
State legislatures or Congress will need to provide some form of legal certainty to allow developers to make the large investments needed to develop our national wind resources. Just as wildlife is considered a public resource, and is regulated by the state, the use of wind also needs to be allocated with regulatory certainty. Presently neither wind nor wildlife is "owned" by property surface estate, but in the case of wind rights, there is substantial uncertainty of that principle.
For regulatory allocation of natural resources, two possible models are suggested. Each has been successfully used in similar natural resource contexts. The first model is based on the allocation of water rights, primarily in western states, where water is a scarce resource and needed to be allocated on some basis. The second model is the unitization of oil fields.
The first model, which might best be termed "First in Time; First in Right" allocates the resource based on the order in which users demonstrate beneficial use of the resource. The second model, "Unitization", has been successfully used in the oil industry. In this model, an area of influence caused by the development of an oil field is determined and that area is unitized. In a unitized oil field, the resource owners in that region submit their resources to a common development and receive the benefits and output in a share proportional to the portion of the resource they submitted.
Part II of this article will explore the pros and cons of the regulatory and unitization models.
For information on purchasing reprints of this article, contact Tim Tobeck ttobeck@energycentral.com. Copyright 2010 CyberTech, Inc.
The author raises some good questions. However his premise for concern that 'claims to uninterrupted flow of this natural resource could constrain development of this important resource and SLOW EFFORTS TO ACHIEVE NATIONAL ENERGY SECURITY" (my emphasis) are without merit.
Wind power has extremely little to do with energy security, and claims otherwise are specious and unscientific.
Jeffrey Anthony 3.24.09
Au contraire, John -- Additional wind energy increases energy security because costs are stable and it is immune from geopolitical and fuel supply risks. With almost all new electricity generation in the last decade being fueled by natural gas, the U.S. will rely more on imported liquefied natural gas (LNG) as a source of new supply. Natural gas reserves are concentrated in unreliable countries such as Iran, Russia, and Qatar, which together hold over half of the world’s natural gas reserves. Wind energy can reduce the risk of natural gas dependence and increase reliance on an abundant, stable, domestic electricity source.
Jeffrey E. Anthony, American Wind Energy Association
Ron Rebenitsch 3.24.09
Given the difficulty in building coal or nuclear plants, the remaining options are limited. Wind generation, combined with gas, is a widely available (and viable) option, particularly in the middle of the country. Gas generation supplements wind to meet consumer demand as it varies thoughout the day. The cost may be higher, but at least the energy is available and firm. Every kWh generated by wind is a kWh that doesn't need to be generated with gas. That leaves more gas for home heating, industrial use and anhydrous ammonia fertilizer used to grow food.
Put bluntly - we need energy from any reasonable source. Our population and our energy needs are growing. At the same time, conventional energy sources are becoming less reliable or politically constrained. The billions of dollars invested in wind suggest there is nothing specious or unscientific about it. I doubt investors would fund these billions if the economics were unsound.
Stephen Thurston 3.24.09
RPS, Renewable Portfolio Standard. REC, Renewable Energy Credit. RGGI, Regional Greenhouse Gas Initiative. These things are different ways of saying the same thing. Free money for the wind industry.
What is wrong with encouraging renewable energy like wind power? Wind power attacks the wrong problem. Electricity generation is a minor portion of our energy usage. Think about your electric bill compared to the cost of transportation or heating your home. Nationwide we spend about 50% of our energy dollar on transportation, 40% on heating, and only 10% on electricity.
To make a real difference in imported oil consumption we need to reduce gasoline and home heating oil usage, which make up 90% of our energy expenditures. How do we do this?
Step one. Conservation. Drive less. Turn down your thermostat and wear more clothes. Turn off the lights.
Step two. Insulation. Tighten up your house. Put at least 12" of insulation in the attic. Insulate basement walls from the inside to 4' below grade with 2" rigid. Make sure storm windows are tight fitting and in place. Seal up cracks with foam or caulking.
Step three. Efficiency. Replace the old steam boiler with a modern wall hung 95% efficient LP gas boiler that adjusts water temperature based on the outside temperature. 2 pieces of PEX tubing can be snaked through the 2" steam pipe that feeds each radiator turning the radiator into a hot water, rather than a steam radiator. LP gas is a domestic product, not imported, and it burns cleanly.
Step four. Keep it local. Support local agriculture, local energy production, biomass generators, wood pellet manufacturers. Make stuff at home. Reduce consumption of stuff made on the other side of the world, shipped across the ocean and trucked across the country even if it is dirt cheap. You get what you pay for and it all ends up in the garbage, or in the shed, anyway.
All of these things will make a much bigger difference to our reliance on foreign oil than wind power. If there is going to be a payment to encourage these things, that payment should go directly to help us pay for these changes. How about a tax credit equal to the amount you reduce your electric bill, or your home heating bill, or your purchases of gasoline from one year to the next? The double your money plan.
Take away the subsidies provided to energy generators and use that money to provide incentives to consumers to reduce consumption.
Ferdinand E. Banks 3.25.09
I don't believe that Russia and Qatar are unreliable - at least as long as they are being paid for their gas. I also don't believe that there is any difficulty in building nuclear plants - at least if you want to build them in e.g. Sweden and Finland as compared to Pago Pago and Guadacanal.
Jim Beyer 3.30.09
Stephen:
Step threeA: PHEVs.
Agree about most of the other stuff.
Frida Payle 3.31.09
Jeffrey: As Ron points out, more wind means more natural gas (as T. Pickens well knows).
As to Ron's article, the example minimum property-line setback of 1,260 feet is not enough to protect neighbors from noise and flicker. If health and amenity of neighbors is protected by adequate setbacks (2 km [1.25 mi] is recommended by medical experts), interference with wind rights may not be such an issue.
John Sodergreen 3.31.09
What a crazy discussion. I thought I was reading a bit from the Onion or something. The author writes, "Although wind is considered "free," the task of defining rights to the energy in those flowing air molecules is only now coming on the radar screen of risk managers (and trial attorneys)." Really, where? "State legislatures will have to act soon to define wind rights, or inefficient litigation will provide that definition through the courts." Really? Who says? Where? What are the authors sources on this? What real references? Is this pure speculation on the author's part? "If that happens, the legal risks of litigation over property boundary wind rights will seriously inhibit the ability of wind developers to build wind projects in many areas." I'm not quite sure what the author sees as a basis for this statement, but it seem to me it's a stretch at best. Associating an intangible or less tangible (wind) to mineral rights such as oil or other commoditized energies I think may be getting ahead of the game a bit too. The possible litigation discussed presumes some sort of harm, someplace. The example of one turbine's wash negatively affecting the wind flow to some distant, competing companies turbine reminds me of two sailboats passing in the ocean; one passing too close and 'stealing" the other's wind. Last time I checked, this was called good captaining. Wind resource allocation? Sounds to me like litigators trying to create a new gig. Nothing improper there I guess, but lets call a duck a duck. Has anybody seen or heard anything that c ould put this into some actual context beyond the author's commentary?
Frida Payle 4.1.09
http://www.wind-watch.org/news/?p=4423
"Who Owns the Wind?" Der Spiegel, May 4, 2007: "The parties in the dispute are the owner of a wind farm in Deliztsch in the eastern German state of Saxony and a businessman who wants to set up a bigger wind farm in the immediate vicinity. The crux of the case is earnings. When two wind turbines are located too close to one another, one often falls into a slipstream."
Richard Vesel 4.1.09
Mr. Thurston,
There are multiple glaring errors in your comment.
40% of our energy comes from petroleum, the remainder from natural gas (23%), coal (also 23%) and the remainder from nuclear electricity, hydroelectric and other renewable energy sources.
Only 28% of energy consumption goes into ALL forms of transportation, which besides automobiles, includes public transportation, trucking, airlines, etc. (transportation petroleum usage: 61% gasoline, 21% diesel, 12% aviation, then misc.) Another 21% is residential. So half of energy consumption is industrial and commercial.
Your "90%" figure is completely specious - check your sources.
Calculate your own energy consumption costs by comparing annual cost of gas (or heating oil) v. gasoline v. electricity. Even with three cars, I spend a lot more on heating with gas, plus electricity usage, than I do on gasoline.
You also forget to include carbon footprint into the picture. We are not charged for this in the U.S. up to now, but that will soon change, and all fuel-based means of energy production will become even more expensive. Wind, solar, hydro, geothermal and tidal energy sources will reduce CO2 emissions, as will your suggested conservation measures - which are really efficiency improvements stated another way.
What we can agree on is this: Efficiency has to improve, on an ongoing basis. Transferring combustion-based energy production to more benign methods will also improve our overall energy efficiency. Eventually, these benign methods will hold energy costs down, believe it or not - as our technical ability to harness these sources will yield power from sources free of fuel costs.
As for the main article - managing access to renewable sources - I would probably favor the unified approach, with some regulation as to the degree to which any available resource can be utilized within a specific area, to avoid overdevelopment and underutilization, which we should anticipate as a general economic nightmare in the making.
Regards, RWVesel
Alok Misra 4.1.09
Design a car that moves with wind energy and you will know all the issues!
Ron Rebenitsch 4.1.09
In response to Mr. Sodergreen's skepticism, I can provide several instances.
In Minnesota setbacks of 5 rotor diameters are part of the state's regulatory system. Also, draft bills have been tentatively floated and submitted in the North Dakota legislature and discussed in the South Dakota legislature within the last two years.
One of the more recent legislative proposals stemmed from a conflict between a landowner's group developing a wind project and a commercial wind developer - the projects were adjacent to each other and wind shadow interference was the main concern. Also, a year or so ago, a ND township passed an ordinance establishing very large setbacks.
I wish I could agree that the problem is theoretical, but unfortunately, it is very real.
arie brish 4.2.09
Ron raises very important issues.
The turbine to turbine distance is well known and it is up to the turbine manufacturer and the wind farm developer to decide what is the most optimum layout. Common practice is 5-10 times the diameter. There are some techniques that can artificially influence this.
The spill over to one's neighbor land is another issue. This has been addressed by legislation for other shared resources. Same thinking process can be applied to wind. Common sense suggests that disturbing the quality of wind going into your neighbor's land is similar to any other natural resource sharing between neighbors, water, minerals, oil, to name few. Placing wind turbines too close to your neighbor's land is similar to contaminating water stream that pass through your yard to your neighbor's.
Arie
Ron Rebenitsch 4.2.09
I'm not sure I can agree with the analogy of contaminating a passing water stream.
Wind energy is a public resource. No landowner can claim that his/her land has actually produced the wind - thus it is up to society to allocate this resource. How that is done will greatly affect the development (or inhibition) of wind generation. The second segment will expand a bit on a couple options.
One of the reasons that I drafted this article is to stimulate public debate on the best path forward for wind development. I see wind rights as a potential legal morass and believe our policy makers need to give early and serious consideration to proper allocation of this resource, rather than a belated knee-jerk reaction to lobbying by pressure groups.
Malcolm Rawlingson 4.5.09
Who owns the wind...the Government of course. And when they find a way to tax it they will. Just like sunshine. Solar power will suffer the same problem. Malcolm
Malcolm Rawlingson 4.5.09
Ron, What are the difficulties of building nuclear plants you speak of. I don't see any. Malcolm
Charles Petterson 4.7.09
What a bizzare discussion this has turned into. The world cannot tolerate any CO2 production from anything. There are only two solutions to meet electrical needs, solar and wind because they do not emit CO2. It is imperative that each landowner must have access to unadulterated wind on every quarter section of land they own. This discussion is being driven by lawyers and politicians, neither of whom do anything productive. Tax carbon. Tax methane. Tax breathing. Tax flatulence. Tax loss of potential energy for one wind turbine created by another wind turbine. Lewis Carroll was a realist compared to this moronic journey we have embarked on. Plant a tree. In ten years it will have enough leaves to counteract the CO2 emitted to plant it.
Michael Giberson 4.8.09
As one suggestion, instead of fixed set-backs applied to all property lines, there should be the option for contiguous landowners to "pool" their wind resource rights and have the field managed jointly. Any set-back would apply to the pooled resource boundary lines rather than to each individually owned bit of surface property.
Otherwise, small plots will be unavailable for wind power development even if the plot owners would wish to develop them.
Similarly, even for large plots, if a single developer is building on adjacent large plots, the spacing along the border is best determined by microsite wind resource details and not forcing a 2 x set-back empty strip along the property line.
Rob Claybaugh 4.8.09
Are we all forgetting about the money to be made here in "Wind Futures" too? You know, as to whether the wind will blow or not during a specific time period? Seems to me we're missing the point.
Ron Rebenitsch 4.9.09
Michael; Pooling adjacent properties is a great option - if people are willing to cooperate. For example, a couple of landowner groups in Wyoming are banding together to offer large pre-arranged wind sites.
However, absent a prior agreement, any landowner could have veto power over his heighbors - and a strong monetary incentive to use that veto power. For instance, if a developer offers Landowner A an annual lease of $5,000 to place a turbine near the property boundary, adjacent Landowner B is in a position to veto the deal, and demand (extort) most of that $5000 payment - up to the level at which Landowner A will walk away.
One option is a 2 component payment, wherein both Landowners share part of the payment and Landowner A receives a separate payment for a surface disturbance lease. However, Landowner B still has veto power and the monetary incentive to use that leverage to extract a disproportionate share of the lease payments.
You don't have to be a cynic to recognize that it is naive to expect neighborly goodwill to prevail.
Ron Rebenitsch 4.9.09
Malcolm; In response to your question about the difficulties in building nuclear, I see three main hurdles:
First, the cost of a nuclear plant is currently estimated at about $8,000/kW, vs gas at $600 to $1200/kW, depending on simple vs combined cycle, and conventional coal somewhere around $3000-$4000/kW depending on who you talk to.
Second, storage of nuclear waste has not been resolved and Yucca Mountain has yet again been set back.
Third: Risk. Investors are cautious at committing billions to: --- an uncertain licensing process, subject to political whims, --- long construction schedules, subject to dramatic commodity swings (witness the last 12 months), --- uncertain regulatory recovery and; --- cautious commercial terms from vendors.
My philosophy is "never bet against technology". Nuclear should be an important part of our future, but today's uncertainties for nuclear power make it a challenge for even the most optimistic investor. Not many CEOs are willing to bet the company on nuclear if they can find options. Wind, combined with gas, is one of those options available today, not 10 years from now.