AriSEIA filed its first post-hearing brief in the APS rate case rehearing. In the original rate case, APS imposed a new fee targeted only at solar customers. AriSEIA asked for a rehearing, which was granted. AriSEIA filed a pre-hearing brief, available here, and also filed its first of two post-hearing briefs. The reply brief is due next week. A vote is scheduled at the Arizona Corporation Commission on 12/17/24.

City of Surprise
Community Development
16000 N. Civic Center Plaza
Surprise, AZ 85374
 
RE: City of Surprise Battery Energy Storage System (BESS) Ordinance (Chapter 106, Article X, Sec. 106-10.22)
 
Dear Mr. Abrams and Community Development Staff,
 
The Arizona Solar Energy Industries Association (AriSEIA) is the State’s solar, storage, and electrification trade association. We are active on energy policy issues at every level of government in Arizona. We have previously engaged on the City of Eloy, Mohave County, and Yavapai County solar ordinances. We only became aware of this pending ordinance draft on November 6th and apologize that our comments were not provided to you earlier in your process. We very much hope to continue to be engaged with the City as this process progresses. Our primary comments for the purposes of this letter pertain to the setback from residences and the lack of a waiver provision. We recommend that the City reduce the BESS 1,500’ setback from residential property (B) requirement to 150’. We also recommended adding a waiver provision to the Article.
 
AriSEIA understands and is sensitive to the fact that the McMicken Battery Energy Storage System failure happened in Surprise and that many City Staff were personally involved and impacted. We believe that APS and local governments have learned greatly from that experience.[1]
 
Setbacks
The American Planning Association found the national setback average for BESS-specific setbacks used distances of 50-150 feet from property lines.[2] The BESS 1,500’ setback requirement is significantly above BESS setback standards in other jurisdictions and will restrict clean energy development in the City of Surprise.[3] We recommend 150’ based on the Phoenix Regional Standard Operating Procedures Battery Energy Storage Systems policy.[4] The American Clean Power Association (ACP) provides a helpful FAQ that covers questions about battery safety and air emissions.[5] ACP also has a Claims v. Facts one-pager on battery safety, included here as Attachment A. “It should also be noted that the average emissions rates of equivalent masses of plastics exceed those of batteries.”[6] Additionally, sampling was done by the Environmental Health Division and the U.S. Environmental Protection Agency (EPA) after the Moss Landing incident and “no threat to human health or the surrounding environment” was found.[7] All electricity generation and energy storage creates some amount of risk. However, battery incidents represent only 2% of battery installations.[8] Setbacks for batteries should not be more onerous than setbacks for other energy storage devices, such as those that contain fossil fuels.
 
In (B) we agree that any setback required should be from the dwelling unit, not the property line. However, the second half of that section makes it unclear from which we are measuring. What does “residential properties” mean when referencing PAD, R-1, R-2, or R-3? We recommend it measure from the dwelling unit or residence.
 
Waiver Provision
The current Ordinance draft covers the primary land use matrix for all zoning districts in Surprise. The Ordinance should include a waiver provision in the event a project proposal conflicts with some component of the Ordinance, but is otherwise an ideal site. The City of Eloy Solar and BESS Ordinance includes such a provision.[9] We recommend adding language such as that included in 21-3-1.39(B) of Eloy’s Ordinance.
 
Other
We appreciate the references to NFPA 855. We also appreciate the specificity of the site plan requirements in (G). Finally, it seems this is a discretionary process. It would be helpful to clarify on what basis a permit may be denied even if all requirements are met and whether there is any appeal process or ability to cure.
 
Thank you for your time and consideration and we look forward to continuing to engage with the City on this Ordinance as the stakeholder process progresses.
 
Respectfully,
Autumn Johnson
Executive Director
AriSEIA 
(520) 240-4757
[email protected]

[1] APS, McMicken Battery Energy Storage System Event Technical Analysis and Recommendations, July 18, 2020, available here https://www.aps.com/-/media/APS/APSCOM-PDFs/About/Our-Company/Newsroom/McMickenFinalTechnicalReport.pdf?la=en&hash=37F06DD16761765FD61DDA9AE7C9C4EF.

[2] American Planning Association, Zoning Practice, P.10 (Mar. 2024), available here https://planning-org-uploaded-media.s3.amazonaws.com/publication/download_pdf/Zoning-Practice-2024-03.pdf.

[3] We have included our Maricopa County economic impact study as Attachment B and our water analysis as Attachment C.

[4] City of Phoenix, Battery Energy Storage Systems, April 2023, available here https://www.phoenix.gov/firesite/Documents/205.20A%20Battery%20Energy%20Storage%20Systems.pdf.

[5] American Clean Power Association, Energy Storage: Safety FAQ, available here https://cleanpower.org/wp-content/uploads/gateway/2023/07/ACP-ES-Product-4-BESS-Safety-FAQs-230724.pdf.

[6] Consolidated Edison and NYSERDA, Considerations for ESS Fire Safety, Feb. 9, 2017, at iii, available here https://www.nyserda.ny.gov/-/media/Project/Nyserda/files/Publications/Research/Energy-Storage/20170118-ConEd-NYSERDA-Battery-Testing-Report.pdf.

[7] County of Monterey, Air Quality Testing Information and Process During Moss Landing Fire Incident, Sept. 30, 2022, available here https://www.countyofmonterey.gov/Home/Components/News/News/9345/1336.

[8] California Public Utility Commission, Energy Storage Procurement Study: Safety Best Practices, 2023, available here https://www.cpuc.ca.gov/-/media/cpuc-website/divisions/energy-division/documents/energy-storage/2023-05-31_lumen_energy-storage-procurement-study-report-attf.pdf.

[9] Eloy Ordinance, 21-3-1.39, available here https://codelibrary.amlegal.com/codes/eloyaz/latest/eloy_az/0-0-0-9381. 

Yavapai County Board of Supervisors
1015 Fair Street
Prescott, AZ 86305
 
RE: November 6th Board of Supervisors Meeting, Hearing No. 4, Section 608 Solar Facilities Zoning Ordinance  
 
Chairman and Supervisors,
 
AriSEIA recommends that the Board of Supervisors delay a vote on the revised Solar Ordinance because:

• The Ordinance is in conflict with the County’s own Comprehensive Plan,
• The Draconis Project, which is in Chino Valley and not subject to the County’s Ordinance has created confusion as to the terms of the Ordinance, and
• County Staff has stated that the Ordinance and its numerous restrictions will apply on public land, which was never addressed during the stakeholder process.

 
Additionally, this Ordinance is in conflict with economic development opportunities in the County and water conservation. Even a single solar project would generate ~$16.8 million in tax revenues during the life of the project and the total economic output from a single project over its life would be ~$201 million.[1] Solar uses much less water than other types of electricity generation and less water than alternative land uses.[2]
 
This Ordinance is essentially a de fact solar moratorium. It includes a cap on solar development of 10,000 acres in a county with more than five million acres; thereby limiting solar development to a fraction of a percent of the County’s land, a restriction that does not appear to exist for any other industries. Additionally, numerous issues from our initial letters and redlines are still outstanding:

• The acreage caps are extreme both on a per project and on an aggregate basis,
• The setbacks are onerous and unreasonable, and
• The waiver provision creates veto power for a single County employee.

 
Additional comments on the final draft are included as Attachment A.
 
Comprehensive Plan
The Ordinance as drafted is inconsistent with the Yavapai County Comprehensive Plan. Arizona law establishes baseline requirements for county comprehensive plans including the “planning for energy use that: encourages and provides incentives for the efficient use of energy [and] identifies policies and practices for greater use of renewable energy.”[3] Arizona law requires the comprehensive plan’s purpose and effect “shall be primarily as an aid to the county planning and zoning commission and to the board of supervisors in the performance of their duties.”[4] “The zoning ordinance and all rezonings and zoning regulations amendments under this article shall be consistent with and conform to the adopted comprehensive plan.”[5]
 
The 10,000 acre cap is in conflict with the County’s Comprehensive Plan, which was adopted in 2023. The Energy Element of the Comprehensive Plan “promotes the use of clean energy sources, such as solar, wind, geothermal, and biofuels.”[6] The Plan is intended to “identify policies and practices that increase the use of renewable energy sources.”[7] It goes on to say that “[t]hrough the Energy Element, the County can encourage the efficient use of energy and promote clean, renewable energy production.”[8] Finally, the Plan also says the County will “[a]dvocate for the development of renewable energy sources that are not water intensive.”[9] The acreage caps are arbitrary and will inhibit, not promote, solar development in Yavapai County. Additionally, the onerous and unreasonable setbacks are also at odds with the Comprehensive Plan.
 
Waiver Provision
The waiver clause in Section 608(D)(2)(g) stipulates a two-tier review process. Presently, this clause grants veto power to both the Development Services Director and the Board. We suggest limiting this discretion solely to the Board for these projects. We propose rephrasing the language to state: “If the waiver request proposal is deemed to be complete and in compliance with the above tenets by the Development Services Director, the waiver request will be submitted for consideration as part of the final application to the Board of Supervisors.”  
 
Bureau of Land Management (Federal Land)
Almost 75% of Yavapai County is public land, with nearly half of that being federal land. The Ordinance conflicts with the Bureau of Land Management’s (BLM) updated 2012 Western Solar Plan.[10] The BLM oversees over 19 million acres of public land for utility-scale solar production, including in Arizona. The updated 2024 Plan emphasizes locating solar projects within 15 miles of existing or planned transmission corridors to minimize environmental and cultural impacts.[11] Yavapai County contains BLM's section 368 energy corridor, ideal for solar development due to its proximity to transmission lines, as well as significant planned transmission zones.[12]
​
Conclusion
There are numerous outstanding legal considerations for the County before it moves forward with this Ordinance, including conflicts with its own Comprehensive Plan and the relationship between the Ordinance and State and Federal land. Please either modify the per project acreage cap and eliminate the aggregate County acreage cap or postpone the vote until these issues can be resolved.
 
Respectfully,
Autumn Johnson
Executive Director
AriSEIA 
(520) 240-4757
[email protected]

[1] See Attachment B.

[2] See Attachment C.

[3] Ariz. Rev. Stat. § 11-804(B) (4) (a-b) (2024).

[4] Ariz. Rev. Stat. § 11-804(A) (2024).

[5] Ariz. Rev. Stat. § 11-811(A) (2024).

[6] Comprehensive Plan Update 2023, Yavapai County Government, Section 8.0, P.101, available here https://www.yavapaiaz.gov/files/sharedassets/public/v/1/development-and-permits/development-services/documents/yavapai_cty_comp_plan.pdf (emphasis added).

[7] Id. (emphasis added).

[8] Id. (emphasis added).

[9] Id. at 108 (emphasis added).

[10] Natural Resources Defense Council, BLM’s Solar Plan: Balancing Efficiency, Flexibility, and Conservation, Aug. 27, 2024, available here https://www.nrdc.org/bio/josh-axelrod/blms-solar-plan-balancing-efficiency-flexibility-and-conservation#:~:text=With%20the%20FPEIS%2C%20the%20BLM,accelerating%20the%20clean%20energy%20transition.

[11] Id.

[12] U.S. Department of the Interior, Solar Programmatic EIS Proposed Plan in Arizona, Aug. 2024, available here https://eplanning.blm.gov/public_projects/2022371/200540728/20118384/251018364/Final%20Solar%20PEIS%20Proposed%20Plan%20Arizona%20map.pdf. See Attachment D.