AriSEIA Submits 2nd Letter to Apache County on Renewables Ordinance

Apache County
75 W. Cleveland
St. Johns, AZ 85936
 
Re: Comments on Proposed Renewable Energy Ordinance (Article 4, Sections 436–446)
 
Commissioners and Staff,
 
The Arizona Solar Energy Industries Association (AriSEIA) is a nonprofit trade association representing Arizona’s solar, storage, and electrification industry. AriSEIA participates regularly in proceedings at the Arizona Corporation Commission and frequently work with Arizona counties and municipalities on renewable energy siting and land-use issues. Our engagement has included jurisdictions such as Maricopa, Yavapai, Mohave, and Navajo Counties, as well as cities like Buckeye, Surprise, Chino Valley, Gila Bend, Eloy, and Mesa. We appreciate the opportunity to provide comments on the draft renewable energy ordinance under consideration in Apache County.
 
Section 436–437: Purpose, Applicability, and Definitions
Sections 436 and 437 establish the scope and terminology that govern the ordinance. Several areas appear to require clarification to support clear administration and to prevent unintended inclusion of facilities that are not utility-scale projects. Definitions in these sections distinguish utility-scale facilities by whether they “feed residual power into the electrical grid as defined by the Arizona Corporation Commission.” This phrasing does not align with the Commission’s current treatment of distributed generation and may lead to uncertainty for smaller commercial systems or medium-scale projects. AriSEIA recommends removing this language and instead distinguishing facilities based on size and primary use. The definition of “setback distance” for solar as “from one to two edges of a solar photovoltaic system” is also unclear and may lead to inconsistent interpretation. A more precise approach would reference the nearest edge of arrays or associated equipment to the applicable property or right-of-way boundary. Battery energy storage systems, which frequently co-locate with solar projects, are not defined in these sections, and AriSEIA recommends adding a definition or clarifying how they are treated for purposes of this ordinance.
 
Section 438: Preferred Criteria
Section 438 identifies preferred siting criteria related to visual resources, proximity to transmission, habitat, distance from population centers, existing land uses, and terrain. Some of the terminology implies that these factors function as requirements. AriSEIA recommends clarifying that these criteria provide guidance rather than mandatory thresholds, allowing the County to consider the overall suitability of a site even when not all criteria are met.
 
Section 439: General Development Standards
Section 439 outlines development standards for renewable energy projects, and several provisions could benefit from clarification. The requirement that collector lines be placed underground except in certain narrow circumstances may create feasibility challenges in rural or rugged terrain and may not always be necessary to address environmental or land-use impacts. AriSEIA recommends allowing undergrounding “to the extent reasonably practicable,” with overhead construction permitted where engineering, environmental, or cost factors justify. The section addressing nesting birds and raptor perching on solar or wind structures may also be difficult to implement as written, since perching and nesting cannot be entirely prevented. A more workable approach would be to require reasonable measures to minimize collision risks and unnecessary perching opportunities, consistent with wildlife agency guidance. Section 439 also requires an Arizona Game & Fish Department letter prior to scheduling a CUP hearing, which could delay the process if agency response times extend. AriSEIA recommends allowing proof of consultation to satisfy the requirement with a defined response window. The ordinance also requires executed interconnection agreements or power purchase agreements prior to issuance of building permits. Solar project development timelines typically involve finalization of these agreements after local land use approvals. AriSEIA recommends allowing documentation of progress toward interconnection and offtake, such as applications, draft agreements, or term sheets, instead of requiring fully executed contracts. Finally, the ordinance authorizes third-party consultant review at the applicant’s expense without clear limits. AriSEIA recommends including a reasonable-cost standard, a mutually agreed not-to-exceed amount for routine review, and qualifications ensuring consultants have utility-scale renewable experience.
 
Section 440: Termination, Decommissioning, and Bonding
Section 440 describes decommissioning obligations and financial assurance requirements. The bond structure appears to allow only upward adjustments for inflation and does not account for salvage value. AriSEIA recommends calculating bond amounts based on net decommissioning costs, including salvage offsets, and allowing the amount to adjust upward or downward based on updated engineering estimates. The requirement that decommissioning begin within thirty days after CUP revocation or expiration may not be workable for large facilities. AriSEIA recommends allowing six to twelve months to initiate decommissioning, accompanied by defined milestones to ensure timely progress.
 
Section 441: Noise Requirements and Mitigation Measures
Section 441 establishes noise limits and related procedures. AriSEIA recommends simplifying Section 441.A.1 by replacing the current phrasing with the following industry standard: “Audible noise due to project operations shall not exceed 55 dBA as measured at the exterior of any legal residence, school, library, or hospital in existence at the time of approval of the Conditional Use Permit.” The ordinance language as written does not align with how sound assessments are conducted. The recommended revision reflects standard acoustic methodology and was confirmed through consultation with external sound specialists. AriSEIA also recommends adopting this single objective standard in place of the more complex formulation currently included in Section 441.A.1 in order to improve clarity and ease of enforcement.
  
Section 442: Setbacks
Section 442 establishes setback requirements for wind and solar facilities. With respect to Section 442.B.2, AriSEIA recommends aligning setbacks for occupied residences with the noise limits established in Section 441.A rather than relying on fixed distance-based setbacks. Distance-based standards can prevent participating landowners from using their own property and may create unnecessary financial harm. A sound-based approach provides a more meaningful method for protecting residential quiet enjoyment and is widely used within the renewable energy industry. Differential noise limits may also be applied to distinguish between participating and non-participating occupied dwellings, such as 45 dBA for non-participating residences and 55 dBA for participating residences, with the latter consistent with the standard already established in Section 441.A. AriSEIA further recommends clarifying that Section 442.B is drafted for wind facilities only and that solar should not be regulated within this subsection, since the structure and terminology of 442.B do not apply to solar development.
 
Section 442.B.4 requires clarification regarding whether the setback applies to contiguous parcels that are also participating in the project. Solar facilities routinely place panels and equipment across internal property lines, and applying an external setback to those internal boundaries would make common solar layouts infeasible. A setback range of fifty to one hundred feet is more consistent with typical solar development practices. AriSEIA recommends clarifying that contiguous participating parcels within a unified project boundary are not subject to internal setbacks and that solar setbacks should reflect distances commonly used in the industry. AriSEIA also recommends removing solar from Section 442.B.4 entirely.
 
Section 442.C imposes a tower-height-based setback from public rights-of-way. That method does not correspond to solar technology and can result in setbacks larger than necessary. AriSEIA recommends removing solar from this subsection and creating a separate solar-specific setback from public rights-of-way. A setback of fifty to one hundred feet is generally workable for solar facilities. AriSEIA recommends explicitly distinguishing between wind and solar to prevent the application of wind-based formulas to solar installations.
 
Section 442.F relates to interference with communications but does not describe how the County will determine whether interference exists or how compliance will be evaluated. The lack of procedural detail creates uncertainty regarding baseline conditions, assessment methods, and expectations for mitigation. AriSEIA recommends clarifying the evaluation process, including how baseline measurements will be established, what criteria will apply to assess interference, and how mitigation will be implemented if required.
 
Section 443: Use of CUP, Terms, and Pre-Application Requirements
Section 443 sets out conditions for the use of a Conditional Use Permit, establishes the timing and nature of CUP review, and details requirements for pre-application and application submittals. AriSEIA recommends clarifying that the five-year review described in Section 443.B is administrative in nature and that the CUP is intended to remain valid for the full life of the project unless the County identifies material non-compliance. This clarification would help ensure that the review process does not inadvertently function as a reopening of project entitlements. The ordinance also requires an extensive set of pre-application materials, including noise assessments, glare analysis, a visual resources inventory, public outreach, and various technical studies. AriSEIA recommends scaling these requirements based on project size so that smaller facilities are not subject to the same analytical and administrative requirements as significantly larger projects.
 
Within the application requirements set forth in Section 443.E, AriSEIA recommends allowing applicants to record memorandums of lease rather than full lease documents for wind or solar projects. Memorandums protect confidentiality of commercial terms and participant identities while still satisfying the County’s documentation and recording needs. AriSEIA recommends making clear within Section 443.E that memorandums of lease or participation are acceptable for submittal so that applicants are not required to disclose sensitive or proprietary contractual information.
 
Section 443.E also requires a visual resources inventory but does not define the term “visual resources” with sufficient specificity for consistent application. AriSEIA recommends that the County provide additional explanation of what constitutes a visual resource for purposes of review. Clear criteria or examples would allow applicants to understand the areas the County considers sensitive, such as scenic corridors, public viewpoints, or culturally significant landscapes. The County may also consider supplying applicants with a map or list of identified visual resources so that project design can account for these considerations early in the process. Providing such definitions or mapping within the materials referenced in Section 443.E would promote consistency and transparency in the review process.
 
Section 443.E further requires notice to “nearby” landowners as part of the public outreach process, but the ordinance does not define what distance or relationship qualifies as “nearby.” AriSEIA recommends defining this term so that notice obligations are clear and uniformly applied. Options include defining nearby landowners as all adjoining property owners or as all owners within a defined buffer such as one half mile. Providing a clear definition within the context of Section 443.E would help ensure predictable and consistent application of the outreach standard.
 
Section 444: Suspension and Revocation of CUP
Section 444 defines conditions under which a CUP may be suspended or revoked, including a definition of “inoperable” facilities based on generating less than one megawatt of electricity for 360 days. This threshold does not reflect how utility-scale facilities operate, particularly during periods of curtailment. AriSEIA recommends instead defining inoperability based on the absence of meaningful energy production over a sustained period, with exceptions for force majeure events or necessary repairs and modernization. Any decommissioning obligations triggered by revocation should align with the recommended decommissioning initiation window described in Section 440.
 
Section 445: Joint Agency Approvals
Section 445 discusses coordination with state and federal agencies. AriSEIA recommends clarifying that County review need not be delayed solely because other agencies operate on longer timelines, provided that the County has sufficient information to evaluate local land use impacts. Any additional requirements imposed by those agencies can be incorporated later as CUP conditions when appropriate.
 
Section 446: Public Outreach
Section 446 establishes extensive outreach obligations, including mailed notice to property owners within one mile of the project boundary, notice along access routes, notice to community officials within three miles, requirements for public meetings, the creation of a project website, and the maintenance of a project hotline with monthly complaint summaries. AriSEIA recommends considering a tiered outreach structure or aligning notice distances with existing Apache County standards so that smaller or medium-scale projects are not subject to burdensome requirements disproportionate to their impact. Notices directed at municipalities or unincorporated communities should be clarified to ensure they are directed to governmental officials rather than interpreted to require notice to every household. AriSEIA also recommends specifying whether mailed notice is required for each resident within a municipality if any portion of that municipality falls within the one half mile buffer. Without clarification, the language could be interpreted to require notice to every resident of a town rather than to boundary-adjacent landowners or municipal officials, which would create unrealistic outreach burdens. AriSEIA further recommends permitting the hotline requirement to be satisfied through existing complaint resolution processes used by developers or utilities, provided that the County receives appropriate summaries. Additional clarifications regarding evaluation of communications interference, standardization of waivers, and distinctions between solar-specific and wind-specific requirements would support consistent administration.
 
Thank you for considering these comments. AriSEIA welcomes the opportunity to continue engaging with staff and the Commission and are available to provide additional technical information or examples from other jurisdictions as needed.
 
Respectfully,
/s/ Autumn T. Johnson
Executive Director
AriSEIA 
(520) 240-4757
[email protected]