TOLEDO – Fallout from the wind energy moratorium adopted in early January by the new five-member Tama County Board of Supervisors now includes a lawsuit brought against both the board and Tama County by the developers behind the Salt Creek Wind project.

Earlier this month on Feb. 5, Salt Creek Wind, LLC (SCW) – which was acquired within the last year by NextEra Energy Resources, LLC – filed a petition in Tama County District Court against the Board of Supervisors and the county seeking “declaratory judgment” (a decision clarifying the legal rights/obligations of the parties involved) on three counts including vested rights and bad faith, while also asking the court to annul and declare void the board’s Jan. 6, 2025 action approving a moratorium on the development and construction of wind energy conversion systems (WECS).

For at least the last 15 years, a commercial wind energy project going by the name of Salt Creek Wind has been in some stage of development in Tama County (occupying parts of Spring Creek, Crystal, Perry, Carlton, Howard, and Carroll townships) by either Wind Capital Group (prior to 2019), Conifer Power Company (2019-2024), or NextEra Energy Resources (2024-present). Developers of the $300 million, Phase I project currently hold 60 zoning certificates – approved in Sept. 2024 – to construct wind turbines in the project’s footprint, while also holding at least 60 conditional use permits (CUPs) dating back to Dec. 2020.

“Since obtaining the CUP and Zoning Certificates, SCW has made significant progress on construction of the Project,” SCW’s petition states, “including commitment of more than $150 million toward its construction, with expenditures ongoing.”

To prove substantial expenditures in connection to the project have already been made while relying on the pre-moratorium ordinance (vested rights), SCW’s petition includes a list of construction steps undertaken as of Feb. 5 including the completion of “access road approaches at all 51 sites, with 47 of the 51 access roads approved” by the county’s engineer; contracts made for turbine materials worth over $150 million with more than $15 million paid before the moratorium went into effect; generators and substation equipment purchases totaling more than $5 million; the execution of 230 leases with Tama County landowners; and project development and design costs totaling more than $700,000.

SCW also contends that prior to construction commencing, “significant work” was performed on the project, incurring expenses in excess of $12 million in connection with “geotechnical investigations, preliminary civil design, transformer specifications, permitting, airspace and flight paths, radar uses, communication towers and antennae, microwave paths, various wildlife studies, cultural resources, noises assessments, shadow flicker assessments, acquiring land rights, and soil and groundwater assessments.”

Moratorium amendment request

Citing video and audio records, a transcript, and the official minutes of the Jan. 6, 2025 meeting, the petition states that before voting on the moratorium that day, members of the Board of Supervisors “stated the Moratorium was not intended to apply to projects that already have permits.”

The petition describes Jan. 6 comments made by both Board Chairman Mark Doland and Supervisor Heather Knebel that seemingly confirmed the moratorium would not apply to permitted projects.

“So, I would say if a company has a CUP and a building permit, it doesn’t apply. Does not apply. If they don’t have any of that, I’m just assuming this applies,” the petition quotes Knebel as stating about the moratorium during the meeting.

It “appeared clear,” the petition thus surmises, “that the Moratorium was not intended to apply to SCW.”

Two days after the moratorium was enacted, Kimberly Dickey, a project director for NextEra Energy Resources, sent an email to both Doland and Knebel requesting a “short, simple amendment to the WECS Moratorium to clarify this issue and confirm what was stated by the Supervisors at the meeting, i.e., that the WECS Moratorium does not apply to already permitted projects.”

Specifically, Dickey asked the supervisors to amend the resolution by adding one sentence to the end of moratorium language: “This moratorium does not apply to previously permitted projects.”

According to the SCW’s petition, the board declined to add the requested modification to the Jan. 13 meeting agenda. On Jan. 16, SCW’s counsel, Elizabeth R. Meyer with Dentons Davis Brown PC of Des Moines, sent a letter to Tama County Attorney Brent Heeren again requesting the amendment.

While awaiting a response from Heeren, an article was published by the Tama-Toledo News Chronicle on Jan. 17 titled “Winds of change.” As part of that article, SCW’s petition states, the reporter (Ruby McAllister) questioned Supervisor Knebel as to whether the moratoriums (WECS and utility scale solar) would “stop development” of the Salt Creek Wind project (or Tyr Energy Development Renewables’ Draft Horse Solar project on the eastern outskirts of Traer).

“We’re in the process of reviewing the impact on all projects and will be in touch with answers once we know more,” Knebel is quoted in the petition as stating in the article – a statement that was made, SCW insists, contrary to the Jan. 6 meeting’s discussion.

On behalf of the Tama County Board of Supervisors on Jan. 27, Attorney Michael R. Reck responded to Meyer’s letter to Heeren without addressing the request for an amendment but rather, per the petition, “raising a series of questions unrelated to the Moratorium.”

“As your clients have known for several months,” Reck’s letter to SCW’s counsel states, “the voters expressed their will in the Tama County Supervisor election and that will did not favor wind and solar farms. The recent moratoriums gave effect to the voters’ will in electing those with strongly stated views on the projects in question. That said, the Supervisors certainly have every intention to follow the law in enforcing the moratoriums. Thus, for the Supervisors” benefit, I ask that you provide some additional information to support your client’s position so that it properly may be evaluated.”

The next day, on Jan. 28, SCW’s counsel asked Reck via a letter for confirmation “by no later than January 31 at noon” that the Board of Supervisors intended to “vote on an amendment to the Moratorium at their February 3 meeting to make clear that the Moratorium does not apply to the project.”

If such action did not take place, the letter stated, SCW would “initiate litigation to assert its rights.”

As of Feb. 5 when the petition was filed – and as of press time – the Board of Supervisors had not amended the WECS moratorium as requested by SCW.

Declaratory judgment sought

Through its petition, SCW is seeking a “declaration that the Moratorium does not apply” to its Tama County project currently under construction, per Count I which addresses vested rights.

“SCW’s expenditures were lawfully made pursuant to the CUP and Zoning Certificates and in reliance on the local law in effect prior to the passage of the Moratorium,” SCW’s petition states, before later adding, “The past, present, and future rights of the parties need to be determined and declared in accordance with Iowa law.”

Under Count II which addresses “bad faith,” the petition states, “When a board acts in bad faith and/or with malice, Courts may apply the law that existed prior to the new ordinance,” and asks that the moratorium be declared illegal.

“[T]he County and Board [of Supervisors] were aware of the Project and the significant expenditures made by SCW,” the petition contends. “The Moratorium appears to further the efforts of Supervisor Knebel and others who have long attempted to stop the project via prior litigation. … [the moratorium] was passed in bad faith and designed to frustrate ongoing development of the Project.”

Under Count III which labels the moratorium as “arbitrary, capricious, illegal and contrary to public policy,” SCW cites the Iowa Code: “It is the policy of this state to encourage the development of alternate energy production facilities and small hydro facilities in order to conserve our finite and expensive energy resources and to provide for their most efficient use.”

Thus Tama County’s moratorium, SCW contends, “fails to promote the express state policy favoring alternative energy development and is contrary to Iowa law and public policy.”

Count IV asks that the “Board of Supervisors’ action approving the Moratorium be annulled and declared void and for any such other and further relief as the Court deems just, equitable and appropriate under the circumstances.”

The newspaper reached out to both Doland and Knebel as well as NextEra Energy Resources via email for comment regarding this story but as of press time for the Friday, Feb. 28 print edition of the Sun Courier had not heard back.

On Wednesday, Feb. 26, Knebel responded to the newspaper’s email with a statement provided on behalf of the Board of Supervisors.

“Consistent with the will of the voters, we intend to thoroughly review the circumstances of these projects to ensure we reach the right conclusion. We will not let the interests of our constituents be compromised because Salt Creek seeks to rush that outcome before all the facts can be examined and understood. The lawsuit should give us the opportunity to examine those facts and for all parties to present their positions in court, which we will do.”

Salt Creek Wind project schedule

As part of SCW’s petition, a project schedule was submitted to the Court.

According to the document, beginning in May of this year and lasting through November, foundation excavation for the wind turbine sites is scheduled to take place, while installation of power lines from the sites to the substation(s) is scheduled for July through September.

This is a developing story.