2009 - 2010 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 2,
TO 2009 ASSEMBLY BILL 256
September 15, 2009 - Offered by Representative Soletski.
1An Act to renumber and amend
66.0401 (1); to amend
66.0401 (2) and 2
66.0403 (1) (m); to repeal and recreate
196.378 (4) (title); and to create
15.797, 23.39, 66.0401 (1e), 66.0401 (3), 66.0401 (4), 66.0401 (5), 66.0401 (6), 4
196.378 (4g) and 196.491 (3) (dg) of the statutes; relating to: regulation of wind
5energy systems and granting rule-making authority.
Analysis by the Legislative Reference Bureau
Under current law, a city, village, town, or county (political subdivision) may not
place any restrictions on the installation or use of an energy system (a solar energy
system or a wind energy system) unless the restriction is for health or safety reasons,
does not significantly increase the cost of the system or decrease its efficiency, or
allows for an alternative comparable system. Current law defines "wind energy
system" as equipment that converts and then stores or transfers energy from the
wind into usable forms of energy.
This substitute amendment requires the Public Service Commission (PSC) to
promulgate rules establishing common standards for political subdivisions to
regulate the construction and operation of wind energy systems. The substitute
amendment also revises the definition of "wind energy system" to include associated
facilities of the equipment specified under current law. The PSC's rules must specify
the restrictions a political subdivision may impose on the installation or use of such
a system. The subject matter of the rules must include the following: 1)
decommissioning, which is defined as removing wind turbines, buildings, cables,
electrical components, roads, and other associated facilities that are located at the
site of a wind energy system, as well as restoring the site; and 2) setback
requirements that reasonably protect against health effects, including those from
noise and shadow flicker, that are associated with wind energy systems. The bill also
allows the rules to include subjects such as visual appearance, setback distances,
decommissioning, shadow flicker, electrical connections to the power grid, and
interference with radio, telephone, or television signals. In addition, the PSC must
promulgate rules requiring an owner of a wind energy system with a nominal
operating capacity of at least one megawatt to maintain proof of financial
responsibility for decommissioning the wind energy system. The PSC must also
promulgate rules specifying requirements and procedures for a political subdivision
to enforce such restrictions.
If a political subdivision chooses to regulate such systems, its ordinances may
not be more restrictive than the PSC rules. The substitute amendment also specifies
various standards, procedures for applicants, and approval timelines for political
subdivisions that must be contained in a political subdivision's ordinance regulating
The substitute amendment prohibits a political subdivision from prohibiting or
restricting any person from conducting tests to determine the suitability of a site for
the possible placement of a wind energy system, although the political subdivision
may petition the PSC to impose reasonable restrictions on the testing.
The substitute amendment provides that any person who is aggrieved by a
political subdivision's decision or enforcement action may seek review by the PSC.
If the PSC determines that the political subdivision's decision or enforcement action
does not comply with the agency's rules or is unreasonable, it must issue a
superseding decision and order an appropriate remedy. The PSC's decision or order
may be appealed to circuit court.
The substitute amendment specifies that if a county enacts an ordinance
relating to the construction or operation of a wind energy system, as provided by the
substitute amendment, the county ordinance applies only in the unincorporated
parts of the county, except that if a town enacts a similar ordinance, the more
restrictive terms of the two ordinances apply to the town.
The substitute amendment also creates a 15-member wind siting council
consisting of two wind energy system representatives; one town representative; one
county representative; two energy industry representatives; two environmental
group representatives; two realtor representatives; two landowners living adjacent
to or in the vicinity of a wind energy system; two public members; and one University
of Wisconsin System faculty member with expertise regarding the health impacts of
wind energy systems. The PSC appoints the members for three-year terms. The
substitute amendment requires the PSC to obtain the advice of the council in
promulgating rules under the substitute amendment. In addition, the council must
survey peer-reviewed scientific research on the health impacts of wind energy
systems, as well as national and state regulatory developments regarding the siting
of wind energy systems, and submit a report to the legislature every five years
describing the research and developments and recommending legislation based on
the research and developments.
Finally, the substitute amendment does not affect a provision under current
law that exempts certain electric generating facilities from local ordinances. Under
current law, a person may not construct an electric generating facility with a nominal
operating capacity of 100 megawatts or more unless the PSC grants a certificate of
public convenience and necessity (CPCN) to the person. If the PSC has granted a
CPCN to such a facility, and if installation or utilization of the facility is precluded
or inhibited by a local ordinance, current law provides that the installation and
utilization of the facility may nevertheless proceed. Because this substitute
amendment does not affect that provision, the authority of a political subdivision to
regulate a wind energy system under the substitute amendment is limited to those
wind energy systems with a nominal operating capacity of less than 100 megawatts.
However, the substitute amendment requires the PSC to consider the restrictions
specified in the rules described above when the PSC determines whether to grant a
CPCN to a wind energy system with a nominal operating capacity of 100 megawatts
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
215.797 Same; council. (1) Wind siting council.
(a) In this subsection, "wind 3
energy system" has the meaning given in s. 66.0403 (1) (m).
(b) There is created in the public service commission a wind siting council that 5
consists of the following members appointed by the public service commission for 6
1. Two members representing wind energy system developers.
2. One member representing towns and one member representing counties.
3. Two members representing the energy industry.
4. Two members representing environmental groups.
5. Two members representing realtors.
6. Two members who are landowners living adjacent to or in the vicinity of a 2
wind energy system and who have not received compensation by or on behalf of 3
owners, operators, or developers of wind energy systems.
7. Two public members.
8. One member who is a University of Wisconsin System faculty member with 6
expertise regarding the health impacts of wind energy systems.
823.39 Placement of wind turbines.
The department shall identify areas in 9
this state where wind turbines, if placed in those areas, may have a significant 10
adverse effect on bat and migratory bird populations. The department shall 11
maintain an Internet Web site that provides this information to the public and that 12
includes a map of the identified areas.
AB256-ASA2, s. 3
66.0401 (1) of the statutes is renumbered 66.0401 (1m), and 66.0401 14
(1m) (intro.), as renumbered, is amended to read:
66.0401 (1m) Authority to restrict systems limited.
(intro.) No county, city,
16town, or village political subdivision may place any restriction, either directly or in
17effect, on the installation or use of a wind energy system that is more restrictive than
18the rules promulgated by the commission under s. 196.378 (4g) (b). No political
may place any restriction, either directly or in effect, on the installation 20
or use of a solar energy system, as defined in s. 13.48 (2) (h) 1. g., or a wind energy 21
system, as defined in s. 66.0403 (1) (m),
unless the restriction satisfies one of the 22
66.0401 (1e) Definitions.
In this section:
(a) "Application for approval" means an application for approval of a wind 2
energy system under rules promulgated by the commission under s. 196.378 (4g) (c) 3
(b) "Commission" means the public service commission.
(c) "Political subdivision" means a city, village, town, or county.
(d) "Wind energy system" has the meaning given in s. 66.0403 (1) (m).
66.0401 (2) Authority to require trimming of blocking vegetation. A county,
9city, village, or town Subject to sub. (6) (a), a political subdivision
may provide by 10enact an
ordinance for relating to
the trimming of vegetation that blocks solar 11
energy, as defined in s. 66.0403 (1) (k), from a collector surface, as defined under s. 12
700.41 (2) (b), or that blocks wind from a wind energy system, as defined in s. 66.0403
. The ordinance may include, but is not limited to,
a designation of 14
responsibility for the costs of the trimming. The ordinance may not require the 15
trimming of vegetation that was planted by the owner or occupant of the property on 16
which the vegetation is located before the installation of the solar or wind energy 17
66.0401 (3) Testing activities.
A political subdivision may not prohibit or 20
restrict any person from conducting testing activities to determine the suitability of 21
a site for the placement of a wind energy system. A political subdivision objecting 22
to such testing may petition the commission to impose reasonable restrictions on the 23
66.0401 (4) Local procedure.
(a) 1. Subject to subd. 2., a political subdivision 2
that receives an application for approval shall determine whether it is complete and, 3
no later than 45 days after the application is filed, notify the applicant about the 4
determination. As soon as possible after receiving the application for approval, the 5
political subdivision shall publish a class 1 notice, under ch. 985, stating that an 6
application for approval has been filed with the political subdivision. If the political 7
subdivision determines that the application is incomplete, the notice shall state the 8
reason for the determination. An applicant may supplement and refile an 9
application that the political subdivision has determined to be incomplete. There is 10
no limit on the number of times that an applicant may refile an application for 11
approval. If the political subdivision fails to determine whether an application for 12
approval is complete within 45 days after the application is filed, the application 13
shall be considered to be complete.
2. If a political subdivision that receives an application for approval under 15
subd. 1. does not have in effect an ordinance described under par. (g), the 45-day time 16
period for determining whether an application is complete, as described in subd. 1., 17
does not begin until the first day of the 4th month beginning after the political 18
subdivision receives the application. A political subdivision may notify an applicant 19
at any time, after receipt of the application and before the first day of the 4th month 20
after its receipt, that it does not intend to enact an ordinance described under par. 21
3. On the same day that an applicant makes an application for approval under 23
subd. 1. for a wind energy system, the applicant shall mail or deliver written notice 24
of the application to the owners of land adjoining the site of the wind energy system.
4. A political subdivision may not consider an applicant's minor modification 2
to the application to constitute a new application for the purposes of this subsection.
(b) A political subdivision shall make a record of its decision making on an 4
application for approval, including a recording of any public hearing, copies of 5
documents submitted at any public hearing, and copies of any other documents 6
provided to the political subdivision in connection with the application for approval. 7
The political subdivision's record shall conform to the commission's rules 8
promulgated under s. 196.378 (4g) (c) 2.
(c) A political subdivision shall base its decision on an application for approval 10
on written findings of fact that are supported by the evidence in the record under par. 11
(b). A political subdivision's procedure for reviewing the application for approval 12
shall conform to the commission's rules promulgated under s. 196.378 (4g) (c) 3.
(d) Except as provided in par. (e), a political subdivision shall approve or 14
disapprove an application for approval no later than 90 days after the day on which 15
it notifies the applicant that the application for approval is complete. If a political 16
subdivision fails to act within the 90 days, or within any extended time period 17
established under par. (e), the application is considered approved.