Rule-Making Notices (Hearing Notices)

Affected Ch. 20 appropriations

Section 20.370 (1) (my) and (mu), Stats.

Agency Contact Person

Conservation Warden Barbara Wolf

3911 Fish Hatchery Rd.

Fitchburg, WI 53711

Phone: [phone]

Email: [e-mail]

Notice of Hearings

Public Service Commission

rulemaking_notices CR 10-057 CR 10-057

NOTICE IS GIVEN That pursuant to s. 227.16 (2) (b), Wis. Stats., the Public Service Commission will hold public hearings to consider a proposed order to create Chapter PSC 128, Wis. Adm. Code, relating to the siting of wind energy systems.

Hearing Information

The hearings will be held:

Date and Time:	Wednesday, June 30, 2010 1:00 p.m. and 6:00 p.m.
Location:	Public Service Commission 610 North Whitney Way Madison, WI

This building is accessible to people in wheelchairs through the Whitney Way (lobby) entrance. Handicapped parking is available on the south side of the building.

2009 Wisconsin Act 40 requires that hearings regarding these rules also be held in Monroe County and a county other than Dane or Monroe, where developers have proposed wind energy systems. The Commission will also hold public hearings on these proposed rules at:

Date and Time:	Monday, June 28, 2010 at 1:00 p.m. and 6:00 p.m.
Location:	City Hall, Legislative Chambers 160 S. Macy Street Fond du Lac, WI

Date and Time:	Tuesday, June 29, 2010 at 1:00 p.m. and 6:00 p.m.
Location:	Holiday Inn 1017 E. McCoy Blvd. Tomah, WI

The Commission does not discriminate on the basis of disability in the provision of programs, services, or employment. Any person with a disability who needs accommodations to participate in this proceeding or who needs to obtain this document in a different format should contact the docket coordinator, Deborah Erwin, at [phone] or [e-mail].

Submittal of Written Comments

Any person may submit written comments on these proposed rules. The hearing record will be open for written comments from the public, effective immediately, and until Wednesday, July 7, 2010, at noon (Tuesday, July 6, 2010, at noon, if filed by fax). All written comments must include a reference on the filing to docket 1-AC-231. File by one mode only.

Industry:

File comments using the Electronic Regulatory Filing (ERF) system. This may be accessed from the Commission's website http://psc.wi.gov.

Members of the public:

If filing electronically: Use the Public Comments system or the Electronic Regulatory Filing system. Both of these may be accessed from the Commission's website at http://psc.wi.gov.

If filing by fax: Send fax comments to [phone]. Fax filing cover sheet MUST state “Official Filing," the docket number 1-AC-231, and the number of pages (limited to 25 pages for fax comments).

If filing by mail, courier, or hand delivery: Address as shown in the box.

Comments Due: Wednesday July 7, 2010 – Noon FAX Due: Tuesday July 6, 2010 – Noon

Address Comments To: Sandra J. Paske, Secretary to the Commission Public Service Commission P.O. Box 7854 Madison, WI 53707-7854 FAX [phone]

Analysis Prepared by the Public Service Commission

Statutes interpreted

This rule interprets ss. 66.0401 (3) to (6) and 196.378 (4g), Stats. These statutes deal with wind energy system site suitability testing, local processes for wind energy system applications for approval, commission review process, the applicability of wind siting ordinances, and the role of the Commission and the Wind Siting Council.

Statutory authority

Sections 196.02 (1) and (3), 196.378 (4g) (b) to (d), and 227.11, Stats.

Explanation of agency authority

Section 227.11 authorizes agencies to promulgate administrative rules. Section 196.02 (1) authorizes the Commission to do all things necessary and convenient to its jurisdiction. Section 196.02 (3) grants the Commission specific authority to promulgate rules. Sections 196.378 (4g) (b) to (d) grants the Commission specific authority to promulgate rules dealing with the siting of wind energy systems.

Related statutes or rules

Section 196.491 is related because, although these rules specify the restrictions a political subdivision may impose on the construction and operation of a wind farm with an operating capacity of less 100 megawatts, the Commission is required to consider these requirements when determining whether to grant a certificate of public convenience and necessity (CPCN) to a wind energy system with an operating capacity of 100 megawatts or more.

Summary of rule

2009 Wisconsin Act 40 (Act 40) establishes statewide criteria for the installation or use of a wind energy system with a nominal operating capacity of less than 100 megawatts, and helps ensure consistent local procedures for the review and approval of such systems. Act 40 requires the Commission to promulgate a variety of rules that specify the conditions a city, village, town, or county (political subdivision) may impose on such a system. If a political subdivision chooses to regulate such systems, its ordinances may not be more restrictive than the Commission's rules. Appeals regarding the rules and their application may be made to the Commission.

Currently, an electric generating facility with a nominal operating capacity of 100 megawatts or more may not be constructed unless the Commission grants a certificate of public convenience and necessity. Act 40 requires the Commission to consider the restrictions specified in these rules when determining whether to grant a certificate of public convenience and necessity.

The rule is broken down into three general categories: developer responsibilities, political subdivision procedure and commission procedure.

Developer Responsibilities

Before filing an application to construct a wind energy system, a developer must provide notice to landowners within one mile of the system, all political subdivisions within which the system may be located, the Wisconsin department of natural resources, Wisconsin department of transportation (DOT), and emergency first responders in the area. If the system has a capacity of 100 kilowatts or larger (large system), notice must be filed with the commission. A transportation plan including plans for mitigating and repairing road damage must be prepared in consultation with DOT, and an emergency response plan must be prepared in consultation with first responders.

Any wind easement or lease that is entered into must be in writing and wind easements must be filed with the county register of deeds. In this way, anyone wanting to buy the property will be aware of the wind easement. Certain provisions are required and others prohibited in wind leases.

A developer must consider existing land uses and commercial enterprises on nonparticipating land within one mile of the proposed system site and must meet certain setback requirements described in the rule.

A political subdivision may not set height or distance requirements that are more stringent than in this rule or certain requirements already in existence, such as Federal Aviation Administration (FAA) standards for public use airports. A wind energy system may not be built in the path of existing line-of-sight communications technologies.

The rule sets noise, shadow flicker, and television/radio and cell telephone interference criteria and provides for mitigation efforts. It also provides for stray voltage testing. Construction, electrical, operation and maintenance standards are set. A complaint process and requirements for decommissioning are established, including requirements for site restoration and demonstrating financial responsibility to complete decommissioning.

Political Subdivision Procedure

The rule specifies information that must be included in an application for approval by a political subdivision and provides procedures if the application is found to be incomplete. The rule allows for a joint application review process for projects proposed in more than one political subdivision. A reasonable application fee may be charged. On the same day an application is filed, detailed notice must be sent to property owners and residents within one-half mile of participating properties. The rule requires that political subdivisions hold at least one public hearing and provide for written comments concerning the project. A political subdivision must issue a written decision and keep a written record of its decision-making.

The rule also specifies certain things that may, and may not, be included in a local ordinance or as a condition for project approval. It allows for modifications to approved systems and a monitoring committee to examine complaints and compliance.

Commission Procedure

This section specifies the process for commission review of political subdivision decisions and enforcement actions. It identifies what must be in a request for review and what the political subdivision must provide to the commission. Notice of the appeal must be provided, depending on the situation, to the political subdivision or the energy system developer, owner or operator. The Commission may hold a hearing on the matter. Finally, the rule establishes timeframes for action if the Commission remands the decision to the political subdivision.

Comparison with federal regulations

There are a number of federal laws that interact with the issues in this rulemaking, although the Commission is not aware of any that deal with the specific requirements that a political subdivision may impose. A few of the federal laws that may interrelate include the National Environmental Policy Act, 42 U.S.C. 4321 et. seq., the Endangered Species Act, 16 U.S.C. 1531–1544, and 14 C.F.R. Pt. 77, which requires a Federal Aviation Administration airspace study before constructing certain types of projects.

Comparison with similar rules in adjacent states

Illinois:

Illinois statutes provide that a municipality or county may regulate wind farms within its zoning jurisdiction and within the 1.5 mile radius surrounding its zoning jurisdiction. A county or municipality may not require a wind tower or other renewable energy system that is used exclusively by an end-user to be setback more than 1.1 times the height of the system from the end-user's property line. A setback requirement imposed by a municipality on a system may not be more restrictive.

There must be at least one public hearing not more than 30 days prior to a siting decision by the county board. Notice of the hearing must be published in a newspaper of general circulation in the county.

Michigan:

Michigan statutes require the Michigan Public Service Commission (Michigan PSC) to designate the area(s) of the state likely to be most productive of wind energy. In making its determination, the Michigan PSC is required to base its decision on the findings of a Wind Energy Resource Zone Board, a cost/benefit analysis and various other factors. At the same time, the Michigan PSC was to report to the legislature about the effect that local setback requirements and noise limitations might have on wind energy development, including any recommendations the Michigan PSC had for legislation. The Michigan PSC has issued both documents and, in its report to the legislature, recommended that setback requirements and noise limitations should continue to be decided at the local level where feasible so that the needs of local citizens can be appropriately considered. The Michigan PSC has a Renewable Energy Group which it intends to have sponsor periodic meetings to provide needed scientific information to decision-makers.

In 2008 the Energy Office, Michigan Department of Labor and Economic Growth, put out guidelines to help local governments, other than those in urban areas, develop siting guidelines. The guidelines contain recommended zoning language for local governments to use if they amend their zoning ordinance to address wind energy systems. They recommend different requirements for on-site use (generally small) and utility grid (generally large) wind energy systems.

On-site systems are systems designed to primarily serve the needs of a home, farm, or small business with tower heights of 20 meters or less.

For these systems, the guidelines establish a setback designed to protect neighbors in the event of a tower failure. The minimum recommended setback from the landowner's property lines is the height of the turbine, including the top of the blade in its vertical position. It is recommended that all parts of a wind energy system structure, including guy wire anchors, be setback the greater of ten feet or the zoning district setback distance from the landowner's property lines.

It is recommended that sound levels for on-site use systems not exceed 55 dB(A) at the property line closest to the wind energy system, except for short-term events such as utility outages or severe wind storms. It also recommended that if the ambient sound pressure level exceeds 55 dB(A), the standard shall be ambient dB(A) plus 5 dB(A).

Finally, the guidelines recommend that an on-site use wind energy system have both lightning protection, and automatic braking, governing, or a feathering system to prevent uncontrolled rotation or over speeding. If a tower is supported by guy wires, it is recommended that the wires be clearly visible to a height of at least six feet above the guy wire anchors and that the minimum vertical blade tip clearance from grade be 20 feet for a wind energy system employing a horizontal axis rotor.

Utility grid systems are systems designed to provide power to wholesale or retail customers using the electric grid, and on-site systems with tower heights over 20 meters.

For these systems, the guidelines establish a setback designed to protect neighbors in the event of a tower failure. The minimum recommended setback from the landowner's property lines is the greater of local zoning setbacks, road right of way setbacks, or the height of the turbine, including the top of the blade in its vertical position.

It is recommended that sound levels for utility grid systems not exceed 55 dB(A) at the property line closest to the wind energy system, except that this level may be exceeded for up to three minutes in any hour of the day. It also recommended that if the ambient sound pressure level exceeds 55 dB(A), the standard shall be ambient dB(A) plus 5 dB(A).

During the application process a developer must analyze shadow flicker impact and expected durations of the flicker from sunrise to sunset over the course of a year, as well as mitigation measures to eliminate or minimize these impacts. It must also submit a planning commission approved decommissioning plan and complaint resolution process.

No system can be installed in a way that causes interference unless the applicant provides a replacement signal to at least the pre-installation level. It also cannot be installed within the path of a line-of-sight communication technology unless doing so will produce only insignificant interference.

Minnesota:

The Minnesota state statute defines a large wind system as 5,000 kilowatts or more. Applications for a permit to site such a system must be filed with the Minnesota Public Utility Commission (Minnesota PUC). The only exception to this general rule is that a county board may assume responsibility for processing permit applications for a large wind system with a capacity of less than 25,000 kilowatts. Under the administrative rule, a local government may establish siting and construction requirements for a small system, meaning under 5,000 kilowatts.

The statutes require that the Minnesota PUC establish general permit standards, including appropriate property line set-backs, governing site permits. These standards apply to permits issued by counties and to permits issued by the Minnesota PUC for large wind systems with a capacity of less than 25,000 kilowatts. The Minnesota PUC or a county may grant a variance from a general permit standard if the variance is found to be in the public interest.

The statute preempts all zoning, building, or land use rules, regulations, or ordinances adopted by local government units. However, a county may adopt standards for large wind systems that are more stringent than those in Minnesota PUC rules or permit standards. The Minnesota PUC, in considering a permit application for system in a county that has adopted more stringent standards, must consider and apply those more stringent standards, unless it finds good cause not to apply those standards.

The administrative rule contains detailed information about what must be in an application, including information about wind conditions at the proposed site, environmental factors, project design, construction and operation details, and decommissioning plans.

Setbacks developed by the Minnesota PUC include:

•   Wind Access Buffer (setback from lands and/or wind rights lot under permittee's control) – 3 rotor diameters (RD) (760 - 985 ft) on east-west axis and 5 RD (1280-1640ft) on north-south axis,

•   Homes – at least 500 ft and sufficient distance to meet state noise standards, and road rights-of-way - no closer than 250 feet from the edge of public road rights-of-way.

Noise standards for residential and similar areas are:

•   DaytimeNightime
L501L102 50L10

•   60655055

1   L50 means the sound level, expressed in dB(A), which is exceeded 50 percent of the time for a one hour survey, as measured by test procedures approved by the Minnesota PUC.

2   L10 means the sound level, expressed in dB(A), which is exceeded ten percent of the time for a one hour survey, as measured by test procedures approved by the Minnesota PUC.

If disruptions to television, microwave, telecommunication, navigation, or other facilities occur, the permittee must take whatever steps are necessary to correct the problem.

Prior to construction, the permittee must submit procedures for handling complaints. It must also prepare an emergency plan and register with the area 911 system. Finally, it must make arrangements for the use, maintenance and repair of roads that it will use.

Within 15 days after an application is accepted, notice must be provided to the county board, city council, township board, and each landowner within the system site. Notice must also be published in a newspaper of general circulation in the area. The Minnesota PUC must provide notice to those persons it knows are interested in the proposed project.

Ohio:

Ohio's statutes require that a certificate be obtained from the state power siting board before constructing an economically significant wind farm, one with a capacity of 5 megawatts or more, and requires that the application process be identical, to the extent practicable, to the process applicable to certificating major utility facilities. It orders that a rule be written including the following minimum setbacks:

•   For the wind farm property - at least 1.1 times the total height of the turbine.

•   For the exterior of the nearest habitable residential structure on property adjacent to the wind farm – at least 750 feet measured from the tip of the nearest blade at ninety degrees.

Ohio has an administrative rule with very detailed requirements for applications including project description, project area analysis, financial data, technical data, environmental data, and ecological and social data. Applications must include information such as: potential impact from ice throw and blade shear at the nearest property boundary, including plans to minimize it; the potential impact from shadow flicker at adjacent residential structures and primary roads, including plans to minimize it; the potential for interference with radio and television reception and measures that will be taken to minimize it; the anticipated impact to roads and bridges and measures planned for returning them to their prior condition; and a plan for decommissioning, including a discussion of any financial arrangements designed to ensure the requisite financial resources.

Wisconsin: