LRBs0111/2
MDK/MES/RNK/EVM:kjf/jld/cjs:ph
2009 - 2010 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 2,
TO 2009 ASSEMBLY BILL 256
September 15, 2009 - Offered by Representative Soletski.
AB256-ASA2,1,5 1An Act to renumber and amend 66.0401 (1); to amend 66.0401 (2) and
266.0403 (1) (m); to repeal and recreate 196.378 (4) (title); and to create
315.797, 23.39, 66.0401 (1e), 66.0401 (3), 66.0401 (4), 66.0401 (5), 66.0401 (6),
4196.378 (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 systems.
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
or more.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB256-ASA2, s. 1 1Section 1. 15.797 of the statutes is created to read:
AB256-ASA2,3,3 215.797 Same; council. (1) Wind siting council. (a) In this subsection, "wind
3energy system" has the meaning given in s. 66.0403 (1) (m).
AB256-ASA2,3,64 (b) There is created in the public service commission a wind siting council that
5consists of the following members appointed by the public service commission for
63-year terms:
AB256-ASA2,3,77 1. Two members representing wind energy system developers.
AB256-ASA2,3,88 2. One member representing towns and one member representing counties.
AB256-ASA2,3,99 3. Two members representing the energy industry.
AB256-ASA2,3,1010 4. Two members representing environmental groups.
AB256-ASA2,3,1111 5. Two members representing realtors.
AB256-ASA2,4,3
16. Two members who are landowners living adjacent to or in the vicinity of a
2wind energy system and who have not received compensation by or on behalf of
3owners, operators, or developers of wind energy systems.
AB256-ASA2,4,44 7. Two public members.
AB256-ASA2,4,65 8. One member who is a University of Wisconsin System faculty member with
6expertise regarding the health impacts of wind energy systems.
AB256-ASA2, s. 2 7Section 2. 23.39 of the statutes is created to read:
AB256-ASA2,4,12 823.39 Placement of wind turbines. The department shall identify areas in
9this state where wind turbines, if placed in those areas, may have a significant
10adverse effect on bat and migratory bird populations. The department shall
11maintain an Internet Web site that provides this information to the public and that
12includes a map of the identified areas.
AB256-ASA2, s. 3 13Section 3. 66.0401 (1) of the statutes is renumbered 66.0401 (1m), and 66.0401
14(1m) (intro.), as renumbered, is amended to read:
AB256-ASA2,4,2215 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
19subdivision
may place any restriction, either directly or in effect, on the installation
20or use of a solar energy system, as defined in s. 13.48 (2) (h) 1. g., or a wind energy
21system, as defined in s. 66.0403 (1) (m), unless the restriction satisfies one of the
22following conditions:
AB256-ASA2, s. 4 23Section 4. 66.0401 (1e) of the statutes is created to read:
AB256-ASA2,4,2424 66.0401 (1e) Definitions. In this section:
AB256-ASA2,5,3
1(a) "Application for approval" means an application for approval of a wind
2energy system under rules promulgated by the commission under s. 196.378 (4g) (c)
31.
AB256-ASA2,5,44 (b) "Commission" means the public service commission.
AB256-ASA2,5,55 (c) "Political subdivision" means a city, village, town, or county.
AB256-ASA2,5,66 (d) "Wind energy system" has the meaning given in s. 66.0403 (1) (m).
AB256-ASA2, s. 5 7Section 5. 66.0401 (2) of the statutes is amended to read:
AB256-ASA2,5,178 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
11energy, as defined in s. 66.0403 (1) (k), from a collector surface, as defined under s.
12700.41 (2) (b), or that blocks wind from a wind energy system, as defined in s. 66.0403
13(1) (m)
. The ordinance may include, but is not limited to, a designation of
14responsibility for the costs of the trimming. The ordinance may not require the
15trimming of vegetation that was planted by the owner or occupant of the property on
16which the vegetation is located before the installation of the solar or wind energy
17system.
AB256-ASA2, s. 6 18Section 6. 66.0401 (3) of the statutes is created to read:
AB256-ASA2,5,2319 66.0401 (3) Testing activities. A political subdivision may not prohibit or
20restrict any person from conducting testing activities to determine the suitability of
21a site for the placement of a wind energy system. A political subdivision objecting
22to such testing may petition the commission to impose reasonable restrictions on the
23testing activity.
AB256-ASA2, s. 7 24Section 7. 66.0401 (4) of the statutes is created to read:
AB256-ASA2,6,13
166.0401 (4) Local procedure. (a) 1. Subject to subd. 2., a political subdivision
2that receives an application for approval shall determine whether it is complete and,
3no later than 45 days after the application is filed, notify the applicant about the
4determination. As soon as possible after receiving the application for approval, the
5political subdivision shall publish a class 1 notice, under ch. 985, stating that an
6application for approval has been filed with the political subdivision. If the political
7subdivision determines that the application is incomplete, the notice shall state the
8reason for the determination. An applicant may supplement and refile an
9application that the political subdivision has determined to be incomplete. There is
10no limit on the number of times that an applicant may refile an application for
11approval. If the political subdivision fails to determine whether an application for
12approval is complete within 45 days after the application is filed, the application
13shall be considered to be complete.
AB256-ASA2,6,2114 2. If a political subdivision that receives an application for approval under
15subd. 1. does not have in effect an ordinance described under par. (g), the 45-day time
16period for determining whether an application is complete, as described in subd. 1.,
17does not begin until the first day of the 4th month beginning after the political
18subdivision receives the application. A political subdivision may notify an applicant
19at any time, after receipt of the application and before the first day of the 4th month
20after its receipt, that it does not intend to enact an ordinance described under par.
21(g).
AB256-ASA2,6,2422 3. On the same day that an applicant makes an application for approval under
23subd. 1. for a wind energy system, the applicant shall mail or deliver written notice
24of the application to the owners of land adjoining the site of the wind energy system.
AB256-ASA2,7,2
14. A political subdivision may not consider an applicant's minor modification
2to the application to constitute a new application for the purposes of this subsection.
AB256-ASA2,7,83 (b) A political subdivision shall make a record of its decision making on an
4application for approval, including a recording of any public hearing, copies of
5documents submitted at any public hearing, and copies of any other documents
6provided to the political subdivision in connection with the application for approval.
7The political subdivision's record shall conform to the commission's rules
8promulgated under s. 196.378 (4g) (c) 2.
AB256-ASA2,7,129 (c) A political subdivision shall base its decision on an application for approval
10on 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
12shall conform to the commission's rules promulgated under s. 196.378 (4g) (c) 3.
AB256-ASA2,7,1713 (d) Except as provided in par. (e), a political subdivision shall approve or
14disapprove an application for approval no later than 90 days after the day on which
15it notifies the applicant that the application for approval is complete. If a political
16subdivision fails to act within the 90 days, or within any extended time period
17established under par. (e), the application is considered approved.
AB256-ASA2,7,2118 (e) A political subdivision may extend the time period in par. (d) if, within that
1990-day period, the political subdivision authorizes the extension in writing. Any
20combination of the following extensions may be granted, except that the total amount
21of time for all extensions granted under this paragraph may not exceed 90 days:
AB256-ASA2,7,2322 1. An extension of up to 45 days if the political subdivision needs additional
23information to determine whether to approve or deny the application for approval.
AB256-ASA2,7,2524 2. An extension of up to 90 days if the applicant makes a material modification
25to the application for approval.
AB256-ASA2,8,2
13. An extension of up to 90 days for other good cause specified in writing by the
2political subdivision.
AB256-ASA2,8,63 (f) 1. Except as provided in subd. 2., a political subdivision may not deny or
4impose a restriction on an application for approval unless the political subdivision
5enacts an ordinance that is no more restrictive than the rules the commission
6promulgates under s. 196.378 (4g) (b).
AB256-ASA2,8,137 2. A political subdivision may deny an application for approval if the proposed
8site of the wind energy system is in an area primarily designated for future
9residential or commercial development, as shown in a map that is adopted, as part
10of a comprehensive plan, under s. 66.1001 (2) (b) and (f), before June 2, 2009, or as
11shown in such maps after December 31, 2015, as part of a comprehensive plan that
12is updated as required under s. 66.1001 (2) (i). This subdivision applies to a wind
13energy system that has a nominal capacity of at least one megawatt.
AB256-ASA2,8,1714 (g) A political subdivision that chooses to regulate wind energy systems shall
15enact an ordinance, subject to sub. (6) (b), that is no more restrictive than the
16applicable standards established by the commission in rules promulgated under s.
17196.378 (4g).
AB256-ASA2, s. 8 18Section 8. 66.0401 (5) of the statutes is created to read:
AB256-ASA2,8,2319 66.0401 (5) Public service commission review. (a) A decision of a political
20subdivision to determine that an application is incomplete under sub. (4) (a) 1., or to
21approve, disapprove, or impose a restriction upon a wind energy system, or an action
22of a political subdivision to enforce a restriction on a wind energy system, may be
23appealed only as provided in this subsection.
AB256-ASA2,9,824 (b) 1. Any aggrieved person seeking to appeal a decision or enforcement action
25specified in par. (a) may begin the political subdivision's administrative review

1process. If the person is still aggrieved after the administrative review is completed,
2the person may file an appeal with the commission. No appeal to the commission
3under this subdivision may be filed later than 30 days after the political subdivision
4has completed its administrative review process. For purposes of this subdivision,
5if a political subdivision fails to complete its administrative review process within 90
6days after an aggrieved person begins the review process, the political subdivision
7is considered to have completed the process on the 90th day after the person began
8the process.
AB256-ASA2,9,139 2. Rather than beginning an administrative review under subd. 1., an
10aggrieved person seeking to appeal a decision or enforcement action of a political
11subdivision specified in par. (a) may file an appeal directly with the commission. No
12appeal to the commission under this subdivision may be filed later than 30 days after
13the decision or initiation of the enforcement action.
AB256-ASA2,9,1814 3. An applicant whose application for approval is denied under sub. (4) (f) 2.
15may appeal the denial to the commission. The commission may grant the appeal
16notwithstanding the inconsistency of the application for approval with the political
17subdivision's planned residential or commercial development if the commission
18determines that granting the appeal is consistent with the public interest.
AB256-ASA2,9,2419 (c) Upon receiving an appeal under par. (b), the commission shall notify the
20political subdivision. The political subdivision shall provide a certified copy of the
21record upon which it based its decision or enforcement action within 30 days after
22receiving notice. The commission may request of the political subdivision any other
23relevant governmental records and, if requested, the political subdivision shall
24provide such records within 30 days after receiving the request.
AB256-ASA2,9,25
1(d) The commission may confine its review to the records it receives from the
2political subdivision or, if it finds that additional information would be relevant to
3its decision, expand the records it reviews. The commission shall issue a decision
4within 90 days after the date on which it receives all of the records it requests under
5par. (c), unless for good cause the commission extends this time period in writing.
6If the commission determines that the political subdivision's decision or enforcement
7action does not comply with the rules it promulgates under s. 196.378 (4g) or is
8otherwise unreasonable, the political subdivision's decision shall be superseded by
9the commission's decision and the commission may order an appropriate remedy.
AB256-ASA2,10,1410 (e) In conducting a review under par. (d), the commission may treat a political
11subdivision's determination that an application under sub. (4) (a) 1. is incomplete as
12a decision to disapprove the application if the commission determines that a political
13subdivision has unreasonably withheld its determination that an application is
14complete.
AB256-ASA2,10,1915 (f) Judicial review is not available until the commission issues its decision or
16order under par. (d). Judicial review shall be of the commission's decision or order,
17not of the political subdivision's decision or enforcement action. The commission's
18decision or order is subject to judicial review under ch. 227. Injunctive relief is
19available only as provided in s. 196.43.
AB256-ASA2, s. 9 20Section 9. 66.0401 (6) of the statutes is created to read:
AB256-ASA2,10,2321 66.0401 (6) Applicability of a political subdivision or county ordinance. (a)
221. A county ordinance enacted under sub. (2) applies only to the towns in the county
23that have not enacted an ordinance under sub. (2).
AB256-ASA2,11,224 2. If a town enacts an ordinance under sub. (2) after a county has enacted an
25ordinance under sub. (2), the county ordinance does not apply, and may not be

1enforced, in the town, except that if the town later repeals its ordinance, the county
2ordinance applies in that town.
AB256-ASA2,11,43 (b) 1. Subject to subd. 2., a county ordinance enacted under sub. (4) applies only
4in the unincorporated parts of the county.
AB256-ASA2,11,85 2. If a town enacts an ordinance under sub. (4), either before or after a county
6enacts an ordinance under sub. (4), the more restrictive terms of the 2 ordinances
7apply to the town, except that if the town later repeals its ordinance, the county
8ordinance applies in that town.
AB256-ASA2,11,139 (c) If a political subdivision enacts an ordinance under sub. (4) (g) after the
10commission's rules promulgated under s. 196.378 (4g) take effect, the political
11subdivision may not apply that ordinance to, or require approvals under that
12ordinance for, a wind energy system approved by the political subdivision under a
13previous ordinance or under a development agreement.
AB256-ASA2, s. 10 14Section 10. 66.0403 (1) (m) of the statutes is amended to read:
AB256-ASA2,11,1715 66.0403 (1) (m) "Wind energy system" means equipment and associated
16facilities
that converts convert and then stores store or transfers transfer energy
17from the wind into usable forms of energy.
AB256-ASA2, s. 11 18Section 11. 196.378 (4) (title) of the statutes is repealed and recreated to read:
AB256-ASA2,11,1919 196.378 (4) (title) Renewable resource rules.
AB256-ASA2, s. 12 20Section 12. 196.378 (4g) of the statutes is created to read:
AB256-ASA2,11,2121 196.378 (4g) Wind energy systems. (a) In this subsection:
AB256-ASA2,11,2222 1. "Application for approval" has the meaning given in s. 66.0401 (1e) (a).
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