Amendment ASA2-AB256

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 Section 1. 15.797 of the statutes is created to read:

AB256-ASA2,3,3 15.797 Same; council. (1) Wind siting council. (a) In this subsection, "wind energy system" has the meaning given in s. 66.0403 (1) (m).

AB256-ASA2,3,6 (b) There is created in the public service commission a wind siting council that consists of the following members appointed by the public service commission for 3-year terms:

AB256-ASA2,3,7 1. Two members representing wind energy system developers.

AB256-ASA2,3,8 2. One member representing towns and one member representing counties.

AB256-ASA2,3,9 3. Two members representing the energy industry.

AB256-ASA2,3,10 4. Two members representing environmental groups.

AB256-ASA2,3,11 5. Two members representing realtors.

AB256-ASA2,4,3 6. Two members who are landowners living adjacent to or in the vicinity of a wind energy system and who have not received compensation by or on behalf of owners, operators, or developers of wind energy systems.

AB256-ASA2,4,4 7. Two public members.

AB256-ASA2,4,6 8. One member who is a University of Wisconsin System faculty member with expertise regarding the health impacts of wind energy systems.

AB256-ASA2, s. 2 Section 2. 23.39 of the statutes is created to read:

AB256-ASA2,4,12 23.39 Placement of wind turbines. The department shall identify areas in this state where wind turbines, if placed in those areas, may have a significant adverse effect on bat and migratory bird populations. The department shall maintain an Internet Web site that provides this information to the public and that includes a map of the identified areas.

AB256-ASA2, s. 3 Section 3. 66.0401 (1) of the statutes is renumbered 66.0401 (1m), and 66.0401 (1m) (intro.), as renumbered, is amended to read:

AB256-ASA2,4,22 66.0401 (1m) Authority to restrict systems limited. (intro.) No county, city, town, or village political subdivision may place any restriction, either directly or in effect, on the installation or use of a wind energy system that is more restrictive than the rules promulgated by the commission under s. 196.378 (4g) (b). No political subdivision may place any restriction, either directly or in effect, on the installation or use of a solar energy system, as defined in s. 13.48 (2) (h) 1. g., or a wind energy system, as defined in s. 66.0403 (1) (m), unless the restriction satisfies one of the following conditions:

AB256-ASA2, s. 4 Section 4. 66.0401 (1e) of the statutes is created to read:

AB256-ASA2,4,24 66.0401 (1e) Definitions. In this section:

AB256-ASA2,5,3 (a) "Application for approval" means an application for approval of a wind energy system under rules promulgated by the commission under s. 196.378 (4g) (c) 1.

AB256-ASA2,5,4 (b) "Commission" means the public service commission.

AB256-ASA2,5,5 (c) "Political subdivision" means a city, village, town, or county.

AB256-ASA2,5,6 (d) "Wind energy system" has the meaning given in s. 66.0403 (1) (m).

AB256-ASA2, s. 5 Section 5. 66.0401 (2) of the statutes is amended to read:

AB256-ASA2,5,17 66.0401 (2) Authority to require trimming of blocking vegetation. A county, city, village, or town Subject to sub. (6) (a), a political subdivision may provide by enact an ordinance for relating to the trimming of vegetation that blocks solar energy, as defined in s. 66.0403 (1) (k), from a collector surface, as defined under s. 700.41 (2) (b), or that blocks wind from a wind energy system, as defined in s. 66.0403 (1) (m). The ordinance may include, but is not limited to, a designation of responsibility for the costs of the trimming. The ordinance may not require the trimming of vegetation that was planted by the owner or occupant of the property on which the vegetation is located before the installation of the solar or wind energy system.

AB256-ASA2, s. 6 Section 6. 66.0401 (3) of the statutes is created to read:

AB256-ASA2,5,23 66.0401 (3) Testing activities. A political subdivision may not prohibit or restrict any person from conducting testing activities to determine the suitability of a site for the placement of a wind energy system. A political subdivision objecting to such testing may petition the commission to impose reasonable restrictions on the testing activity.

AB256-ASA2, s. 7 Section 7. 66.0401 (4) of the statutes is created to read:

AB256-ASA2,6,13 66.0401 (4) Local procedure. (a) 1. Subject to subd. 2., a political subdivision that receives an application for approval shall determine whether it is complete and, no later than 45 days after the application is filed, notify the applicant about the determination. As soon as possible after receiving the application for approval, the political subdivision shall publish a class 1 notice, under ch. 985, stating that an application for approval has been filed with the political subdivision. If the political subdivision determines that the application is incomplete, the notice shall state the reason for the determination. An applicant may supplement and refile an application that the political subdivision has determined to be incomplete. There is no limit on the number of times that an applicant may refile an application for approval. If the political subdivision fails to determine whether an application for approval is complete within 45 days after the application is filed, the application shall be considered to be complete.

AB256-ASA2,6,21 2. If a political subdivision that receives an application for approval under subd. 1. does not have in effect an ordinance described under par. (g), the 45-day time period for determining whether an application is complete, as described in subd. 1., does not begin until the first day of the 4th month beginning after the political subdivision receives the application. A political subdivision may notify an applicant at any time, after receipt of the application and before the first day of the 4th month after its receipt, that it does not intend to enact an ordinance described under par. (g).

AB256-ASA2,6,24 3. On the same day that an applicant makes an application for approval under subd. 1. for a wind energy system, the applicant shall mail or deliver written notice of the application to the owners of land adjoining the site of the wind energy system.

AB256-ASA2,7,2 4. A political subdivision may not consider an applicant's minor modification to the application to constitute a new application for the purposes of this subsection.

AB256-ASA2,7,8 (b) A political subdivision shall make a record of its decision making on an application for approval, including a recording of any public hearing, copies of documents submitted at any public hearing, and copies of any other documents provided to the political subdivision in connection with the application for approval. The political subdivision's record shall conform to the commission's rules promulgated under s. 196.378 (4g) (c) 2.

AB256-ASA2,7,12 (c) A political subdivision shall base its decision on an application for approval on written findings of fact that are supported by the evidence in the record under par. (b). A political subdivision's procedure for reviewing the application for approval shall conform to the commission's rules promulgated under s. 196.378 (4g) (c) 3.

AB256-ASA2,7,17 (d) Except as provided in par. (e), a political subdivision shall approve or disapprove an application for approval no later than 90 days after the day on which it notifies the applicant that the application for approval is complete. If a political subdivision fails to act within the 90 days, or within any extended time period established under par. (e), the application is considered approved.

AB256-ASA2,7,21 (e) A political subdivision may extend the time period in par. (d) if, within that 90-day period, the political subdivision authorizes the extension in writing. Any combination of the following extensions may be granted, except that the total amount of time for all extensions granted under this paragraph may not exceed 90 days:

AB256-ASA2,7,23 1. An extension of up to 45 days if the political subdivision needs additional information to determine whether to approve or deny the application for approval.

AB256-ASA2,7,25 2. An extension of up to 90 days if the applicant makes a material modification to the application for approval.

AB256-ASA2,8,2 3. An extension of up to 90 days for other good cause specified in writing by the political subdivision.

AB256-ASA2,8,6 (f) 1. Except as provided in subd. 2., a political subdivision may not deny or impose a restriction on an application for approval unless the political subdivision enacts an ordinance that is no more restrictive than the rules the commission promulgates under s. 196.378 (4g) (b).

AB256-ASA2,8,13 2. A political subdivision may deny an application for approval if the proposed site of the wind energy system is in an area primarily designated for future residential or commercial development, as shown in a map that is adopted, as part of a comprehensive plan, under s. 66.1001 (2) (b) and (f), before June 2, 2009, or as shown in such maps after December 31, 2015, as part of a comprehensive plan that is updated as required under s. 66.1001 (2) (i). This subdivision applies to a wind energy system that has a nominal capacity of at least one megawatt.

AB256-ASA2,8,17 (g) A political subdivision that chooses to regulate wind energy systems shall enact an ordinance, subject to sub. (6) (b), that is no more restrictive than the applicable standards established by the commission in rules promulgated under s. 196.378 (4g).

AB256-ASA2, s. 8 Section 8. 66.0401 (5) of the statutes is created to read:

AB256-ASA2,8,23 66.0401 (5) Public service commission review. (a) A decision of a political subdivision to determine that an application is incomplete under sub. (4) (a) 1., or to approve, disapprove, or impose a restriction upon a wind energy system, or an action of a political subdivision to enforce a restriction on a wind energy system, may be appealed only as provided in this subsection.

AB256-ASA2,9,8 (b) 1. Any aggrieved person seeking to appeal a decision or enforcement action specified in par. (a) may begin the political subdivision's administrative review process. If the person is still aggrieved after the administrative review is completed, the person may file an appeal with the commission. No appeal to the commission under this subdivision may be filed later than 30 days after the political subdivision has completed its administrative review process. For purposes of this subdivision, if a political subdivision fails to complete its administrative review process within 90 days after an aggrieved person begins the review process, the political subdivision is considered to have completed the process on the 90th day after the person began the process.

AB256-ASA2,9,13 2. Rather than beginning an administrative review under subd. 1., an aggrieved person seeking to appeal a decision or enforcement action of a political subdivision specified in par. (a) may file an appeal directly with the commission. No appeal to the commission under this subdivision may be filed later than 30 days after the decision or initiation of the enforcement action.

AB256-ASA2,9,18 3. An applicant whose application for approval is denied under sub. (4) (f) 2. may appeal the denial to the commission. The commission may grant the appeal notwithstanding the inconsistency of the application for approval with the political subdivision's planned residential or commercial development if the commission determines that granting the appeal is consistent with the public interest.

AB256-ASA2,9,24 (c) Upon receiving an appeal under par. (b), the commission shall notify the political subdivision. The political subdivision shall provide a certified copy of the record upon which it based its decision or enforcement action within 30 days after receiving notice. The commission may request of the political subdivision any other relevant governmental records and, if requested, the political subdivision shall provide such records within 30 days after receiving the request.

AB256-ASA2,9,25 (d) The commission may confine its review to the records it receives from the political subdivision or, if it finds that additional information would be relevant to its decision, expand the records it reviews. The commission shall issue a decision within 90 days after the date on which it receives all of the records it requests under par. (c), unless for good cause the commission extends this time period in writing. If the commission determines that the political subdivision's decision or enforcement action does not comply with the rules it promulgates under s. 196.378 (4g) or is otherwise unreasonable, the political subdivision's decision shall be superseded by the commission's decision and the commission may order an appropriate remedy.

AB256-ASA2,10,14 (e) In conducting a review under par. (d), the commission may treat a political subdivision's determination that an application under sub. (4) (a) 1. is incomplete as a decision to disapprove the application if the commission determines that a political subdivision has unreasonably withheld its determination that an application is complete.

AB256-ASA2,10,19 (f) Judicial review is not available until the commission issues its decision or order under par. (d). Judicial review shall be of the commission's decision or order, not of the political subdivision's decision or enforcement action. The commission's decision or order is subject to judicial review under ch. 227. Injunctive relief is available only as provided in s. 196.43.

AB256-ASA2, s. 9 Section 9. 66.0401 (6) of the statutes is created to read:

AB256-ASA2,10,23 66.0401 (6) Applicability of a political subdivision or county ordinance. (a) 1. A county ordinance enacted under sub. (2) applies only to the towns in the county that have not enacted an ordinance under sub. (2).

AB256-ASA2,11,2 2. If a town enacts an ordinance under sub. (2) after a county has enacted an ordinance under sub. (2), the county ordinance does not apply, and may not be enforced, in the town, except that if the town later repeals its ordinance, the county ordinance applies in that town.

AB256-ASA2,11,4 (b) 1. Subject to subd. 2., a county ordinance enacted under sub. (4) applies only in the unincorporated parts of the county.

AB256-ASA2,11,8 2. If a town enacts an ordinance under sub. (4), either before or after a county enacts an ordinance under sub. (4), the more restrictive terms of the 2 ordinances apply to the town, except that if the town later repeals its ordinance, the county ordinance applies in that town.

AB256-ASA2,11,13 (c) If a political subdivision enacts an ordinance under sub. (4) (g) after the commission's rules promulgated under s. 196.378 (4g) take effect, the political subdivision may not apply that ordinance to, or require approvals under that ordinance for, a wind energy system approved by the political subdivision under a previous ordinance or under a development agreement.

AB256-ASA2, s. 10 Section 10. 66.0403 (1) (m) of the statutes is amended to read:

AB256-ASA2,11,17 66.0403 (1) (m) "Wind energy system" means equipment and associated facilities that converts convert and then stores store or transfers transfer energy from the wind into usable forms of energy.

AB256-ASA2, s. 11 Section 11. 196.378 (4) (title) of the statutes is repealed and recreated to read:

AB256-ASA2,11,19 196.378 (4) (title) Renewable resource rules.

AB256-ASA2, s. 12 Section 12. 196.378 (4g) of the statutes is created to read:

AB256-ASA2,11,21 196.378 (4g) Wind energy systems. (a) In this subsection:

AB256-ASA2,11,22 1. "Application for approval" has the meaning given in s. 66.0401 (1e) (a).

AB256-ASA2,12,2 2. "Decommissioning" means removing wind turbines, buildings, cables, electrical components, roads, and any other facilities associated with a wind energy system that are located at the site of the wind energy system and restoring the site of the wind energy system.

AB256-ASA2,12,3 3. "Political subdivision" means a city, village, town, or county.

AB256-ASA2,12,4 4. "Wind energy system" has the meaning given in s. 66.0403 (1) (m).

AB256-ASA2,12,16 (b) The commission shall, with the advice of the wind siting council, promulgate rules that specify the restrictions a political subdivision may impose on the installation or use of a wind energy system consistent with the conditions specified in s. 66.0401 (1m) (a) to (c). The subject matter of these rules shall include setback requirements that provide reasonable protection from any health effects, including health effects from noise and shadow flicker, associated with wind energy systems. The subject matter of these rules shall also include decommissioning and may include visual appearance, lighting, electrical connections to the power grid, setback distances, maximum audible sound levels, shadow flicker, proper means of measuring noise, interference with radio, telephone, or television signals, or other matters. A political subdivision may not place a restriction on the installation or use of a wind energy system that is more restrictive than these rules.

AB256-ASA2,12,18 (c) In addition to the rules under par. (b), the commission shall, with the advice of the wind siting council, promulgate rules that do all of the following:

AB256-ASA2,12,21 1. Specify the information and documentation to be provided in an application for approval to demonstrate that a proposed wind energy system complies with rules promulgated under par. (b)

AB256-ASA2,12,23 2. Specify the information and documentation to be included in a political subdivision's record of decision under s. 66.0401 (4) (b).

AB256-ASA2,12,25 3. Specify the procedure a political subdivision shall follow in reviewing an application for approval under s. 66.0401 (4).

AB256-ASA2,13,2 4. Specify the requirements and procedures for a political subdivision to enforce the restrictions allowed under par. (b).

AB256-ASA2,13,9 (d) The commission shall promulgate rules requiring the owner of a wind energy system with a nominal operating capacity of at least one megawatt to maintain proof of financial responsibility ensuring the availability of funds for decommissioning the wind energy system upon discontinuance of use of the wind energy system. The rules may require that the proof can be established by a bond, deposit, escrow account, irrevocable letter of credit, or other financial commitment specified by the commission.

AB256-ASA2,13,18 (e) The wind siting council shall survey the peer-reviewed scientific research regarding the health impacts of wind energy systems and study state and national regulatory developments regarding the siting of wind energy systems. No later than the first day of the 60th month beginning after the effective date of this paragraph .... [LRB inserts date], and every 5 years thereafter, the wind siting council shall submit a report to the chief clerk of each house of the legislature, for distribution to the appropriate standing committees under s. 13.172 (3), describing the research and regulatory developments and including any recommendations of the council for legislation that is based on the research and regulatory developments.

AB256-ASA2, s. 13 Section 13. 196.491 (3) (dg) of the statutes is created to read:

AB256-ASA2,13,24 196.491 (3) (dg) In making a determination under par. (d) that applies to a large electric generating facility, if the large electric generating facility is a wind energy system, as defined in s. 66.0403 (1) (m), the commission shall consider whether installation or use of the facility is consistent with the standards specified in the rules promulgated by the commission under s. 196.378 (4g) (b).

AB256-ASA2, s. 14 Section 14. Nonstatutory provisions.

AB256-ASA2,14,6 (1) Public hearings. The public service commission shall hold at least 2 public hearings prior to promulgating the rules required under section 196.378 (4g) of the statutes, as created by this act. The public service commission shall hold at least one of the hearings in Monroe County and at least one of the hearings in an area outside of Dane County and Monroe County in which developers have proposed wind energy systems, as defined in section 66.0403 (1) (m) of the statutes, as affected by this act.

AB256-ASA2,14,7 (2) Wind siting council members.

AB256-ASA2,14,10 (a) Notwithstanding the length of terms specified for the members of the wind siting council specified in section 15.797 (1) (b) of the statutes, as created by this act, the initial members shall be appointed for the following terms: