Chapter PSC 128

PSC 128.01(12)(a) (a) A person with a direct ownership interest in a wind energy system, regardless of whether the person was involved in acquiring the necessary rights, permits and approvals or otherwise planning for the construction and operation of a wind energy system.

PSC 128.01(12)(b) (b) At the time a wind energy system is being developed, a person who is acting as a wind energy system developer by acquiring the necessary rights, permits and approvals for or by planning for the construction and operation of a wind energy system, regardless of whether the person will own or operate the wind energy system.

PSC 128.01(13) (13) “Participating property” means any of the following:

PSC 128.01(13)(a) (a) A turbine host property.

PSC 128.01(13)(b) (b) Real property that is the subject of an agreement that does all of the following:

PSC 128.01(13)(b)1. 1. Provides for the payment of monetary compensation to the landowner from an owner regardless of whether any part of a wind energy system is constructed on the property.

PSC 128.01(13)(b)2. 2. Specifies in writing any waiver of a requirement or right under this chapter and that the landowner’s acceptance of payment establishes the landowner’s property as a participating property.

PSC 128.01(14) (14) “Participating residence” means a residence located on participating property.

PSC 128.01(15) (15) “Personal communications” includes wireless telecommunications, personal communications service, radio, television, wireless internet service, and other systems used for personal use purposes.

PSC 128.01(16) (16) “Political subdivision” has the meaning given in s. 66.0401 (1e) (c), Stats.

PSC 128.01(17) (17) “Residence” means an occupied primary or secondary personal residence including a manufactured home as defined in s. 101.91 (2), Stats., a hospital, community-based residential facility, residential care apartment complex or similar facility, or a nursing home. “Residence” includes a temporarily unoccupied primary or secondary personal residence. “Residence” does not include any of the following:

PSC 128.01(17)(a) (a) A recreational vehicle as defined in s. 340.01 (48r), Stats., notwithstanding the length of the vehicle.

PSC 128.01(17)(b) (b) A camping trailer as defined in s. 340.01 (6m), Stats.

PSC 128.01(17)(c) (c) A permanently abandoned personal residence.

PSC 128.01(19) (19) “Shadow flicker” means a pattern of moving shadows cast on a residence or an occupied community building caused by sunlight shining through moving wind turbine blades resulting in alternating changes in light intensity.

PSC 128.01(20) (20) “Small wind energy system” means a wind energy system that has a total installed nameplate capacity of 300 kilowatts or less and that consists of individual wind turbines that have an installed nameplate capacity of not more than 100 kilowatts.

PSC 128.01(21) (21) “Turbine host property” means real property on which at least one wind turbine is located.

PSC 128.01(22) (22) “Wind access easement” means a written document that creates a legal interest in real property that restricts the use of the property to avoid interference with the wind resource on another property.

PSC 128.01(23) (23) “Wind energy system” has the meaning given in s. 66.0403 (1) (m), Stats., and is used to convert wind energy to electrical energy.

PSC 128.01(24) (24) “Wind energy system easement” means a written document that creates a legal interest in real property that permits an owner to place, construct or operate a wind turbine or other wind energy system facility on the property.

PSC 128.01(25) (25) “Wind energy system emergency” means a condition or situation at a wind energy system that presents a significant threat of physical danger to human life or a significant threat to property or a natural event that causes damage to wind energy system facilities.

PSC 128.01(26) (26) “Wind energy system facility” means any component of a wind energy system, such as a wind turbine, collector circuit, access road, electric system interconnection facility or operation and maintenance facility.

PSC 128.01(27) (27) “Wind energy system lease” means a written agreement between a landowner and an owner that establishes the terms and conditions associated with the placement, construction or operation of a wind turbine or other wind energy system facility on a landowner’s property.

PSC 128.01 History History: CR 10-057: cr. Register February 2011 No. 662, eff. 3-1-11.

PSC 128.02 PSC 128.02 Applicability.

PSC 128.02(1) (1) Political subdivision applications.

PSC 128.02(1)(a) (a) Except as provided in par. (b), this chapter applies to a political subdivision’s review of a proposed wind energy system or regulation of a wind energy system under s. 66.0401, Stats.

PSC 128.02(1)(b) (b) This chapter does not apply to any of the following:

PSC 128.02(1)(b)1. 1. A wind energy system for which construction began before March 1, 2011.

PSC 128.02(1)(b)2. 2. A wind energy system placed in operation before March 1, 2011.

PSC 128.02(1)(b)3. 3. A wind energy system approved by a political subdivision before March 1, 2011.

PSC 128.02(1)(b)4. 4. A wind energy system proposed by an owner in an application filed with a political subdivision before the March 1, 2011.

PSC 128.02(1)(c) (c) Notwithstanding par. (b) 4., if an owner withdraws an application for a proposed wind energy system that is filed with a political subdivision before March 1, 2011, this chapter applies to the wind energy system if the owner re-files the application with the political subdivision on or after March 1, 2011.

PSC 128.02(3) (3) Commission applications. The commission shall consider whether the installation or use of a wind energy system is consistent with the standards specified in this chapter when reviewing an application under s. 196.491 (3) (d), Stats., filed on or after March 1, 2011.

PSC 128.02(4) (4) Individual consideration. Nothing in this chapter shall preclude the commission from giving individual consideration to exceptional or unusual situations and applying requirements to an individual wind energy system that may be lesser, greater, or different from those provided in this chapter.

PSC 128.02 History History: CR 10-057: cr. Register February 2011 No. 662, eff. 3-1-11.

PSC 128.03 PSC 128.03 Political subdivision authority. A political subdivision may not place any restriction, either directly or in effect, on the installation or use of a wind energy system except by adopting an ordinance that complies with this chapter and s. 66.0401, Stats., and is not more restrictive than this chapter.

PSC 128.03 History History: CR 10-057: cr. Register February 2011 No. 662, eff. 3-1-11.

PSC 128.04 PSC 128.04 Enforcement.

PSC 128.04(1) (1) Political subdivisions. A political subdivision shall be responsible for enforcing its wind energy system ordinance and permit provisions.

PSC 128.04(2) (2) Commission. The commission shall enforce its rules and orders under this chapter in the manner prescribed in s. 196.66, Stats., or by such other means as provided in the statutes or administrative code.

PSC 128.04 History History: CR 10-057: cr. Register February 2011 No. 662, eff. 3-1-11.

subch. II of ch. PSC 128 Subchapter II — Owner Requirements

PSC 128.10 PSC 128.10 Incorporating owner requirements into local ordinances.

PSC 128.10(1) (1) Ordinances with all the owner requirements. A political subdivision may enact an ordinance that incorporates all the owner requirements specified in this subchapter, but may not enact an ordinance whose requirements on the installation or use of a wind energy system are more restrictive than specified in this subchapter.

PSC 128.10(2) (2) Ordinances with less restrictive owner requirements. Except as provided in sub. (4), a political subdivision may enact an ordinance whose requirements on the installation or use of a wind energy system are less restrictive than specified in this subchapter.

PSC 128.10(3) (3) No ordinance. Except as provided in sub. (4), if a political subdivision does not enact an ordinance establishing requirements on the installation or use of a wind energy system, this subchapter does not apply within the political subdivision.

PSC 128.10(4) (4) Mandatory requirements.

PSC 128.10(4)(a) (a) Section PSC 128.105 applies to every owner of a wind energy system, regardless of the political subdivision in which the wind energy system is located and regardless of the contents of a political subdivision’s ordinance or the lack of an ordinance.

PSC 128.10(4)(b) (b) Section PSC 128.13 (2) (a) applies to every political subdivision, regardless of the contents of its ordinance or the lack of an ordinance.

PSC 128.10(4)(c) (c) Section PSC 128.19 applies to every owner of a wind energy system of at least one megawatt, regardless of the political subdivision in which the wind energy system is located and regardless of the contents of a political subdivision’s ordinance or the lack of an ordinance.

PSC 128.10(5) (5) Small wind energy systems. For a small wind energy system, this subchapter applies as provided in ss. PSC 128.60 and 128.61.

PSC 128.10 History History: CR 10-057: cr. Register February 2011 No. 662, eff. 3-1-11.

PSC 128.105 PSC 128.105 Development of a wind energy system; notice requirements.

PSC 128.105(1) (1) Pre-application notice. At least 90 days before an owner files an application to construct a wind energy system, an owner shall use commercially reasonable methods to provide written notice of the planned wind energy system to all of the following:

PSC 128.105(1)(a) (a) Landowners within one mile of a planned wind turbine host property.

PSC 128.105(1)(b) (b) Political subdivisions within which the wind energy system may be located.

PSC 128.105(1)(c) (c) Emergency first responders and air ambulance service providers serving a political subdivision within which the wind energy system may be located.

PSC 128.105(1)(d) (d) The Wisconsin department of transportation.

PSC 128.105(1)(e) (e) The commission.

PSC 128.105(1)(f) (f) The DNR.

PSC 128.105(1)(g) (g) The Wisconsin department of agriculture, trade and consumer protection.

PSC 128.105(1)(h) (h) The office of the deputy undersecretary of the U.S. department of defense.

PSC 128.105(1m) (1m) Additional pre-application notice to commission. At least 180 days before filing an application to construct a wind turbine with a maximum blade tip height exceeding 600 feet, or a wind energy system in those portions of Lake Michigan or Lake Superior that are within the jurisdiction of the state, the owner shall provide written notice of the planned wind energy system to the commission.

PSC 128.105(2) (2) Pre-application notice requirements. The owner shall include all of the following in a notice under sub. (1) or (1m):

PSC 128.105(2)(a) (a) A complete description of the wind energy system, including the number and size of the planned wind turbines.

PSC 128.105(2)(b) (b) A map showing the planned location of all wind energy system facilities.

PSC 128.105(2)(c) (c) Contact information for the owner.

PSC 128.105(2)(d) (d) A list of all potential permits or approvals the owner anticipates may be necessary for construction of the wind energy system.

PSC 128.105(2)(e) (e) Whether the owner is requesting a joint application review process under s. PSC 128.30 (7) and the name of each political subdivision that may participate in the joint review process.

PSC 128.105 History History: CR 10-057: cr. Register February 2011 No. 662, eff. 3-1-11.

PSC 128.11 PSC 128.11 Real property provisions.

PSC 128.11(1) (1) Easement recording required. A wind energy system easement or wind access easement shall be recorded under ch. 706, Stats. A wind energy system easement or wind access easement shall include the term of the easement and a full legal description of the property subject to the easement.

PSC 128.11(2) (2) Wind lease and waiver provisions. A wind energy system lease and any waiver under s. PSC 128.14 (5) or 128.15 (4) shall hold harmless and indemnify the real property owner for all of the following:

PSC 128.11(2)(a) (a) Any violation of federal, state or local law by the owner of the wind energy system.

PSC 128.11(2)(b) (b) Any damages or bodily injury caused by the construction, operation or decommissioning of the wind energy system.

PSC 128.11 History History: CR 10-057: cr. Register February 2011 No. 662, eff. 3-1-11.

PSC 128.12 PSC 128.12 Existing property uses.

PSC 128.12(1) (1) Land use and commercial enterprises. An owner shall make reasonable efforts to ascertain and accommodate any land use or commercial enterprise located on a nonparticipating property within 0.5 mile of a proposed wind turbine site if the land use or commercial enterprise exists when the owner gives notice under s. PSC 128.105 (1), or if complete publicly-available plans for construction are on file with a political subdivision within 30 days of the date the owner gives notice under s. PSC 128.105 (1).

PSC 128.12(2) (2) Agricultural use. An owner shall design a wind energy system to reasonably minimize the conversion of land from agricultural use.

PSC 128.12 History History: CR 10-057: cr. Register February 2011 No. 662, eff. 3-1-11.

PSC 128.13 PSC 128.13 Siting criteria.

PSC 128.13(1) (1) Setback distance and height requirements.

PSC 128.13(1)(a) (a) An owner shall design and construct a wind energy system using the wind turbine setback distances shown in Table 1.

- See PDF for table

PSC 128.13(1)(b) (b) An owner shall measure wind turbine setback distances as a straight line from the vertical centerline of the wind turbine tower to the nearest point on the permanent foundation of a building or residence or to the nearest point on the property line or feature, as applicable.

PSC 128.13(1)(c) (c) An owner shall work with a political subdivision and owners of participating and nonparticipating properties to site wind turbines to minimize individual hardships.

PSC 128.13(1)(d) (d) The owner of a nonparticipating residence or occupied community building may waive the applicable wind turbine setback distances in Table 1 for those structures to a minimum setback distance of 1.1 times the maximum blade tip height. The owner of a nonparticipating property may waive the applicable wind turbine setback distance in Table 1 from a nonparticipating property line.

PSC 128.13(2) (2) Political subdivision criteria.