Chapter PSC 128

PSC 128.19(4)(a) (a) Except as provided in par. (b), if a wind energy system was constructed on land owned by a person other than the owner of the wind energy system, the owner of the wind energy system shall ensure that the property is restored to preconstruction condition, unless otherwise provided in a contract signed by an affected landowner, considering any modifications needed to comply with DNR requirements.

PSC 128.19(4)(b) (b) If a wind energy system was constructed on a brownfield, as defined in s. 238.13 (1) (a), Stats., the owner shall restore the property to eliminate effects caused by the wind energy system, except for the effects of environmental remediation activities, as defined in s. 238.13 (1) (d), Stats.

PSC 128.19(5) (5) Decommissioning completion.

PSC 128.19(5)(a) (a) An owner shall file a notice of decommissioning completion with the political subdivision and the commission when a wind energy system approved by the political subdivision has been decommissioned and removed.

PSC 128.19(5)(b) (b) Within 360 days of receiving a notice of decommissioning, a political subdivision shall determine whether the owner has satisfied the requirements of subs. (1) (a) and (4).

PSC 128.19 History History: CR 10-057: cr. Register February 2011 No. 662, eff. 3-1-11; correction in (4) (b) made under s. 13.92 (4) (b) 7., Stats., Register December 2012 No. 684.

subch. III of ch. PSC 128 Subchapter III — Political Subdivision Procedure

PSC 128.30 PSC 128.30 Application and notice requirements.

PSC 128.30(1) (1) Application required. An owner shall file an application to construct a wind energy system with all political subdivisions with jurisdiction over the wind energy system.

PSC 128.30(2) (2) Contents of an application. An owner shall complete and file with the political subdivision an application that includes all of the following:

PSC 128.30(2)(a) (a) Wind energy system description and maps showing the locations of all proposed wind energy facilities.

PSC 128.30(2)(b) (b) Technical description of wind turbines and wind turbine sites.

PSC 128.30(2)(c) (c) Timeline and process for constructing the wind energy system.

PSC 128.30(2)(d) (d) Information regarding anticipated impact of the wind energy system on local infrastructure.

PSC 128.30(2)(e) (e) Information regarding noise anticipated to be attributable to the wind energy system.

PSC 128.30(2)(f) (f) Information regarding shadow flicker anticipated to be attributable to the wind energy system.

PSC 128.30(2)(g) (g) Information regarding the anticipated effects of the wind energy system on existing land uses within 0.5 mile of the wind energy system.

PSC 128.30(2)(h) (h) Information regarding the anticipated effects of the wind energy system on airports and airspace.

PSC 128.30(2)(i) (i) Information regarding the anticipated effects of the wind energy system on line-of-sight communications.

PSC 128.30(2)(j) (j) A list of all state and federal permits required to construct and operate the wind energy system.

PSC 128.30(2)(k) (k) Information regarding the planned use and modification of roads within the political subdivision during the construction, operation, and decommissioning of the wind energy system, including a process for assessing road damage caused by wind energy system activities and for conducting road repairs at the owner’s expense.

PSC 128.30(2)(L) (L) A copy of all emergency plans developed in collaboration with appropriate first responders under s. PSC 128.18 (4) (b). An owner may file plans using confidential filing procedures as necessary.

PSC 128.30(2)(m) (m) A decommissioning and site restoration plan providing reasonable assurances that the owner will be able to comply with s. PSC 128.19.

PSC 128.30(2)(n) (n) A representative copy of all notices issued under sub. (5) and ss. PSC 128.105 (1) (a) and 128.42 (1).

PSC 128.30(2)(p) (p) Any other information necessary to understand the construction, operation or decommissioning of the proposed wind energy system.

PSC 128.30(3) (3) Accuracy of information. The owner shall ensure that information contained in an application is accurate.

PSC 128.30(4) (4) Duplicate copies. A political subdivision may specify a reasonable number of copies to be filed. Each copy shall include all worksheets, maps, and other attachments included in the application. A political subdivision may permit an owner to file an application electronically.

PSC 128.30(5) (5) Notice to property owners and residents.

PSC 128.30(5)(a) (a) On the same day an owner files an application for a wind energy system, the owner shall, under s. 66.0401 (4) (a) 3., Stats., use commercially reasonable methods to provide written notice of the filing of the application to property owners and residents located within one mile of the proposed location of any wind energy system facility. The notification shall include all of the following:

PSC 128.30(5)(a)1. 1. A complete description of the wind energy system, including the number and size of the wind turbines.

PSC 128.30(5)(a)2. 2. A map showing the locations of all proposed wind energy system facilities.

PSC 128.30(5)(a)3. 3. The proposed timeline for construction and operation of the wind energy system.

PSC 128.30(5)(a)4. 4. Locations where the application is available for public review.

PSC 128.30(5)(a)5. 5. Owner contact information.

PSC 128.30(5)(b) (b) After a political subdivision receives an application for a wind energy system, the notice required to be published by the political subdivision under s. 66.0401 (4) (a) 1., Stats., shall include a brief description of the proposed wind energy system and its proposed location, the locations where the application is available for public review, the method and time period for the submission of public comments to the political subdivision, and the approximate schedule for review of the application by the political subdivision.

PSC 128.30(6) (6) Public participation.

PSC 128.30(6)(a) (a) A political subdivision shall make an application for a wind energy system available for public review at a local library and at the political subdivision’s business office or some other publicly-accessible location. A political subdivision may also provide public access to the application electronically.

PSC 128.30(6)(b) (b) A political subdivision shall establish a process for accepting and considering written public comments on an application for a wind energy system.

PSC 128.30(6)(c) (c) A political subdivision shall hold at least one public meeting to obtain comments on and to inform the public about a proposed wind energy system.

PSC 128.30(7) (7) Joint application review process.

PSC 128.30(7)(a) (a) If the wind energy system is proposed to be located in more than one political subdivision with jurisdiction over the wind energy system, the political subdivisions involved may conduct a joint application review process on their own motion or upon request. If an owner requests a joint application review, the owner shall include the request in its notice of intent to file an application with the political subdivision under s. PSC 128.105 (1). If the owner requests a joint application review process, the political subdivisions involved shall approve or deny this request within 60 days of receipt of the owner’s notice of intent to file an application.

PSC 128.30(7)(b) (b) Except as provided in s. 66.0401 (4) (a) 2., Stats., if political subdivisions elect to conduct a joint application review process, the process shall be consistent with this chapter and the political subdivisions shall establish the process within 90 days of the date the political subdivisions receive the owner’s notice of intent to file an application. A political subdivision may follow the review process of another political subdivision for purposes of conducting a joint application review process concurrently with the other political subdivision. If a joint application review process is adopted, the owner shall file the joint-review process application with all of the political subdivisions participating in the joint review process.

PSC 128.30 History History: CR 10-057: cr. Register February 2011 No. 662, eff. 3-1-11.

PSC 128.31 PSC 128.31 Application completeness.

PSC 128.31(1) (1) Complete applications.

PSC 128.31(1)(a) (a) An application is complete if it meets the filing requirements under ss. PSC 128.30 (2) and 128.50 (1).

PSC 128.31(1)(b) (b) The political subdivision shall determine the completeness of an application, and shall notify the owner in writing of the completeness determination, no later than 45 days after the day the application is filed. An application is considered filed the day the owner notifies the political subdivision in writing that all the application materials have been filed. If a political subdivision determines that the application is incomplete, the notice provided to the owner shall state the reasons for the determination.

PSC 128.31(1)(c) (c) An owner may file a supplement to an application that the political subdivision has determined to be incomplete. There is no limit to the number of times that an owner may re-file an application. For incomplete applications, the owner shall provide additional information as specified in the notice under par. (b).

PSC 128.31(1)(d) (d) An additional 45-day completeness review period shall begin the day after the political subdivision receives responses to all items identified in the notice under par. (b).

PSC 128.31(1)(e) (e) If a political subdivision does not make a completeness determination within the applicable review period, the application is considered to be complete.

PSC 128.31(2) (2) Requests for additional information. A political subdivision may request additional information necessary to understand the wind energy system after determining that an application is complete. An owner shall provide additional information in response to all reasonable requests. An owner shall respond to all inquiries made subsequent to a determination of completeness in a timely, complete, and accurate manner.

PSC 128.31 History History: CR 10-057: cr. Register February 2011 No. 662, eff. 3-1-11.

PSC 128.32 PSC 128.32 Political subdivision review of a wind energy system.

PSC 128.32(1) (1) Approval by political subdivision. Except as provided in s. PSC 128.02 (1), a political subdivision may require an owner to obtain approval from the political subdivision before constructing any of the following:

PSC 128.32(1)(a) (a) A wind energy system.

PSC 128.32(1)(b) (b) An expansion of an existing or previously-approved wind energy system.

PSC 128.32(2) (2) Standard for approval.

PSC 128.32(2)(a) (a) A political subdivision may not unreasonably deny an application for a wind energy system or impose unreasonable conditions.

PSC 128.32(2)(b) (b) For a political subdivision that does not have in effect an ordinance as described in s. PSC 128.03 and s. 66.0401 (4) (g), Stats., an application submitted under s. PSC 128.30 (1) shall be considered automatically approved if any of the following occur:

PSC 128.32(2)(b)1. 1. The political subdivision does not enact an ordinance before the first day of the 4th month after the political subdivision receives the application.

PSC 128.32(2)(b)2. 2. The political subdivision notifies the applicant in writing that it does not intend to enact an ordinance, as described in s. 66.0401 (4) (a) 2., Stats.

PSC 128.32(3) (3) Written decision.

PSC 128.32(3)(a) (a) A political subdivision shall issue a written decision to grant or deny an application for a wind energy system. The written decision shall include findings of fact supported by evidence in the record. If an application is denied, the decision shall specify the reason for the denial. A political subdivision may make its approval subject to the conditions in s. PSC 128.33.

PSC 128.32(3)(b) (b)

PSC 128.32(3)(b)1. 1. A political subdivision shall provide its written decision to the owner and to the commission. If a political subdivision approves an application for a wind energy system, the political subdivision shall provide the owner with a duplicate original of the decision.

PSC 128.32(3)(b)2. 2. The owner shall record the duplicate original of a decision approving an application with the register of deeds for the county in which the wind energy system is located.

PSC 128.32(4) (4) Effect of ownership change on approval. Approval by a political subdivision of a wind energy system remains in effect if there is a change in the owner of the wind energy system. A political subdivision may require an owner to provide timely notice of any change in the owner of the wind energy system.

PSC 128.32(5) (5) Fees.

PSC 128.32(5)(a) (a) A political subdivision may charge an owner a reasonable application fee or require an owner to reimburse the political subdivision for reasonable expenses relating to the review and processing of an application for a wind energy system.

PSC 128.32(5)(b) (b) A political subdivision’s fee or reimbursement requirement under par. (a) shall be based on the actual and necessary cost of the review of the wind energy system application, and may include the cost of services necessary to review an application that are provided by outside engineers, attorneys, planners, environmental specialists, and other consultants or experts. The political subdivision may by ordinance set standardized application fees based on the size and complexity of a proposed wind energy system.

PSC 128.32(5)(c) (c) A political subdivision may require an owner of a wind energy system to submit up to 50 percent of the total estimated amount of the fee or reimbursement for the wind energy system application under par. (a) before issuing a written decision under sub. (3) (a), if the political subdivision gives written notice to the owner of its intent to do so within 10 days of the date the application is deemed complete and the notice contains an estimate of the amount of the fee and the relevant reimbursement requirements.

PSC 128.32(5)(d) (d) A political subdivision may not charge an owner an annual fee or other recurring fees to operate or maintain a wind energy system.

PSC 128.32 Note Note: See also s. 66.0628 (2), Stats., which requires any fee imposed by a political subdivision to bear a reasonable relationship to the service for which the fee is imposed.

PSC 128.32 History History: CR 10-057: cr. Register February 2011 No. 662, eff. 3-1-11.

PSC 128.33 PSC 128.33 Political subdivision permitted provisions. A political subdivision may do any of the following in an ordinance or establish any of the following as a condition for approval of an application to construct a wind energy system:

PSC 128.33(1) (1) Information. Require information about whether an owner has consulted with and received any non-binding recommendations for constructing, operating or decommissioning the wind energy system from a state or federal agency, and whether the owner has incorporated such non-binding recommendations into the design of the wind energy system.

PSC 128.33(2) (2) Studies. Require an owner to cooperate with any study of the effects of wind energy systems coordinated by a state agency.

PSC 128.33(3) (3) Monetary compensation. Require an owner of a wind energy system to offer an agreement that includes annual monetary compensation to the owner of a nonparticipating residence, if the residence is located within 0.5 mile of a constructed wind turbine. For one turbine located within 0.5 mile of a nonparticipating residence, the initial annual monetary compensation may not exceed $600. For two turbines located within 0.5 mile of a nonparticipating residence, the initial annual monetary compensation may not exceed $800. For three or more turbines located within 0.5 mile of a nonparticipating residence, the initial annual monetary compensation may not exceed $1,000. The initial annual monetary compensation under this subsection shall apply to agreements entered into in 2011. For agreements entered into in 2012 and thereafter, the initial annual amounts shall increase each year by the greater of two percent or the increase in the Consumer Price Index, as described in s. 196.374 (5) (bm) 2. b., Stats., from the previous year. An agreement offered under this subsection shall specify in writing any waiver of a requirement or right under this chapter and whether the landowner’s acceptance of payment establishes the landowner’s property as a participating property under this chapter.

PSC 128.33(3m) (3m) Aerial spraying. Require an owner of a wind energy system to offer an agreement that includes monetary compensation to a farm operator farming on a nonparticipating property located within 0.5 mile of a constructed wind turbine if the farm operator demonstrates all of the following:

PSC 128.33(3m)(a) (a) Substantial evidence of a history, before the wind energy system owner gives notice under s. PSC 128.105 (1), of using aerial spraying for pest control or disease prevention for growing potatoes, peas, snap beans or sweet corn on all or part of a farm field located within 0.5 mile of a constructed wind turbine.

PSC 128.33(3m)(b) (b) A material reduction in potato, pea, snap bean or sweet corn production or a material increase in application costs on all or part of a farm field located within 0.5 mile of a constructed wind turbine as a result of the wind energy system’s effect on aerial spraying practices.

PSC 128.33(4) (4) Permits. Require the owner to submit to the political subdivision copies of all necessary state and federal permits and approvals.

PSC 128.33(5) (5) Annual reports. Require the owner to file an annual report with the political subdivision documenting the operation and maintenance of the wind energy system during the previous calendar year.

PSC 128.33 History History: CR 10-057: cr. Register February 2011 No. 662, eff. 3-1-11.

PSC 128.34 PSC 128.34 Record of decision.

PSC 128.34(1) (1) Recordkeeping.

PSC 128.34(1)(a) (a) A political subdivision shall keep a complete written record of its decision-making relating to an application for a wind energy system.

PSC 128.34(1)(b) (b) If a political subdivision denies an application, the political subdivision shall keep the record for at least 7 years following the year in which it issues the decision.

PSC 128.34(1)(c) (c) If a political subdivision approves an application, the political subdivision shall keep the record for at least 7 years after the year in which the wind energy system is decommissioned.