Chapter PSC 128

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.

PSC 128.34(2) (2) Record contents. The record of a decision shall include all of the following:

PSC 128.34(2)(a) (a) The approved application and all additions or amendments to the application.

PSC 128.34(2)(b) (b) A representative copy of all notices issued under ss. PSC 128.105 (1) (a), 128.30 (5), and 128.42 (1).

PSC 128.34(2)(c) (c) A copy of any notice or correspondence that the political subdivision issues related to the application.

PSC 128.34(2)(d) (d) A record of any public meeting under s. PSC 128.30 (6) (c) and any hearing related to the application. The record may be an electronic recording, a transcript prepared from an electronic recording, or a transcript prepared by a court reporter or stenographer. The record shall include any documents or evidence submitted by meeting or hearing participants.

PSC 128.34(2)(e) (e) Copies of any correspondence or evidentiary material that the political subdivision considered in relation to the application, including copies of all written public comments filed under s. PSC 128.30 (6) (b).

PSC 128.34(2)(f) (f) Minutes of any political subdivision, board, council or committee meetings held to consider or act on the application.

PSC 128.34(2)(g) (g) A copy of the written decision under s. PSC 128.32 (3) (a).

PSC 128.34(2)(h) (h) Other materials that the political subdivision prepared to document its decision-making process.

PSC 128.34(2)(i) (i) A copy of any political subdivision ordinance cited in or applicable to the decision.

PSC 128.34(3) (3) Post-construction filing requirement. Within 90 days of the date a wind energy system commences operation, the owner shall file with the political subdivision and the commission an as-built description of the wind energy system, an accurate map of the wind energy system showing the location of all wind energy system facilities, geographic information system information showing the location of all wind energy system facilities and current information identifying the owner of the wind energy system. An owner shall in the filings under this subsection label each wind turbine location with a unique identifier consistent with the information posted at the wind turbine location under s. PSC 128.18 (1) (g).

PSC 128.34 History History: CR 10-057: cr. Register February 2011 No. 662, eff. 3-1-11.

PSC 128.35 PSC 128.35 Modifications to an approved wind energy system.

PSC 128.35(1) (1) Material change.

PSC 128.35(1)(a) (a) An owner may not make a material change in the approved design, location or construction of a wind energy system without the prior written approval of the political subdivision that authorized the wind energy system, unless the political subdivision automatically approves the material change by taking either of the steps specified in s. PSC 128.32 (2) (b) 1. or 2.

PSC 128.35(1)(b) (b) An owner shall submit an application for a material change to an approved wind energy system to the political subdivision that authorized the wind energy system.

PSC 128.35(2) (2) Review limited.

PSC 128.35(2)(a) (a) A political subdivision that receives an application for a material change to a wind energy system under sub. (1) (b) may not reopen the merits of the earlier approval but shall consider only those issues relevant to the proposed change.

PSC 128.35(2)(b) (b) An application for a material change is subject to ss. PSC 128.30 (1), (3) to (5), (6) (a) and (b), and (7) and 128.31 to 128.34.

PSC 128.35(2)(c) (c) An application for a material change shall contain information necessary to understand the material change.

PSC 128.35(2)(d) (d) A political subdivision may hold at least one public meeting to obtain comments on and to inform the public about a proposed material change to an approved wind energy system.

PSC 128.35 History History: CR 10-057: cr. Register February 2011 No. 662, eff. 3-1-11.

PSC 128.36 PSC 128.36 Monitoring compliance.

PSC 128.36(1) (1) Monitoring procedure. A political subdivision may establish a procedure to monitor compliance by the owner with any condition on an approved wind energy system or to assess when wind energy system facilities are not maintained in good repair and operating condition. The procedure may include timelines, provide for payment of reasonable fees for conducting an assessment, and provide for notification to the public.

PSC 128.36(2) (2) Third-party inspector during construction. A political subdivision may require an owner to pay a reasonable fee for a third-party inspector to monitor and report to the political subdivision regarding the owner’s compliance with permit requirements during construction. An inspector monitoring compliance under this subsection shall also report to a state permitting authority upon the state permitting authority’s request.

PSC 128.36 History History: CR 10-057: cr. Register February 2011 No. 662, eff. 3-1-11.

subch. IV of ch. PSC 128 Subchapter IV — Complaints

PSC 128.40 PSC 128.40 Complaint process.

PSC 128.40(1) (1) Making a complaint.

PSC 128.40(1)(a) (a) An aggrieved person may make a complaint regarding failure by an owner to comply with an obligation under this chapter or an ordinance adopted under this chapter.

PSC 128.40(1)(b) (b) A complaint under par. (a) shall be made first to the owner of the wind energy system pursuant to a complaint resolution process developed by the owner.

PSC 128.40(1)(c) (c) A complainant may petition the political subdivision for review of a complaint that is not resolved within 45 days of the day the owner receives the original complaint.

PSC 128.40(1)(d) (d) A political subdivision’s decision under par. (c) is subject to review under s. 66.0401 (5), Stats.

PSC 128.40(2) (2) Complaint resolution.

PSC 128.40(2)(a) (a) An owner shall use reasonable efforts to resolve complaints regarding a wind energy system and shall investigate complaints regarding a wind energy system at the owner’s expense.

PSC 128.40(2)(b) (b) Upon receipt of a complaint, an owner shall provide the complainant with a copy of the notice described in s. PSC 128.42 (1). Within 30 days of receiving a complaint, an owner shall provide an initial response to the complainant.

PSC 128.40(2)(c) (c) An owner shall make a good faith effort to resolve complaints within 45 days of receiving a complaint. An owner shall notify a political subdivision of complaints that have not been resolved within 45 days of the date the owner received the original complaint.

PSC 128.40(2)(d) (d) An owner shall maintain a log of all complaints received regarding the wind energy system. The owner shall include in the log the name and address of each complainant, the nature of each complaint, and the steps taken to resolve each complaint. An owner shall provide a copy of a complaint log monthly, at no cost, either to a monitoring committee established under s. PSC 128.41 or, if a monitoring committee has not been established, to the political subdivision. An owner shall make any complaint log available to the commission upon request.

PSC 128.40(2)(e) (e) An owner shall develop a complaint resolution process that is consistent with this subsection.

PSC 128.40 History History: CR 10-057: cr. Register February 2011 No. 662, eff. 3-1-11.

PSC 128.41 PSC 128.41 Monitoring committee.

PSC 128.41(1) (1) Committee. Except as provided in sub. (3), a political subdivision may establish a monitoring committee to oversee resolution of complaints regarding a wind energy system. A monitoring committee shall include on the committee a member who is a local employee of an owner of a wind energy system and, if in existence, at least one nonparticipating landowner residing in the political subdivision within 0.5 mile of a wind turbine that is located in the political subdivision.