Chapter PSC 128

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.

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.

PSC 128.13(2)(a) (a) A political subdivision may not establish long-term land use planning requirements or practices that preclude the construction of a particular type, or any type, of wind turbine or wind energy system within the political subdivision’s jurisdiction, except as provided in s. 66.0401 (4) (f) 2., Stats.

PSC 128.13(2)(b) (b) A political subdivision may not set height or setback distance limitations for a wind turbine near a public use airport or heliport that are more restrictive than existing airport and airport approach protection provisions under ss. 114.135 and 114.136, Stats. If no provisions have been established for public use airports or heliports under s. 114.135 or 114.136, Stats., the political subdivision may adopt wind turbine height or setback distance provisions that are based on, but not more restrictive than, the federal aviation administration obstruction standards in 14 CFR Part 77.

PSC 128.13(2)(c) (c) A political subdivision may set height or setback distance limitations for wind turbines near a private heliport at a medical facility used for air ambulance service that are based on, but not more restrictive than, federal aviation administration obstruction standards that apply to public use heliports.

PSC 128.13(2)(d) (d) A political subdivision may not set height or setback distance limitations for a wind turbine near a private use airport or heliport except as provided in par. (c).

PSC 128.13 History History: CR 10-057: cr. Register February 2011 No. 662, eff. 3-1-11.

PSC 128.14 PSC 128.14 Noise criteria.

PSC 128.14(1) (1) Definitions. In this section, nighttime hours are the hours beginning at 10:00 p.m. and ending at 6:00 a.m. daily and daytime hours are the hours beginning at 6:00 a.m. and ending at 10:00 p.m. daily.

PSC 128.14(2) (2) Planning.

PSC 128.14(2)(a) (a) The noise limits in this section apply at the outside wall of a nonparticipating residence or occupied community building that exists when the owner gives notice under s. PSC 128.105 (1) or for which complete publicly-available plans for construction are on file with a political subdivision within 30 days of the date on which the owner gives notice under s. PSC 128.105 (1).

PSC 128.14(2)(b) (b) An owner shall design the proposed wind energy system to minimize noise at a residence or occupied community building to the extent reasonably practicable.

PSC 128.14(2)(c) (c) An owner shall design a wind energy system to comply with the noise standards in this section under planned operating conditions.

PSC 128.14(3) (3) Noise limits.

PSC 128.14(3)(a) (a) Except as provided in par. (b), subs. (4) (c) and (5), an owner shall operate the wind energy system so that the noise attributable to the wind energy system does not exceed 50 dBA during daytime hours and 45 dBA during nighttime hours.

PSC 128.14(3)(b) (b) In the event audible noise due to wind energy system operations contains a steady pure tone, such as a whine, whistle, screech, or hum, the owner shall promptly take corrective action to permanently eliminate the noise. This paragraph does not apply to sound the wind energy system produces under normal operating conditions.

PSC 128.14(4) (4) Compliance.

PSC 128.14(4)(a) (a) If an owner uses sound level measurements to evaluate compliance with this section at a nonparticipating residence or occupied community building, those measurements shall be made as near as possible to the outside wall nearest to the closest wind turbine, or at an alternate wall as specified by the owner of the nonparticipating residence or occupied community building. The owner may take additional measurements to evaluate compliance in addition to those specified by this section.

PSC 128.14(4)(b) (b) Upon receipt of a complaint regarding a violation of the noise standards in sub. (3) (a), an owner shall test for compliance with the noise limits in sub. (3) (a). A political subdivision or monitoring committee established under s. PSC 128.41 may not require additional testing to show compliance with sub. (3) (a) if the owner has provided the results of an accurate test conducted within 2 years of the date of the complaint showing that the wind energy system is in compliance with sub. (3) (a) at the location relating to the complaint.

PSC 128.14(4)(c) (c) Methods available for the owner to comply with sub. (3) shall include operational curtailment of one or more wind turbines. Upon receipt of a complaint about a noise under sub. (3) (b), the owner shall use operational curtailment to eliminate the noise until the owner permanently corrects the problem.

PSC 128.14(4)(d) (d) An owner shall evaluate compliance with sub. (3) (a) as part of pre- and post-construction noise studies. An owner shall conduct pre- and post-construction noise studies under the most current version of the noise measurement protocol as described in s. PSC 128.50 (2).

PSC 128.14(5) (5) Waiver. Upon request by an owner of a wind energy system, an owner of an affected nonparticipating residence or occupied community building may relieve the owner of the wind energy system of the requirement to meet any of the noise limits in this section at the affected residence or occupied community building by written contract with the wind energy system owner. Unless otherwise provided in a contract signed by an owner of an affected nonparticipating residence or occupied community building, a waiver by an owner of an affected nonparticipating residence or occupied community building is an encumbrance on the real property, runs with the land until the wind energy system is decommissioned, and shall be recorded under ch. 706, Stats.

PSC 128.14(6) (6) Notification.

PSC 128.14(6)(a) (a) Before entering into a contract under sub. (5), an owner of a wind energy system shall provide written notice of the requirements of this section to the owner of an affected nonparticipating residence or occupied community building.

PSC 128.14(6)(b) (b) Before the initial operation of the wind energy system, an owner of a wind energy system shall provide notice of the requirements of this section to an owner of a nonparticipating residence or occupied community building within 0.5 mile of a constructed wind turbine that has not entered into a contract under sub. (5).

PSC 128.14 History History: CR 10-057: cr. Register February 2011 No. 662, eff. 3-1-11.