Chapter PSC 128

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.

PSC 128.15 PSC 128.15 Shadow flicker.

PSC 128.15(1) (1) Planning.

PSC 128.15(1)(a) (a) The shadow flicker requirements in this section apply to 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 128.15(1)(b) (b) An owner shall design the proposed wind energy system to minimize shadow flicker at a residence or occupied community building to the extent reasonably practicable.

PSC 128.15(1)(c) (c) An owner shall use shadow flicker computer modeling to estimate the amount of shadow flicker anticipated to be caused by a wind energy system and shall design the wind energy system so that computer modeling indicates that no nonparticipating residence or occupied community building will experience more than 30 hours per year of shadow flicker under planned operating conditions.

PSC 128.15(2) (2) Shadow flicker limits. An owner shall operate the wind energy system in a manner that does not cause more than 30 hours per year of shadow flicker at a nonparticipating residence or occupied community building. If a nonparticipating residence or occupied community building experiences more than 30 hours per year of shadow flicker under the wind energy system’s normal operating conditions, the owner shall use operational curtailment to comply with this subsection.

PSC 128.15(3) (3) Shadow flicker mitigation.

PSC 128.15(3)(a) (a) An owner of a wind energy system shall work with an owner of a nonparticipating residence or occupied community building to mitigate the effects of shadow flicker to the extent reasonably practicable.

PSC 128.15(3)(b) (b) An owner shall provide reasonable shadow flicker mitigation at the owner’s expense for a nonparticipating residence or occupied community building experiencing 20 hours or more per year of shadow flicker.

PSC 128.15(3)(c) (c) An owner shall model shadow flicker and a nonparticipating residence or occupied community building is eligible for mitigation if computer modeling shows that shadow flicker at the nonparticipating residence or occupied community building will be 20 hours or more per year. An owner of a nonparticipating residence or occupied community building is not required to document the actual hours per year of shadow flicker if modeling indicates the nonparticipating residence or occupied community building is eligible for mitigation. A nonparticipating residence or occupied community building that experiences 20 hours or more per year of shadow flicker based on records kept by the resident of a nonparticipating residence or the occupant of an occupied community building shall also be eligible for mitigation.

PSC 128.15(3)(d) (d) An owner may provide shadow flicker mitigation for any residence or occupied community building in addition to the mitigation required under par. (b).

PSC 128.15(3)(e) (e) The requirement under par. (b) to mitigate shadow flicker applies when the owner receives a complaint or request for mitigation regarding shadow flicker for an eligible nonparticipating residence or occupied community building. If shadow flicker mitigation is required, the owner of the wind energy system shall allow the owner of the nonparticipating residence or occupied community building to choose a preferred reasonable mitigation technique, including installation of blinds or plantings at the wind energy system owner’s expense.

PSC 128.15(4) (4) 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 wind energy system owner of a requirement under sub. (2) or (3) (b) at the affected nonparticipating 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 and runs with the land until the wind energy system is decommissioned, and shall be recorded under ch. 706, Stats.

PSC 128.15(5) (5) Notification.

PSC 128.15(5)(a) (a) Before entering into a contract under sub. (4), a wind energy system owner shall provide notice of the requirements of this section to individual owners of an affected nonparticipating residence or occupied community building.

PSC 128.15(5)(b) (b) Before the initial operation of the wind energy system, a wind energy system owner 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. (4).

PSC 128.15 History History: CR 10-057: cr. Register February 2011 No. 662, eff. 3-1-11.

PSC 128.16 PSC 128.16 Signal interference.

PSC 128.16(1) (1) Planning.

PSC 128.16(1)(a) (a) Except as provided in sub. (4), the signal interference requirements in this section apply to commercial communications and personal communications in use when the wind energy system begins operation.

PSC 128.16(1)(b) (b) A owner shall use reasonable efforts to avoid causing interference with commercial communications and personal communications to the extent practicable.

PSC 128.16(1)(c) (c) An owner may not construct wind energy system facilities within existing line-of-sight communication paths that are used by government or military entities to provide services essential to protect public safety. A political subdivision may require an owner to provide information showing that wind turbines and other wind energy system facilities will be in compliance with this paragraph.

PSC 128.16(2) (2) Commercial communications interference mitigation. An owner shall use reasonable and commercially available technology to mitigate interference caused by a wind energy system with commercial communications in use when a wind energy system begins operation. Before implementing mitigation measures, the owner shall consult with affected parties regarding the preferred mitigation solution for commercial communications interference problems. Except as provided in sub. (4), an owner shall mitigate commercial communications interference caused by the wind energy system by making the affected party’s preferred reasonable mitigation solution effective until either the wind energy system is decommissioned or the communication is no longer in use, whichever is earlier.

PSC 128.16(3) (3) Personal communications interference mitigation.

PSC 128.16(3)(a) (a) An owner shall use reasonable and commercially available technology to mitigate interference with personal communications in use when a wind energy system begins operation caused by a wind energy system. A political subdivision may require an owner to use reasonable and commercially available technology to mitigate interference with personal communications that were not in use when the wind energy system began commercial operation, if a wind energy system is causing the interference and the interference occurs at a location at least 0.5 mile from a wind turbine.

PSC 128.16(3)(b) (b) Before implementing mitigation measures, the owner shall consult with affected parties regarding the preferred mitigation solution for personal communications interference problems. Except as provided in sub. (4), an owner shall mitigate personal communications interference caused by the wind energy system by making the affected party’s preferred reasonable mitigation solution effective until either the wind energy system is decommissioned or the communication is no longer in use, whichever is earlier.

PSC 128.16(4) (4) Mitigation protocol. A political subdivision may, under a protocol established under s. PSC 128.50 (2), require an owner to implement a new mitigation solution that becomes commercially available before the wind energy system is decommissioned to address interference for which mitigation is required under sub. (2) or (3) and for which the original mitigation solution implemented is only partially effective.

PSC 128.16 History History: CR 10-057: cr. Register February 2011 No. 662, eff. 3-1-11; correction in (1) (a) made under s. 13.92 (4) (b) 7., Stats., Register February 2011 No. 662.

PSC 128.17 PSC 128.17 Stray voltage.

PSC 128.17(1) (1) Testing required.

PSC 128.17(1)(a) (a) An owner shall work with the local electric distribution company to test for stray voltage at all dairy and confined animal operations within 0.5 mile of a wind energy system facility pursuant to the stray voltage protocol established by the commission before any wind energy system construction activity that may interfere with testing commences and again after construction of the wind energy system is completed, except as otherwise specified by commission staff under par. (b).

PSC 128.17(1)(b) (b) Before any testing under par. (a) begins, an owner shall work with commission staff to determine the manner in which stray voltage testing will be conducted and on which properties. The electric distribution company serving a dairy or confined animal operation where testing is required under par. (a) shall conduct or arrange to conduct all required testing at the expense of the owner.

PSC 128.17(2) (2) Results of testing. An owner and the electric distribution company shall provide to commission staff the results of all stray voltage testing in writing.

PSC 128.17(3) (3) Requirement to rectify problems. An owner shall work with the electric distribution company and farm owner to rectify any stray voltage problems attributable to the construction and operation of the wind energy system, in compliance with the commission’s stray voltage protocol.

PSC 128.17 History History: CR 10-057: cr. Register February 2011 No. 662, eff. 3-1-11.

PSC 128.18 PSC 128.18 Construction and operation.

PSC 128.18(1) (1) Physical characteristics.

PSC 128.18(1)(a) (a) An owner may not display advertising material or signage other than warnings, equipment information, or indicia of ownership on a wind turbine. An owner may not attach any flag, decorative sign, streamers, pennants, ribbons, spinners, fluttering, or revolving devices to a wind turbine. An owner may attach a safety feature or wind monitoring device to a wind turbine.

PSC 128.18(1)(b) (b) An owner shall ensure that a wind turbine has a conventional or unobtrusive finish.

PSC 128.18(1)(c) (c) An owner shall install lighting at a wind energy system that complies with standards established by the federal aviation administration. A political subdivision may not establish lighting requirements for a wind energy system that conflict with standards established by the federal aviation administration. A political subdivision may require use of shielding or control systems approved by the federal aviation administration to reduce visibility of lighting to individuals on the ground.

PSC 128.18(1)(d) (d) An owner shall take appropriate measures to ensure that a wind turbine is not readily climbable except by authorized personnel.

PSC 128.18(1)(e) (e) An owner shall ensure that all wind turbine access doors and electrical equipment are locked when authorized personnel are not present.

PSC 128.18(1)(f) (f) An owner shall place appropriate warning signage on or at the base of each wind turbine.

PSC 128.18(1)(g) (g) An owner shall post and maintain up-to-date signs containing a 24-hour emergency contact telephone number, information identifying the owner, and sufficient information to identify the location of the sign within the wind energy system. An owner shall post these signs at every intersection of a wind energy system access road with a public road and at each wind turbine location.

PSC 128.18(1)(h) (h) An owner shall clearly mark guy wires and supports for a wind energy system, meteorological tower or other device for measuring wind speeds so that the wires and supports are visible to low flying aircraft under fair weather conditions.

PSC 128.18(2) (2) Electrical standards.

PSC 128.18(2)(a) (a) An owner shall construct, maintain, and operate collector circuit facilities in a manner that complies with the national electrical safety code and ch. PSC 114 and shall construct, maintain, and operate all wind energy system facilities in a manner that complies with the national electrical code.

PSC 128.18(2)(b) (b) An owner shall construct collector circuit facilities for a wind energy system underground to the extent practicable.