14 15 16 17 18 (dr req 13-O79 -- drafi 2.1) 12/14/2012 - ADA -- 03:35 PM Page 1 oF40 Introduced by Senators Benning and Hartwell Referred to Committee on Date: Subject: Energy; land use: conservation and development; natural resources; public service; electric generation; moratorium Statement of purpose: This bill proposes to impose a three-year moratorium on wind electric generation plants in order to allow for a planning and assessment process for the siting of these plants and the evaluation ofwhether in--state development of these plants is the most appropriate and cost-effective means to reduce Vermont's emissions of greenhouse gases. The bill also proposes to move sitingjurisdiction over all in--state electric generation plants, except for net metering systems, from the Public Service Board to the district environmental commissions and local land use authorities. An act relating to siting of electric generation plants It is hereby enacted by the General Assembly of the State of Vermont: Sec. 1. DETERMINATIONS Findings. The General Assembly finds that: (1) During the 1969-70 biennium. the General Assembly enacted 10 V.S.A. chapter 151 (Act 250) and 30 V.S.A. 8 248 (Section 248). At that VT LEG #283831 v.2 (dr req I3-079 -- draft 2.1) - ADA - 03:35 PM Page 2 of 40 time, the electric utility industry was highly integrated and most electric generation facilities were constructed and owned by regulated utilities. (A) Under Act 250, the district environmental commissions were to perform state land use review of development proposals. with each such proposal required to meet statutory criteria, including conformance with the local plan. (B) Under Section 248, the Public Service Board was to perform state land use review of electric generation and transmission facilities and natural gas transmission facilities, balancing statutory criteria and any other factors affecting the general good of the State. In Section 248 proceedings, the General Assembly required "due consideration" of local planning recommendations rather than conformance. with local plans. It also exempted facilities subiect to Section 248 from Act 250. (2) In 1975, the Vermont Supreme Court ruled that a Public Service Board approval under Section 248 preempts municipal zoning requirements. (3) In 1988. the General Assembly revisited the issue of whether land use review of electric generation facilities should remain with the Public Service Board or be transferred to another entity such as the district environmental commissions. (A) The General Assembly determined to allow the Public Service Board to retain siting iurisdiction over these facilities and amended Section #28383l v.2 20 2] (dr req I3-079 -- draft 2.1) 12/l4/20|2 -- ADA - 03:35 PM Page 3 of 40 248 to require the board to give "due consideration" to most but not all ofthe environmental criteria ofAct 250. (B) Three rationales were given in I988 for the General decision: The Public Service Board is the expert utility regulator that financially regulates electric generation facilities. (ii) Environmental and financial regulation ofelectrie generation facilities should be combined to avoid regulation by separate entities. The State should be able to override local obiections to electric generation facility to ensure that the need for electric service is met. (4) In 1996. the Federal Energy Regulatory Commission (FERC) issued Order No. 888. the purpose and effect of which was to foster a competitive wholesale market for electric energy and capacity. In New England, a FERC-authorized regional transmission organization. the Independent System Qperator of New England (ISO-NE), now oversees a regional wholesale electric market. Q) Today when 21 Vermont distribution utility needs to meet the demand for power, it may purchase supply from an electric generator selling on the regional market. In this environment, so-called "merchant generators" typically are the builders and owners ofelectric generation facilities, rather than electric utilities. These merchant generators sell power on the wholesale VT LEG #28383] V2 10 ll (dr req 13-079 -- draft 2.1) 12/14/2012 - ADA -- 03:35 PM Page 4 0f40 market to retail distribution utilities. For example, of approximately l5 large wind proiects built or proposed in Vermont. distribution utilities built or have proposed only three. (6) The Public Service Board does not financially regulate merchant generators. They are not retail electric utilities. (7) Within the last decade, FERC and the Public Service Board have established standard interconnection requirements for generation facilities seeking to interconnect to the grid. The Public Service Board's rules relate to interconnections that are not subiect to federal requirements. These rules do not require an approval from the Board for the interconnection. Instead. the interconnection process is between the interconnecting facility and utility and disputes may be brought to the Board for resolution. (8) Vermont currently encourages the in-state siting of renewable electric generation proiects. including wind generation, in order to contribute to reductions in global climate change caused by emissions of greenhouse _g_ases such as carbon dioxide (C09. (9) Significant controversy exists over whether in-state development of renewable en_ergy actually reduces Vermont's greenhouse gas emissions, since these protects typically sell renewable energy credits to utilities in other states. and those credits are netted against greenhouse gas emissions of those states. VT LEG #28383| v.2 10 ll 18 19 20 (dr req 13-079 -- draft 2.1) 12/14/2012 - ADA -- 03:35 PM Page 5 of 40 (10) In 2010. C02 and equivalent emissions from Vermont energy consumption totaled approximately eight million metric tons (MMTCO7). Of this total. transportation fuel use accounted for approximately 3.5. nonelectric fuel use by homes and businesses for approximately 2.5. and electric energy use for approximately 0.04 1 1 Des ite ast attem ts Vermont has not develo ed and implemented a comprehensive and coordinated strategy for reducing its greenhouse gas emissions. (12) In Vermont. developers site industrial wind generation proiects and wind meteorological stations on ridgelines. which often contain sensitive habitat and important natural areas. Vermont's ridgelines also define and enhance the states natural and scenic beauty. Vermont has invested substantial time. and effort to develop regulatory policy and programs to protect its ridgelines. (13) Ridgeline windgeneration plants have potential impacts on natural resources, scenic beauty. and guality of life, including effects on endangered and threatened species, wildlife habitat. and aesthetics and impacts from blasting and turbine noise. Significant controversy has arisen over whether the Public Service Board review process adequately protects ridgelines from negative impacts caused by these proiects. VT LISG #283831 v.2 16 I7 18 19 20 21 (dr req I3-079 -- draft 2.1) 12/14/2012 - ADA - 03:35 PM Page 6 of 40 14) No statewide analysis and planning is performed to address the environmental and land use impacts of siting wind generation projects and meteorological stations in Vermont. Instead: (A) The Public Service Board examines the environmental and land use impacts on a case-bv-case basis only. (B) The Department of Public Service's 201 I comprehensive energv plan. which recommends pursuing development of in-state renewable energy generation, touches on the potential land use impacts of this development but does not contain a statewide anal vsis that assesses those impacts and balances them against the potential benefits of such generation or contain a plan to address the generation's land use impacts. (C) Under 10 V.S.A. 127, the Agency ofNaturaI Resources is to complete a mapping proiect to identify natural resources throughout the state that may be relevant to consideration of energy proiects to be used in individual cases concerning those proiects. Determinations. Based on the foregoing. the General Assemblv determines as follows: (I) There is no longer a compelling rationale for placing siting review of energy generation projects under the Public Service Board. (A) In the current wholesale market environment. the Public Service Board's financial expertise does not apply to the permitting of electric VT L130 #283831 v.2 20 2] (dr req I3-079 -- draft 2.1) 12/14/20|2 - ADA - 03:35 PM Page 7 of40 generation facilities in Vermont because most ofthose facilities are built bv entities that the Board does not financially regulate. lfa rate-regulated utility seeks to build a generation facility, the Board may and should address any related linancial issues in the proceedings concerning that utility's rates. LB) Because the Public Service Board does not financially regulate most ofthe entities building electric generation facilities. combining financial and siting regulation gains no regulatory efliciency. (C) The siting process for electri<;generation facilities need not review the issue of interconnection with the utility grid because FERC and the Public Service Board separately regulate the interconnection ofthose facilities through administrative regulations and rules rather than case-by-case approvals. (D) There is no need today for the State to be able to override local obiections to an electric generation facility in order to meet electric demand because that need is met by a competitive wholesale market. (2) The district environmental commissions and local land use authorities should perform the siting review ofelectric generation proiects. LA) The circumstances of developing an electric generation facility today are similar to those of other development regulated by Act 250 and local land use authorities, in which the market determines the need for a proiect based on supply and demand. VT L156 #28383] 2 l9 20 2] (dr req 13-079 -- draft 2.1) 12/14/2012 - ADA - 03:35 PM Page 8 of 40 B) The necessary regulation for energy generation proiects is to set minimum environmental and land use standards that each generatioimroiect must meet, the same as with other development. This area of regulation is not the primary expertise ofthe Public Service Board. It is the area of the district environmental commissions and local land use authorities. (ii) The Agency ofNatural Resources. as the primary environmental agency ofthe state, must take an active role in this regulatory process as an advocate to protect the environment and natural resources. (C) Because a strong structure of state and local land use review already exists. there is no need to create a new agency or panel for siting review of energy generation proieets. L3) The General Assembly must act to ensure that case-by-case regulation ofwind generation prouects and meteorological stations that collect wind data does not result in substantial degradation of the state's ridgelines, which form a substantial part of the state's scenic and natural beauty and contain critical habitat and natural areas. The General Assembly therefore enacts a three-year moratorium on the construction and permitting of wind electric generation and wind meteorological stations so that a statewide assessment can be made and a comprehensive policy developed to support effective regulation that protects those ridgelines and assures that any electric VT LEG #28383] 2 10 11 12 I3 (dr req 13-079 -- draft 2.1) 12/14/2012 - ADA - 03:35 PM Page 9 01?40 generation sited on ridgelines actually reduces Vcrmont's greenhouse gas emissions and is the most appropriate and cost-effective means to reduce those emissions. Moratorium: Wind Generation Sec. 2. 3 V.S.A. chapter 4 is added to read: CHAPTER 4. WIND GENERATION 575. DEFINITIONS In this chapter: (1) "Person" shall have the same meaning as in 10 V.S.A. 8 600l(l4). (2) "Plant" and "plant capacity" shall have the same meaning as in 30 V.S.A. 8002. (3) "Wind generation plant" means a plant that captures the energy of the wind and converts it into electricity. The term includes all associated facilities and infrastructure such as wind turbines. towers. guy wires, power lines. roads. and substations. The term does not include plants having a plant capacity of500 kilowatts or less. (4) "Wind meteorological station" means any tower, and associated guy wires and attached instrumentation, constructed to collect and record wind speed. wind direction, and atmospheric conditions. V'1'l-liG #283831 v.2 10 ll 20 21 (dr req 13-079 -- draft 2.1) - ADA - 03:35 PM Page 10 of 40 ii 76. WIND GENERATION WIND METEOROLOGICAL STATIONS Notwithstanding I V.S.A. $6 213 and 214, Title 10, 24 V.S.A. chapter 117. and Title 30, a person shall not commence or complete construction of any wind generation plant or wind meteorological station. and an agency of the State, including the Agency of Natural Resources, the district environmental commissions. and the Public Service Board, shall not issue a land use, siting. or environmental permit. certificate, or other approval or amendment thereto authorizing the construction or operation of such a plant or station. This section shall apply retroactively to construction of plants and stations receiving permits and to applications filed before the sections effective date. 77. EXCEPTIONS During the moratorium established under section 76 of this title, a person mav comolete construction ofa wind generation plant or wind meteoroloflzal station if, as of the effective date of this chapter: (I) the plant or station has received all required land use, siting. and environmental permits, certificates, and approvals; and (2) in the case ofa wind generation plant. the person has commenced construction on the plant. 78. REPEAL This chapter shall be repealed three years from its effective date. VT Lli(i' #283831 v.2 17 18 19 20 (dr req 13-079 -- draft 2.1) 12/14/2012 - ADA - 03:35 PM Page 11 of40 Assessment and Policy Development Sec. 3. WIND GENERATION: ASSESSMENT: POLICY DEVELOPMENT: REPORT General charge; definitions. The Agency ofNatural Resources shall conduct, coordinate. and complete a pgmess for assessment of and development of statewide policy for the siting of wind generation plants and wind meteorological stations in Vermont. In this process. the Agency shall consult with and be entitled to the assistance of the Natural Resources Board and the Department ofl'ub|ic Service. In this section: (1) "Ageney" means the Agency ofNatural Resources. (2) "Board" means the Natural Resources Board. (3) "Department" means the Department of Public Service. (3) "Plant" shall have the same meaning as in 30 V.S.A. 8002(14). (5) "Plant capacity" shall have the same meaning as in 30 V.S.A. 8002; 151. (6) "Wind generation plant" means a plant that captures the energy of the wind and converts it into electricity. The term includes all associated facilities and infrastructure such as wind turbines. towers, guy wires, power lines. roads, and substations. The term does not include plants having a plant capacity of 500 kilowatts or less. VT LIEU #283831 2 16 17 18 19 20 21 (dr req 13-079 -- draft 2.1) - ADA - 03:35 PM Page 12 of40 (7) "Wind meteorological station" means any tower, and associated guy wires and attached instrumentation, constructed to collect and record wind speed, wind direction, and atmospheric conditions. (bl Assessment. Assisted by the Board and Department, the Agency shall assess and analyze; (1) the impacts on the environment, natural resources, and quality of life ofall wind generation plants and wind meteorological stations in Vermont in existence or under construction as of the effective date of this section; (2) the environmental costs and benefits of wind generation plants and wind meteorological stations, including: (A) the value of any ecosystem services affected by such plants and towers" and (B) the economic efficiency of investing in wind generation plants to reduce Vermont's greenhouse gas emissions in comparison to other measures to reduce those emissions such as transportation fuel efficiencv and thennal energy efficiency; (3) the economic costs and benefits of wind generation plants and wind meteorological stations; (4) the current policy and practice of selling renewable energy credits from wind generation plants to utilities in other iurisdictions and the effect of this policy and practice on reducing Vem1ont's greenhouse gas emissions; VT LEG #28383l v2 (dr req I3-O79 -- draft 2. I) 12/14/2012 -- ADA - 03:35 PM Page 13 01?40 the current manner in which state and local agencies and departments coordinate and interact in the siting review ofwind generation plants and wind meteorological stations and options for improving this coordination and interaction,' (6) any other issue related to the impacts and benefits of siting wind generation plants and wind meteorological stations in Vermont that the Agency considers relevant. Policy development. In consultation with the Board and the Department; the Agency shall develop a comprehensive statewide policy with respect to the siting ofwind generation plants and wind meteorological stations in Vemtont for proposal to the General Assembly. In developing this proposg the Agency shall: (1) consider the information gathered and the analysis performed mirsuant to the assessment required by subsection of this section; (2) determine whether the environmental benefits of in-state development of wind generation plants and wind meteorological stations outweigh the environmental costs ofsueh deyelo_pment; Q) determine whether the economic benefits of in-state development of wind generation plants and wind meteorological stations, netted against the economic costs. outweigh the environmental costs of such development; VT LEG #283831 v.2 20 21 (dr req 13-079 -- draft 2.1) 12/14/2012 - ADA - 03:35 PM Page 14 of40 (4) determine whether in-state development of wind generation plants is the most appropriate and cost-effective means of reducing Vermont's greenhouse gas emissions; (5) recommend methods to inrmove the coordination and interaction among state and local agencies and departments in the siting review of wind generation plants and wind meteorological stations. These recommendations shall include proposed statutory or rule revisions that are necessary to enact the recommended methods; (6) recommend standards applicable to all wind generation plants and wind meteorological stations to address their impacts on the environment. land use. and quality of life, including standards to protect natural areas and wildlife habitat and address noise from such plants and towers. These recommendations shall include proposed revisions to the substantive criteria under which the siting of wind generation plants and wind meteorological stations is reviewed that are necessarv to enact the recommended standards. (d1 Public notice and participation. (1) The Agencv shall give widespread public notice of the assessment and policy development process required bv this section and shall maintain on its website a prominent page concerning this process that provides notice ofall public meetings held and posts relevant information and all documents submitted and developed as part of the process. VT LEG #283331 v.2 I9 20 21 (dr req l3-079 -- draft 2.1) - ADA - 03:35 PM Page I 5 of 40 (2) In performing the assessment required by subsection of this section, the Agency shall provide an opportunity for members of the public to submit relevant factual information and analysis and recommendations on how the Agency should proceed. This opportunity shall include meetings conducted by the Agency at locations that artgeographicaflydistributed around the state to receive such information. analysis. and recommendations. (31 The Agency shall provide members of the public with an opportunity to comment on a draft of the policy developed under subsection of this section prior to its submission to the General Assembly under subsection of this section. This opportunity shall include the submission of written comments and a second set of meetings conducted by the Agency at locations that are geographically distributed around the state, this time to obtain comments on the draft policy. (el Report. On or before December 15, 2015, the Agency shall submit a report to the General Assembly. The Agency shall prepare the report in consultation with the Board and the Department. The report shall: (l_L detail the assessment conducted under subsectionjb) ofthis section and state the conclusions drawn from that assessment and the reasons for those conclusions; (2) provide the proposed policy required by subsection of this section, includi_ng the recommendations required by subdivisions (DIS) VT LEG #23383] V2 20 2] (dr req I3-079 -- draft 2.1) - ADA - 03:35 PM Page 16 of40 (coordination methods) and (6) (substantive criteria) ofthis section. The report shall state the reasons for the proposed policy and recommendations; describe the public notice and participation process conducted under this section and summarize and respond to each significant comment received as part of that participation process. See. 4. APPROPRIATION For fiscal year 2014. the sum of $200.000.00 is appropriated to the Agencv ofNaturaI Resources from the General Fund for the purpose ofSec. 3 ofthis act (wind generation; assessment; policy development; report). State Agencies; Wind Projects: Information to Municipalities Sec. 5. 3 V.S.A. 2841 is added to read: 284 I. WIND ENERGY INFORMATION TO REGIONS AND MUNICIPALITIES When the Agency, the Department of Public Service. or the Natural Resources Board or an employge of one of these entities learns of the proposal of a wind generation plant. whether from the developer of such a proposed plant or from another source: (1) The state entitv subiect to this section that Iirst leams ol' the proposed plant shall notifv the affected regional planning commissions and municipalities ofthe proposed plant by e-mail. VT LEG #283831 v.2 1| l2 l3 l4 (dr req 13-079 -- draft 2. l) - ADA -- 03:35 PM Page 17 01?40 (2) With respect to the proposed plant, the Agency, Department of Public Service, and Natural Resources Board shall notify the affected regional planning commissions and municipalities in advance ofall meetings and shall copy those commissions and municipalities on all correspondence. L3) The Agency. Department ofPublic Service. and Natural Resources Board shall keep minutes ofall meetings concerning the proposed plant and post copies of those minutes and all correspondence on a web page maintained by the Agency for this purpose. The web page will identify each proposed wind generatioLp_lant and its developer and shall associate the minutes and correspondence. relevant to the plant with this identification. The Agency, Department of Public Service, and Natural Resources Board may enter into a memorandum of understanding to implement and coordinate their duties under this section. (C) ln this section. "plant" shall have the same meaning as in 30 V.S.A. 8002; 14). Electric Generation Siting Jurisdiction; Removal from Public Service Board Sec. 6. REPEAL 30 V.S.A. 246 (temporary siting of meteorological stations) is repealed. VT LEG #28383l v.2 19 20 (dr req I3-079 -- draft 2.1) 12/14/2012 - ADA -- 03:35 PM Page 18 of40 Sec. 7. 30 V.S.A. 248 is amended to read: 248. NEW GAS AND ELECTRIC PURCHASES. INVESTMENTS, AND FACILITIES: CERTIFICATE OF PUBLIC GOOD No company. as defined in section 201 ofthis title. may: (A) in any way purchase electric capacity or energy from outside the state ?ta_t? for a period exceeding five years, that represents more than three percent of its historic peak demand. unless the purchase is from a plant as defined in subdivision 8002(l4) ofthis title that produces electricity from renewable energy as defined under subdivision 8002(17): or (ii) for a period exceeding ten years. that represents more than ten percent of its historic peak demand. if the purchase is from a plant as defined in subdivision 8002[14) ofthis title that produces electricity from renewable energy as defined under subdivision 8002(l or (B) invest in an electric generation or transmission facility located outside this state State unless the Public Service Board first finds that the same will promote the general good of the state _Sta_te and issues a certificate to that effect. (2) Except for the replacement ofexisting facilities with equivalent facilities in the usual course of business, and except for electric generation VT LEG #283331 v.2 ll 12 I3 20 21 (dr req 13-079 -- draft 2.1) 12/14/2012 -- ADA - 03:35 PM Page 19 of 40 facilities that are operated solely for on-site electricity consumption by the owner ofthose facilities: (A) no company, as defined in section 201 ofthis title. and no person, as defined in 10 V.S.A. 600l(l4). may begin site preparation for or construction of an electric generation facility that is a net metering system under section 219a (selfg-generation and net metering} ofthis title or gm electric transmission facility within the state which is designed for immediate or eventual operation at any voltage; and (B) no such company may exercise the right ofeminent domain in connection with site preparation for or construction of any such transmission or generation facility. unless the pulelieserv-iee--bea1=d Public Service Board first finds that the same will promote the general good of the state State and issues a certificate to that effect. Electric Generation Siting Jurisdiction: District Environmental Commissions Sec. 8. 10 V.S.A. 6001 is amended to read: 13 this chapter: (1) "Board" means the Resources Board. VT Ll3(i #283331 V2 (dr req 13-079 -- draft Page 20 of40 l2/14/2012 - ADA - 03:35 PM "Development" means each of the following: I-he th_e construction of improvements on a tract or tracts of land, owned or controlled by a person. involving more than acres of land within a radius of live miles of any point on any involved land. for commercial or industrial purposes in a municipality that has adopted permanent zoning and subdivision bylaws:_; (ii) 31"-he tli construction ofimprovements for commercial or industrial purposes on more than one acre of land within a municipality that has not adopted permanent zoning and subdivision bylaws; ilihe _t_h_e construction ofimprovements for commercial or industrial purposes on a tract or tracts of land. owned or controlled by a person. involving more than one acre of land within a municipality that has adopted permanent zoning and subdivision bylaws, ifthe municipality in which the proposed project is located has elected by ordinance. adopted under 24 V.S.A. chapter 59 to have thisjurisdiction (iv) 5Fhe construction ofhousing projects such as cooperatives. condominiums. or dwellings. or construction or maintenance of mobile homes or trailer parks. with 10 or more units. constructed or maintained on a tract or tracts of land. owned or controlled by a person. within a radius of five miles of any point on any involved land. and within any continuous period of five years; VT LEG #28383] 2 l7 l8 I9 20 2] (dr req 13-079 -- draft 2.1) - ADA - 03:35 PM Page 21 of40 Jlhe ma-_ construction of improvements on a tract of land involving more than 10 acres that is to be used for municipal, county: or state purposes. In computing the amount of land involved. land shall be included that is incident to the use such as lawns. parking areas. roadways, leaching fields; and accessory buildings; (vi) Jlhe mg construction of improvements for commercial. industrial: or residential use above the elevation ol'2,500 (vii) the exploration for lissionable source materials beyond the reconnaissance phase or the extraction or processing of fissionable source materiah; illhe t_l1? drilling of an oil and gas well; (ix) the construction of improvements for the purpose of generating electricitv, except as provided in subdivisions 600 l(3)(Dl(ii) and of this title; the construction of a tower, and associated guy wires and attached instrumentation. for the purpose ofcollecting and recording wind speed, wind direction. and atmospheric conditions. (D) The word "development" does not include: construction of improvements for farming. logging. or forestry purposes below the elevation of 2,500 feet; VT #28383| 2 19 20 2| (dr req 13-079 -- draft 2.1) Page 22 ot'40 12/14/2012 - ADA - 03:35 PM (ii) illhe tl1_e construction ofimprovements for an electric generation or facility that is a net metering system under 30 V.S.A. 8 219a, a transmission facility that requires a certificate of public good under 30 V.S.A. 248. a natural gas facility as defined in 30 V.S.A. 248(a)(3), or a telecommunications facility issued a certificate of public good under 30 V.S.A. 248a:; {--Re-pea-leele} the construction of improvements for the purpose ofgenerating electricitx/_that will be consumed on-site by the owner of the improvements. provided that the improvements are below the elevation of 2,500 leet and are not part of a larger proiect or on a tract that is otherwise subiect to iurisdiction under this chapter. Sec. 9. 10 V.S.A. 6083 is amended to read: ?6083. APPLICATIONS An application for a permit shall be filed with the district eetnraissioner commission as prescribed by the rules of the beard Egg and shall contain at least the following documents and information: (1) Jfihe t1;e applicant's name, address. and the address of each ofthc applicant's offices in this state. and, where the applicant is not an individual. municipality or state agency. the form. date. and place of formation of the applicant; VT LEG 328383112 Ix(dr req 13-079 -- draft 2.1) Page 23 of40 12/14/2012 - ADA - 03:35 PM (2) Feurfci' copies ofa plan ofthe proposed development or subdivision showing the intended use of the land. the proposed improvements, the details of the project. and any other information required by this chapter. or the rules adopted under this chapter; (3) $19.42 fl1_C fee prescribed by section 6083a ofthis title; (4) certification offiling of notice as set forth in 6084 of this title; (5)_in the case ofan aptfication for approval to construct a tower to record wind data. full disclosure ofthe applicant's long-term plans associated with the tower and the data to be collected, including_anv plans to construct improvements for the purpose of generating electricity from wind and the likely number and capacity of any wind towers and turbines to be constructed. An applicant or petitioner shall grant the appropriate panel ofthe beard Board or district commission. or their agents, permission to enter upon the applicant's or petitioners land for these purposes. Where an application concems the extraction or processing of tissionable source material. before the application is considered the district commission shall obtain the express approval ofthe general-assernlal-y 1111 Assembly by act of legislation stating that extraction or processing of fissionable source material will promote the general welfare. The district commission shall advise the genera-l--assemlel=y General Assembl of any VT LEG #233831 v.2 20 2] (dr req I3-079 -- draft 2.1) - ADA - 03:35 PM Page 24 of 40 application for extraction or processing of fissionable source material by delivering written notice to the $wm Speaker of the House of Representatives and to the president President Pro Tempore of the senate Senate. and shall make available all relevant material. The procedural requirements and deadlines applicable to permit applications under this chapter shall be suspended until the approval is granted. Approval by the general-assemlely General Assembly under this subsection shall not be construed as approval of any particular application or proposal for development. The panels of the beard Board and the district commissions shall make all practical efforts to process matters before the board and permits in a prompt manner. The land use panel shall establish time limits for the processing of land use permits issued under section 6086 of this title as well as procedures and time periods within which to notify applicants whether an application is complete. All such efforts and time limits shall be consistent with section 6084 (notice of applications, hearings. commencement of review) ofthis title. The land use panel shall report annually by February I5 to the bH General Assembly by electronic submission. The annual report shall assess the performance of the beard Board and commissions in meeting the limits; identify areas which hinder effective performance: list fees collected for each permit: summarize changes made to improve performance; VT LEG #28383l V12 I9 20 21 (dr req l3--079 -- draft 2. I) 12/l4/2012 - ADA -- 03:35 PM Page 25 ol'40 and describe staffing needs for the coming year. The annual report shall list the number of enforcement actions taken by the land use panel, the disposition of such cases, and the amount of penalties collected. The provisions of 2 V.S.A. 20(d) (expiration of required reports) shall not apply to the report to be made under this subsection. Sec. l0. l0 V.S.A. 6084 is amended to read: 6084. NOTICE OF APPLICATION: HEARINGS. COMMENCEMENT OF REVIEW On or before the date of filing ofan application with the district commission. the applicant shall send notice and a copy of the initial application to the owner of the land if the applicant is not the owner: the municipality in which the land is located: the municipal and regional planning commissions for the municipality in which the land is located; the Verinont resoar-ees Agency ofNatural Resources: any adjacent Vermont municipality and municipal and regional planning commission ifthe land is located on a municipal or regional boundary or the application seeks approval to construct improvements the highest point of which will be more than 150 feet above g_igd_e. The applicant shall furnish to the district commission the names of those furnished notice by affidavit. and shall post a copy of the notice in the town clerk's office of the town or towns wherein the project lies. The VT LEG #28383l v.2 9 10 ll (dr req l3~079 -- draft 2.1) l2/I4/2012 - ADA - 03:35 PM Page 26 of 40 applicant shall also provide a list of adjoining landowners to the district commission. Upon request and for good cause. the district commission may authorize the applicant to provide a partial list of adjoining landowners in accordance with bearel _B_c)a_rd rules. Upon an application being ruled complete, the district commission shall determine whether to process the application as a major application with a required public hearing or process the application as a minor application with the potential for a public hearing in accordance with beard Boil rules. (1) For major applications, the district commission shall provide notice not less than ten days prior to any scheduled hearing or prehearing conference to: the applicant; the owner of the land if the applicant is not the owner; the municipality in which the land is located: the municipal and regional planning commissions for the municipality in which the land is located; any adjacent Vermont municipality and municipal and regional planning commission ifthe land is located on a municipal or regional boundary or the application seeks approval to construct improvements the highest point of which will be more than 150 feet above grade; adjoining landowners as deemed appropriate by the district commission pursuant to the rules of the beard slag, and any other person the district commission deems appropriate. If the major application seeks approval to construct improvements for the purpose. of generating VT LEG #28383! V2 9 10 I8 19 20 (dr req l3-O79 -- draft 2.1) Page 27 of40 12/14/2012 - ADA - 03:35 PM electricity. the notice required by this subdivision shall be not less than 30 days prior to any scheduled hearing or prehearing, conference. (2) For minor applications. the district commission shall provide notice of the commencement of application review to the persons listed in subdivision ofthis subsection. (3) For both major and minor applications. the district commission shall also provide such notice and a copy of the application to: the beard B_oa?d and any affected state agency; the solid waste management district in which the land is located. ifthe development or subdivision constitutes a facility pursuant to subdivision 6602( 0) of this title: and any other municipality. state agency. or person the district commission deems appropriate. Anyone required to receive notice ofeommencement of minor application review pursuant to subsection ofthis section may request a hearing by filing a request within the public comment period specified in the notice pursuant to board Board rules. The district commission, on its own motion. may order a hearing within 20 days of notice of commencement of minor application review. However. if the application seeks approval to construct improvements for the purpose of 2enerati1;g_electricity, the district commission on its own motion may order a hearing within 60 days ofnotice of commencement of minor application review. VT LEG #283831 v.2 (dr req 13-079 -- draft 2. I) Page 28 of40 l2/l4/20l2 - ADA - 03:35 PM Any hearing or prehearing conference for a major application shall be held within 40 days ofreceipt ofa complete application; or within 20 days of the end of the public comment period specified in the notice of minor application review ifthe district commission determines that it is appropriate to hold a hearing for a minor application. However. ifthe application seeks approval to construct improvements for the purpose electricity, then ifthe application is mam the hearing or preheariniz conference shall be held within 120 days ofreceipt ofa complete application. and ifthe application is minor. the hearing_or prehearing conference shall be held within 60 days of the end ofthe public comment period. Any notice for a major or minor application. as required by this section. shall also be published by the district commission in a local newspaper generally circulating in the area where the development or subdivision is located not more than ten days after receipt of a complete application. (1) Notice of any hearing fora major application shall be published. as required by this section, not less than ten days before the hearing or preheating conference. except that, if the maior application seeks approval to construct improvements for the purpose of generating notice required by this subdivision shall be not less than 30 days before the hearing or prehearing conference. VT LEG #23383l 2 6 9 IO 20 2| (dr req I3-079 -- draft 2.1) Page 29 of4O - ADA - 03:35 PM (2) lfthe district commission determines that it is appropriate to hold a hearing for an application that was originally noticed as a minor application. then the application shall be renoticed as a major application in accordance with the requirements ofthis section and board rules. except that there shall be no requirement to publish the second notice in a local newspaper. Direct notice of the hearing to all persons listed in subdivisions and (3) ofthis section shall be deemed sufficient. tf) In proceedings on applications to construct improvements for the purpose of generating electricity. the district commissions shall ensure that all parties have full information concerning the proposcd_proiect and sufficient time to fully participate. Sec. 1 1. 10 V.S.A. ?6085(c)(l) is amended to read: (1) Party status. In proceedings before the district commissions. the following persons shall be entitled to party status: (A) 3l3l+e th_e applicant; (B) 3l4&etl1_e landowner. if the applicant is not the landowner: (C) illhe gm municipality in which the project site is located. and the municipal and regional planning commissions for that municipality; if the project site is located on a boundary. any Vermont municipality adjacent to that border and the municipal and regional planning commissions for that municipality: and the solid waste management district in which the land is VT LEG #28383l v.2 l0 ll (dr req I3-079 - draft 2. I) Page 30 01?40 - ADA - 03:35 PM located, ifthe development or subdivision constitutes a facility pursuant to subdivision 6602(l 0) of this title: (D) Any any state agency affected by the proposed project: (E) Any any adjoining property owner or other person who has a particularized interest protected by this chapter that may be affected by an act or decision by a district commission; (F) if the application seeks apmoval to construct improvements the Lighest point of which will be more than 150 feet above grade, any Vermont municipality adiacent to the municipality in which the improvements will be located and the municiggl and regional planning commissions for that municipality; provided, however, that the district commission may disqualify a municipality or municipal or regional plannii_ig commission from_party status under this subdivision (lflif the applicant demonstrates that the municjaality or commission has no particularized interest protected by this chapter that will be affected by an act or decision of the district commission. Sec. 12. 10 V.S.A. 6086 is amended to read: 6086. ISSUANCE OF CONDITIONS AND CRITERIA Before granting a permit. the district commission shall find that the subdivision or development: VT LEG #28383! V2 l8 I9 20 (dr req I3-079 -- draft 2.1) Page 3| 01?40 - ADA - 03:35 PM (1 1) Will comply with the requirements of section 6086b ofthis title. if the development includes the generation of electricity from wind. it Sec. 13. 10 V.S.A. 6086b is added to read: 6086b. WIND (.1) Compliance required; definition. No land usepermit will be issued for a development that includes the generation of electricity from wind unless the demonstrates that the development will with the setback requirements of this section. In this section."setback" means a horizontal distance from a structure to another structure or location measured from the nearest point of each structure or location. Setbacks. At a minimum. a wind tower and turbine shall be set back: (1) One mile from any habitable structure; (2) One-half mile from the closest boundary of the parcel on which the wind tower and turbine will be located; and (3) One-third of a mile from any public highwa\Lor rig2ht--of-way and from any abovej.I,round utility line or facility. However, this subdivision shall not apply to an electric line that directlmonnects a wind tower and turbine to a substation or other utilitL"acility. (cl Rules. For developments that include the generation of electricity from wind. the Board may by rule adopt setback requirements that are more VT LEG #28383! V2 (dr req l3-079 -- draft 2. l) Page 32 of40 12/14/2012 - ADA - 03:35 PM stringent than the requirements of subdivision Lb) of this section. Following adoption ofany such rule, no land use permit shall be issued for a development that includes thggeneration of electricigr from wind unless the applicant demonstrates that the development will comply with the rule. lfthe adopted rule does not address all of the subiect matter ofsubsection of this section, then compliance with subsection shall remain required for the subj_ect matter not addressed in the rule. Sec. 14. 10 V.S.A. 6088 is amended to read: 6088. BURDEN OF PROOF The burden shall be on the applicant with respect to subdivisions 6086(a)(1). (2). (3). (4). (9). and (10) ofthis title. The burden shall be on any party opposing the applicant with respect to subdivisions 6086(a)(5) through (8) ofthis title to show an unreasonable or adverse effect. except that in the case of an application for approval to construct improvements for the purpose of generating electricity. the burden with respect to these subdivisions shall be on the applicant. Electric Generation Siting Jurisdiction; Local Land Use Bylaws Sec. l5. 24 V.S.A. ?44ll is amended to read: ?44l 1. ZONING BYLAWS VT LFG #283831 v.2 20 21 (dr req |3--079 -- draft 2.1) Page 33 of40 12/l4/2012 - ADA - 03:35 PM A municipality may regulate land development in conl'ormance with its adopted municipal plan and for the purposes set forth in section 4302 ofthis title to govern the use of land and the placement, spacing. and size of structures and other factors specified in the bylaws related to public health. safety, or welfare. Zoning bylaws may permit. prohibit. restrict. regulate, and determine land development, including the following: (1) specific uses of land and shoreland facilities; (2) Dimensrens dimensions, location. erection. construction. repair, maintenance. alteration. razing, removal. and use of structures: (3) A-seas fir and dimensions of land to be occupied by uses and structures, as well as areas. courts. yards, and other open spaces and distances to be left unoccupied by uses and structures: (4) or sequence of growth. density of population, and intensity of use: (5) Uses within a river corridor and buffer. as those terms are defined in 10 V.S.A. I422 and 1427. All zoning bylaws shall apply to all lands within the municipality other than as specifically limited or exempted in accordance with specific standards included within those bylaws and in accordance with the provisions of this chapter. The provisions of those bylaws may be classified so that different provisions may be applied to different classes of situations, uses. and structures VT LEG #28383! 2 10 ll (dr req l3~079 -- draft 2.1) Page 34 ot'40 - ADA - 03:35 PM and to different and separate districts of the municipality as may be described by a zoning map made part of the bylaws. The land use map required pursuant to subdivision ofthis title of any municipality may be designated as the zoning map except in cases in which districts are not deemed by the planning commission to be described in sufficient accuracy or detail by the municipal plan land use map. All provisions shall be uniform for each class of use or structure within each district. except that additional classifications may be made within any district for any or all ofthe following; (1) 3139 t_o make transitional provisions at and near the boundaries of districts; (2) 3136 t_o regulate the expansion. reduction. or elimination of certain nonconforming uses. structures. lots, or parcels; (3) I36 t_o regulate. restrict. or prohibit uses or structures at or near any of the following: (A) M-ajer g1_a_jg1; thoroughfares, their intersections and interchanges. and transportation arteriesr; (B) or artifcial bodies ofwaterg (C) pug of relatively steep slope or grade:_; (D) llulali-e pi buildings and public grounds; (E) Aire1=a?t aircraft and helicopter facilities; VT LEG #28381" V2 (dr req I3-079 draft 2.1) 12/14/2012 - ADA -- 03:35 PM Page 35 of40 (F) Places pja_c_e_s having unique patriotic. ecological, historical, archaeological, or community interest or value. or located within scenic or design control districts; (6) or other hazard areas and other places having a special character or use affecting or affected by their surroundings:;_ (H) R-'wee mg corridors, river corridor protection areas. and buffers. as the term "buffer" is defined in 10 V.S.A. 1422:; (4) 5139 t_o regulate. restrict. or prohibit uses or structures in overlay districts, as set forth in subdivision 4414(2) ofthis title; (5) to regulate. restrict. or prohibit uses or structures associated with the g_e_neration ofelectricitv from all fuels or particular fuelsgexcept as_provided in sections 4412 and 4413 ofthis title. See. 16. 24 V.S.A. 4412 is amended to read: 4412. REQUIRED PROVISIONS AND PROHIBITED EFFECTS Notwithstanding any existing bylaw. the following land development provisions shall apply in every municipality: ll! (6) Heights of renewable energy resource structures. The height of wind rooftop solar collectors less than 10 feet high on sloped roofs. are mounted on complying structures, shall not be regulated unless the bylaws provide specific standards VT LEG #233331 v.2 (dr req I3-079 -- drafi 2.1) Page 36 of-40 -- ADA -- 03:35 PM for regulation. For the purpose of this subdivision. a sloped roof means a roof having a slope ofmore than live degrees. In addition, the regulation of antennae that are part ofa telecommunications facility. as defined in 30 V.S.A. 248a. may be exempt from review under this chapter according to the provisions ofthat section. See. I7. 24 V.S.A. ?44l3 is amended to read: 4413. LIMITATIONS ON MUNICIPAL BYLAWS 2: 4: A bylaw under this chapter shall not regulate (I) net metering systems as defined under 30 V.S.A. 219a, except that a bvfitw under this chapter may regulate the height of such systems;_and Q) public utility transmission facilities regulated under 30 V.S.A. 248. Notwithstanding any provision of law to the contrary, a bylaw adopted under this chapter shall not: (I) Regulate regulate the installation, operation. and maintenance. on a flat roof of an otherwise complying structure, of a solar energy device that heats water or space or generates electricity. For the purpose of this VT LEG #283831 2 I5 16 I7 I9 20 (dr req I3-O79 -- draft 2.1) 12/14/2012 - ADA - 03:35 PM Page 37 of40 subdivision, "flat roof' means a roof having a slope less than or equal to five (2) Prehibit prohibit or have the effect of prohibiting the installation of solar collectors not exempted from regulation under subdivision (1) of this subsection, clotheslines. or other energy devices that are based on renewable resources and do not generate electricitv from wind. Transition: Effective Dates Sec. 18. TRANSFER OF PENDING APPLICATIONS AND EXISTING CERTIFICATES In this section, "pending application" means an application or petition that is before the Public Service Board as of this section's effective date. Notwithstanding I V.S.A. S8 213 and 214. this section applies retroactivelv to pendingapplications regardless of whether they were complete as of that date. (bl Within 90 days ofthis sections effective date, the Public Service Board shall transfer to the Natural Resources Board each of the following: (1) custody of all pending applications seeking a certificate of public good under 30 V.S.A. 8 246 for a meteorological station or under 30 V.S.A. 6 248 for a wind electric generation facilitv that is not a net metering svstem, and all files and documents associated with such pending applications; LEG v.2 9 I0 (dr req 13-079 -- draft 2.1) l2/I4/2012 - ADA - 03:35 PM Page 38 of40 (2) custody ofall pending applications for a certificate of public good under 30 V.S.A. 6 248(a) seeking approval to construct an electric generation facility that does not use wind as its fuel source and is not a net meteriiygg system, or seeking to amend a certificate for the construction of such a facility, and all files and documents associated with such pending applications. However, the Public Service Board shall retain custody of pending @_p_lications subiect to this subdivision (2) if. as of this section's effective date: (A) with respect to the application, the_p_arties have completed discovery, a patty has filed a motion that would dispose of the application, or technical hearings have commenced; or (B) the application qualifies for treatment under 30 V.S.A. 8 248m. the opportunity for comment and requests for hearing on the application has closed, and no party requested a hearing; (3) custody of all certificates of publiggood issued under 30 V.S.A. 8 246 for meteorological stations and 30 V.S.A. 248 for electric generation facilities that are in operation as of this section's effective date and are not net metering systems, and all files and documents associated with such certificates. Within 30 days of receimghe Natural Resources Board shall convey the applications, certificates. and files transferred under subsection of this section to the applicable district environmental commission. VT LEG #23383] v.2 (dr req l3-079 -- draft 2.1) 12/14/2012 - ADA - 03:35 PM Page 39 of-40 Proceedings on an application transferred under subdivisions 1) (meteorological stations; wind generation) and (2) (non-wind generation) of this subsection shall be deemed proceedings for issuance of a permit under 10 V.S.A. chapter 151 and shall be completed before the applicable district environmental commission, which shall provide the applicant and other parties an onnortunitv to supplement the record with information necessarv for the district commission to make findings under 10 V.S.A. 6 6086(a). However, proceedings on an application transferred under subdivision (meteorological stations: wind generation) shall be subiect to 3 V.S.A. 6 76 (moratorium) and the district commission"s processing of such an application shall he stayed during the moratorium. Certificates ofpublic good transferred under subdivision of this section shall be deemed land use permits under 10 V.S.A. chapter l5l that may be amended solelv bv the apnlicable district environmental commission under that chapter and the Act 250 rules and that may be enforced under 10 V.S.A. chapters 201 and 221. The Public Service Board shall retain iurisdiction to complete proceedings on a pending application under 30 V.S.A. 248 described in subdivision or (B) ofthis section. On issuance ofa final decision regarding such an application. including any appeals and remands to the Public Service Board, iurisdiction over the matter and associated tiles and documents VT LEG #283831 v.2 (dr req 13-079 -- draft 2.1) - ADA - 03:35 PM Page 40 of40 shall be transferred to the applicable district environmental commission. If the final decision includes issuance ofa certificate of public good, such certificate shall be deemed a land use pemiit under 10 V.S.A. chapter 151 and amended and enforced in the same manner as under subsection of this section. Notwithstanding 24 6 44l3(b) (limitations on municipal bylaws; public utility plants), a proposed facility that is the subject ofa pending application described in subdivision or (2) shall require a municipal land use permit under 24 V.S.A. chapter I I7 ifthe facility would have required such a permit under the applicable local bylaw in effect on January l, 2013 but for the operation of 24 V.S.A. 44 1 as it existed on that date. Sec. 19. EFFECTIVE DATES This section and Secs. I (findings; determinations), 2 (moratorium: wind generation; meteorological stations); and 3 (wind generation; assessineim policv development; report) of this act shall take effect on passage. The remaining sections of this act shall take effect on Julv l. 2013. VT LEG #28383] V2