85R2452 JXC-F
By: Canales H.B. No. 1717
A BILL TO BE ENTITLED
AN ACT
relating to wind energy conversion systems and facilities and the
rights of owners of land on which the systems and facilities are
located; providing an administrative penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 11, Natural Resources Code, is amended by
adding Chapter 212 to read as follows:
CHAPTER 212. WIND ENERGY CONVERSION SYSTEMS AND FACILITIES
Sec. 212.001. DEFINITIONS. In this chapter:
(1) "Commission" means the Railroad Commission of
Texas.
(2) "Wind energy conversion system" means a system
that converts wind energy into electric energy through the use of a
wind turbine generator and includes a turbine, blade, tower, base,
and pad transformer, if any.
(3) "Wind energy facility" means an electric
generating facility that consists of one or more wind energy
conversion systems under common ownership or operating control and
the substations, meteorological data towers, aboveground and
underground electric transmission lines, transformers, control
systems, and other buildings or facilities used to support the
operation of the facility.
(4) "Wind energy lease agreement" means an agreement
that:
(A) provides for the operation of a wind energy
conversion system or wind energy facility at least partially on the
property of a landowner who is not the owner or operator of the
system or facility; and
(B) requires the owner or operator of the system
or facility to pay the landowner for the use of the property to
generate electric energy from the conversion of wind energy based
on the amount of electric energy produced from the conversion of
wind energy.
Sec. 212.002. APPLICABILITY. This chapter applies only to
a wind energy conversion system or wind energy facility:
(1) the primary purpose of which is to supply electric
energy to an off-site customer; and
(2) that is the subject of a wind energy lease
agreement.
Sec. 212.003. RULES. The commission may adopt rules to
accomplish the purposes of this chapter.
Sec. 212.004. RIGHT OF LANDOWNER TO ACCESS RECORDS. (a) An
owner or operator of a wind energy conversion system or wind energy
facility shall, on request from the landowner who entered into the
wind energy lease agreement, provide the landowner access to the
records of the owner or operator relating to the system or facility
for the purpose of confirming the accuracy of payments made to the
landowner. A landowner may not request access to the records more
frequently than once each year.
(b) An owner or operator that receives a request under
Subsection (a) shall provide the landowner access to all records
necessary for the landowner to confirm the accuracy of payments
made to the landowner, including documents, data, and other
information, or copies of the records, documents, data, or
information. The records are subject to any confidentiality
requirements in the wind energy lease agreement between the
landowner and the owner or operator.
(c) The owner or operator shall comply with the landowner's
request to access the records within a reasonable time.
(d) The owner or operator shall:
(1) provide access to the records in a reasonable
location and manner that affords the landowner reasonable access to
the records during normal business hours; and
(2) allow the landowner a reasonable period of time to
examine the records.
(e) A landowner may not cause undue disruption to the
operations of an owner or operator when examining records under
this section.
(f) Not later than the 10th day before the date an owner or
operator of a wind energy conversion system or wind energy facility
enters into a wind energy lease agreement with a landowner, the
owner or operator must send to the landowner, by first class mail or
otherwise, a written statement that the landowner will be entitled
to access the records of the owner or operator for the purpose of
confirming the accuracy of payments made to the landowner.
(g) The statement required by Subsection (f) must be made in
a document that is separate from the wind energy lease agreement.
Sec. 212.005. FINANCIAL ASSURANCE; DECOMMISSIONING. (a)
The commission by rule shall require each owner or operator of a
wind energy conversion system or wind energy facility who enters
into a wind energy lease agreement to file with the commission a
bond or other form of financial assurance to ensure decommissioning
of the system or facility. The commission may accept under this
subsection a surety bond, a collateral bond, an escrow account,
another form of financial assurance the commission determines to be
adequate, or a combination of those types of assurance. The bond or
financial assurance must be in an amount and in a form provided by
commission rules.
(b) The bond or financial assurance must be conditioned on
the owner or operator of the system or facility complying with the
commission's rules adopted under this section regarding
decommissioning. The bond or other financial assurance must be
accompanied by an agreement by which the owner of the land on which
the system or facility is installed or is to be installed grants to
the owner or operator of the system or facility, and to the
commission or its agents in case the commission undertakes
decommissioning under Subsection (g), permission to enter onto the
land to decommission the system or facility and restore the land to
the condition of the land immediately before the system or facility
was installed.
(c) The owner or operator of a system or facility at the
owner's or operator's expense shall decommission the system or
facility in accordance with commission rules not later than the
first anniversary of the end of the system's or facility's useful
life. The system's or facility's useful life is presumed to be at an
end if the system or facility has not generated electricity for a
continuous period of one year, unless the commission has approved
the owner's or operator's plan to return the system or facility to
service.
(d) The commission's rules governing decommissioning a
system or facility must provide that the owner or operator:
(1) shall remove all material related to the installed
system or facility to a depth of at least 48 inches beneath the soil
surface;
(2) shall restore the area disturbed by the
installation or removal of the system or facility to substantially
the same physical condition of the land immediately before the
system or facility was installed, including by grading and
reseeding, except as provided by rules adopted under Subdivision
(3); and
(3) is not required to restore access roads or other
features not directly related to the system or facility that the
landowner requests in writing remain unrestored.
(e) In addition to the bond or other financial assurance
required under Subsection (a), the commission may require a
performance bond to ensure that decommissioning activities are
properly conducted. The commission may accept under this
subsection a surety bond, a collateral bond, an escrow account,
another form of financial assurance the commission determines to be
adequate, or a combination of those types of assurance.
(f) The commission by rule may adopt requirements for
performance bonds described by Subsection (e). The rules may
include methods for determining the amount of a bond, for updating
estimated decommissioning costs and bond amounts over time, and for
ensuring that money will be available for a decommissioning
project. In determining the amount of a performance bond, the
commission may consider:
(1) the anticipated length of a decommissioning
project;
(2) the estimated decommissioning costs, including
restoration costs;
(3) the anticipated manner in which the
decommissioning project will be conducted; and
(4) other factors the commission determines are
relevant.
(g) If the owner or operator of a system or facility does not
complete the decommissioning of the system or facility, the
commission may take any necessary action to complete the
decommissioning, including requiring forfeiture of a bond or other
financial assurance required under this section.
(h) A wind energy lease agreement may contain provisions for
decommissioning or restoration that are more restrictive than the
provisions of this chapter or a rule adopted under this chapter.
Sec. 212.006. ADMINISTRATIVE PENALTY. (a) A person who
violates a provision of this chapter or a rule or order issued by
the commission under this chapter may be assessed an administrative
penalty by the commission.
(b) The penalty may not exceed $1,000 a day for each
violation. Each day a violation continues may be considered a
separate violation for purposes of penalty assessments.
(c) In determining the amount of the penalty, the commission
shall consider the person's history of previous violations, the
seriousness of the violation, any hazard to the health or safety of
the public, and the demonstrated good faith of the person charged.
(d) The commission may impose an administrative penalty
under this section in the manner provided by Sections
81.0532-81.0534.
Sec. 212.007. ENFORCEMENT BY COMMISSION AND ATTORNEY
GENERAL. (a) If it appears that a person has been or is violating
this chapter or a rule of the commission adopted under this chapter,
the commission may institute a civil suit in a district court for
injunctive relief to restrain the person from continuing the
violation.
(b) On application for injunctive relief and a finding that
a person has violated or is violating this chapter or a rule of the
commission under this chapter, the district court shall grant the
injunctive relief that the facts warrant.
(c) At the request of the commission, the attorney general
shall institute and conduct a suit under this section in the name of
the state.
SECTION 2. (a) Sections 212.004(f) and (g) and 212.005,
Natural Resources Code, as added by this Act, apply only to a wind
energy lease agreement entered into on or after February 1, 2018. A
wind energy lease agreement entered into before February 1, 2018,
is governed by the law as it existed immediately before that date,
and that law is continued in effect for that purpose.
(b) The Railroad Commission of Texas shall prioritize the
adoption of rules to implement Chapter 212, Natural Resources Code,
as added by this Act, so that the commission may begin requiring
bonds or other financial assurance under those rules not later than
January 31, 2018.
SECTION 3. This Act takes effect September 1, 2017.