86R8618 JXC-F
By: Canales H.B. No. 2845
A BILL TO BE ENTITLED
AN ACT
relating to the removal of wind power facilities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The Utilities Code is amended by adding Title 6
to read as follows:
TITLE 6. WIND POWER
CHAPTER 301. WIND POWER FACILITY AGREEMENTS
Sec. 301.0001. DEFINITIONS. In this chapter:
(1) "Grantee" means a person who:
(A) leases property from a landowner; and
(B) operates a wind power facility on the
property.
(2) "Wind power facility" includes:
(A) a wind turbine generator; and
(B) a facility or equipment used to support the
operation of a wind turbine generator, including an underground or
aboveground electrical transmission or communications line, an
electric transformer, a battery storage facility, an energy storage
facility, telecommunications equipment, a road, a meteorological
tower with wind measurement equipment, or a maintenance yard.
(3) "Wind power facility agreement" means a lease
agreement between a grantee and a landowner that authorizes the
grantee to operate a wind power facility on the leased property.
Sec. 301.0002. WAIVER VOID; REMEDIES. (a) A provision of a
wind power facility agreement that purports to waive a right or
exempt a grantee from a liability or duty established by this
chapter is void.
(b) A person who is harmed by a violation of this chapter is
entitled to appropriate injunctive relief to prevent further
violation of this chapter.
(c) The provisions of this section are not exclusive. The
remedies provided in this section are in addition to any other
procedures or remedies provided by other law.
Sec. 301.0003. REQUIRED AGREEMENT PROVISIONS ON FACILITY
REMOVAL. (a) A wind power facility agreement must provide that the
grantee is responsible for removing the grantee's wind power
facilities from the landowner's property and that the grantee
shall, in accordance with any other applicable laws or regulations,
safely:
(1) clear, clean, and remove from the property:
(A) each wind turbine generator, including
towers and pad-mount transformers;
(B) all liquids, greases, or similar substances
contained in a wind turbine generator;
(C) each substation; and
(D) all liquids, greases, or similar substances
contained in a substation;
(2) for each tower foundation and pad-mount
transformer foundation installed in the ground:
(A) clear, clean, and remove the foundation from
the ground at least three feet from the grade of the land affected
by the foundation; and
(B) ensure that each hole or cavity created in
the ground by the removal is filled with topsoil of the same type or
a similar type as the predominant topsoil found on the property;
(3) for each buried cable, including power,
fiber-optic, and communications cables, installed in the ground:
(A) clear, clean, and remove the cable from the
ground at least three feet below the grade of the land affected by
the cable; and
(B) ensure that each hole or cavity created in
the ground by the removal is filled with topsoil of the same type or
a similar type as the predominant topsoil found on the property; and
(4) clear, clean, and remove from the property each
overhead power or communications line installed by the grantee on
the property.
(b) The agreement must provide that, at the request of the
landowner, the grantee shall:
(1) clear, clean, and remove each road constructed by
the grantee on the property; and
(2) ensure that each hole or cavity created in the
ground by the removal is filled with topsoil of the same type or a
similar type as the predominant topsoil found on the property.
(c) The agreement must provide that, at the request of the
landowner, if reasonable, the grantee shall:
(1) remove from the property all rocks over 12 inches
in diameter excavated during the decommissioning or removal
process;
(2) return the property to a tillable state using
scarification, V-rip, or disc methods, as appropriate; and
(3) ensure that:
(A) each hole or cavity created in the ground by
the removal is filled with topsoil of the same type or a similar
type as the predominant topsoil found on the property; and
(B) the surface is returned to the same condition
as before the grantee dug holes or cavities, including by reseeding
pastureland with native grasses prescribed by an appropriate
governmental agency, if any.
(d) The agreement may not authorize the landowner to make a
request under Subsection (b) or (c) after the first anniversary of
the end of the wind power facility's useful life. The facility's
useful life is presumed to be at an end if the facility is no longer
being used to generate electricity.
Sec. 301.0004. REQUIRED AGREEMENT PROVISIONS ON REMOVAL
BOND. (a) A wind power facility agreement must provide that the
grantee shall obtain and deliver to the landowner a bond or other
form of financial assurance, such as a letter of credit, an escrow
account, or other form of financial assurance acceptable to the
landowner, that conforms to the requirements of this section to
secure the performance of the grantee's obligation to remove the
grantee's wind power facilities located on the landowner's property
as described by Section 301.0003.
(b) The amount of the bond or other financial assurance must
be at least equal to the estimated cost of removing the wind power
facilities from the landowner's property and restoring the property
to as near as reasonably possible the condition of the property as
of the date the agreement begins.
(c) The agreement must provide that:
(1) if the landowner and the grantee cannot agree in
good faith on the estimated cost described by Subsection (b) before
the 60th day after the date of their first attempt to agree on the
cost, the landowner and the grantee shall mutually select a
qualified independent engineer who will determine an estimated
cost; and
(2) if the landowner and the grantee cannot mutually
select an engineer before the 30th day after the date of their first
attempt to agree on an engineer, the landowner may petition the
district judge of the county in which the landowner's property is
located to appoint a qualified independent engineer to determine an
estimated cost.
(d) The estimated cost determined by an engineer selected or
appointed under Subsection (c) is binding, and the grantee shall
obtain and deliver to the landowner a bond or other financial
assurance of that amount.
(e) The agreement must provide that:
(1) the landowner may request that the grantee
increase the amount of the bond or other financial assurance not
more than once every two years;
(2) the amount of the new bond or other financial
assurance shall be determined according to the procedures provided
by Subsections (b), (c), and (d); and
(3) except as provided by Subsection (f), the amount
of the bond or other financial assurance may not be decreased.
(f) The agreement must provide that the grantee may decrease
the amount of a bond or other financial assurance described by this
section if:
(1) at least 60 percent of the wind turbines in the
wind power facilities located on the landowner's property are
repowered and refitted after the effective date of the original
bond or other financial assurance; and
(2) the amount of the new bond or other financial
assurance is determined according to the procedures provided by
Subsections (b), (c), and (d).
(g) The grantee is responsible for the costs of obtaining a
bond or other financial assurance described by this section and
costs of determining the estimated removal costs, including any
costs associated with obtaining an estimate from an independent
engineer.
(h) The agreement must provide that the grantee shall
deliver the bond or other financial assurance not later than the
earlier of:
(1) the date the wind power facility agreement is
terminated; or
(2) the 10th anniversary of the date that wind turbine
generators representing at least 95 percent of the installed
capacity of the wind power facilities located on the landowner's
leased property are authorized and able to continuously and
reliably generate and deliver energy, other than test energy, to
the electric utility grid.
(i) The grantee may not cancel a bond or other financial
assurance before the date the grantee has completed the grantee's
obligation to remove the grantee's wind power facilities located on
the landowner's property in the manner provided by this chapter,
unless the grantee provides the landowner with a replacement bond
or replacement financial assurance at the time of or before the
cancellation.
SECTION 2. Chapter 301, Utilities Code, as added by this
Act, applies only to a wind power facility agreement entered into on
or after the effective date of this Act. A wind power facility
agreement entered into before the effective date of this Act is
governed by the law as it existed immediately before that date, and
that law is continued in effect for that purpose.
SECTION 3. This Act takes effect September 1, 2019.