88R2852 JXC-F
By: Patterson H.B. No. 3707
A BILL TO BE ENTITLED
AN ACT
relating to the permitting of renewable energy generation
facilities by the Public Utility Commission of Texas; authorizing
fees.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 35, Utilities Code, is amended by adding
Subchapter F to read as follows:
SUBCHAPTER F. RENEWABLE ENERGY GENERATION FACILITY PERMIT
Sec. 35.201. DEFINITIONS; APPLICABILITY. (a) In this
subchapter:
(1) "Permit holder" means a person who holds a permit
issued under this subchapter.
(2) "Person" includes an electric cooperative and a
municipally owned utility.
(3) "Renewable energy generation facility" means:
(A) a wind power facility as defined by Section
301.0001; or
(B) a solar power facility as defined by Section
302.0001.
(b) This subchapter applies to a renewable energy
generation facility regardless of whether the facility is the
subject of a wind power facility agreement or solar power facility
agreement entered into under Chapter 301 or 302.
Sec. 35.202. LEGISLATIVE POLICY AND PURPOSE. The
conservation and development of all the natural resources of this
state are declared to be public rights and duties. It is also
declared that the protection of the wildlife, water, and land of
this state against the impacts of renewable energy generation
facilities is in the public interest. In the exercise of the police
power of this state, it is necessary and desirable to provide
additional means so that the installation and removal of renewable
energy generation facilities is placed under the authority and
direction of the commission.
Sec. 35.203. PERMIT REQUIRED; APPLICATION. (a) A person
may not operate a renewable energy generation facility in this
state unless the person holds a permit issued by the commission
under this subchapter. A person may not construct a renewable
energy generation facility in this state unless:
(1) the person holds a permit to operate a renewable
energy generation facility issued by the commission under this
subchapter; or
(2) the commission by order approves the construction.
(b) A person may apply for a permit to operate a renewable
energy generation facility by filing with the commission:
(1) a description of the location of the facility;
(2) a description of the type of facility;
(3) a copy of any information filed with the Federal
Energy Regulatory Commission in connection with registration with
that commission;
(4) any assumed business or professional name of the
applicant filed under Chapter 71, Business & Commerce Code;
(5) an environmental impact statement produced by the
Parks and Wildlife Department under Section 11.006, Parks and
Wildlife Code;
(6) any wind power facility agreement or solar power
facility agreement applicable to the facility entered into under
Chapter 301 or 302 by the applicant;
(7) the address of an Internet website that provides
information about the proposed facility;
(8) an affidavit that lists the names and addresses of
the persons who may be affected by the application and includes the
source of the list; and
(9) any other information required by commission rule,
provided that in requiring that information the commission shall
protect the competitive process in a manner that ensures the
confidentiality of competitively sensitive information.
Sec. 35.204. NOTICE AND HEARING ON APPLICATION. (a) When
an application for a permit is filed under Section 35.203, or when
an application for a permit amendment is filed, the commission
shall:
(1) give notice of the application to affected
parties, including any property owner within 25 miles of the
boundary of the facility; and
(2) if requested:
(A) set a time and place for a hearing; and
(B) give notice of the hearing to affected
parties, including any property owner within 25 miles of the
boundary of the facility.
(b) For any application involving a capacity of 15 megawatts
or more, the notice must be given to the county judge of each county
located within 25 miles of the boundary of the facility who has
requested in writing that the commission give that notice.
(c) The commission may not act on an application before the
30th day after the date the commission gives notice of the
application under Subsections (a) and (b), as applicable,
regardless of whether a hearing is requested.
(d) Notwithstanding any other provision of this subchapter,
the commission may approve an application to amend a permit without
holding a hearing if:
(1) the applicant is not applying to:
(A) significantly increase the amount of
electricity generated under the permit; or
(B) materially change the placement of the
renewable energy generation facility;
(2) the commission determines that the applicant's
compliance history raises no issues regarding the applicant's
ability to comply with a material term of the permit; and
(3) the commission:
(A) gives notice of the application to the county
judge of each county and the governing body of each municipality in
which the facility is located at least 30 days before the date of
the commission's approval of the application; and
(B) allows the county judges and governing bodies
to present information to the commission on the application.
Sec. 35.205. APPROVAL OR DENIAL OF APPLICATION. (a) The
commission may approve an application only if the commission finds
that issuance or amendment of the permit would not violate state or
federal law or rule and would not interfere with the purpose of this
subchapter.
(b) In considering an application for the issuance or
amendment of a permit, the commission shall consider the compliance
history of the applicant.
(c) A permit holder does not have a vested right in a permit.
Sec. 35.206. CONDITIONS OF PERMIT. (a) For each permit,
the commission shall prescribe the conditions under which it is
issued, including:
(1) the boundary of the permitted facility location;
(2) the maximum number of renewable energy generation
facilities authorized by the permit; and
(3) any monitoring and reporting requirements
prescribed by the commission for the permit holder.
(b) The commission, on its own motion after reasonable
notice and hearing, may require a permit holder to conform to new or
additional conditions to comply with this subchapter or rules
adopted under this subchapter.
(c) A permit holder shall:
(1) ensure that the permitted facility is located at
least:
(A) 500 feet from any property line, unless the
permit holder has obtained a written waiver from each owner of
property located less than 500 feet from the permitted facility;
and
(B) 1,000 feet from any habitable structure,
unless the permit holder has obtained a written waiver from each
owner of the habitable structure;
(2) provide a publicly accessible Internet website
that displays:
(A) a map of the boundaries of the permitted
facility;
(B) any interconnection request numbers assigned
to the permitted facility;
(C) the name of the owner of the permitted
facility; and
(D) any other information required by the
commission; and
(3) post at each entrance to the permitted facility a
sign that:
(A) includes:
(i) the name of the facility;
(ii) the name of the owner of the facility;
(iii) the name, business address, and
telephone number of the operator of the facility;
(iv) a general description of the property
on which the facility is located, including the boundaries of the
property; and
(v) emergency contact information for the
facility; and
(B) uses contrasting colors with block letters at
least one inch in height; and
(C) is displayed in a conspicuous manner clearly
visible to the public.
Sec. 35.207. MONITORING AND REPORTING. The commission by
rule may, in coordination with the Parks and Wildlife Department,
require a permit holder to:
(1) monitor, record, and report on environmental
impacts created by the permitted facility;
(2) conduct wildlife assessments around the permitted
facility; and
(3) provide to the commission other information about
the operation of the permitted facility.
Sec. 35.208. FACILITY REMOVAL BY COMMISSION. (a) The
commission may determine after reasonable notice and hearing that a
permit holder has not removed a renewable energy generation
facility according to the requirements of an applicable wind power
facility agreement or solar power facility agreement entered into
under Chapter 301 or 302 and that the permit holder has not
delivered financial assurance required under Chapter 301 or 302, as
applicable. After making the determination, the commission may:
(1) order the permit holder to comply with the wind
power facility agreement or solar power facility agreement; or
(2) fulfill the requirements of the wind power
facility agreement or solar power facility agreement if the permit
holder cannot be found or does not have assets with which to comply
with the wind power facility agreement or solar power facility
agreement.
(b) The commission or its employees or agents, on proper
identification, may enter the land of another for the purpose of
implementing Subsection (a)(2).
(c) Removal of a renewable energy generation facility by the
commission under this section does not prevent the commission from
seeking penalties or other relief provided by law from the permit
holder.
(d) The commission and its employees and agents are not
liable for any damages arising from an act or omission if the act or
omission is part of a good-faith effort to carry out this section.
(e) If the commission removes a renewable energy generation
facility under this section, the commission may recover all costs
incurred by the commission from the permit holder. The commission
by order may require the permit holder to reimburse the commission
for those costs or may request the attorney general to file suit
against the permit holder to recover those costs. At the request of
the commission, the attorney general may file suit to enforce an
order issued by the commission under this subsection. A suit under
this subsection may be filed in Travis County. Costs recovered
under this subsection shall be deposited to the renewable energy
generation facility cleanup fund.
Sec. 35.209. RENEWABLE ENERGY GENERATION FACILITY CLEANUP
FUND. (a) The renewable energy generation facility cleanup fund is
a dedicated account in the general revenue fund.
(b) The fund consists of:
(1) environmental impact fees collected under Section
35.210;
(2) private contributions; and
(3) legislative appropriations.
(c) Money in the fund may be used only by the commission to
implement this subchapter.
Sec. 35.210. ENVIRONMENTAL IMPACT FEE. (a) An annual
environmental impact fee is imposed on each permit holder.
(b) Except as provided by Subsection (c), environmental
impact fees must be deposited in the renewable energy generation
facility cleanup fund.
(c) The commission shall designate 20 percent of the revenue
collected from environmental impact fees to be deposited in the
renewable energy generation facility cleanup fund and used only for
the removal of renewable energy generation facilities under Section
35.208. If the commission determines that the renewable energy
generation facility cleanup fund has a sufficient amount of money
to fund removal of renewable energy generation facilities under
Section 35.208, the commission may instead deposit 20 percent of
the revenue from environmental impact fees in the county and road
district highway fund.
(d) The fee for each year is imposed on each permit in effect
during any part of the year. The commission may establish reduced
fees for inactive permits.
(e) The commission by rule shall adopt a fee schedule for
determining the amount of the fee to be charged. In determining the
amount of a fee under this section, the commission may consider:
(1) the efficiency of the renewable energy generation
facility;
(2) the area and size of the renewable energy
generation facility;
(3) the renewable energy generation facility's
environmental impact score provided under Section 11.006, Parks and
Wildlife Code; and
(4) expenses necessary to implement this subchapter.
Sec. 35.211. FEDERAL FUNDS. The commission may execute
agreements with the United States Environmental Protection Agency
or any other federal agency that administers programs providing
federal cooperation, assistance, grants, or loans for research,
development, investigation, training, planning, studies,
programming, or construction related to methods, procedures,
mitigation, and facilities for the removal of renewable energy
generation facilities. The commission may accept federal funds for
these purposes and for other purposes consistent with the
objectives of this subchapter and may use the funds as prescribed by
law or as provided by agreement.
Sec. 35.212. POWER TO REGULATE AND SUPERVISE. (a) For
purposes of this subchapter, a provision of Subchapter B or E,
Chapter 14, that authorizes the commission to regulate a public
utility also applies to a person required to obtain a permit under
this subchapter, including an electric cooperative and a
municipally owned utility.
(b) The commission may adopt and enforce rules reasonably
required in the exercise of its powers under this subchapter.
Sec. 35.213. ENFORCEMENT AND PENALTIES. For the purposes
of enforcing this subchapter, a reference in Chapter 15 to a person
includes any person required to obtain a permit under this
subchapter, including an electric cooperative and a municipally
owned utility.
SECTION 2. Subchapter A, Chapter 11, Parks and Wildlife
Code, is amended by adding Section 11.006 to read as follows:
Sec. 11.006. ENVIRONMENTAL IMPACT STATEMENTS FOR RENEWABLE
ENERGY GENERATION FACILITIES. The commission by rule shall adopt a
system for providing an environmental impact statement to an
applicant for a renewable energy generation facility permit under
Section 35.203, Utilities Code. The system must establish:
(1) a process for a person to apply for and receive
from the department an environmental impact statement;
(2) criteria for the department to evaluate the
environmental impact of a proposed renewable energy generation
facility, including:
(A) conservation of natural resources;
(B) continuous use of the land on which a
facility is located for agricultural and wildlife purposes; and
(C) in coordination with the Texas A&M AgriLife
Extension Service, agricultural best practices;
(3) a method for the department to provide an
environmental impact score for a renewable energy generation
facility, based on the criteria described by Subdivision (2);
(4) fees for providing the environmental impact
statements, in an amount sufficient to cover the department's costs
of implementing this section; and
(5) guidelines for the department's use of any map
applications necessary for the implementation of this section.
SECTION 3. (a) Except as otherwise provided by rules
adopted by the Public Utility Commission of Texas under Subsection
(b) of this section, Subchapter F, Chapter 35, Utilities Code, as
added by this Act, applies to all renewable energy generation
facilities in this state, including:
(1) renewable energy generation facilities that:
(A) generate renewable energy before the
effective date of this Act; or
(B) are interconnected to a transmission
facility before the effective date of this Act; and
(2) renewable energy generation facilities the
construction of which began before the effective date of this Act.
(b) The Public Utility Commission of Texas by rule shall
authorize a person who operates or constructs a facility described
by Subsection (a)(1) or (2) of this section to continue to operate
or construct the facility after the effective date of this Act while
the person applies for a permit for the facility as required under
Subchapter F, Chapter 35, Utilities Code, as added by this Act. The
rules may require a person who operates or constructs a facility
described by Subsection (a)(1) or (2) of this section to apply for a
permit for the facility as required under Subchapter F, Chapter 35,
Utilities Code, as added by this Act, by a certain date.
SECTION 4. This Act takes effect September 1, 2023.