By: Middleton, CreightonKolkhorst
KolkhorstS.B. No. 1303S.B. No. 1303
A BILL TO BE ENTITLED
AN ACT
relating to the issuance of a permit by the commissioner of the
General Land Office for a wind power facility on coastal public
land; authorizing a fee; providing a civil penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 33, Natural Resources Code, is amended
by adding Subchapter J to read as follows:
SUBCHAPTER J. COASTAL WIND POWER FACILITY PERMIT
Sec. 33.801. DEFINITIONS. In this subchapter:
(1) "Permittee" means the holder of a permit issued
under this subchapter.
(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 electrical
transmission or communications line, an electric transformer, a
battery storage facility, an energy storage facility, or
telecommunications equipment.
Sec. 33.802. PERMIT REQUIRED. (a) A person may not install
or operate a wind power facility on coastal public land unless the
person obtains a permit from the commissioner under this
subchapter.
(b) The commissioner by rule shall:
(1) in collaboration with the Texas Department of
Insurance and the Public Utility Commission of Texas, require that
a permittee construct and maintain the permitted wind power
facility to withstand:
(A) a storm that would cause a flood in any area
that is:
(i) located less than 40 miles from the
location of the proposed wind power facility; and
(ii) subject to inundation by a flood that
has a 0.1 percent or greater chance of occurring in any given year,
as determined from maps or other data from the Federal Emergency
Management Agency; and
(B) a Category 5 hurricane on the Saffir-Simpson
Hurricane Wind Scale;
(2) prohibit a permittee from constructing or
maintaining the permitted wind power facility in a manner that uses
cables to secure the facility to coastal public land;
(3) prohibit a permittee from connecting the permitted
wind power facility to a transmission line that provides
electricity to a location outside the ERCOT power region;
(4) in collaboration with the Public Utility
Commission of Texas, require the permittee to submit to the
commissioner regular maintenance evaluations of the permitted wind
power facility; and
(5) require that a permittee guarantee that the
facility carries sufficient thermal nonintermittent base load
backup generation to ensure that the facility is generating power
at 100 percent of installed capacity.
(c) If a wind power facility permitted under this subchapter
generates less than the installed capacity as required under
Subsection (b)(5), the Public Utility Commission of Texas shall
levy a per kilowatt hour intermittency penalty, which shall be the
equivalent of the federal per kilowatt hour subsidy or tax credit
for wind power described in Section 33.808.
(d) The Texas Department of Insurance and the Public Utility
Commission of Texas may adopt rules as needed to implement this
subchapter.
Sec. 33.803. APPLICATION FOR PERMIT. (a) An application
for a permit under this subchapter must be made on a form prescribed
by the commissioner.
(b) An application for a permit under this subchapter must
include:
(1) a study on the potential environmental impacts of
the proposed wind power facility on migratory birds, oceanic life,
and soil and water in this state;
(2) based on the study required by Subdivision (1):
(A) an analysis created by the Texas Commission
on Environmental Quality of potential negative impacts of the wind
power facility on this state and, if any, recommendations for
mitigation of those impacts;
(B) an analysis created by the Parks and Wildlife
Department of potential negative impacts of the wind power facility
on this state and, if any, recommendations for mitigation of those
impacts; and
(C) an analysis created by the Public Utility
Commission of Texas of potential negative impacts of the wind power
facility on this state and, if any, recommendations for mitigation
of those impacts;
(3) a study on the potential economic impacts of the
proposed wind power facility on commercial and recreational
fishing, water tourism, the workforce, and ports in this state;
(4) based on the study required by Subdivision (3):
(A) an analysis created by the Texas Commission
on Environmental Quality of potential negative impacts of the wind
power facility on this state and, if any, recommendations for
mitigation of those impacts;
(B) an analysis created by the Parks and Wildlife
Department of potential negative impacts of the wind power facility
on this state and, if any, recommendations for mitigation of those
impacts; and
(C) an analysis created by the comptroller of
public accounts of potential negative impacts of the wind power
facility on this state and, if any, recommendations for mitigation
of those impacts;
(5) a study on the potential impacts of the proposed
wind power facility on navigation and shipping lanes in this state;
(6) based on the study required by Subdivision (5), an
analysis created by the Texas Department of Transportation of
potential negative impacts of the wind power facility on this state
and, if any, recommendations for mitigation of those impacts;
(7) a study on the potential impacts of the proposed
wind power facility on infrastructure in this state associated with
oil and gas pipelines, offshore production of oil and natural gas,
roads, and bridges;
(8) based on the study required by Subdivision (7):
(A) an analysis created by the Texas Department
of Transportation of potential negative impacts of the wind power
facility on this state and, if any, recommendations for mitigation
of those impacts; and
(B) an analysis created by the Railroad
Commission of Texas of potential negative impacts of the wind power
facility on this state and, if any, recommendations for mitigation
of those impacts;
(9) an estimate of the electrical energy anticipated
to be produced by the proposed wind power facility and provided to
this state;
(10) a copy of each notice provided by the applicant
under Section 33.805; and
(11) any additional information required by the
commissioner.
(c) The commissioner by rule shall adopt a process for an
applicant to request the state agency analyses required by
Subsection (b). A state agency named in Subsection (b) shall
provide a requested analysis to the requestor in a reasonable time.
Sec. 33.804. PERMIT APPROVAL CONDITIONS. (a) The
commissioner may not approve an application for a permit under this
subchapter unless the commissioner determines that the application
complies with Sections 33.802 and 33.803.
(b) Before approving an application for a permit under this
subchapter, the commissioner must require the applicant to mitigate
or plan to mitigate any negative impacts of the proposed wind power
facility on this state based on the recommendations issued by state
agencies under Section 33.803.
(c) The commissioner shall deny a permit application if the
commissioner determines, based on the application, that any
negative impacts of the proposed wind power facility on this state
cannot be mitigated.
Sec. 33.805. NOTICE TO STATE AND LOCAL OFFICIALS;
OBJECTION. (a) A person intending to apply for a permit under this
subchapter shall mail notice of intent to obtain the permit to:
(1) the governor and the attorney general;
(2) each state senator and representative who
represents an area located less than 40 miles from the location of
the proposed wind power facility;
(3) the mayor of each municipality located less than
40 miles from the location of the proposed wind power facility;
(4) the commissioners court of each county located
less than 40 miles from the location of the proposed wind power
facility; and
(5) the board of each port authority or navigation
district located less than 40 miles from the location of the
proposed wind power facility.
(b) A person who receives notice under Subsection (a) may
submit a letter to the commissioner and the applicant notifying the
commissioner and the applicant that the person objects to the
approval of the permit. The letter must be submitted to the
commissioner and the applicant not later than the 30th day after the
date the person receives the notice.
(c) If the commissioner determines that an objection
received under Subsection (b) is based on a reasonable potential
negative impact of the proposed wind power facility to this state,
the commissioner may not grant the permit unless the applicant
mitigates or plans to mitigate the potential negative impact.
Sec. 33.806. AUTHORITY OF COMMISSIONER. (a) The
commissioner:
(1) as a condition of issuing a permit, may impose an
application fee to recover the costs of administering this
subchapter;
(2) may require a permittee to provide to the
commissioner copies of maps, plats, reports, data, and any other
information in the possession of the permittee that relates to a
permit; and
(3) may make any rules relating to permits or
permittees the commissioner considers appropriate.
(b) If a permittee violates a rule of the commissioner or a
term of a permit, the commissioner may cancel the permit.
(c) If the commissioner acquires information under
Subsection (a), the commissioner shall consider the information to
be confidential and may not disclose it, except by authority of a
court order, to the public or any other agency of this state.
Sec. 33.807. UNPERMITTED WIND POWER FACILITIES. A state
agency or political subdivision may not:
(1) approve a permit related to a wind power facility
for which a permit is required under this subchapter unless the
commissioner has issued the permit under this subchapter; or
(2) unless required by federal law, contract with or
in any other manner provide assistance to a federal agency or
official with respect to the construction of a wind power facility
for which a permit is required under this subchapter unless the
commissioner has issued the permit.
Sec. 33.808. MARKET DISTORTION RESPONSE. (a) The Public
Utility Commission of Texas and the ERCOT independent system
operator shall adopt rules, operating procedures, and protocols to
eliminate or compensate for any distortion in electricity pricing
in the ERCOT power region caused by a federal tax credit provided
under 26 U.S.C. Section 45 to a permittee.
(b) Rules, operating procedures, and protocols adopted
under this section must ensure that costs imposed on the system by
the sale of electricity by a permittee that is eligible for a
federal tax credit provided under 26 U.S.C. Section 45, including
costs of maintaining sufficient capacity to serve load at peak
demand caused by the loss of new investment from below-market
prices, are paid by the parties that impose the costs.
Sec. 33.809. ENFORCEMENT. (a) If a person violates or is
threatening to violate this subchapter, a rule adopted under this
subchapter, or a permit issued under this subchapter, the
commissioner may have a civil suit brought in a district court for
injunctive relief, for assessment and recovery of a civil penalty
of $10,000 for each act of violation, or for both injunctive relief
and a civil penalty. Each day of a continuing violation is a
separate violation.
(b) The attorney general shall bring a suit under this
subchapter in the name of the commissioner.
(c) In addition to the relief authorized under Subsection
(a), the court may award reasonable attorney's fees, which must be
used to reimburse the operating fund or account from which the
expenditure occurred.
SECTION 2. This Act takes effect September 1, 2023.