H.B. 535
LEGISLATIVE GENERAL COUNSEL
6 Approved for Filing: S. Elder 6
6 02-21-23 11:21 AM 6
H.B. 535
1 WIND ENERGY FACILITY SITING MODIFICATIONS
2 2023 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Jefferson S. Burton
5 Senate Sponsor: Ann Millner
6
7LONG TITLE
8General Description:
9 This bill enacts a provision related to wind energy facilities.
10Highlighted Provisions:
11 This bill:
12 <requires the owner of a wind energy facility to:
13 Cundergo the Military Aviation and Installation Assurance Siting Clearinghouse
14(clearinghouse) process before commencement of construction on a wind
15turbine or a wind energy facility; and
16 Cfile documentation with the Department of Natural Resources (department) that
17the clearinghouse has determined that the proposed construction does not
18encroach upon or otherwise have a significant adverse impact on the military;
19and
20 <provides for penalties if an owner of a wind turbine or a wind energy facility fails to
21submit the proper documentation to the department.
22Money Appropriated in this Bill:
23 None
24Other Special Clauses:
25 None
26Utah Code Sections Affected:
27ENACTS:
*HB0535* H.B. 535 02-21-23 11:21 AM
- 2 -
28 79-2-407, Utah Code Annotated 1953
29
30Be it enacted by the Legislature of the state of Utah:
31 Section 1. Section 79-2-407 is enacted to read:
32 79-2-407. Wind turbine and wind energy facility siting -- Military Aviation and
33Installation Assurance Siting Clearinghouse.
34 (1) As used in this section:
35 (a) "Clearinghouse" means the Military Aviation and Installation Assurance Siting
36Clearinghouse established by the United States Secretary of Defense under 10 U.S.C. Sec.
37183(a).
38 (b) (i) "Commencement of construction" means beginning excavation of wind turbine
39foundations or other actions relating to the actual erection and installation of commercial wind
40energy equipment.
41 (ii) "Commencement of construction" does not include activities related to:
42 (A) the erection of meteorological towers;
43 (B) environmental assessments;
44 (C) surveys;
45 (D) preliminary engineering; or
46 (E) assessments of the development of the wind resources on a given parcel of
47property.
48 (c) "Determination of no hazard" means the formal response issued by the FAA upon
49completion of an aeronautical study regarding a facility structure's impact to air navigation
50affirming that:
51 (i) the facility structure does not exceed obstruction standards; and
52 (ii) modifications to the facility structure are not required.
53 (d) "FAA" means the United States Federal Aviation Administration.
54 (e) "Facility structure" means a wind turbine or other structure located on a wind
55energy facility, the construction or modification of which would require the completion of
56Form 7460-1.
57 (f) "Form 7460-1" means:
58 (i) FAA Form 7460-1, Notice of Proposed Construction or Alteration, which the FAA 02-21-23 11:21 AM H.B. 535
- 3 -
59uses to conduct aeronautical studies to promote air safety and the efficient use of navigable
60airspace, as required under 14 C.F.R. Part 77; or
61 (ii) a form designated by the FAA to conduct aeronautical studies to promote air safety
62and the efficient use of navigable airspace.
63 (g) "Mission compatibility certification letter" means the formal response the
64clearinghouse issues through the clearinghouse's review of proposed projects and facility
65structures through the clearinghouse's evaluation process.
66 (h) "Owner" means a person having a majority equity interest in a commercial wind
67energy facility.
68 (i) (i) "Wind energy facility" means an electrical generation facility consisting of one or
69more wind turbines under common ownership or operating control.
70 (ii) "Wind energy facility" includes:
71 (A) substations;
72 (B) meteorological data towers;
73 (C) aboveground and underground electrical transmission lines;
74 (D) transformers;
75 (E) control systems; and
76 (F) other structures used to support the operation of the facility with the primary
77purpose of supplying electricity to an off-site customer.
78 (iii) "Wind energy facility" does not include an electrical generation facility located
79entirely on property held in fee simple by the owner of the wind energy facility.
80 (j) (i) "Wind turbine" means a wind energy conversion system that converts wind
81energy into electricity through the use of a wind turbine generator.
82 (ii) "Wind turbine" includes the turbine, blade, tower, base, and pad transformer.
83 (2) Construction or modification of a facility structure may not encroach upon or
84otherwise have an adverse impact on the mission, training, or operations of any military
85installation or branch of the military as determined by the clearinghouse and the FAA.
86 (3) An adverse impact to a military installation or branch of the military in Subsection
87(2) includes an adverse impact to:
88 (a) a military training route;
89 (b) a drop zone; H.B. 535 02-21-23 11:21 AM
- 4 -
90 (c) an approach to a runway; and
91 (d) a bombing range.
92 (4) (a) A facility structure may not be constructed or expanded unless:
93 (i) there is an active determination of no hazard; or
94 (ii) any adverse impacts to the United States Department of Defense, determined in
95accordance with 32 C.F.R. Sec. 211.6, have been resolved as evidenced by documentation from
96the clearinghouse for the facility structure.
97 (b) For purposes of Subsection (4)(a)(ii), a mission compatibility certification letter
98may serve as evidence that the wind facility has resolved adverse impacts with the United
99States Department of Defense or successor agency.
100 (5) Before expanding or constructing a facility structure, an owner shall file with the
101department:
102 (a) any determination of no hazard the owner receives related to the facility structure;
103or
104 (b) any documentation the owner receives from the clearinghouse referring to any
105resolution of adverse impacts created by the facility structure.
106 (6) The requirements under this section may not prohibit the construction of a facility
107structure if the facility structure has received a determination of no hazard or mitigation plan
108before May 3, 2023.
109 (7) (a) The department may make rules in accordance with Title 63G, Chapter 3, Utah
110Administrative Rulemaking Act, to administer this section.
111 (b) The documentation an owner submits in accordance with Subsection (5) is not
112subject to Title 63G, Chapter 2, Government Records Access and Management Act.
113 (8) If an owner fails to submit the documentation described in Subsection (5) for an
114individual facility structure before the commencement of construction:
115 (a) the department shall charge the owner an administrative penalty not to exceed
116$1,500 per day, per violation; and
117 (b) a stakeholder, including the department, may bring an action in an appropriate court
118of general jurisdiction to:
119 (i) enjoin any action on a facility structure in violation of this section; and
120 (ii) enforce the requirements of this section.