House File 2446 - Introduced HOUSE FILE 2446 BY THOMSON A BILL FOR An Act relating to wind energy conversion facilities, including 1 requirements for development, construction, and operation. 2 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 3 TLSB 6156HH (3) 91 sb/js

H.F. 2446 Section 1. NEW SECTION . 476.53B Wind energy conversion 1 facilities —— requirements. 2 1. As used in this section: 3 a. “Applicant” means any person, firm, corporation, 4 partnership, limited liability company, or governmental 5 subdivision seeking to develop, construct, or operate a wind 6 energy conversion facility, as defined in section 476C.1, in 7 Iowa. 8 b. “Karst topography” means terrain characterized by 9 sinkholes, voids, caverns, disappearing streams, or other 10 features produced by the dissolution of carbonate rocks. 11 c. “Licensed surveyor” means a professional land surveyor 12 licensed under chapter 542B with demonstrated experience in 13 subsurface and geological hazard evaluation. 14 d. “Material damage” means direct physical damage exceeding 15 one hundred dollars in repair costs or any event causing 16 collapse or functional failure of a well, septic system, 17 lagoon, slurry containment, or structural foundation, or 18 contamination of groundwater or a cave system. 19 e. “Watershed” means the hydrological area in which surface 20 water or groundwater drains toward a common outlet. 21 f. “Wind energy conversion facility” means the same as 22 defined in section 476C.1. 23 2. a. An applicant shall commission a subsurface and 24 environmental survey by a licensed surveyor that must be 25 submitted prior to issuance of any state or local construction 26 permit. The survey must address the likelihood of all the 27 following: 28 (1) Disturbance to karst topography or related subsurface 29 formations from construction or operation. 30 (2) That any well, septic system, waste lagoon, holding 31 pond, or liquid containment structure will be disturbed 32 by vibrations or subsurface pressures, and whether such 33 disturbance may result in material damage, including breach of 34 fecal slurry lagoons causing contaminant entry into aquifers. 35 -1- LSB 6156HH (3) 91 sb/js 1/ 6

H.F. 2446 (3) Contamination to any cave system, groundwater conduit, 1 or ecological area supporting endangered or threatened species. 2 (4) That foundations of existing buildings within one mile 3 of the proposed site will be disturbed or impaired. 4 b. The survey report shall be submitted to the county board 5 of supervisors, the department of natural resources, and the 6 Iowa utilities commission, and shall be made available to the 7 public. 8 3. An applicant shall obtain and maintain third-party 9 insurance against any reasonably foreseeable loss identified 10 in the survey report required under subsection 2 throughout 11 construction and operation. The policy shall include all of 12 the following requirements: 13 a. Name all landowners within the affected watershed and the 14 state of Iowa as additional insureds and loss payees. 15 b. Minimum coverage limits sufficient to cover full 16 replacement value of any potential loss or contamination 17 identified in the survey, as established by rule by the 18 insurance division in the department of commerce. 19 4. Prior to approval of construction, the applicant shall 20 obtain an independent legal opinion from an attorney licensed 21 in Iowa and unaffiliated with the applicant that affirms the 22 proposed project does not constitute a nuisance under chapter 23 657 or other applicable law. The opinion must be filed with 24 the county board of supervisors and the department of natural 25 resources. 26 5. a. The board of supervisors shall not issue a 27 construction permit until the applicant makes a showing that, 28 more likely than not, considering all foreseeable benefits 29 and costs, the project will confer a net benefit to county 30 residents. In deciding whether to issue a permit, the board of 31 supervisors may consider expert testimony, economic studies, 32 environmental assessments, and the survey report required under 33 subsection 2. 34 b. Before issuing a construction permit, the board of 35 -2- LSB 6156HH (3) 91 sb/js 2/ 6

H.F. 2446 supervisors shall hold not less than one public hearing to 1 discuss the application. 2 c. The board of supervisors’s decision is subject to 3 judicial review under chapter 17. 4 6. Compliance with this section is required for any 5 permit or authorization under chapter 476A or 476C, or other 6 applicable provisions relating to wind energy conversion 7 facilities. 8 7. a. A violation of this section or rules adopted pursuant 9 to this section constitutes a public nuisance. 10 b. A person in violation of this section is subject to a 11 civil penalty of not less than five thousand dollars per day 12 during which the violation occurs. 13 c. The attorney general or the county attorney for the 14 county in which the project is located may bring an action to 15 enjoin violations or recover damages. 16 8. a. Any person aggrieved by a violation of this section 17 may bring a civil action in district court against any person 18 who violates or participates in a violation of this section. 19 b. A civil action under this subsection may be brought 20 against any of the following: 21 (1) The applicant or developer. 22 (2) Any landowner who grants an easement, lease, or other 23 property interest for the construction, installation, or 24 operation of a wind energy conversion facility in violation of 25 this section. 26 (3) The manufacturer of any wind turbine or component 27 thereof installed in violation of this section. 28 (4) Any person who installs, erects, or assembles a wind 29 turbine or wind energy conversion facility in violation of this 30 section. 31 (5) Any construction company, contractor, or subcontractor 32 involved in the construction or installation of a wind energy 33 conversion facility in violation of this section. 34 (6) Any worker, employee, or agent who participates in 35 -3- LSB 6156HH (3) 91 sb/js 3/ 6

H.F. 2446 the construction, installation, or operation of a wind energy 1 conversion facility in violation of this section. 2 (7) Any other person who knowingly participates in, 3 facilitates, or aids in a violation of this section. 4 c. A prevailing plaintiff in an action under this subsection 5 may recover all of the following: 6 (1) Actual damages sustained. 7 (2) Damages of not less than ten thousand dollars per 8 violation. 9 (3) Injunctive relief, including an order to cease 10 construction or operation. 11 (4) Reasonable attorney fees and court costs. 12 d. All persons found liable under this subsection shall be 13 jointly and severally liable for all damages awarded. 14 e. An action under this subsection shall be commenced 15 within fifteen years of the date the plaintiff discovered or 16 reasonably should have discovered the violation or resulting 17 injury, whichever is later. 18 f. The remedies provided under this subsection are 19 cumulative and shall not be construed to limit any other remedy 20 available at law or in equity. 21 g. A contractual provision purporting to waive rights under 22 this section shall be void and unenforceable. 23 EXPLANATION 24 The inclusion of this explanation does not constitute agreement with 25 the explanation’s substance by the members of the general assembly. 26 This bill relates to wind energy conversion facilities, 27 including requirements for development, construction, and 28 operation. 29 The bill requires an applicant for a wind energy conversion 30 facility to commission a subsurface and environmental survey 31 conducted by a licensed surveyor prior to the issuance of any 32 local or state construction permit. The survey must evaluate 33 the likelihood that construction or operation will disturb 34 karst topography or related subsurface formations; cause 35 -4- LSB 6156HH (3) 91 sb/js 4/ 6

H.F. 2446 vibration or subsurface pressure impacts to wells, septic 1 systems, waste lagoons, holding ponds, or liquid containment 2 structures; contaminate cave systems, groundwater, or 3 ecological areas supporting endangered or threatened species; 4 or impair the foundations of existing buildings within one mile 5 of the proposed site. The survey report must be submitted to 6 the county board of supervisors (board), the department of 7 natural resources, and the Iowa utilities commission and must 8 be made publicly available. 9 The bill requires an applicant to obtain and maintain 10 third-party insurance covering reasonably foreseeable losses 11 identified in the survey report throughout construction and 12 operation and including certain provisions. 13 The bill requires an applicant to obtain an independent 14 legal opinion from an attorney licensed in Iowa and 15 unaffiliated with the applicant affirming that the proposed 16 project does not constitute a nuisance under current law. 17 The bill prohibits issuance of a construction permit unless 18 the applicant demonstrates before the board that, considering 19 foreseeable benefits and costs, the project is more likely than 20 not to confer a net benefit to county residents. The board 21 may consider expert testimony, economic studies, environmental 22 assessments, and the survey report. The bill requires the 23 board to hold at least one public hearing prior to issuing a 24 permit. 25 Compliance with the bill is required for any permit or 26 authorization relating to wind energy conversion facilities 27 under applicable law. 28 A violation of the bill or rules adopted under it constitutes 29 a public nuisance and is punishable by civil penalties of not 30 less than $5,000 per day for violations. The attorney general 31 or a county attorney may bring actions to enjoin violations or 32 recover damages. 33 The bill authorizes any person aggrieved by a violation 34 to bring a civil action in district court against certain 35 -5- LSB 6156HH (3) 91 sb/js 5/ 6

H.F. 2446 parties. The bill allows recovery of actual damages, statutory 1 damages, injunctive relief, attorney fees, and court costs, and 2 provides for joint and several liability. The bill establishes 3 limitation periods for bringing civil actions and provides that 4 contractual provisions purporting to waive rights are void and 5 unenforceable. 6 -6- LSB 6156HH (3) 91 sb/js 6/ 6