HF 2446 (LSB 6156HH (3) 91)

HOUSE FILE 2446

BY  THOMSON

A BILL FOR

An Act relating to wind energy conversion facilities, including requirements for development, construction, and operation.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  NEW SECTION.  476.53B  Wind energy conversion facilities —— requirements.
   1.  As used in this section:
   a.  “Applicant” means any person, firm, corporation, partnership, limited liability company, or governmental subdivision seeking to develop, construct, or operate a wind energy conversion facility, as defined in section 476C.1, in Iowa.
   b.  “Karst topography” means terrain characterized by sinkholes, voids, caverns, disappearing streams, or other features produced by the dissolution of carbonate rocks.
   c.  “Licensed surveyor” means a professional land surveyor licensed under chapter 542B with demonstrated experience in subsurface and geological hazard evaluation.
   d.  “Material damage” means direct physical damage exceeding one hundred dollars in repair costs or any event causing collapse or functional failure of a well, septic system, lagoon, slurry containment, or structural foundation, or contamination of groundwater or a cave system.
   e.  “Watershed” means the hydrological area in which surface water or groundwater drains toward a common outlet.
   f.  “Wind energy conversion facility” means the same as defined in section 476C.1.
   2.  a.  An applicant shall commission a subsurface and environmental survey by a licensed surveyor that must be submitted prior to issuance of any state or local construction permit. The survey must address the likelihood of all the following:
   (1)  Disturbance to karst topography or related subsurface formations from construction or operation.
   (2)  That any well, septic system, waste lagoon, holding pond, or liquid containment structure will be disturbed by vibrations or subsurface pressures, and whether such disturbance may result in material damage, including breach of fecal slurry lagoons causing contaminant entry into aquifers.
   (3)  Contamination to any cave system, groundwater conduit, or ecological area supporting endangered or threatened species.
   (4)  That foundations of existing buildings within one mile of the proposed site will be disturbed or impaired.
   b.  The survey report shall be submitted to the county board of supervisors, the department of natural resources, and the Iowa utilities commission, and shall be made available to the public.
   3.  An applicant shall obtain and maintain third-party insurance against any reasonably foreseeable loss identified in the survey report required under subsection 2 throughout construction and operation. The policy shall include all of the following requirements:
   a.  Name all landowners within the affected watershed and the state of Iowa as additional insureds and loss payees.
   b.  Minimum coverage limits sufficient to cover full replacement value of any potential loss or contamination identified in the survey, as established by rule by the insurance division in the department of commerce.
   4.  Prior to approval of construction, the applicant shall obtain an independent legal opinion from an attorney licensed in Iowa and unaffiliated with the applicant that affirms the proposed project does not constitute a nuisance under chapter 657 or other applicable law. The opinion must be filed with the county board of supervisors and the department of natural resources.
   5.  a.  The board of supervisors shall not issue a construction permit until the applicant makes a showing that, more likely than not, considering all foreseeable benefits and costs, the project will confer a net benefit to county residents. In deciding whether to issue a permit, the board of supervisors may consider expert testimony, economic studies, environmental assessments, and the survey report required under subsection 2.
   b.  Before issuing a construction permit, the board of supervisors shall hold not less than one public hearing to discuss the application.
   c.  The board of supervisors’s decision is subject to judicial review under chapter 17.
   6.  Compliance with this section is required for any permit or authorization under chapter 476A or 476C, or other applicable provisions relating to wind energy conversion facilities.
   7.  a.  A violation of this section or rules adopted pursuant to this section constitutes a public nuisance.
   b.  A person in violation of this section is subject to a civil penalty of not less than five thousand dollars per day during which the violation occurs.
   c.  The attorney general or the county attorney for the county in which the project is located may bring an action to enjoin violations or recover damages.
   8.  a.  Any person aggrieved by a violation of this section may bring a civil action in district court against any person who violates or participates in a violation of this section.
   b.  A civil action under this subsection may be brought against any of the following:
   (1)  The applicant or developer.
   (2)  Any landowner who grants an easement, lease, or other property interest for the construction, installation, or operation of a wind energy conversion facility in violation of this section.
   (3)  The manufacturer of any wind turbine or component thereof installed in violation of this section.
   (4)  Any person who installs, erects, or assembles a wind turbine or wind energy conversion facility in violation of this section.
   (5)  Any construction company, contractor, or subcontractor involved in the construction or installation of a wind energy conversion facility in violation of this section.
   (6)  Any worker, employee, or agent who participates in the construction, installation, or operation of a wind energy conversion facility in violation of this section.
   (7)  Any other person who knowingly participates in, facilitates, or aids in a violation of this section.
   c.  A prevailing plaintiff in an action under this subsection may recover all of the following:
   (1)  Actual damages sustained.
   (2)  Damages of not less than ten thousand dollars per violation.
   (3)  Injunctive relief, including an order to cease construction or operation.
   (4)  Reasonable attorney fees and court costs.
   d.  All persons found liable under this subsection shall be jointly and severally liable for all damages awarded.
   e.  An action under this subsection shall be commenced within fifteen years of the date the plaintiff discovered or reasonably should have discovered the violation or resulting injury, whichever is later.
   f.  The remedies provided under this subsection are cumulative and shall not be construed to limit any other remedy available at law or in equity.
   g.  A contractual provision purporting to waive rights under this section shall be void and unenforceable.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill relates to wind energy conversion facilities, including requirements for development, construction, and operation.
   The bill requires an applicant for a wind energy conversion facility to commission a subsurface and environmental survey conducted by a licensed surveyor prior to the issuance of any local or state construction permit. The survey must evaluate the likelihood that construction or operation will disturb karst topography or related subsurface formations; cause vibration or subsurface pressure impacts to wells, septic systems, waste lagoons, holding ponds, or liquid containment structures; contaminate cave systems, groundwater, or ecological areas supporting endangered or threatened species; or impair the foundations of existing buildings within one mile of the proposed site. The survey report must be submitted to the county board of supervisors (board), the department of natural resources, and the Iowa utilities commission and must be made publicly available.
   The bill requires an applicant to obtain and maintain third-party insurance covering reasonably foreseeable losses identified in the survey report throughout construction and operation and including certain provisions.
   The bill requires an applicant to obtain an independent legal opinion from an attorney licensed in Iowa and unaffiliated with the applicant affirming that the proposed project does not constitute a nuisance under current law.
   The bill prohibits issuance of a construction permit unless the applicant demonstrates before the board that, considering foreseeable benefits and costs, the project is more likely than not to confer a net benefit to county residents. The board may consider expert testimony, economic studies, environmental assessments, and the survey report. The bill requires the board to hold at least one public hearing prior to issuing a permit.
   Compliance with the bill is required for any permit or authorization relating to wind energy conversion facilities under applicable law.
   A violation of the bill or rules adopted under it constitutes a public nuisance and is punishable by civil penalties of not less than $5,000 per day for violations. The attorney general or a county attorney may bring actions to enjoin violations or recover damages.
   The bill authorizes any person aggrieved by a violation to bring a civil action in district court against certain parties. The bill allows recovery of actual damages, statutory damages, injunctive relief, attorney fees, and court costs, and provides for joint and several liability. The bill establishes limitation periods for bringing civil actions and provides that contractual provisions purporting to waive rights are void and unenforceable.