2017 Montana Legislature
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HOUSE BILL NO. 363
INTRODUCED BY D. LENZ
A BILL FOR AN ACT ENTITLED: "AN ACT ESTABLISHING THE MONTANA RENEWABLE ENERGY PERMITTING, DECOMMISSIONING, AND RECLAMATION ACT; REQUIRING THE OWNERS OF RENEWABLE ENERGY GENERATION FACILITIES TO ACQUIRE A PERMIT PRIOR TO CONSTRUCTION; REQUIRING A SURETY BOND; REQUIRING THE DEPARTMENT OF ENVIRONMENTAL QUALITY TO ADMINISTER A PERMIT PROGRAM FOR RENEWABLE ENERGY GENERATION FACILITIES; GRANTING THE DEPARTMENT THE AUTHORITY TO APPROVE, DENY, OR MODIFY PERMITS; ESTABLISHING PERMIT CRITERIA; ALLOWING PERMIT DENIALS OR MODIFICATIONS TO BE REVIEWED BY THE BOARD OF ENVIRONMENTAL REVIEW; ALLOWING FOR PERMIT FEES; GRANTING RULEMAKING AUTHORITY TO THE DEPARTMENT; ALLOWING THE DEPARTMENT TO USE BONDS IN SOME INSTANCES; PROVIDING A STATUTORY APPROPRIATION; AMENDING SECTION 17-7-502, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND AN APPLICABILITY DATE."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
NEW SECTION. Section 1. Short title. [Sections 1 through 11] may be cited as the "Montana Renewable Energy Permitting, Decommissioning, and Reclamation Act".
NEW SECTION. Section 2. Policy and legislative findings. (1) The legislature, mindful of its constitutional obligations under Article II, section 3, and Article IX of the Montana constitution, has enacted the Montana Renewable Energy Permitting, Decommissioning, and Reclamation Act. It is the legislature's intent that the requirements of [sections 1 through 11] provide adequate remedies for the protection of the environmental life support system from degradation.
(2) The legislature finds that the construction of wind and solar energy generation facilities may be necessary to meet the increasing need for electricity. Therefore, it is necessary to ensure that the reclamation and bonding of wind and solar generation facilities complies with [sections 1 through 11].
(3) The legislature also finds that it is the purpose of [sections 1 through 11] to:
(a) ensure protection of the state's environmental resources; and
(b) provide citizens with the opportunity to participate in siting decisions.
NEW SECTION. Section 3. Definitions. As used in [sections 1 through 11], unless the context requires otherwise, the following definitions apply:
(1) "Board" means the board of environmental review provided for in 2-15-3502.
(2) "Department" means the department of environmental quality provided for in 2-15-3501.
(3) "Owner" means a person who owns a renewable energy generation facility used for the generation of electricity.
(4) "Person" means any individual, firm, partnership, company, association, corporation, city, town, or local governmental entity or any other state, federal, or private entity, whether organized for profit or not.
(5) "Renewable energy generation facility" means a facility that generates electricity with a nameplate capacity greater than or equal to 35 megawatts that includes:
(a) any combination of physically connected wind turbines, associated prime movers, and other associated property, including appurtenant land and improvements and personal property; or
(b) an installation or combination of solar panels or plates, including a canopy or array, that captures and converts solar radiation to produce electricity, and includes flat plate, focusing solar collectors, or photovoltaic solar cells.
NEW SECTION. Section 4. Notice requirements. (1) If a person plans to construct a renewable energy generation facility, the person must provide public notice to property owners residing in the area where the renewable energy generation facility may be located and to the department no less than 60 days prior to the commencement of acquisition of right-of-way.
(2) Notice must include publication of a summary describing the renewable energy generation facility and the proposed location of the facility in newspapers that will substantially inform property owners of the construction and by mailing a summary to the department.
(3) The notice must inform the property owners of their rights under [sections 1 through 11] concerning the location of the facility and that more information concerning their rights may be obtained from the department.
NEW SECTION. Section 5. Rulemaking. On or before January 1, 2018, the department shall adopt rules prescribing:
(1) standards, procedures, and requirements for the submission of permit applications and reasonable bonds with good and sufficient surety by the owners of renewable energy generation facilities;
(2) criteria for the process of reviewing, modifying, approving, and denying permit applications;
(3) criteria and the process for releasing a bond in accordance with [section 10];
(4) criteria and the process for causing forfeiture and using a bond in the event that the owner of a renewable energy generation facility fails to properly decommission a renewable energy generation facility as required by [sections 1 through 11], rules adopted by the department in accordance with [sections 1 through 11], or the permit;
(5) permit application fees;
(6) procedures for the transfer of a permit; and
(7) any additional requirements necessary to ensure the administration of and compliance with [sections 1 through 11].
NEW SECTION. Section 6. Renewable energy permitting, decommissioning, and reclamation account. (1) There is a renewable energy permitting, decommissioning, and reclamation account within the state special revenue fund established in 17-2-102. There must be paid into the account:
(a) money deposited into the account from fees collected pursuant to [section 7(7)];
(b) interest income earned on the account; and
(c) any other funds received by the department for the purposes of administering [sections 1 through 11].
(2) Funds in the renewable energy permitting, decommissioning, and reclamation account are statutorily appropriated, as provided in 17-7-502, to the department and may be used for state costs related to implementation of [sections 1 through 11].
(3) The department shall maintain and hold bonds or other surety received by the department as authorized in [section 9] for use in accordance with [sections 1 through 11].
NEW SECTION. Section 7. Renewable energy permit required. (1) A person may not construct a renewable energy generation facility without a permit from the department.
(2) Not later than 180 days before construction of a renewable energy generation facility in Montana, the owner of a renewable energy generation facility shall file with the department a permit application containing the following:
(a) a description of the proposed renewable energy generation facility, including the total nameplate capacity of the facility;
(b) for wind facilities, the proposed number, representative types, and height or range of heights of wind turbines to be constructed, including their generating capacity, dimensions, and respective manufacturers, and a description of ancillary facilities;
(c) for solar facilities, the proposed number and representative types of solar panels or plates, including their generating capacity, dimensions, and respective manufacturers, and a description of ancillary facilities;
(d) identification and location of the properties on which the proposed renewable energy generation facility will be located;
(e) a site plan and construction drawings, showing the planned location of all turbines or panels or plates, property lines, setback lines, access roads, and other site features;
(f) a statement of compliance with applicable local, state, and federal regulations;
(g) decommissioning and reclamation plans that describe the anticipated life of the renewable energy generation facility, the estimated decommissioning and reclamation costs, and the anticipated manner in which the renewable energy generation facility will be decommissioned and the site reclaimed in accordance with [section 10];
(h) signed interconnection agreements with utilities, if the applicant intends to interconnect with those utilities, or statements outlining efforts to secure interconnection agreements;
(i) proof of liability insurance;
(j) a bond or other surety in accordance with [section 9];
(k) for wind facilities, proof of a wind option agreement, wind energy agreement, or both developed in accordance with Title 70, chapter 17, part 4;
(l) other information that the applicant considers relevant or that the department by rule may require; and
(m) proof that notice was provided in accordance with [section 4].
(3) If an application for a permit requires the preparation of an environmental impact statement under the Montana Environmental Policy Act, Title 75, chapter 1, parts 1 through 3, the department shall notify the applicant in writing of the approval, denial, or modification of the application within 270 days after the department's receipt of an application.
(4) If an application does not require the preparation of an environmental impact statement, the department shall notify the applicant in writing within 120 days after its receipt of an application of its approval, denial, or modification of the application.
(5) A permit may be transferred to a person who agrees to comply with the terms, conditions, and modifications contained in a permit.
(6) The permit program administered by the department pursuant to this section must include requirements and procedures for permit amendments, including procedures for the addition of turbines, panels, or plates to a renewable energy generation facility that has secured a permit from the department.
(7) (a) The owner of the renewable energy generation facility shall pay a fee established by the department to cover the department's costs associated with processing the application.
(b) The department shall determine the amount of the fee based on the complexity of processing an application.
(c) If the department decides to hire a third-party contractor to prepare an environmental assessment or an environmental impact statement on the application, the department shall prepare a list of no fewer than four contractors acceptable to the department and shall provide the applicant with a copy of the list. The applicant shall provide the department with a list of at least 50% of the contractors from the department's list. The department shall select its contractor from the list provided by the applicant.
(d) The applicant shall reimburse the department for the reasonable costs of the third-party contractor.
(8) Upon receipt of evidence that construction of a renewable energy generation facility commenced without a permit in accordance with [sections 1 through 11], the department may commence legal proceedings to immediately restrain or enjoin any person who has contributed to or who is constructing the renewable energy generation facility.
NEW SECTION. Section 8. Denial or modification of a permit. (1) An applicant for a permit may request a hearing before the board on a denial of the application or the issuance of a permit with modifications not agreed to by the applicant by submitting a written request for a hearing within 30 days of receipt of written notice of the denial or permit issuance with modifications. The request must state the reason that the hearing is requested.
(2) Hearings under this section must be conducted by the board in accordance with the Montana Administrative Procedure Act. Any party whose interests may be adversely affected as a result of an action taken pursuant to [sections 1 through 11] may become a party to any proceeding held under [sections 1 through 11].
(3) If the owner does not request a hearing before the board, modification of a permit is effective 30 days after receipt of notice by the owner unless the department specifies a later date.
NEW SECTION. Section 9. Bond and surety requirements. (1) The applicant for a permit shall file with the department a bond payable to the state of Montana in a form acceptable to the department and in the sum determined by the department, conditioned upon the faithful performance of the requirements of [sections 1 through 11], the rules adopted by the department under [sections 1 through 11], and the permit.
(2) In determining the amount of the bond, the department shall take into consideration the character and nature of the site where the renewable energy generation facility is proposed. The bond may not be less than the total estimated cost to the state to ensure compliance with [sections 1 through 11], rules adopted in accordance with [sections 1 through 11], and the permit.
NEW SECTION. Section 10. Release of bond -- use of bond by department. (1)(a) After energy is not generated at a renewable energy generation facility for a continuous period of 1 year, the owner of a renewable energy generation facility has 1 year to complete decommissioning of the renewable energy generation facility absent an order by the department providing a longer period.
(b) Decommissioning must include removal of wind turbines, solar panels or plates, buildings, cabling, electrical components, roads, and any other associated facilities. Surface land must be reclaimed in accordance with subsection(1)(c), unless a property owner and the owner of a renewable energy generation facility have reached an agreement concerning alternative remediation of the land surface area, and a copy of the agreement is provided to the department.
(c) Surface land must be reclaimed to previous grade, to comparable productivity, and to prevent adverse hydrologic effects.
(2) If the owner of a renewable energy generation facility fails to decommission a renewable energy generation facility as required by [sections 1 through 11], the rules adopted under [sections 1 through 11], and the permit, and has not commenced action to rectify deficiencies within 30 days after notification by the department, the department shall cause the bond to be forfeited. The department, with staff, equipment, and material under its control or by contract with others, may take any necessary actions for decommissioning the renewable energy generation facility in accordance with [sections 1 through 11], the rules adopted pursuant to [sections 1 through 11], and the permit.
(3) A bond filed in accordance with [section 9] may not be released by the department until the provisions of [sections 1 through 11], the rules adopted pursuant to [sections 1 through 11], and the permit have been fulfilled in decommissioning the renewable energy generation facility.
NEW SECTION. Section 11. Local regulations. A permit acquired in accordance with the provisions of [sections 1 through 11] does not absolve the owner of a renewable energy generation facility from complying with applicable regulations and requirements for:
(1) areas subject to local zoning adopted under Title 76, chapter 2;
(2) military affected areas under Title 10, chapter 1, part 15; or
(3) airport affected areas under Title 67, chapter 7.
Section 12. Section 17-7-502, MCA, is amended to read:
"17-7-502. Statutory appropriations -- definition -- requisites for validity. (1) A statutory appropriation is an appropriation made by permanent law that authorizes spending by a state agency without the need for a biennial legislative appropriation or budget amendment.
(2) Except as provided in subsection (4), to be effective, a statutory appropriation must comply with both of the following provisions:
(a) The law containing the statutory authority must be listed in subsection (3).
(b) The law or portion of the law making a statutory appropriation must specifically state that a statutory appropriation is made as provided in this section.
(3) The following laws are the only laws containing statutory appropriations: 2-17-105; 5-11-120; 5-11-407; 5-13-403; 7-4-2502; 10-1-108; 10-1-1202; 10-1-1303; 10-2-603; 10-3-203; 10-3-310; 10-3-312; 10-3-314; 10-4-301; 15-1-121; 15-1-218; 15-35-108; 15-36-332; 15-37-117; 15-39-110; 15-65-121; 15-70-101; 15-70-433; 15-70-601; 16-11-509; 17-3-106; 17-3-112; 17-3-212; 17-3-222; 17-3-241; 17-6-101; 17-7-215; 18-11-112; 19-3-319; 19-6-404; 19-6-410; 19-9-702; 19-13-604; 19-17-301; 19-18-512; 19-19-305; 19-19-506; 19-20-604; 19-20-607; 19-21-203; 20-8-107; 20-9-517; 20-9-520; 20-9-534; 20-9-622; 20-9-905; 20-26-617; 20-26-1503; 22-1-327; 22-3-116; 22-3-117; 22-3-1004; 23-4-105; 23-5-306; 23-5-409; 23-5-612; 23-7-301; 23-7-402; 30-10-1004; 37-43-204; 37-50-209; 37-51-501; 39-71-503; 41-5-2011; 42-2-105; 44-4-1101; 44-12-213; 44-13-102; 50-1-115; 53-1-109; 53-6-1304; 53-9-113; 53-24-108; 53-24-206; 60-11-115; 61-3-415; 69-3-870; 75-1-1101; 75-5-1108; 75-6-214; 75-11-313; [section 6]; 76-13-150; 76-13-416; 77-1-108; 77-2-362; 80-2-222; 80-4-416; 80-11-518; 81-1-112; 81-7-106; 81-10-103; 82-11-161; 85-20-1504; 85-20-1505; [85-25-102]; 87-1-603; 90-1-115; 90-1-205; 90-1-504; 90-3-1003; 90-6-331; and 90-9-306.
(4) There is a statutory appropriation to pay the principal, interest, premiums, and costs of issuing, paying, and securing all bonds, notes, or other obligations, as due, that have been authorized and issued pursuant to the laws of Montana. Agencies that have entered into agreements authorized by the laws of Montana to pay the state treasurer, for deposit in accordance with 17-2-101 through 17-2-107, as determined by the state treasurer, an amount sufficient to pay the principal and interest as due on the bonds or notes have statutory appropriation authority for the payments. (In subsection (3): pursuant to sec. 10, Ch. 360, L. 1999, the inclusion of 19-20-604 terminates contingently when the amortization period for the teachers' retirement system's unfunded liability is 10 years or less; pursuant to sec. 10, Ch. 10, Sp. L. May 2000, secs. 3 and 6, Ch. 481, L. 2003, and sec. 2, Ch. 459, L. 2009, the inclusion of 15-35-108 terminates June 30, 2019; pursuant to sec. 73, Ch. 44, L. 2007, the inclusion of 19-6-410 terminates contingently upon the death of the last recipient eligible under 19-6-709(2) for the supplemental benefit provided by 19-6-709; pursuant to sec. 5, Ch. 442, L. 2009, the inclusion of 90-6-331 terminates June 30, 2019; pursuant to sec. 16, Ch. 58, L. 2011, the inclusion of 30-10-1004 terminates June 30, 2017; pursuant to sec. 6, Ch. 61, L. 2011, the inclusion of 76-13-416 terminates June 30, 2019; pursuant to sec. 13, Ch. 339, L. 2011, the inclusion of 81-1-112 and 81-7-106 terminates June 30, 2017; pursuant to sec. 11(2), Ch. 17, L. 2013, the inclusion of 17-3-112 terminates on occurrence of contingency; pursuant to sec. 5, Ch. 244, L. 2013, the inclusion of 22-1-327 terminates July 1, 2017; pursuant to sec. 27, Ch. 285, L. 2015, and sec. 1, Ch. 292, L. 2015, the inclusion of 53-9-113 terminates June 30, 2021; pursuant to sec. 6, Ch. 291, L. 2015, the inclusion of 50-1-115 terminates June 30, 2021; pursuant to sec. 28, Ch. 368, L. 2015, the inclusion of 53-6-1304 terminates June 30, 2019; pursuant to sec. 5, Ch. 383, L. 2015, the inclusion of 85-25-102 is effective on occurrence of contingency; pursuant to sec. 5, Ch. 422, L. 2015, the inclusion of 17-7-215 terminates June 30, 2021; pursuant to sec. 6, Ch. 423, L. 2015, the inclusion of 22-3-116 and 22-3-117 terminates June 30, 2025; pursuant to sec. 10, Ch. 427, L. 2015, the inclusion of 37-50-209 terminates September 30, 2019; and pursuant to sec. 33, Ch. 457, L. 2015, the inclusion of 20-9-905 terminates December 31, 2023.)"
NEW SECTION. Section 13. Codification instruction. [Sections 1 through 11] are intended to be codified as an integral part of Title 75, and the provisions of Title 75 apply to [sections 1 through 11].
NEW SECTION. Section 14. Effective date. [This act] is effective on passage and approval.
NEW SECTION. Section 15. Applicability. [This act] applies to persons initiating construction of renewable energy generation facilities on or after January 1, 2018.
- END -
Latest Version of HB 363 (HB0363.01)
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