HB3704 102ND GENERAL ASSEMBLY

LRB102 16078 KMF 21451 b

102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
HB3704

Introduced 2/22/2021, by Rep. Lance Yednock

SYNOPSIS AS INTRODUCED:

55 ILCS 5/5-12020
65 ILCS 5/11-13-26
505 ILCS 147/1
505 ILCS 147/5
505 ILCS 147/10
505 ILCS 147/15

Amends the Renewable Energy Facilities Agricultural Impact Mitigation Act. Changes the short title to the Agricultural Impact Mitigation Act. Broadens the purpose of the Act to include construction and deconstruction of pipelines and electronic transmission lines. Includes pipeline owner and electrical transmission line owner in the definition of "agricultural impact mitigation agreement", "construction", "county", "deconstruction", and "underlying agreement". Defines "Agricultural Inspector", "pipeline owner", and "pipeline". Contains guidelines for pipeline and electronic transmission line owners to address environmental impact before starting construction. Amends the Counties Code and the Illinois Municipal Code to make conforming changes.

A BILL FOR

AN ACT concerning Pipeline and Electronic Transmission Line Environmental Impact.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Counties Code is amended by changing Section 5-12020 as follows:

(55 ILCS 5/5-12020)

Sec. 5-12020. Wind farms, electric-generating wind devices, and commercial wind energy facilities. Notwithstanding any other provision of law or whether the county has formed a zoning commission and adopted formal zoning under Section 5-12007, a county may establish standards for wind farms and electric-generating wind devices. The standards may include, without limitation, the height of the devices and the number of devices that may be located within a geographic area. A county may also regulate the siting of wind farms and electric-generating wind devices in unincorporated areas of the county outside of the zoning jurisdiction of a municipality and the 1.5 mile radius surrounding the zoning jurisdiction of a municipality. There shall be at least one public hearing not more than 30 days prior to a siting decision by the county board. Notice of the hearing shall be published in a newspaper of general circulation in the county. A commercial wind energy facility owner, as defined in the Renewable Energy Facilities Agricultural Impact Mitigation Act, must enter into an agricultural impact mitigation agreement with the Department of Agriculture prior to the date of the required public hearing. A commercial wind energy facility owner seeking an extension of a permit granted by a county prior to July 24, 2015 (the effective date of Public Act 99-132) must enter into an agricultural impact mitigation agreement with the Department of Agriculture prior to a decision by the county to grant the permit extension. Counties may allow test wind towers to be sited without formal approval by the county board. Any provision of a county zoning ordinance pertaining to wind farms that is in effect before August 16, 2007 (the effective date of Public Act 95-203) may continue in effect notwithstanding any requirements of this Section.

A county may not require a wind tower or other renewable energy system that is used exclusively by an end user to be setback more than 1.1 times the height of the renewable energy system from the end user's property line.

Only a county may establish standards for wind farms, electric-generating wind devices, and commercial wind energy facilities, as that term is defined in Section 10 of the Renewable Energy Facilities Agricultural Impact Mitigation Act, in unincorporated areas of the county outside of the zoning jurisdiction of a municipality and outside the 1.5 mile radius surrounding the zoning jurisdiction of a municipality.

(Source: P.A. 100-598, eff. 6-29-18; 101-4, eff. 4-19-19.)

Section 10. The Illinois Municipal Code is amended by changing Section 11-13-26 as follows:

(65 ILCS 5/11-13-26)

Sec. 11-13-26. Wind farms. Notwithstanding any other provision of law:

(a) A municipality may regulate wind farms and electric-generating wind devices within its zoning jurisdiction and within the 1.5 mile radius surrounding its zoning jurisdiction. There shall be at least one public hearing not more than 30 days prior to a siting decision by the corporate authorities of a municipality. Notice of the hearing shall be published in a newspaper of general circulation in the municipality. A commercial wind energy facility owner, as defined in the Renewable Energy Facilities Agricultural Impact Mitigation Act, must enter into an agricultural impact mitigation agreement with the Department of Agriculture prior to the date of the required public hearing. A commercial wind energy facility owner seeking an extension of a permit granted by a municipality prior to July 24, 2015 (the effective date of Public Act 99-132) must enter into an agricultural impact mitigation agreement with the Department of Agriculture prior to a decision by the municipality to grant the permit extension. A municipality may allow test wind towers to be sited without formal approval by the corporate authorities of the municipality. Test wind towers must be dismantled within 3 years of installation. For the purposes of this Section, "test wind towers" are wind towers that are designed solely to collect wind generation data.

(b) A municipality may not require a wind tower or other renewable energy system that is used exclusively by an end user to be setback more than 1.1 times the height of the renewable energy system from the end user's property line. A setback requirement imposed by a municipality on a renewable energy system may not be more restrictive than as provided under this subsection. This subsection is a limitation of home rule powers and functions under subsection (i) of Section 6 of Article VII of the Illinois Constitution on the concurrent exercise by home rule units of powers and functions exercised by the State.

(Source: P.A. 99-123, eff. 1-1-16; 99-132, eff. 7-24-15; 99-642, eff. 7-28-16; 100-598, eff. 6-29-18.)

Section 15. The Renewable Energy Facilities Agricultural Impact Mitigation Act is amended by changing Sections 1, 5, 10, 15, 90, 95, and 99 as follows:

(505 ILCS 147/1)

Sec. 1. Short title. This Act may be cited as the Renewable Energy Facilities Agricultural Impact Mitigation Act.

(Source: P.A. 99-132, eff. 7-24-15; 100-598, eff. 6-29-18.)

(505 ILCS 147/5)

Sec. 5. Purpose. The primary purpose of this Act is to promote the State's welfare by protecting landowners during the construction and deconstruction of commercial renewable energy facilities, pipelines, and electric transmission lines to ensure that land affected by these projects is restored to its pre-construction condition..

(Source: P.A. 99-132, eff. 7-24-15; 100-598, eff. 6-29-18.)

(505 ILCS 147/10)

Sec. 10. Definitions. As used in this Act:

"Abandonment of a commercial wind energy facility" means when deconstruction has not been completed within 18 months after the commercial wind energy facility reaches the end of its useful life. For purposes of this definition, a commercial wind energy facility will be presumed to have reached the end of its useful life if (1) no electricity is generated for a continuous period of 12 months and (2) the commercial wind energy facility owner fails, for a period of 6 consecutive months, to pay the landowner amounts owed in accordance with the underlying agreement.

"Abandonment of a commercial solar energy facility" means when deconstruction has not been completed within 12 months after the commercial solar energy facility reaches the end of its useful life. For purposes of this definition, a commercial solar energy facility shall be presumed to have reached the end of its useful life if the commercial solar energy facility owner fails, for a period of 6 consecutive months, to pay the landowner amounts owed in accordance with the underlying agreement.

"Agricultural impact mitigation agreement" means an agreement between the pipeline owner, electrical transmission line owner, commercial wind energy facility owner or the commercial solar energy facility owner and the Department of Agriculture described in Section 15 of this Act.

"Agricultural Inspector" means a person hired by a pipeline, electric transmission line owner, or commercial renewable energy facility and approved by the Department who will work with the facility throughout the construction and deconstruction phases to ensure compliance with the provisions of the Agricultural Impact Mitigation Agreement.

"Commercial renewable energy facility " means a commercial wind energy facility or commercial solar energy facility as defined in this Act.

"Commercial solar energy facility" means a solar energy conversion facility equal to or greater than 500 kilowatts in total nameplate capacity, including a solar energy conversion facility seeking an extension of a permit to construct granted by a county or municipality before the effective date of this amendatory Act of the 100th General Assembly. "Commercial solar energy facility" does not include a solar energy conversion facility: (1) for which a permit to construct has been issued before the effective date of this amendatory Act of the 100th General Assembly; (2) that is located on land owned by the commercial solar energy facility owner; (3) that was constructed before the effective date of this amendatory Act of the 100th General Assembly; or (4) that is located on the customer side of the customer's electric meter and is primarily used to offset that customer's electricity load and is limited in nameplate capacity to less than or equal to 2,000 kilowatts.

"Commercial solar energy facility owner" means a private commercial enterprise that owns a commercial solar energy facility. A commercial solar energy facility owner is not nor shall it be deemed to be a public utility as defined in the Public Utilities Act.

"Commercial wind energy facility" means a wind energy conversion facility of equal or greater than 500 kilowatts in total nameplate generating capacity. "Commercial wind energy facility" includes a wind energy conversion facility seeking an extension of a permit to construct granted by a county or municipality before the effective date of this Act. "Commercial wind energy facility" does not include a wind energy conversion facility: (1) that has submitted a complete permit application to a county or municipality and for which the hearing on the completed application has commenced on the date provided in the public hearing notice, which must be before the effective date of this Act; (2) for which a permit to construct has been issued before the effective date of this Act; or (3) that was constructed before the effective date of this Act.

"Commercial wind energy facility owner" means a private commercial enterprise that owns or operates a commercial wind energy facility. A commercial wind energy facility owner is not nor shall it be deemed to be a public utility as defined in the Public Utilities Act.

"Construction" means the installation, preparation for installation, or repair of a pipeline, electric transmission line, or commercial renewable energy facility.

"County" means the county where the pipeline, electric transmission line, or commercial renewable energy facility is located.

"Deconstruction" means the removal of a pipeline, electric transmission line, or commercial renewable energy facility from the property of a landowner and the restoration of that property as provided in the agricultural impact mitigation agreement.

"Department" means the Department of Agriculture.

"Landowner" means any person (1) with an ownership interest in property that is used for agricultural purposes and (2) that is a party to an underlying agreement.

"Pipeline" means all parts of those physical facilities through which gas, carbon dioxide, oil, or other hazardous liquid moves in transportation, that crosses or is located in:

(1) Illinois; and

(2) one or more other states.

"Pipeline Owner" means a private commercial enterprise that owns a pipeline.

"Underlying agreement" means the written agreement with a landowner, including, but not limited to, an easement, option, lease, or license, under the terms of which another person has constructed, constructs, or intends to construct a pipeline, electric transmission line, or commercial wind energy facility or commercial solar energy facility on the property of the landowner.

(Source: P.A. 99-132, eff. 7-24-15; 100-598, eff. 6-29-18.)

(505 ILCS 147/15)

Sec. 15. Agricultural impact mitigation agreement.

(a) A pipeline owner, electric transmission line owner, or a commercial renewable energy facility owner of a commercial wind energy facility or a commercial solar energy facility that is located on landowner property shall enter into an agricultural impact mitigation agreement with the Department outlining construction and deconstruction standards and policies designed to preserve the integrity of any agricultural land that is impacted by pipeline, electric transmission line, or commercial renewable energy facility construction and deconstruction. The construction and deconstruction of any pipeline, commercial wind energy facility, electric transmission line, or commercial solar or wind energy facility shall be in conformance with the Department's standard agricultural impact mitigation agreement referenced in subsection (f) of this Section. Except as provided in subsection (a-5) of this Section, the terms and conditions of the Department's standard agricultural impact mitigation agreement are subject to and may be modified by an underlying agreement between the landowner and the commercial solar energy facility owner.

(a-5) Prior to the commencement of construction, a commercial solar energy facility owner shall submit to the county in which the commercial solar facility is to be located a deconstruction plan. A commercial solar energy facility owner shall provide the county with an appropriate financial assurance mechanism consistent with the Department's standard agricultural impact mitigation agreement for and to assure deconstruction in the event of an abandonment of a commercial solar energy facility.

(a-10) Prior to the commencement of construction, a pipeline owner shall submit to the Federal Energy Regulatory Commission (FERC) an executed agricultural impact mitigation agreement. The executed agricultural impact mitigation agreement shall be included as part of the pipeline's submissions to FERC, and the pipeline shall request FERC include a statement affirming the pipeline's adherence to the construction standards and policies in any environmental assessment or environmental impact statement, or both, that may be prepared on the pipeline.

(b) The agricultural impact mitigation agreement for a commercial wind energy facility shall include, but is not limited to, such items as restoration of agricultural land affected by construction, deconstruction (including upon abandonment of a commercial wind energy facility), construction staging, and storage areas; support structures; aboveground facilities; guy wires and anchors; underground cabling depth; topsoil replacement; protection and repair of agricultural drainage tiles; rock removal; repair of compaction and rutting; land leveling; prevention of soil erosion; repair of damaged soil conservation practices; compensation for damages to private property; clearing of trees and brush; interference with irrigation systems; access roads; weed control; pumping of water from open excavations; advance notice of access to private property; indemnification of landowners; and deconstruction plans and financial assurance for deconstruction (including upon abandonment of a commercial wind energy facility).

(b-5) The agricultural impact mitigation agreement for a commercial solar energy facility shall include, but is not limited to, such items as restoration of agricultural land affected by construction, deconstruction (including upon abandonment of a commercial solar energy facility); support structures; aboveground facilities; guy wires and anchors; underground cabling depth; topsoil removal and replacement; rerouting and permanent repair of agricultural drainage tiles; rock removal; repair of compaction and rutting; construction during wet weather; land leveling; prevention of soil erosion; repair of damaged soil conservation practices; compensation for damages to private property; clearing of trees and brush; access roads; weed control; advance notice of access to private property; indemnification of landowners; and deconstruction plans and financial assurance for deconstruction (including upon abandonment of a commercial solar energy facility). The commercial solar energy facility owner shall enter into one agricultural impact mitigation agreement for each commercial solar energy facility.

(b-10) The agricultural impact mitigation agreement for a pipeline shall include, but is not limited to, such items as restoration of agricultural land affected by construction and deconstruction of the pipeline; support structures; aboveground facilities; underground pipeline depth; topsoil removal and replacement; rerouting and permanent repair of agricultural drainage tiles; interference with irrigation systems; weed control; rock removal; repair of compaction and rutting; construction during wet weather; land leveling; prevention of soil erosion; repair of damaged soil conservation practices; compensation for damages to private property; clearing of trees and brush; access roads; weed control; advance notice of access to private property; indemnification of landowners; deconstruction plans; agricultural inspector requirements; and financial assurance for deconstruction.

(c) For commercial wind energy facility owners seeking a permit from a county or municipality for the construction of a commercial wind energy facility, the agricultural impact mitigation agreement shall be entered into prior to the public hearing required prior to a siting decision of a county or municipality regarding the commercial wind energy facility. The agricultural impact mitigation agreement is binding on any subsequent commercial wind energy facility owner that takes ownership of the commercial wind energy facility that is the subject of the agreement.

(c-5) A commercial solar energy facility owner shall, not less than 45 days prior to commencement of actual construction, submit to the Department a standard agricultural impact mitigation agreement as referenced in subsection (f) of this Section signed by the commercial solar energy facility owner and including all information required by the Department. The commercial solar energy facility owner shall provide either a copy of that submitted agreement or a copy of the fully executed project-specific agricultural impact mitigation agreement to the landowner not less than 30 days prior to the commencement of construction. The agricultural impact mitigation agreement is binding on any subsequent commercial solar energy facility owner that takes ownership of the commercial solar energy facility that is the subject of the agreement.

(d) If a commercial renewable energy facility owner seeks an extension of a permit granted by a county or municipality for the construction of a commercial wind energy facility prior to the effective date of this Act, the agricultural impact mitigation agreement shall be entered into prior to a decision by the county or municipality to grant the permit extension.

(d-10) Prior to the commencement of construction, a pipeline owner, electric transmission line owner, or commercial renewable energy facility owner shall select and hire an Agricultural Inspector. An Agriculture Inspector shall be authorized to temporarily halt construction, deconstruction, and any other restoration activities when the Agricultural Inspector determines that a facility is violating any provision of the agricultural impact mitigation agreement. Upon making the decision to temporarily halt activities, the Agricultural Inspector must immediately contact the facility representative, General Contractor of the project, the Department's Bureau of Land and Water Resources, and any impacted landowners, tenants and agents.

(e) The Department may adopt rules that are necessary and appropriate for the implementation and administration of agricultural impact mitigation agreements as required under this Act.

(f) The Department shall make available on its website a standard agricultural impact mitigation agreement applicable to all pipeline, electric transmission line, and commercial solar and wind energy facilities within 60 days after the effective date of this amendatory Act of the 100th General Assembly.

(g) Nothing in this amendatory Act of the 100th General Assembly and nothing in an agricultural impact mitigation agreement shall be construed to apply to or otherwise impair an underlying agreement for a pipeline, electric transmission line, or commercial solar and wind energy facility entered into prior to the effective date of this amendatory Act of the 100th General Assembly.

(Source: P.A. 99-132, eff. 7-24-15; 100-598, eff. 6-29-18.)