Leg adds sideboards to Wyo wind development

Douglas — Legislation approved during the 2010 Budget Session of the Wyoming Legislature marks the beginning of regulatory sideboards guiding the future of wind energy development in the Cowboy State. The legislature also called for continuation of the wind task force into 2010.
Four pieces of legislation pertaining to the state’s fledgling wind industry passed this year’s session. Governor Freudenthal has signed all four bills.
“I was quite pleased with what they got through,” says Converse County Commissioner Ed Werner, who played an instrumental role in discussions leading up to the recent session. He says this year’s legislation was an indicator of the quality of legislation that can result from pre-session coordination.
While the Renewable Energy Alliance of Landowners (REAL) didn’t receive everything they hoped for, Chairman and Wheatland area rancher Bob Whitton sees an opportunity for proactive involvement on the horizon.
Senate Majority Floor Leader Jim Anderson (R-Glenrock) says he’s pleased with the 2010 session in general and the legislation that passed relating to wind energy development. “I felt good that two of the major pieces the task force recommended were well received,” says Anderson, who served as co-chairman of the 2009 task force on wind energy. He applauds the lowering of the threshold at which a project goes before the Industrial Siting Council (ISC) and the new county oversight of wind energy development that resulted from the session.
HB 101, Enrolled Act 18
HB 101, if it takes effect July 2, 2012, will result in a $1-per-megawatt-hour tax on electricity produced using the Cowboy State’s wind resources. Exemptions are set forth for generating facilities owned by the federal government or the State of Wyoming and for individuals who’ve built systems to meet their own power needs. The tax is waived for the first three years a commercial turbine is in production.
Once the taxes are collected by the Wyoming Department of Revenue, the legislation says, “Sixty percent shall be distributed to the counties in this state where the generating facility is located.” The remaining 40 percent will be deposited in the state’s general fund.
Those who followed wind-related legislation during the recent session largely agree that HB 101 marks a beginning, not an end, as it relates to the taxation of wind energy in Wyoming.
“I would call this piece of legislation a placeholder bill,” says Anderson, noting the July 1, 2012 effective date for the new tax.
“It will send a clear message to industry that Wyoming, in one form or another, will expect the benefits of wind energy development to reach beyond the landowners and the industry to the citizens,” says Werner. Stronger and clearer language in the form of amended legislation is expected to result from the 2010 meetings of the wind energy task force.
Whitton says REAL plans to be part of a team that brings ideas and suggestions to the legislature regarding the future of wind taxation in the state. “It’s a way to bring more good to the people of Wyoming. Maybe we can figure out ways to incentivize developers to hire locally, to purchase locally and to move more aspects of the industry into Wyoming. Maybe we’ll be able to accomplish this through the interim study.”
HB 79, Enrolled Act 48
HB 79 stalls the right of eminent domain as it pertains to wind energy development collector systems. The legislation also calls for continuation of the 2009 wind task force into the 2010 calendar year and appropriates just over $20,000 for that cause.
According to the legislation, the 2010 task force focus will be on the following: “The task force shall clearly define collector systems, identify and recommend conditions appropriate for the use of condemnation authority authorized pursuant to W.S. 1-26-815 for collector systems for commercial facilities generating electricity from wind, consider and recommend the appropriate public policy with respect to the severance of the wind estate from the surface estate and consider and make recommendations regarding the amount, method and duration of payment to landowners who are subject to the construction and operation of wind energy collector systems on their land.”
The task force’s findings will be compiled in a report no later than Nov. 1, 2010. Anderson, given other growing responsibilities with his Senate leadership, won’t co-chair the 2010 committee as he did in 2009. “Michael Von Flatern has been put on in my place,” says Anderson of the Senator from Gillette. Representative Kermit Brown is expected to serve as Von Flatern’s co-chairman. Depending on whom Governor Freudenthal chooses as his three appointees, a landowner representative might also join the 2010 task force.
“We gave more resources to the 2010 task force than the 2009 task force had,” says Anderson. “We hope they can meet in areas of high wind development, perhaps across the southern route. We were confined to Casper last year based on the task force make-up and limited resources.”
Until recently, as Werner explains, industry officials believed that eminent domain couldn’t be used for projects such as feeder lines. A recent Attorney General’s opinion stated otherwise. “Fundamentally,” says Werner, “it didn’t change anybody’s direction, but provided time to establish what most people thought was in place all along.”
“This is an opportunity to make things better for the people who live with transmission lines,” says Whitton. “Everyone else involved in the project from the landowner to the developer makes money and the people who have transmission lines crossing their property should make money, too.”
“Wyoming does have some pretty liberal eminent domain laws,” says Anderson. “For those private power producers, it needs to be examined whether Wyoming should allow them to use the power of eminent domain.
Whitton adds, “Let’s figure out a better way to do this.”
HB 72, Enrolled Act 64
Some have compared HB 72 to Wyoming’s subdivision regulations. The legislation provides for an umbrella set of rules pertaining to wind energy development while leaving counties the leeway to adopt more stringent regulations.
The legislation, set to take effect July 1, 2010, requires wind developers to appear before the county commissioners and request a permit prior to beginning construction on a project. Beyond specifying the requirements that must be met during project construction, the new regulations require that the county commissioners host a public meeting 45 to 60 days after determining an application is complete.
“It will give us a good baseline,” says Werner. “It provides something for the counties that hadn’t drawn up regulations or don’t have planning and zoning.” Counties like Converse, which doesn’t have existing regulations, will start the process with their zoning boards and interested citizens. The process will then progress to the county commissioners.
“The regulations don’t say where, but that if you’re going to build it that the local government has some say in how you’re going to build it,” says Werner. The county level regulations can be more stringent, but not less stringent, than the state regulations.
In counties such as Platte where regulations are already in place, the commissioners will ensure compliance between local and state guidelines. Werner says this isn’t a burdensome or a new process for the counties, which are accustomed to taking such actions regarding subdivision regulations and more.
SF 66, Enrolled Act 38
SF66 will result in more of the state’s wind energy development projects appearing before the Wyoming Industrial Siting Council (ISC). Beyond the historic monetary threshold, projects now involving more than 30 turbines will be required to complete the ISC process.
The legislation also allows county commission’s to request the ISC’s involvement and guidance on smaller projects. While the Chevron project on the outskirts of Casper is smaller in scale, public interest was widespread. In scenarios such as that, Werner says the affected commission would have a new tool and new resources to draw upon. Such requests, he says, are to be accompanied by a compelling reason for state involvement.
Jennifer Womack is a freelance writer and executive director of the Wyoming FFA Foundation. She can be reached at womack@wyoming.com or at 307-351-0730.