85R2452 JXC-F     By: Canales H.B. No. 1717       A BILL TO BE ENTITLED   AN ACT   relating to wind energy conversion systems and facilities and the   rights of owners of land on which the systems and facilities are   located; providing an administrative penalty.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Title 11, Natural Resources Code, is amended by   adding Chapter 212 to read as follows:   CHAPTER 212. WIND ENERGY CONVERSION SYSTEMS AND FACILITIES          Sec. 212.001.  DEFINITIONS. In this chapter:                (1)  "Commission" means the Railroad Commission of   Texas.                (2)  "Wind energy conversion system" means a system   that converts wind energy into electric energy through the use of a   wind turbine generator and includes a turbine, blade, tower, base,   and pad transformer, if any.                (3)  "Wind energy facility" means an electric   generating facility that consists of one or more wind energy   conversion systems under common ownership or operating control and   the substations, meteorological data towers, aboveground and   underground electric transmission lines, transformers, control   systems, and other buildings or facilities used to support the   operation of the facility.                (4)  "Wind energy lease agreement" means an agreement   that:                       (A)  provides for the operation of a wind energy   conversion system or wind energy facility at least partially on the   property of a landowner who is not the owner or operator of the   system or facility; and                      (B)  requires the owner or operator of the system   or facility to pay the landowner for the use of the property to   generate electric energy from the conversion of wind energy based   on the amount of electric energy produced from the conversion of   wind energy.          Sec. 212.002.  APPLICABILITY. This chapter applies only to   a wind energy conversion system or wind energy facility:                (1)  the primary purpose of which is to supply electric   energy to an off-site customer; and                (2)  that is the subject of a wind energy lease   agreement.          Sec. 212.003.  RULES. The commission may adopt rules to   accomplish the purposes of this chapter.          Sec. 212.004.  RIGHT OF LANDOWNER TO ACCESS RECORDS. (a)  An   owner or operator of a wind energy conversion system or wind energy   facility shall, on request from the landowner who entered into the   wind energy lease agreement, provide the landowner access to the   records of the owner or operator relating to the system or facility   for the purpose of confirming the accuracy of payments made to the   landowner. A landowner may not request access to the records more   frequently than once each year.          (b)  An owner or operator that receives a request under   Subsection (a) shall provide the landowner access to all records   necessary for the landowner to confirm the accuracy of payments   made to the landowner, including documents, data, and other   information, or copies of the records, documents, data, or   information. The records are subject to any confidentiality   requirements in the wind energy lease agreement between the   landowner and the owner or operator.          (c)  The owner or operator shall comply with the landowner's   request to access the records within a reasonable time.          (d)  The owner or operator shall:                (1)  provide access to the records in a reasonable   location and manner that affords the landowner reasonable access to   the records during normal business hours; and                (2)  allow the landowner a reasonable period of time to   examine the records.          (e)  A landowner may not cause undue disruption to the   operations of an owner or operator when examining records under   this section.          (f)  Not later than the 10th day before the date an owner or   operator of a wind energy conversion system or wind energy facility   enters into a wind energy lease agreement with a landowner, the   owner or operator must send to the landowner, by first class mail or   otherwise, a written statement that the landowner will be entitled   to access the records of the owner or operator for the purpose of   confirming the accuracy of payments made to the landowner.          (g)  The statement required by Subsection (f) must be made in   a document that is separate from the wind energy lease agreement.          Sec. 212.005.  FINANCIAL ASSURANCE; DECOMMISSIONING. (a)     The commission by rule shall require each owner or operator of a   wind energy conversion system or wind energy facility who enters   into a wind energy lease agreement to file with the commission a   bond or other form of financial assurance to ensure decommissioning   of the system or facility. The commission may accept under this   subsection a surety bond, a collateral bond, an escrow account,   another form of financial assurance the commission determines to be   adequate, or a combination of those types of assurance.  The bond or   financial assurance must be in an amount and in a form provided by   commission rules.          (b)  The bond or financial assurance must be conditioned on   the owner or operator of the system or facility complying with the   commission's rules adopted under this section regarding   decommissioning. The bond or other financial assurance must be   accompanied by an agreement by which the owner of the land on which   the system or facility is installed or is to be installed grants to   the owner or operator of the system or facility, and to the   commission or its agents in case the commission undertakes   decommissioning under Subsection (g), permission to enter onto the   land to decommission the system or facility and restore the land to   the condition of the land immediately before the system or facility   was installed.          (c)  The owner or operator of a system or facility at the   owner's or operator's expense shall decommission the system or   facility in accordance with commission rules not later than the   first anniversary of the end of the system's or facility's useful   life.  The system's or facility's useful life is presumed to be at an   end if the system or facility has not generated electricity for a   continuous period of one year, unless the commission has approved   the owner's or operator's plan to return the system or facility to   service.          (d)  The commission's rules governing decommissioning a   system or facility must provide that the owner or operator:                (1)  shall remove all material related to the installed   system or facility to a depth of at least 48 inches beneath the soil   surface;                (2)  shall restore the area disturbed by the   installation or removal of the system or facility to substantially   the same physical condition of the land immediately before the   system or facility was installed, including by grading and   reseeding, except as provided by rules adopted under Subdivision   (3); and                (3)  is not required to restore access roads or other   features not directly related to the system or facility that the   landowner requests in writing remain unrestored.          (e)  In addition to the bond or other financial assurance   required under Subsection (a), the commission may require a   performance bond to ensure that decommissioning activities are   properly conducted. The commission may accept under this   subsection a surety bond, a collateral bond, an escrow account,   another form of financial assurance the commission determines to be   adequate, or a combination of those types of assurance.          (f)  The commission by rule may adopt requirements for   performance bonds described by Subsection (e). The rules may   include methods for determining the amount of a bond, for updating   estimated decommissioning costs and bond amounts over time, and for   ensuring that money will be available for a decommissioning   project. In determining the amount of a performance bond, the   commission may consider:                (1)  the anticipated length of a decommissioning   project;                 (2)  the estimated decommissioning costs, including   restoration costs;                (3)  the anticipated manner in which the   decommissioning project will be conducted; and                (4)  other factors the commission determines are   relevant.           (g)  If the owner or operator of a system or facility does not   complete the decommissioning of the system or facility, the   commission may take any necessary action to complete the   decommissioning, including requiring forfeiture of a bond or other   financial assurance required under this section.          (h)  A wind energy lease agreement may contain provisions for   decommissioning or restoration that are more restrictive than the   provisions of this chapter or a rule adopted under this chapter.          Sec. 212.006.  ADMINISTRATIVE PENALTY. (a) A person who   violates a provision of this chapter or a rule or order issued by   the commission under this chapter may be assessed an administrative   penalty by the commission.           (b)  The penalty may not exceed $1,000 a day for each   violation. Each day a violation continues may be considered a   separate violation for purposes of penalty assessments.          (c)  In determining the amount of the penalty, the commission   shall consider the person's history of previous violations, the   seriousness of the violation, any hazard to the health or safety of   the public, and the demonstrated good faith of the person charged.           (d)  The commission may impose an administrative penalty   under this section in the manner provided by Sections   81.0532-81.0534.          Sec. 212.007.  ENFORCEMENT BY COMMISSION AND ATTORNEY   GENERAL. (a) If it appears that a person has been or is violating   this chapter or a rule of the commission adopted under this chapter,   the commission may institute a civil suit in a district court for   injunctive relief to restrain the person from continuing the   violation.          (b)  On application for injunctive relief and a finding that   a person has violated or is violating this chapter or a rule of the   commission under this chapter, the district court shall grant the   injunctive relief that the facts warrant.          (c)  At the request of the commission, the attorney general   shall institute and conduct a suit under this section in the name of   the state.          SECTION 2.  (a)  Sections 212.004(f) and (g) and 212.005,   Natural Resources Code, as added by this Act, apply only to a wind   energy lease agreement entered into on or after February 1, 2018. A   wind energy lease agreement entered into before February 1, 2018,   is governed by the law as it existed immediately before that date,   and that law is continued in effect for that purpose.          (b)  The Railroad Commission of Texas shall prioritize the   adoption of rules to implement Chapter 212, Natural Resources Code,   as added by this Act, so that the commission may begin requiring   bonds or other financial assurance under those rules not later than   January 31, 2018.          SECTION 3.  This Act takes effect September 1, 2017.