A BILL TO BE ENTITLED
AN ACT to direct appalachian state university to jointly develop and implement a wind demonstration project with the holder of a permit for a wind energy facility that has been issued by the department of environment and natural resources.
Whereas, S.L. 2007‑398 established a Renewable Energy and Energy Efficiency Portfolio Standard (REPS) to diversify the resources used to reliably meet the energy needs of consumers in the State; and
Whereas, wind energy generation is a critical component for the State to meet the requirements established by the REPS; and
Whereas, North Carolina has abundant wind resources in the mountain region; and
Whereas, it is the policy of the State to promote the development of wind energy in a manner compatible with environmental protection, sustainable development, and the efficient use of resources; and
Whereas, the ridges and higher elevations of North Carolina's mountains are invaluable resources of the State that merit the protection that they currently receive under the Mountain Ridge Protection Act of 1983; and 
Whereas, a demonstration project to develop a wind energy facility in a mountain region within the purview of the Mountain Ridge Protection Act under certain narrowly prescribed criteria would assist in determining whether wind energy can be developed in certain extremely limited portions of the mountain regions that are unsuitable for residential or recreational development and in a manner that is compatible with preserving scenic views and the quality of life that mountain residents and visitors treasure, as well as compatible with environmental protection, sustainable development, and energy independence; and 
Whereas, Appalachian State University is conducting research on wind energy as part of the University's focus on using alternative energy resources and its goal of being a world leader in sustainability; Now, therefore,
The General Assembly of North Carolina enacts:
SECTION 1.  Definitions. – The following definitions apply to this act and its implementation:
(1)	The definitions set out in G.S. 143‑212.
(2)	"Wind energy facility" means the turbines, accessory buildings, transmission facilities, and any other equipment necessary for the operation of the facility that cumulatively, with any other wind energy facility whose turbines are located within one-half mile of one another, have a rated capacity of three megawatts or more of energy.
SECTION 2.  Wind Energy Facility Demonstration Project; General Conditions. – Appalachian State University shall assist a third party in selecting a site for the construction and operation of a wind energy facility demonstration project that does not exceed a rated capacity of 60 megawatts and that satisfies all the criteria in Section 3 of this act.  The third party shall apply for and obtain all permits and authorizations necessary to construct, operate, and decommission the wind energy facility demonstration project as required by this act.  Any agreement entered into between Appalachian State University and a third party pursuant to this section shall ensure that the University is provided with (i) cooperation and appropriate access to the wind energy facility demonstration project in order to develop and conduct research on the technological, environmental, and economic aspects of the demonstration project and (ii) financial support to cover the full cost of the research contemplated in this section.
SECTION 3.  Wind Energy Facility Demonstration Project; Site Selection. – Notwithstanding Article 14 of Chapter 113A of the General Statutes, the site for a wind energy facility demonstration project shall satisfy all of the following criteria:
(a)	The proposed site is located in a mountain ridge that is subject to protection under Article 14 of Chapter 113A of the General Statutes.
(b)	The proposed site is located at least two miles from the Blue Ridge Parkway.
(c)	The proposed site is located at least two miles from the Appalachian Trail.
(d)	The proposed site is located within a county that has enacted an ordinance authorizing the siting of the wind energy facility under this demonstration project.
(e)	The proposed site is unsuitable for future residential or recreational development due to its proximity within one mile of an existing mining operation, waste facility, power plant, or other similar commercial facility that has a permit or license issued by the Department of Environment and Natural Resources.
(f)	The proposed site is located within 50 miles of Appalachian State University.
SECTION 4.  Wind Energy Facility Demonstration Project; Permitting. – The third party shall not undertake development associated with a wind energy facility demonstration project without first obtaining a permit from the Department of Environment and Natural Resources.  The third party applying for a permit for a wind energy facility demonstration project shall include all of the following in an application for the permit:
(a)	A narrative description of the proposed facility.
(b)	A map showing the location of the proposed facility.
(c)	The capacity of proposed energy generation.
(d)	A copy of a deed, purchase agreement, lease agreement, or other legal instrument demonstrating the right to develop the property.
(e)	Certification of adjacent property owner notification to the maximum extent practicable.
(f)	A study of the noise impacts of the proposed facility.
(g)	A study on shadow flicker impacts of the proposed facility.
(h)	A study on avian and bat impacts of the proposed facility.
(i)	A study on viewshed impacts of the proposed facility.
(j)	An explanation of how the proposed facility would be consistent with the requirements in Section 3 of this act.
(k)	The application fee required by Section 7 of this act.
(l)	Other data or information the Department may reasonably require.
SECTION 5.  Criteria for Denial of a Permit Application for a Wind Energy Facility Demonstration Project. – The Department shall deny an application for a permit for a wind energy facility demonstration project if the Department finds any one or more of the following:
(a)	Construction or operation of the facility would be inconsistent with or violate rules adopted by the Commission.
(b)	Construction or operation of the facility would be inconsistent with or violate any applicable local government ordinances.
(c)	Construction or operation of the facility would result in significant adverse impacts to ecological systems, natural resources, cultural sites, recreation areas, or historic sites of more than local significance, including national or State parks or forests; wilderness areas; historic sites; recreation areas; segments of the natural and scenic rivers system; wildlife refuges; preserves and management areas; areas that provide habitat for threatened or endangered species; and primary nursery areas designated by the Wildlife Resources Commission.
(d)	Construction or operation of the facility would have a significant adverse impact on fish or wildlife.
(e)	Construction or operation of the facility would have a significant adverse impact on views from any State or national park, wilderness area, significant natural heritage area as compiled by the North Carolina Natural Heritage Program, or other public lands or private conservation lands designated or dedicated due to their high recreational values.
(f)	Construction or operation of the facility would interfere with air navigation routes, air traffic control areas, military training routes, or special use airspace.
(g)	The cumulative impact of the proposed facility with other existing or proposed wind energy facilities would result in significant adverse impacts to ecological systems, natural resources, cultural sites, recreation areas, or historic sites of more than local significance.
(h)	The proposed facility would be located in an area designated with a slide hazard ranking of "moderate" or "high" on a Stability Index Map prepared by the North Carolina Geological Survey.
SECTION 6.  Wind Energy Facility Demonstration Project; Additional Permit Conditions. – The Department may include the following conditions on a third party that seeks a permit for a wind energy facility demonstration project:
(a)	A requirement that the third party mitigate any adverse impacts.
(b)	A requirement that the third party engage Appalachian State University to conduct research on the technological, environmental, and economic aspects of the wind energy facility associated with the demonstration project as proposed and constructed at no cost to the University. 
SECTION 7.  Permit Fees. – The third party applicant for a permit for a wind energy facility demonstration project under this act shall submit with the application required under Section 4 of this act an application fee of two thousand dollars ($2,000).
SECTION 8.  Plan for Decommissioning or Removal of Wind Energy Facility Demonstration Project. – The Department shall require the third party applicant for a permit for a wind energy facility demonstration project to provide a plan regarding the action to be taken upon the decommissioning and removal of the demonstration project. The plan shall include an estimate of the cost to decommission and remove the demonstration project. The plan shall also include a proposed description of the condition of the site once the demonstration project has been decommissioned and removed. The Department may require a bond, guarantee, insurance, or other financial instrument to provide for decommissioning and removal of any structures that comprise the demonstration project. The Department shall consider the size of the demonstration project, the location of the project, and the financial qualifications of the applicant in making its determination to grant or deny the permit.
SECTION 9.  Public Hearing. – The Department shall hold a public hearing in the county or counties in which the proposed wind energy facility demonstration project is to be located within 75 days of receipt of a completed application for a demonstration project. The Department shall give a minimum of 30 days' notice of the public hearing. The Department shall make a final decision on a permit application within 150 days following receipt of a completed application. If the Department determines that an application for a demonstration project fails to meet the requirements for a permit under this section, the Department shall deny the application, and the application shall be returned to the applicant accompanied by a written statement of the reasons for the denial. If the Department fails to act within any time period set forth in this section, the applicant may treat the failure to act as a denial of the permit and may challenge the denial as provided under Chapter 150B of the General Statutes.
SECTION 10.  Other Applicable Laws. – The issuance of a permit under this section shall not obviate the need for the third party applicant to obtain any and all other applicable local, State, or federal permits, licenses, or approvals.
SECTION 11.  Rule making. – The Department may adopt rules implementing this section.
SECTION 12.  Penalties. – The Secretary of Environment and Natural Resources may impose an administrative penalty on a person who constructs a wind energy facility without obtaining a permit under this section or who constructs or operates a wind energy facility demonstration project in violation of its permit terms and conditions. Each day of a continuing violation shall constitute a separate violation. The penalty shall not exceed ten thousand dollars ($10,000) per day. The Secretary of Environment and Natural Resources, irrespective of all other remedies at law, may institute an action for injunctive relief against a person who constructs a wind energy facility demonstration project without obtaining a permit under this section or who constructs or operates a wind energy facility demonstration project in violation of its permit terms and conditions.
SECTION 13.  Local Authority. – Nothing in this act shall be interpreted to limit the ability of a county to plan for and regulate the siting of a wind energy facility demonstration project in accordance with land-use regulations authorized under Chapter 153A of the General Statutes. In developing a plan for regulation of the siting of a wind energy facility demonstration project, a county shall consider the information, factors, and criteria set out in Sections 4 and 5 of this act.
SECTION 14.  Wind Energy Facility Demonstration Project; Commencement of Construction and Commercial Operation. – Upon receipt of permit approval from the Department and any additional authorizations necessary to construct and operate the wind energy facility demonstration project, the third party shall commence construction of the demonstration project.  Commercial operation of the demonstration project permitted and authorized pursuant to this act shall commence no later than November 1, 2018. 
SECTION 15.  Reports. – In order to determine the effectiveness of the wind energy facility demonstration project permitted and authorized pursuant to this act, Appalachian State University shall report no later than one year after the issuance of the permit, and annually thereafter, to the Department and the Environmental Review Commission of the General Assembly.  The first report shall include the location of the site selected for the wind energy facility demonstration project and data on wind speeds and the potential for power generation collected from the demonstration project.  Subsequent reports shall also include the power generated at the facility, the extent to which the demonstration project assists in the research on wind energy at the University, and any findings on the technological, environmental, and economic aspects of the demonstration project.
SECTION 16.  This act is effective when it becomes law.