By: Canales, Darby, Clardy, Phelan, Burrows, H.B. No. 2845
      et al.
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
 
  relating to the removal of wind power facilities.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  The Utilities Code is amended by adding Title 6
  to read as follows:
  TITLE 6. WIND POWER
  CHAPTER 301. WIND POWER FACILITY AGREEMENTS
         Sec. 301.0001.  DEFINITIONS. In this chapter:
               (1)  "Grantee" means a person who:
                     (A)  leases property from a landowner; and
                     (B)  operates a wind power facility on the
  property.
               (2)  "Wind power facility" includes:
                     (A)  a wind turbine generator; and
                     (B)  a facility or equipment used to support the
  operation of a wind turbine generator, including an underground or
  aboveground electrical transmission or communications line, an
  electric transformer, a battery storage facility, an energy storage
  facility, telecommunications equipment, a road, a meteorological
  tower with wind measurement equipment, or a maintenance yard.
               (3)  "Wind power facility agreement" means a lease
  agreement between a grantee and a landowner that authorizes the
  grantee to operate a wind power facility on the leased property.
         Sec. 301.0002.  WAIVER VOID; REMEDIES. (a) A provision of a
  wind power facility agreement that purports to waive a right or
  exempt a grantee from a liability or duty established by this
  chapter is void.
         (b)  A person who is harmed by a violation of this chapter is
  entitled to appropriate injunctive relief to prevent further
  violation of this chapter.
         (c)  The provisions of this section are not exclusive. The
  remedies provided in this section are in addition to any other
  procedures or remedies provided by other law.
         Sec. 301.0003.  REQUIRED AGREEMENT PROVISIONS ON FACILITY
  REMOVAL. (a) A wind power facility agreement must provide that the
  grantee is responsible for removing the grantee's wind power
  facilities from the landowner's property and that the grantee
  shall, in accordance with any other applicable laws or regulations,
  safely:
               (1)  clear, clean, and remove from the property:
                     (A)  each wind turbine generator, including
  towers and pad-mount transformers;
                     (B)  all liquids, greases, or similar substances
  contained in a wind turbine generator;
                     (C)  each substation; and
                     (D)  all liquids, greases, or similar substances
  contained in a substation;
               (2)  for each tower foundation and pad-mount
  transformer foundation installed in the ground:
                     (A)  clear, clean, and remove the foundation from
  the ground to a depth of at least three feet below the surface grade
  of the land in which the foundation is installed; and
                     (B)  ensure that each hole or cavity created in
  the ground by the removal is filled with topsoil of the same type or
  a similar type as the predominant topsoil found on the property;
               (3)  for each buried cable, including power,
  fiber-optic, and communications cables, installed in the ground:
                     (A)  clear, clean, and remove the cable from the
  ground to a depth of at least three feet below the surface grade of
  the land in which the cable is installed; and
                     (B)  ensure that each hole or cavity created in
  the ground by the removal is filled with topsoil of the same type or
  a similar type as the predominant topsoil found on the property; and
               (4)  clear, clean, and remove from the property each
  overhead power or communications line installed by the grantee on
  the property.
         (b)  The agreement must provide that, at the request of the
  landowner, the grantee shall:
               (1)  clear, clean, and remove each road constructed by
  the grantee on the property; and
               (2)  ensure that each hole or cavity created in the
  ground by the removal is filled with topsoil of the same type or a
  similar type as the predominant topsoil found on the property.
         (c)  The agreement must provide that, at the request of the
  landowner, if reasonable, the grantee shall:
               (1)  remove from the property all rocks over 12 inches
  in diameter excavated during the decommissioning or removal
  process;
               (2)  return the property to a tillable state using
  scarification, V-rip, or disc methods, as appropriate; and
               (3)  ensure that:
                     (A)  each hole or cavity created in the ground by
  the removal is filled with topsoil of the same type or a similar
  type as the predominant topsoil found on the property; and
                     (B)  the surface is returned as near as reasonably
  possible to the same condition as before the grantee dug holes or
  cavities, including by reseeding pastureland with native grasses
  prescribed by an appropriate governmental agency, if any.
         (d)  The landowner shall make a request under Subsection (b)
  or (c) not later than the 180th day after the later of:
               (1)  the date on which the wind power facility is no
  longer capable of generating electricity in commercial quantities;
  or
               (2)  the date the landowner receives written notice of
  intent to decommission the wind power facility from the grantee.
         Sec. 301.0004.  REQUIRED AGREEMENT PROVISIONS ON FINANCIAL
  ASSURANCE. (a)  A wind power facility agreement must provide that
  the grantee shall obtain and deliver to the landowner evidence of
  financial assurance that conforms to the requirements of this
  section to secure the performance of the grantee's obligation to
  remove the grantee's wind power facilities located on the
  landowner's property as described by Section 301.0003. Acceptable
  forms of financial assurance include a parent company guaranty with
  a minimum investment grade credit rating for the parent company
  issued by a major domestic credit rating agency, a letter of credit,
  a bond, or another form of financial assurance acceptable to the
  landowner.
         (b)  The amount of the financial assurance must be at least
  equal to the estimated amount by which the cost of removing the wind
  power facilities from the landowner's property and restoring the
  property to as near as reasonably possible the condition of the
  property as of the date the agreement begins exceeds the salvage
  value of the wind power facilities, less any portion of the value of
  the wind power facilities pledged to secure outstanding debt.
         (c)  The agreement must provide that:
               (1)  the estimated cost of removing the wind power
  facilities from the landowner's property and restoring the property
  to as near as reasonably possible the condition of the property as
  of the date the agreement begins and the estimated salvage value of
  the wind power facilities must be determined by an independent,
  third-party professional engineer licensed in this state;
               (2)  the grantee must deliver to the landowner an
  updated estimate, prepared by an independent, third-party
  professional engineer licensed in this state, of the cost of
  removal and the salvage value at least once every five years for the
  remainder of the term of the agreement; and
               (3)  the grantee is responsible for ensuring that the
  amount of the financial assurance remains sufficient to cover the
  amount required by Subsection (b), consistent with the estimates
  required by this subsection.
         (d)  The grantee is responsible for the costs of obtaining
  financial assurance described by this section and costs of
  determining the estimated removal costs and salvage value.
         (e)  The agreement must provide that the grantee shall
  deliver the financial assurance not later than the earlier of:
               (1)  the date the wind power facility agreement is
  terminated; or
               (2)  the 10th anniversary of the commercial operations
  date of the wind power facilities located on the landowner's leased
  property. 
         (f)  For purposes of this section, "commercial operations
  date" means the date on which the wind power facilities are approved
  for participation in market operations by a regional transmission
  organization and does not include the generation of electrical
  energy or other operations conducted before that date for purposes
  of maintenance and testing.
         (g)  The grantee may not cancel financial assurance before
  the date the grantee has completed the grantee's obligation to
  remove the grantee's wind power facilities located on the
  landowner's property in the manner provided by this chapter, unless
  the grantee provides the landowner with replacement financial
  assurance at the time of or before the cancellation. In the event
  of a transfer of ownership of the grantee's wind power facilities,
  the financial security provided by the grantee shall remain in
  place until the date evidence of financial security meeting the
  requirements of this chapter is provided to the landowner.
         SECTION 2.  Chapter 301, Utilities Code, as added by this
  Act, applies only to a wind power facility agreement entered into on
  or after the effective date of this Act. A wind power facility
  agreement entered into before the effective date of this Act is
  governed by the law as it existed immediately before that date, and
  that law is continued in effect for that purpose.
         SECTION 3.  This Act takes effect September 1, 2019.