HB3563 104TH GENERAL ASSEMBLY

LRB104 09862 RTM 19930 b

104TH GENERAL ASSEMBLY
State of Illinois
2025 and 2026
HB3563

Introduced 2/18/2025, by Rep. La Shawn K. Ford

SYNOPSIS AS INTRODUCED:

55 ILCS 5/5-12020
505 ILCS 147/10
505 ILCS 147/15

Amends the Counties Code. Provides that a commercial wind energy facility or commercial solar energy facility proposed to be located on property in an unincorporated area of the county within the zoning jurisdiction of a municipality and located adjacent to the corporate boundary of a municipality shall either be annexed to the municipality or be subject to the municipality's zoning regulations. Provides factors for determining if a request for siting approval or a special use permit for a commercial wind energy facility or a commercial solar energy facility, or modification of an approved siting or special use permit, is in compliance with the standards and conditions imposed in the Code, the zoning ordinance adopted consistent with the Code, and the conditions imposed under State and federal statutes and regulations. Provides that a county may not approve a request for siting approval or a special use permit for a commercial wind energy facility or a commercial solar energy facility or modification of an approved siting or special use permit, if the proposal shall disturb more than one acre of land, unless the facility owner has obtained a National Pollution Discharge Elimination System ("NPDES") permit from the Illinois Environmental Protection Agency. Requires a facility owner to provide the county in which a commercial solar energy facility or commercial wind energy facility to be located, a deconstruction plan that has been prepared by a professional engineer who has been selected by the facility owner. Provides that, based on an initial evaluation or reevaluation during the county approval process, the county may require changes in the level of financial assurance used to calculate the financial assurance level from the facility owner. Amends the Renewable Energy Facilities Agricultural Impact Mitigation Act. Provides that the standard agricultural impact mitigation agreements shall be amended as needed to conform with the financial assurance procedures and requirements under specified provisions of the Counties Code. Makes other changes.

A BILL FOR

AN ACT concerning local government.

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. Commercial wind energy facilities and commercial solar energy facilities.

(a) As used in this Section:

"Commercial operation date" means the calendar date the facility owner notifies the landowner, county, and Illinois Department of Agriculture in writing that commercial operation of a commercial solar energy facility or commercial wind energy facility has commenced.

"Commercial solar energy facility" means a "commercial solar energy system" as defined in Section 10-720 of the Property Tax Code. "Commercial solar energy facility" does not mean a utility-scale solar energy facility being constructed at a site that was eligible to participate in a procurement event conducted by the Illinois Power Agency pursuant to subsection (c-5) of Section 1-75 of the Illinois Power Agency 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 January 27, 2023 (the effective date of Public Act 102-1123).

"Facility owner" means (i) a person with a direct ownership interest in a commercial wind energy facility or a commercial solar energy facility, or both, regardless of whether the person is involved in acquiring the necessary rights, permits, and approvals or otherwise planning for the construction and operation of the facility, and (ii) at the time the facility is being developed, a person who is acting as a developer of the facility by acquiring the necessary rights, permits, and approvals or by planning for the construction and operation of the facility, regardless of whether the person will own or operate the facility.

"Nonparticipating property" means real property that is not a participating property.

"Nonparticipating residence" means a residence that is located on nonparticipating property and that is existing and occupied on the date that an application for a permit to develop the commercial wind energy facility or the commercial solar energy facility is filed with the county.

"Occupied community building" means any one or more of the following buildings that is existing and occupied on the date that the application for a permit to develop the commercial wind energy facility or the commercial solar energy facility is filed with the county: a school, place of worship, day care facility, public library, or community center.

"Participating property" means real property that is the subject of a written agreement between a facility owner and the owner of the real property that provides the facility owner an easement, option, lease, or license to use the real property for the purpose of constructing a commercial wind energy facility, a commercial solar energy facility, or supporting facilities. "Participating property" also includes real property that is owned by a facility owner for the purpose of constructing a commercial wind energy facility, a commercial solar energy facility, or supporting facilities.

"Participating residence" means a residence that is located on participating property and that is existing and occupied on the date that an application for a permit to develop the commercial wind energy facility or the commercial solar energy facility is filed with the county.

"Protected lands" means real property that is:

(1) subject to a permanent conservation right consistent with the Real Property Conservation Rights Act; or

(2) registered or designated as a nature preserve, buffer, or land and water reserve under the Illinois Natural Areas Preservation Act.

"Supporting facilities" means the transmission lines, substations, access roads, meteorological towers, storage containers, and equipment associated with the generation and storage of electricity by the commercial wind energy facility or commercial solar energy facility.

"Wind tower" includes the wind turbine tower, nacelle, and blades.

(b) 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 commercial wind energy facilities, commercial solar energy facilities, or both. The standards may include all of the requirements specified in this Section but may not include requirements for commercial wind energy facilities or commercial solar energy facilities that are more restrictive than specified in this Section. A county may also regulate the siting of commercial wind energy facilities with standards that are not more restrictive than the requirements specified in this Section in unincorporated areas of the county that are outside the zoning jurisdiction of a municipality and that are outside the 1.5-mile radius surrounding the zoning jurisdiction of a municipality.

(c) If a county has elected to establish standards under subsection (b), before the county grants siting approval or a special use permit for a commercial wind energy facility or a commercial solar energy facility, or modification of an approved siting or special use permit, the county board of the county in which the facility is to be sited or the zoning board of appeals for the county shall hold at least one public hearing. The public hearing shall be conducted in accordance with the Open Meetings Act and shall be held not more than 60 days after the filing of the application for the facility. The county shall allow interested parties to a special use permit an opportunity to present evidence and to cross-examine witnesses at the hearing, but the county may impose reasonable restrictions on the public hearing, including reasonable time limitations on the presentation of evidence and the cross-examination of witnesses. The county shall also allow public comment at the public hearing in accordance with the Open Meetings Act. The county shall make its siting and permitting decisions not more than 60 30 days after the conclusion of the public hearing. Notice of the hearing shall be published in a newspaper of general circulation in the county. A facility owner 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 or test solar energy systems to be sited without formal approval by the county board.

(c-5) A commercial wind energy facility or commercial solar energy facility proposed to be located on property in an unincorporated area of the county within the zoning jurisdiction of a municipality and located adjacent to the corporate boundary of a municipality shall either be annexed to the municipality subject to the requirements under Section 7-1-1 of the Illinois Municipal Code or be subject to the municipality's zoning regulations.

(d) A county with an existing zoning ordinance in conflict with this Section shall amend that zoning ordinance to be in compliance with this Section within 120 days after January 27, 2023 (the effective date of Public Act 102-1123).

(e) A county may require:

(1) a wind tower of a commercial wind energy facility to be sited as follows, with setback distances measured from the center of the base of the wind tower:

Setback Description Setback Distance

Occupied Community 2.1 times the maximum blade tip Buildings height of the wind tower to the nearest point on the outside wall of the structure

Participating Residences 1.1 times the maximum blade tip height of the wind tower to the nearest point on the outside wall of the structure

Nonparticipating Residences 2.1 times the maximum blade tip height of the wind tower to the nearest point on the outside wall of the structure

Boundary Lines of None Participating Property

Boundary Lines of 1.1 times the maximum blade tip Nonparticipating Property height of the wind tower to the nearest point on the property line of the nonparticipating property

Public Road Rights-of-Way 1.1 times the maximum blade tip height of the wind tower to the center point of the public road right-of-way

Overhead Communication and 1.1 times the maximum blade tip Electric Transmission height of the wind tower to the and Distribution Facilities nearest edge of the property (Not Including Overhead line, easement, or Utility Service Lines to right-of-way Individual Houses or containing the overhead line Outbuildings)

Overhead Utility Service None Lines to Individual Houses or Outbuildings

Fish and Wildlife Areas 2.1 times the maximum blade and Illinois Nature tip height of the wind tower Preserve Commission to the nearest point on the Protected Lands property line of the fish and wildlife area or protected land

This Section does not exempt or excuse compliance with electric facility clearances approved or required by the National Electrical Code, the The National Electrical Safety Code, the Illinois Commerce Commission, and the Federal Energy Regulatory Commission, and their designees or successors; .

(2) a wind tower of a commercial wind energy facility to be sited so that industry standard computer modeling indicates that any occupied community building or nonparticipating residence will not experience more than 30 hours per year of shadow flicker under planned operating conditions;

(3) a commercial solar energy facility to be sited as follows, with setback distances measured from the nearest edge of any component of the facility:

Setback Description Setback Distance

Occupied Community 150 feet from the nearest Buildings and Dwellings on point on the outside wall Nonparticipating Properties of the structure

Boundary Lines of None Participating Property

Public Road Rights-of-Way 50 feet from the nearest edge

Boundary Lines of 50 feet to the nearest Nonparticipating Property point on the property line of the nonparticipating property

(4) a commercial solar energy facility to be sited so that the facility's perimeter is enclosed by fencing having a height of at least 6 feet and no more than 25 feet; and

(5) a commercial solar energy facility to be sited so that no component of a solar panel has a height of more than 20 feet above ground when the solar energy facility's arrays are at full tilt.

The requirements set forth in this subsection (e) may be waived subject to the written consent of the owner of each affected nonparticipating property.

(e-5) Commercial solar energy facilities or commercial wind energy facilities shall be placed in zoning districts primarily intended for agricultural or manufacturing uses.

(f) A county may not set a sound limitation for wind towers in commercial wind energy facilities or any components in commercial solar energy facilities that is more restrictive than the sound limitations established by the Illinois Pollution Control Board under 35 Ill. Adm. Code Parts 900, 901, and 910.

(f-5) A county may designate commercial wind energy facilities and commercial solar energy facilities as permitted uses for certain zoning districts.

(g) A county may not place any restriction on the installation or use of a commercial wind energy facility or a commercial solar energy facility unless it adopts an ordinance that complies with this Section. A county may not establish siting standards for supporting facilities that preclude development of commercial wind energy facilities or commercial solar energy facilities, unless the development is determined by the county, based evidence presented at a public hearing, to be detrimental to the public health, safety, or welfare of county residents or the development site or adjacent property consistent with the legal standard set forth in the Illinois Supreme Court case, La Salle National Bank of Chicago v. Cook County, 12 Ill. 2d 40(1957).

A request for siting approval or a special use permit for a commercial wind energy facility or a commercial solar energy facility, or modification of an approved siting or special use permit, shall be approved if the request is in compliance with the standards and conditions imposed in this Act, the zoning ordinance adopted consistent with this Code, and the conditions imposed under State and federal statutes and regulations, and if the approval would not be invalid considering the following factors: .

(1) The uniformity with the existing uses and zoning of nearby property.

(2) The extent to which property values are diminished by the particular zoning restrictions.

(3) The extent to which the destruction of property values promotes the health, safety, morals, or general welfare of the public.

(4) The relative gain to the public as compared to the hardship imposed on the individual property owner.

(5) The suitability of the property for the zoned purpose.

(6) The length of time the property has been vacant as zoned considered in the context of land development in the area.

(7) The care with which a community has planned its land use development.

(8) The community need for the proposed use.

(g-5) A county may not approve a request for siting approval or a special use permit for a commercial wind energy facility or a commercial solar energy facility or modification of an approved siting or special use permit, if the proposal shall disturb more than one acre of land, unless the facility owner has obtained a National Pollution Discharge Elimination System ("NPDES") permit from the Illinois Environmental Protection Agency.

(h) A county may not adopt zoning regulations that disallow, permanently or temporarily, commercial wind energy facilities or commercial solar energy facilities from being developed or operated in any district zoned to allow agricultural or industrial uses.

(h-5) A county may deny a request for a special use permit for a commercial solar energy facility or commercial wind energy facility in areas planned for residential development by either a county comprehensive plan or a municipal comprehensive plan.

(i) A county may not require permit application fees for a commercial wind energy facility or commercial solar energy facility that are unreasonable. All application fees imposed by the county shall be consistent with fees for projects in the county with similar capital value and cost.

(j) A county may set forth standards for construction, repair, decommissioning, or deconstruction of a commercial wind energy facility or commercial solar energy facility within its boundaries. Any Except as otherwise provided in this Section, a county shall not require standards for construction, repair, decommissioning, or deconstruction of a commercial wind energy facility or commercial solar energy facility imposed by a county must satisfy the minimum standards set forth or related financial assurances that are more restrictive than those included in the Department of Agriculture's standard wind farm agricultural impact mitigation agreement, template 81818, or standard solar agricultural impact mitigation agreement, version 8.19.19, as applicable and in effect on December 31, 2022, or the most recent version of the mitigation agreements if any subsequent version has been adopted after December 31, 2022. The amount of any decommissioning payment shall be in accordance with the financial assurance required by this Section those agricultural impact mitigation agreements.

(j-5) Each A commercial wind energy facility or a commercial solar energy facility shall require file a farmland drainage plan approved by with the county and impacted drainage districts that outlines outlining how surface and subsurface drainage of farmland will be restored during and following construction or deconstruction of the facility. The plan is to be created by an independent consultant, selected by the county, and paid for independently by the facility developer and shall include the location of any potentially impacted drainage district facilities to the extent this information is publicly available from the county or the drainage district, plans to repair any subsurface drainage affected during construction or deconstruction using procedures outlined in the agricultural impact mitigation agreement entered into by the commercial wind energy facility owner or commercial solar energy facility owner, and procedures for the repair and restoration of surface drainage affected during construction or deconstruction. All surface and subsurface damage shall be repaired as soon as reasonably practicable. The county and impacted drainage districts shall complete review of the farmland drainage plan within 60 days after submission of the plan to the county. Upon completion of review, the county and impacted drainage districts shall issue a written determination to the facility developer either approving the plan or specifically identifying the reason for denial of the plan.

(j-10) In accordance with the Renewable Energy Facilities Agricultural Impact Mitigation Act, a facility owner shall provide the county in which a commercial solar energy facility or commercial wind energy facility to be located, a deconstruction plan that has been prepared by a professional engineer, as defined in Section 10 of the Renewable Energy Facilities Agricultural Impact Mitigation Act, who has been selected by the facility owner. The deconstruction plan shall contain information that satisfies each of the components of deconstruction as set forth in the definition of "deconstruction" and "deconstruction plan" and in the construction and deconstruction standards and policies of the Department of Agriculture's standard wind farm agricultural impact mitigation agreement, template 81818, or standard solar agricultural impact mitigation agreement, version 8.19.19, as applicable and in effect on December 31, 2022, or the most recent version of the mitigation agreements if any subsequent version has been adopted after December 31, 2022. The county shall have its own professional engineer review the deconstruction plan and either approve or reject the deconstruction plan within 60 days after a complete submittal. If the deconstruction plan is rejected, the county shall provide a written statement of the specific reasons for rejection. The facility owner may file a revised deconstruction plan that addresses the specific reasons that led to the rejection of the deconstruction plan. The county shall review and act on any revised deconstruction plan within 30 days after it is resubmitted. The facility owner shall reevaluate the estimated costs of deconstruction of any facility after the fifth anniversary, and every 5 years thereafter, of the commercial operation date. The facility owner shall file with the county on or before the end of the fifth year of commercial operation, and then every fifth year thereafter, for approval by the county, an updated deconstruction plan prepared by a professional engineer who has been selected by the county. Based on an initial evaluation or reevaluation during the county approval process, the county may require changes in the level of financial assurance used to calculate the financial assurance level described in this Section required from the facility owner. If the county is unable to perform, to its satisfaction, the investigations of the content of the deconstruction plan necessary to approve the deconstruction plan filed by the facility owner, then the county and facility may mutually agree on the selection of a professional engineer independent of the facility owner to conduct any necessary investigations of the content of the deconstruction plan necessary to approve the deconstruction plan. The facility owner shall be responsible for the cost of the preparation of the deconstruction plan by its professional engineer or any independent professional engineer and the cost of any plan reviews by the professional engineer selected by the county. A commercial solar energy facility owner or commercial wind energy facility owner shall provide the county with an appropriate financial assurance mechanism consistent with the financial requirements of this subsection, which shall be set forth in the Department of Agriculture's standard wind farm agricultural impact mitigation agreement, template 81818, or standard solar agricultural impact mitigation agreement, version 8.19.19, as applicable and in effect on December 31, 2022, or the most recent version of the mitigation agreements if any subsequent version has been adopted after December 31, 2022. The financial assurance shall be sufficient to cover the estimated costs of public safety or emergency repairs to the facility if damage to the facility caused by natural disaster or by operational malfunction, and the estimated costs of repairs the deconstruction of the facility in the event of abandonment of a commercial wind energy facility or abandonment of a commercial solar energy facility, as defined in Section 10 of the Renewable Energy Facilities Agricultural Impact Mitigation Act. The facility owner shall provide the county with the initial financial assurance to cover 100% of the estimated deconstruction costs prior to the commercial operation date. A county may use the financial assurance provided by the facility owner to cover public safety or emergency repairs that are not timely addressed by the facility owner, as determined by the county's designated representative. In the event that a county must use a portion of the financial assurance to address any public safety or emergency repairs or to deconstruct a portion of the facility, the facility owner shall replenish the financial assurance for the amount used within 60 days after the expenditure of the financial assurance consistent with the Department's standard agricultural impact mitigation agreement. The purpose of the financial assurance shall be for and to assure deconstruction in the event of an abandonment of a commercial solar energy facility or commercial wind energy facility or to cover the estimated costs of public safety or emergency repairs to the facility in the event of damage to the facility caused by natural disaster or operational malfunction.

(k) A county may not condition approval of a commercial wind energy facility or commercial solar energy facility on a property value guarantee and may not require a facility owner to pay into a neighboring property devaluation escrow account.

(l) A county may require certain vegetative screening surrounding a commercial wind energy facility or commercial solar energy facility but may not require earthen berms or similar structures, except that a county may require earth berms for ground-based commercial solar energy projects and may adopt regulations governing the construction and maintenance of such earth berms.

(m) A county may set blade tip height limitations for wind towers in commercial wind energy facilities but may not set a blade tip height limitation that is more restrictive than the height allowed under a Determination of No Hazard to Air Navigation by the Federal Aviation Administration under 14 CFR Part 77.

(n) A county may require that a commercial wind energy facility owner or commercial solar energy facility owner provide:

(1) the results and recommendations from consultation with the Illinois Department of Natural Resources that are obtained through the Ecological Compliance Assessment Tool (EcoCAT) or a comparable successor tool; and

(2) the results of the United States Fish and Wildlife Service's Information for Planning and Consulting environmental review or a comparable successor tool that is consistent with (i) the "U.S. Fish and Wildlife Service's Land-Based Wind Energy Guidelines" and (ii) any applicable United States Fish and Wildlife Service solar wildlife guidelines that have been subject to public review.

(o) A county may require a commercial wind energy facility or commercial solar energy facility to adhere to the recommendations provided by the Illinois Department of Natural Resources in an EcoCAT natural resource review report under 17 Ill. Adm. Code Part 1075.

(p) A county may require a facility owner to:

(1) demonstrate avoidance of protected lands as identified by the Illinois Department of Natural Resources and the Illinois Nature Preserve Commission; or

(2) consider the recommendations of the Illinois Department of Natural Resources for setbacks from protected lands, including areas identified by the Illinois Nature Preserve Commission.

(q) A county may require that a facility owner provide evidence of consultation with the Illinois State Historic Preservation Office to assess potential impacts on State-registered historic sites under the Illinois State Agency Historic Resources Preservation Act.

(r) To maximize community benefits, including, but not limited to, reduced stormwater runoff, flooding, and erosion at the ground mounted solar energy system, improved soil health, and increased foraging habitat for game birds, songbirds, and pollinators, a county may (1) require a commercial solar energy facility owner to plant, establish, and maintain for the life of the facility vegetative ground cover, consistent with the goals of the Pollinator-Friendly Solar Site Act and (2) require the submittal of a vegetation management plan that is in compliance with the agricultural impact mitigation agreement in the application to construct and operate a commercial solar energy facility in the county if the vegetative ground cover and vegetation management plan comply with the requirements of the underlying agreement with the landowner or landowners where the facility will be constructed.

No later than 90 days after January 27, 2023 (the effective date of Public Act 102-1123), the Illinois Department of Natural Resources shall develop guidelines for vegetation management plans that may be required under this subsection for commercial solar energy facilities. The guidelines must include guidance for short-term and long-term property management practices that provide and maintain native and non-invasive naturalized perennial vegetation to protect the health and well-being of pollinators.

(s) If a facility owner enters into a road use agreement with the Illinois Department of Transportation, a road district, or other unit of local government relating to a commercial wind energy facility or a commercial solar energy facility, the road use agreement shall require the facility owner to be responsible for (i) the reasonable cost of improving roads used by the facility owner to construct the commercial wind energy facility or the commercial solar energy facility and (ii) the reasonable cost of repairing roads used by the facility owner during construction of the commercial wind energy facility or the commercial solar energy facility so that those roads are in a condition that is safe for the driving public after the completion of the facility's construction. Roadways improved in preparation for and during the construction of the commercial wind energy facility or commercial solar energy facility shall be repaired and restored to the improved condition at the reasonable cost of the developer if the roadways have degraded or were damaged as a result of construction-related activities.

The road use agreement shall not require the facility owner to pay costs, fees, or charges for road work that is not specifically and uniquely attributable to the construction of the commercial wind energy facility or the commercial solar energy facility. Road-related fees, permit fees, or other charges imposed by the Illinois Department of Transportation, a road district, or other unit of local government under a road use agreement with the facility owner shall be reasonably related to the cost of administration of the road use agreement.

(s-5) The facility owner shall also compensate landowners for crop losses or other agricultural damages resulting from damage to the drainage system caused by the construction of the commercial wind energy facility or the commercial solar energy facility. The commercial wind energy facility owner or commercial solar energy facility owner shall repair or pay for the repair of all damage to the subsurface drainage system caused by the construction of the commercial wind energy facility or the commercial solar energy facility in accordance with the agriculture impact mitigation agreement requirements for repair of drainage. The commercial wind energy facility owner or commercial solar energy facility owner shall repair or pay for the repair and restoration of surface drainage caused by the construction or deconstruction of the commercial wind energy facility or the commercial solar energy facility as soon as reasonably practicable.

(t) Notwithstanding any other provision of law, a facility owner with siting approval from a county to construct a commercial wind energy facility or a commercial solar energy facility is authorized to cross or impact a drainage system, including, but not limited to, drainage tiles, open drainage ditches, culverts, and water gathering vaults, owned or under the control of a drainage district under the Illinois Drainage Code, if the facility owner has obtained prior approval of a farmland drainage plan approved by a county, the impacted drainage districts, or both the county and the impacted drainage district without obtaining prior agreement or approval from the drainage district in accordance with the farmland drainage plan required by subsection (j-5).

(u) The amendments to this Section adopted in Public Act 102-1123 do not apply to: (1) an application for siting approval or for a special use permit for a commercial wind energy facility or commercial solar energy facility if the application was submitted to a unit of local government before January 27, 2023 (the effective date of Public Act 102-1123); (2) a commercial wind energy facility or a commercial solar energy facility if the facility owner has submitted an agricultural impact mitigation agreement to the Department of Agriculture before January 27, 2023 (the effective date of Public Act 102-1123); or (3) a commercial wind energy or commercial solar energy development on property that is located within an enterprise zone certified under the Illinois Enterprise Zone Act, that was classified as industrial by the appropriate zoning authority on or before January 27, 2023, and that is located within 4 miles of the intersection of Interstate 88 and Interstate 39.

(Source: P.A. 102-1123, eff. 1-27-23; 103-81, eff. 6-9-23; 103-580, eff. 12-8-23; revised 7-29-24.)

Section 15. The Renewable Energy Facilities Agricultural Impact Mitigation Act is amended by changing Sections 10 and 15 as follows:

(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 commercial wind energy facility owner or the commercial solar energy facility owner and the Department of Agriculture described in Section 15 of this Act.

"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 commercial renewable energy facility.

"County" means the county where the commercial renewable energy facility is located.

"Deconstruction" means the removal of a 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.

"Financial assurance" means a reclamation or surety bond, including both performance bond obligations and payment bond obligations or an irrevocable letter of credit or other commercially available financial assurance that is acceptable to the county, with the county or landowner as beneficiary.

"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.

"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 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 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 commercial renewable energy facility construction and deconstruction. The construction and deconstruction of any commercial solar energy facility shall be in conformance with the Department's standard agricultural impact mitigation agreement referenced in subsection (f) of this Section and any additional standards set forth by the county in which the facility is to be located in accordance with subsection (j) of Section 5-12020 of the Counties Code. 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 renewable energy facility owner of a commercial wind energy facility or a commercial solar energy facility owner shall submit to the county in which the commercial solar facility is to be located a deconstruction plan that has been prepared by a professional engineer, as defined in Section 10 of the Renewable Energy Facilities Agricultural Impact Mitigation Act, who has been selected by the facility owner. The deconstruction plan shall contain information that satisfies each of the components of deconstruction as set forth in the definition of "deconstruction" and "deconstruction plan" and in the construction and deconstruction standards and policies of the Department of Agriculture's standard wind farm agricultural impact mitigation agreement, template 81818, or standard solar agricultural impact mitigation agreement, version 8.19.19, as applicable and in effect on December 31, 2022, or the most recent version of the mitigation agreements if any subsequent version has been adopted after December 31, 2022. The county shall have its own professional engineer review the deconstruction plan and either approve or reject the deconstruction plan within 60 days after a complete submittal. If the deconstruction plan is rejected, the county shall provide a written statement of the specific reasons for rejection. The facility owner may file a revised deconstruction plan that addresses the specific reasons that led to the rejection of the deconstruction plan. The county shall review and act on any revised deconstruction plan within 30 days after it is resubmitted. The facility owner shall reevaluate the estimated costs of deconstruction of any facility after the fifth anniversary, and every 5 years thereafter, of the commercial operation date. The facility owner shall file with the county on or before the end of the fifth year of commercial operation, and then every fifth year thereafter, for approval by the county an updated deconstruction plan prepared by a professional engineer who has been selected by the county. Based on any initial evaluation or reevaluation during the county approval process, the county may require changes in the level of financial assurance used to calculate the financial assurance level described in this Section required from the facility owner. If the county is unable to perform, to its satisfaction, the investigations of the content of the deconstruction plan necessary to approve the deconstruction plan filed by the facility owner, then the county and facility may mutually agree on the selection of a professional engineer independent of the facility owner to conduct any necessary investigations of the content of the deconstruction plan necessary to approve the deconstruction plan. The facility owner shall be responsible for the cost of the preparation of the deconstruction plan by its professional engineer or any independent professional engineer and the cost of any plan reviews by the professional engineer selected by the county. A commercial solar energy facility owner shall provide the county with an appropriate financial assurance mechanism consistent with the financial requirements set forth in this subsection, which shall be set forth in the Department of Agriculture's Department's standard wind farm agricultural impact mitigation agreement, template 81818, or standard solar agricultural impact mitigation agreement, version 8.19.19 applicable and in effect on December 31, 2022, or the most recent version of the mitigation agreements if any subsequent version have been adopted after December 31, 2022. The financial assurance shall be sufficient to cover the estimated costs of public safety or emergency repairs to the facility in the event of damage to the facility caused by natural disaster or by operational malfunction and the estimated costs of repairs the deconstruction of the facility in the event of abandonment of the facility, as defined in Section 10 of the Renewable Energy Facilities Agricultural Impact Mitigation Act. The facility owner shall provide the county with the initial financial assurance to cover 100% of the estimated deconstruction costs prior to the commercial operation date. A county may use the financial assurance provided by the facility owner to cover public safety or emergency repairs that are not timely addressed by the facility owner, as determined by the county's designated representative. In the event that a county must use a portion of the financial assurance to address any public safety or emergency repairs or to deconstruct a portion of the facility. The facility owner shall replenish the financial assurance for the amount used within 60 days after the expenditure of the financial assurance. The purpose of the financial assurance shall be for and to assure deconstruction in the event of an abandonment of a commercial solar energy facility or commercial wind energy facility or to cover the estimated costs of public safety or emergency repairs to the facility in the event of damage to the facility caused by natural disaster or by operational malfunction.

(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), public safety or emergency repairs to the facility in the event of damage to the facility caused by natural disaster or by operational malfunction, 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) and for public safety or emergency repairs to the facility in the event of damage to the facility caused by natural disaster or by operational malfunction.

(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); to cover the estimated costs of public safety or emergency repairs to the facility in the event of damage to the facility caused by natural disaster or by operational malfunction; 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) and for public safety or emergency repairs to the facility in the event of damage to the facility caused by natural disaster or by operational malfunction. The commercial solar energy facility owner shall enter into one agricultural impact mitigation agreement for each commercial solar energy facility.

(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.

(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 commercial solar energy facilities within 60 days after the effective date of this amendatory Act of the 100th General Assembly. The standard agricultural impact mitigation agreements shall be amended as needed to conform with the financial assurance procedures and requirements under subsection (j-10) of Section 5-12020 of the Counties Code.

(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 commercial solar 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.)