19.0188.10000
Sixty-sixth
Legislative Assembly HOUSE BILL NO. 1383
of North Dakota
Introduced by
Representatives Brandenburg, Boe, Headland, Howe, D. Johnson, Schmidt
Senators Dotzenrod, Erbele, Luick, J. Roers, Rust, Wanzek
1 A BILL for an Act to create and enact two new sections to chapter 4.1-01, a new section to
2 chapter 49-22, and a new section to chapter 49-22.1 of the North Dakota Century Code, relating
3 to the creation of an environmental impact mitigation fund and an environmental impact
4 advisory board and to mitigating direct environmental impacts; to amend and reenact sections
5 49-22-05.1, 49-22-09, 49-22.1-03, and 49-22.1-09 of the North Dakota Century Code, relating
6 to exclusion and avoidance areas and the factors considered by the public service commission
7 when evaluating and designating sites, corridors, and routes; to provide for a report to the
8 budget section; and to provide an appropriation.
9 BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
10 SECTION 1. A new section to chapter 4.1-01 of the North Dakota Century Code is created
11 and enacted as follows:
12 Environmental impact mitigation fund.
13 1. The moneys accumulated in the environmental impact mitigation fund must be
14 allocated as provided by law and as appropriated by the legislative assembly for
15 distribution by the agriculture commissioner:
16 a. To political subdivisions and state agencies to offset impacts of energy
17 development to agricultural land;
18 b. To landowners for the mitigation of agricultural land impacted by energy
19 development; and
20 c. To landowners of agricultural land who are subject to excessive mitigation of
21 wetlands.
22 2. Funding may be used only for:
23 a. Contracting for consultation with environmental scientists, wildlife biologists,
24 biologists, soil scientists, range scientists, engineers, economists, or scientists in
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1 any other field determined to be relevant for services including the evaluation,
2 assessment, and analysis of the physical composition and potential chemical
3 properties of land determined to be impacted by energy development or land to
4 be considered for mitigation;
5 b. Reclamation, restoration, or mitigation of land, water resources, or wildlife
6 habitats adversely impacted directly by energy development; and
7 c. Offsetting or defraying costs of landowner mitigation in qualifying circumstances
8 as determined by the advisory board.
9 3. The commissioner is not subject to chapter 54-44.4 when contracting for services
10 under this chapter.
11 4. The environmental impact advisory board shall establish criteria for disbursement of
12 environmental impact funds.
13 5. The commissioner shall make disbursements based upon the determinations made by
14 the environmental impact advisory board.
15 SECTION 2. A new section to chapter 4.1-01 of the North Dakota Century Code is created
16 and enacted as follows:
17 Environmental impact advisory board - Members - Report to budget section.
18 1. There is created an environmental impact advisory board consisting of seventeen
19 members. The advisory board consists of:
20 a. The commissioner, who shall serve as the presiding officer;
21 b. The governor or the governor's designee;
22 c. The majority leader of the house of representatives, or the majority leader's
23 designee;
24 d. The majority leader of the senate, or the majority leader's designee;
25 e. One member of the legislative assembly from the minority party, selected by the
26 chairman of legislative management;
27 f. One individual appointed by the lignite energy council;
28 g. One individual appointed by the North Dakota farm bureau;
29 h. One individual appointed by the North Dakota corn growers association;
30 i. One individual appointed by the North Dakota grain growers association;
31 j. One individual appointed by the North Dakota petroleum council;
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1 k. One individual appointed by the North Dakota soybean growers association;
2 l. One individual appointed by the North Dakota stockmen's association;
3 m. One individual appointed by the North Dakota farmers union; and
4 n. Four members from the energy industry appointed by the governor based upon
5 recommendations of entities representing the energy industry.
6 2. The advisory board shall hold at least one regular meeting each year and additional
7 meetings as the chairman determines necessary at a time and place to be fixed by the
8 chairman. Special meetings must be called by the presiding officer upon written
9 request of any four members.
10 3. The advisory board shall make determinations for the disbursement of grants in
11 accordance with subsection 2 of section 1 of this Act and provide those determinations
12 to the commissioner.
13 4. The term of office of each appointed member of the board is four years and each term
14 of office commences on the first day of July. The initial terms for the advisory board
15 members must be staggered based upon a method determined by the board.
16 5. The advisory board shall provide a biennial report to the budget section of the
17 legislative management.
18 SECTION 3. AMENDMENT. Section 49-22-05.1 of the North Dakota Century Code is
19 amended and reenacted as follows:
20 49-22-05.1. Exclusion and avoidance areas - Criteria.
21 1. The commission shall develop criteria to be used in identifying exclusion and
22 avoidance areas and to guide the site, corridor, and route suitability evaluation and
23 designation process. The criteria also may include an identification of impacts and
24 policies or practices which may be considered in the evaluation and designation
25 process.
26 2. The commission may not identify prime farmland, unique farmland, or irrigated land as
27 exclusion or avoidance areas when evaluating and designating geographical areas for
28 site, corridor, or route suitability.
29 3. Except for electric transmission lines in existence before July 1, 1983, areas within five
30 hundred feet [152.4 meters] of an inhabited rural residence must be designated
31 avoidance areas. This criterion does not apply to a water pipeline. The five hundred
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1 foot [152.4 meter] avoidance area criteria for an inhabited rural residence may be
2 waived by the owner of the inhabited rural residence in writing.
3 3.4. Areas less than one and one-tenth times the height of the turbine from the property
4 line of a nonparticipating landowner and less than three times the height of the turbine
5 or more from an inhabited rural residence of a nonparticipating landowner, must be
6 excluded in the consideration of a site for a wind energy conversion area, unless a
7 variance is granted. The commission may grant a variance if an authorized
8 representative or agent of the permittee, the nonparticipating landowner, and affected
9 parties with associated wind rights file a written agreement expressing the support of
10 all parties for a variance to reduce the setback requirement in this subsection. A
11 nonparticipating landowner is a landowner that has not signed a wind option or an
12 easement agreement with the permittee of the wind energy conversion facility as
13 defined in chapter 17-04. A local zoning authority may require setback distances
14 greater than those required under this subsection. For purposes of this subsection,
15 "height of the turbine" means the distance from the base of the wind turbine to the
16 turbine blade tip when it is in its highest position.
17 SECTION 4. AMENDMENT. Section 49-22-09 of the North Dakota Century Code is
18 amended and reenacted as follows:
19 49-22-09. Factors to be considered in evaluating applications and designation of
20 sites, corridors, and routes.
21 The commission shall be guided by, but is not limited to, the following considerations, where
22 applicable, to
23 1. To aid in the evaluation and designation of sites, corridors, and routes, the commission
24 shall consider:
25 1. a. Available research and investigations relating to the effects of the location,
26 construction, and operation of the proposed facility on public health and welfare,
27 natural resources, and the environment.
28 2. b. The effects of new electric energy conversion and electric transmission
29 technologies and systems designed to minimize adverse environmental effects.
30 3. c. The potential for beneficial uses of waste energy from a proposed electric energy
31 conversion facility.
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1 4. d. Adverse direct and indirect environmental effects that cannot be avoided should
2 the proposed site or route be designated.
3 5. e. Alternatives to the proposed site, corridor, or route which are developed during
4 the hearing process and which minimize adverse effects.
5 6. f. Irreversible and irretrievable commitments of natural resources should the
6 proposed site, corridor, or route be designated.
7 7. g. The direct and indirect economic impacts of the proposed facility.
8 8. h. Existing plans of the state, local government, and private entities for other
9 developments at or in the vicinity of the proposed site, corridor, or route.
10 9. i. The effect of the proposed site or route on existing scenic areas, historic sites
11 and structures, and paleontological or archaeological sites.
12 10. j. The effect of the proposed site or route on areas which are unique because of
13 biological wealth or because theythe areas are habitats for rare and endangered
14 species.
15 11. k. Problems raised by federal agencies, other state agencies, and local entities.
16 2. In the evaluation and designation of sites, corridors, and routes, the commission may
17 not consider:
18 a. Adverse indirect environmental effects that cannot be avoided should the
19 proposed site or route be designated; or
20 b. The indirect economic impacts of the proposed facility.
21 SECTION 5. A new section to chapter 49-22 of the North Dakota Century Code is created
22 and enacted as follows:
23 Mitigating direct environmental impacts.
24 1. If an applicant elects to provide payment to mitigate any assessed adverse direct
25 environmental, wildlife, or economic impact of a proposed site, corridor, route, or
26 facility, the applicant shall make the payment to the agriculture commissioner.
27 2. The agriculture commissioner shall deposit into the environmental impact mitigation
28 fund any moneys paid to mitigate the adverse direct environmental, wildlife, or
29 economic impacts of a proposed site, corridor, route, or facility.
30 SECTION 6. AMENDMENT. Section 49-22.1-03 of the North Dakota Century Code is
31 amended and reenacted as follows:
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1 49-22.1-03. Exclusion and avoidance areas - Criteria.
2 1. The commission shall develop criteria to be used in identifying exclusion and
3 avoidance areas and to guide the site, corridor, and route suitability evaluation and
4 designation process.
5 2. The commission may not identify prime farmland, unique farmland, or irrigated land as
6 exclusion or avoidance areas when evaluating and designating geographical areas for
7 site, corridor, or route suitability.
8 3. Except for oil and gas transmission lines in existence before July 1, 1983, areas within
9 five hundred feet [152.4 meters] of an inhabited rural residence must be designated
10 avoidance areas.
11 a. This criterion does not apply to a water pipeline.
12 b. The five hundred foot [152.4 meter] avoidance area criteria for an inhabited rural
13 residence may be waived by the owner of the inhabited rural residence in writing.
14 c. The criteria also may include an identification of impacts and policies or practices
15 which may be considered in the evaluation and designation process.
16 SECTION 7. AMENDMENT. Section 49-22.1-09 of the North Dakota Century Code is
17 amended and reenacted as follows:
18 49-22.1-09. Factors to be considered in evaluating applications and designation of
19 sites, corridors, and routes.
20 The commission is guided by, but is not limited to, the following considerations, when
21 applicable, to
22 1. To aid in the evaluation and designation of sites, corridors, and routes, the commission
23 shall consider:
24 1. a. Available research and investigations relating to the effects of the location,
25 construction, and operation of the proposed facility on public health and welfare,
26 natural resources, and the environment.
27 2. b. The effects of new gas or liquid energy conversion and gas or liquid transmission
28 technologies and systems designed to minimize adverse environmental effects.
29 3. c. The potential for beneficial uses of waste energy from a proposed gas or liquid
30 energy conversion facility.
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1 4. d. Adverse direct and indirect environmental effects that cannot be avoided should
2 the proposed site or route be designated.
3 5. e. Alternatives to the proposed site, corridor, or route that are developed during the
4 hearing process and which minimize adverse effects.
5 6. f. Irreversible and irretrievable commitments of natural resources should the
6 proposed site, corridor, or route be designated.
7 7. g. The direct and indirect economic impacts of the proposed facility.
8 8. h. Existing plans of the state, local government, and private entities for other
9 developments at or in the vicinity of the proposed site, corridor, or route.
10 9. i. The effect of the proposed site or route on existing scenic areas, historic sites
11 and structures, and paleontological or archaeological sites.
12 10. j. The effect of the proposed site or route on areas that are unique because of
13 biological wealth or because the site or route is a habitat for rare and endangered
14 species.
15 11. k. Problems raised by federal agencies, other state agencies, and local entities.
16 2. In the evaluation and designation of sites, corridors, and routes, the commission may
17 not consider:
18 a. Adverse indirect environmental effects that cannot be avoided should the
19 proposed site or route be designated; or
20 b. The indirect economic impacts of the proposed facility.
21 SECTION 8. A new section to chapter 49-22.1 of the North Dakota Century Code is created
22 and enacted as follows:
23 Mitigating direct environmental impacts.
24 1. If an applicant elects to provide payment to mitigate any assessed adverse direct
25 environmental, wildlife, or economic impact of a proposed site, corridor, route, or
26 facility, the applicant shall make the payment to the agriculture commissioner.
27 2. The agriculture commissioner shall deposit into the environmental impact mitigation
28 fund any moneys paid to mitigate the adverse direct environmental, wildlife, or
29 economic impacts of a proposed site, corridor, route, or facility.
30 SECTION 9. APPROPRIATION. There is appropriated out of any moneys in the
31 environmental impact mitigation fund in the state treasury, not otherwise appropriated, the sum
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1 of $5,000,000, or so much of the sum as may be necessary, to the agriculture commissioner for
2 the purpose of providing grants to political subdivisions for the mitigation of environmental
3 impacts, for the biennium beginning July 1, 2019, and ending June 30, 2021.
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Statutes affected: