PRIOR PRINTER'S NO. 3396

PRINTER'S NO.  3702

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

HOUSE BILL

 

No.

2342

Session of

2010

  

  

INTRODUCED BY HORNAMAN, FABRIZIO, SONNEY, HARKINS AND J. EVANS, MARCH 18, 2010

  

  

AS REPORTED FROM COMMITTEE ON STATE GOVERNMENT, HOUSE OF REPRESENTATIVES, AS AMENDED, MAY 3, 2010   

  

  

  

AN ACT

  

1

Authorizing the Department of General Services to lease

<--

2

submerged lands in excess of 25 acres within Erie County, for

3

the development, construction and operation of utility scale

4

offshore wind generation facilities.

5

The General Assembly finds and declares as follows:

6

(1)  That the potential for generation of electricity

7

through development of wind energy conversion systems in Lake

8

Erie would provide significant benefits to the Commonwealth.

9

(2)  That legislation should be enacted to permit the

10

development, construction and operation of wind energy

11

conversion facilities in Lake Erie.

12

Authorizing the Department of General Services, with the

<--

13

concurrence of the Department of Environmental Protection, to

14

lease submerged lands in excess of 25 acres within Erie

15

County, for the assessment, development, construction and

16

operation of utility scale offshore wind, solar or kinetic

17

energy generation facilities.

18

The General Assembly finds and declares as follows:

19

(1)  That the potential for generation of electricity

20

through development of wind, solar or kinetic energy

21

generation systems in Lake Erie would provide significant

 


1

benefits to the Commonwealth.

2

(2)  That legislation should be enacted to authorize the

3

Department of General Services, with the concurrence of the

4

Department of Environmental Protection, to lease submerged

5

lands of the Commonwealth in Lake Erie for the assessment,

6

development, construction, operation and removal of wind,

7

solar or kinetic energy generation systems in Lake Erie.

8

The General Assembly of the Commonwealth of Pennsylvania

9

hereby enacts as follows:

10

Section 1.  Lands within the Lake Erie Basin.

<--

11

(a)  Authorization.--The Commonwealth owns lands within the

12

bed of Lake Erie, all of which lands are located in Erie County.

13

(b)  The Department of General Services, with the concurrence

14

of the Department of Environmental Protection, acting on behalf

15

of the Commonwealth, is hereby authorized to lease submerged

16

lands in excess of 25 acres within the bed of Lake Erie in Erie

17

County for the development of utility scale systems to convert

18

wind energy to electricity. This development may include

19

electrical collection and transmission facilities and other

20

related structures.

21

Section 2.  Lease conditions.

22

(a)  Qualifications of lessees.--A lease approved under

23

section 1 shall be restricted to lessees who can demonstrate the

24

expertise and capability to develop wind energy conversion

25

projects and who have a high likelihood of community and public

26

acceptance in Erie County.

27

(b)  Waters of the Commonwealth.--A lease approved under

28

section 1 shall insure reasonable accommodation for fishing,

29

maritime commerce and other current and future commercial and

30

recreational uses of the waters of the Commonwealth now held in

- 2 -

 


1

the public trust.

2

(c)  Term of lease.--A lease approved under section 1 shall

3

be for a term of up to 49 years and may be extended, at the

4

option of the lessee, for all or any portion of the leased

5

premises for an additional term of up to 49 years. Any such

6

lease shall contain a provision for termination after ten years

7

if the lessee has not initiated construction of wind energy

8

conversion systems.

9

(d)  Improvements.--Development of the parcels authorized to

10

be leased in this section shall be for utility scale systems to

11

convert wind energy to electricity, including electrical

12

collection and transmission facilities and other related

13

structures. No construction, installation or operation of wind

14

energy conversion facilities or other related structures on the

15

lands subject to lease shall commence without adherence to

16

Federal and State laws and prior receipt of all applicable

17

Federal and State permits.

18

(e)  Covenants.--These conditions shall be covenants that run

19

with the land and shall be binding upon the lessee, any

20

sublessee and their respective successors and assigns. Should

21

the lessee, any sublessee or any of their respective successors

22

or assigns permit the parcels authorized to be leased under this

23

section, or any portion thereof, to be used in a manner

24

inconsistent with the conditions contained in this subsection,

25

all rights and interests in the lease authorized by this act

26

shall terminate immediately.

27

(f)  Lease agreement.--Any such lease and any other documents

28

hereby contemplated shall be approved as to form and legality by

29

the Attorney General and the Office of General Counsel and shall

30

be executed by the Department of General Services, with the

- 3 -

 


1

concurrence of the Department of Environmental Protection, which

2

approvals shall not be unreasonably withheld, in the name of the

3

Commonwealth. The lease shall grant the lessee, and all

4

successors, assigns and sublessees, the right to use the above-

5

described premises, or to assign the lease or sublease or permit

6

the sublease of the above-described premises for the purposes of

7

development of utility scale systems to convert wind energy to

8

electricity. The lease shall also grant the lessee, and all

9

successors, assigns and sublessees, the right to develop,

10

construct and operate one or more submarine electrical

11

transmission cables from the above-described premises to the

12

shoreline in Erie County.

13

(g)  Sublease.--The Department of General Services, with the

14

concurrence of the Department of Environmental Protection,

15

acting on behalf of the Commonwealth, is also specifically

16

authorized to enter into one or more nondisturbance agreements

17

with any sublessee of the premises described in this section

18

pursuant to which the Commonwealth will agree that, if the

19

Commonwealth succeeds to the interest of the sublessor under a

20

sublease, it will not terminate the sublease unless the

21

sublessee is in default.

22

(h)  Consideration.--The Department of General Services shall

23

lease the land within the bed of Lake Erie as described in

24

subsection (b) upon such terms and conditions and for such

25

consideration as it shall, with the concurrence of the

26

Department of Environmental Protection, establish through the

27

lease agreements.

28

(i)  Costs and fees.--Costs and fees incidental to the lease

29

authorized by this section shall be borne by the lessee,

30

including the costs incurred by the Department of General

- 4 -

 


1

Services and the Department of Environmental Protection, in the

2

preparation, execution and review of the lease, nondisturbance

3

agreements and related documents.

4

Section 3.  Other applicable legislation.

5

Nothing herein shall affect or otherwise limit the

6

requirements of the provisions of the act of November 26, 1978

7

(P.L.1375, No.325), known as the Dam Safety and Encroachments

8

Act, which may require further measures to provide for public

9

access and use of the land and adjacent water.

10

Section 4.  Sunset provision.

11

In the event that a lease authorized by this act does not

12

occur within 24 months following the effective date of this act,

13

the authority contained in this act shall be void.

14

Section 5.  Effective date.

15

This act shall take effect immediately.

16

Section 1.  Lands within the Lake Erie Basin.

<--

17

(a)  Background.--The Commonwealth owns lands within the bed

18

of Lake Erie, all of which lands are located in Erie County.

19

(b)  Authorization.--The Department of General Services, with

20

the concurrence of the Department of Environmental Protection,

21

acting on behalf of the Commonwealth, is hereby authorized to

22

grant exclusive options to lease and to lease submerged lands in

23

excess of 25 acres within the bed of Lake Erie in Erie County

24

through a competitive process to be established and administered

25

by the Department of Environmental Protection for the assessment

26

and development of utility scale systems to convert wind, solar

27

or kinetic energy to electricity. The competitive process shall

28

include, at a minimum, a demonstration by the bidders of their

29

expertise, experience and financial capacity. This development

30

may include electrical collection and transmission facilities,

- 5 -

 


1

submarine electrical transmission cables and other related

2

structures.

3

Section 2.  Exclusive option to lease and lease conditions.

4

(a)  Qualifications of lessees.--An exclusive option to lease

5

and subsequent long-term lease approved under section 1 shall be

6

restricted to lessees who can demonstrate the expertise and

7

capability to develop wind, solar or kinetic energy generation

8

systems in a marine environment and who have a high likelihood

9

of community and public acceptance in Erie County. The lease

10

approved under section 1 shall also include the requirement to

11

file with the Department of Environmental Protection a bond

12

payable to the Commonwealth for removal of facilities developed

13

pursuant to this act and located in submerged lands of Lake

14

Erie.

15

(b)  Waters of the Commonwealth.--An exclusive option to

16

lease and subsequent long-term lease approved under section 1

17

shall ensure reasonable accommodation for fishing, maritime

18

commerce, energy transmission rights-of-way and other current

19

and future commercial and recreational uses of the waters of the

20

Commonwealth held in the public trust.

21

(c)  Term of exclusive option to lease.--An exclusive option

22

to lease a parcel or contiguous parcels of submerged lands of

23

this Commonwealth not to exceed 10,000 contiguous acres per

24

parcel, through a competitive process under section 1 for

25

purposes of assessment, shall be for a term of up to five years

26

for reasonable consideration, which option may be renewed or

27

transferred to a person meeting the qualifying criteria

28

established under section 1, with the approval of the Department

29

of Environmental Protection, for additional five-year terms.

30

(d)  Term of long-term lease.--A person awarded an exclusive

- 6 -

 


1

option to lease under subsection (c) shall be eligible to enter

2

into a long-term lease approved under section 1 for the areal

3

extent of the facilities to be constructed for an initial term

4

of up to 35 years for construction, operation, maintenance and

5

removal of wind, solar or kinetic energy generation systems and

6

transmission facilities in Lake Erie and which may be extended

7

for all or any portion of the leased premises for additional

8

terms of up to 35 years. Any such lease shall contain a

9

provision for termination if the lessee has not initiated

10

construction of wind, solar or kinetic energy generation systems

11

within a reasonable period of time to be established in the

12

terms of the lease.

13

(e)  Improvements.--Development of the parcels authorized to

14

be optioned or leased in this section shall be for utility scale

15

systems to convert wind, solar or kinetic energy to electricity,

16

including electrical collection and transmission facilities,

17

submarine electrical transmission cables and other related

18

structures. No assessment, construction, installation or

19

operation of wind, solar or kinetic energy conversion facilities

20

or other related structures on the lands subject to lease shall

21

commence without adherence to Federal and State laws and prior

22

receipt of all applicable Federal and State permits.

23

(f)  Covenants.--These conditions shall be covenants that run

24

with the land and shall be binding upon the lessee, any

25

sublessee and their respective successors and assigns. Should

26

the lessee, any sublessee or any of their respective successors

27

or assigns permit the parcels authorized to be optioned or

28

leased under this section, or any portion thereof, to be used in

29

a manner inconsistent with the conditions contained in this

30

subsection, all rights and interests in the option or lease

- 7 -

 


1

authorized by this act shall terminate immediately.

2

(g)  Option and lease agreements.--Any such option, lease and

3

any other documents hereby contemplated shall be approved as to

4

form and legality by the Attorney General and the Office of

5

General Counsel and shall be executed by the Department of

6

General Services, with the concurrence of the Department of

7

Environmental Protection, which approvals shall not be

8

unreasonably withheld, in the name of the Commonwealth. The

9

option and lease shall grant the lessee, and all successors,

10

assigns and sublessees, the right to use the above-described

11

premises, or to assign the lease or sublease or permit the

12

sublease of the submerged lands of the Commonwealth in

13

accordance with this act for the purposes of assessment and

14

development of utility scale systems to convert wind, solar or

15

kinetic energy to electricity. The lease shall also grant the

16

lessee, and all successors, assigns and sublessees, the lease or

17

sublease or permit the sublease of the submerged lands of the

18

Commonwealth in accordance with this act for the purpose of

19

assessment, development, construction and operation of one or

20

more collection facilities and associated submarine electrical

21

transmission cables.

22

(h)  Sublease.--The Department of General Services, with the

23

concurrence of the Department of Environmental Protection,

24

acting on behalf of the Commonwealth, is also specifically

25

authorized to enter into one or more nondisturbance agreements

26

with any sublessee of the submerged lands of the Commonwealth in

27

accordance with this act pursuant to which the Commonwealth will

28

agree that, if the Commonwealth succeeds to the interest of the

29

sublessor under a sublease, it will not terminate the sublease

30

unless the sublessee is in default.

- 8 -

 


1

(i)  Consideration.--The Department of General Services shall

2

grant exclusive options to lease and lease the land within the

3

bed of Lake Erie as described in subsection (b) upon such terms

4

and conditions and for such consideration as it shall, with the

5

concurrence of the Department of Environmental Protection,

6

establish.

7

(j)  Costs and fees.--Costs and fees incidental to the lease

8

authorized by this section shall be borne by the lessee,

9

including the costs incurred by the Department of General

10

Services and the Department of Environmental Protection, in the

11

preparation, execution and review of the lease, nondisturbance

12

agreements and related documents.

13

(k)  Transfer of interest prohibited.--Except as provided in

14

section 1, this act does not authorize or otherwise allow for or

15

include any transfer of any mineral or other surface or

16

subsurface interest associated with Lake Erie submerged lands of

17

the Commonwealth.

18

Section 3.  Other applicable legislation.

19

Except as provided in section 1, nothing herein shall affect

20

or otherwise limit the requirements of the provisions of the act

21

of November 26, 1978 (P.L.1375, No.325), known as the Dam Safety

22

and Encroachments Act, which may require further measures to

23

provide for public access and use of the land and adjacent

24

water.

25

Section 4.  Expiration.

26

In the event that either an exclusive option to lease or a

27

long-term lease authorized by this act does not occur within 60

28

months following the effective date of this act, the authority

29

contained in this act shall be void.

30

Section 5.  Effective date.

- 9 -

 


1

This act shall take effect immediately.

- 10 -