THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

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

Authorizing the Department of General Services to lease

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

the development, construction and operation of utility scale

offshore wind generation facilities.

The General Assembly finds and declares as follows:

(1)  That the potential for generation of electricity

through development of wind energy conversion systems in Lake

Erie would provide significant benefits to the Commonwealth.

(2)  That legislation should be enacted to permit the

development, construction and operation of wind energy

conversion facilities in Lake Erie.

Authorizing the Department of General Services, with the

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concurrence of the Department of Environmental Protection, to

lease submerged lands in excess of 25 acres within Erie

County, for the assessment, development, construction and

operation of utility scale offshore wind, solar or kinetic

energy generation facilities.

The General Assembly finds and declares as follows:

(1)  That the potential for generation of electricity

through development of wind, solar or kinetic energy

generation systems in Lake Erie would provide significant

benefits to the Commonwealth.

(2)  That legislation should be enacted to authorize the

Department of General Services, with the concurrence of the

Department of Environmental Protection, to lease submerged

lands of the Commonwealth in Lake Erie for the assessment,

development, construction, operation and removal of wind,

solar or kinetic energy generation systems in Lake Erie.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Lands within the Lake Erie Basin.

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

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

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

of the Department of Environmental Protection, acting on behalf

of the Commonwealth, is hereby authorized to lease submerged

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

County for the development of utility scale systems to convert

wind energy to electricity. This development may include

electrical collection and transmission facilities and other

related structures.

Section 2.  Lease conditions.

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

section 1 shall be restricted to lessees who can demonstrate the

expertise and capability to develop wind energy conversion

projects and who have a high likelihood of community and public

acceptance in Erie County.

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

section 1 shall insure reasonable accommodation for fishing,

maritime commerce and other current and future commercial and

recreational uses of the waters of the Commonwealth now held in

the public trust.

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

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

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

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

lease shall contain a provision for termination after ten years

if the lessee has not initiated construction of wind energy

conversion systems.

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

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

convert wind energy to electricity, including electrical

collection and transmission facilities and other related

structures. No construction, installation or operation of wind

energy conversion facilities or other related structures on the

lands subject to lease shall commence without adherence to

Federal and State laws and prior receipt of all applicable

Federal and State permits.

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

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

sublessee and their respective successors and assigns. Should

the lessee, any sublessee or any of their respective successors

or assigns permit the parcels authorized to be leased under this

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

inconsistent with the conditions contained in this subsection,

all rights and interests in the lease authorized by this act

shall terminate immediately.

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

hereby contemplated shall be approved as to form and legality by

the Attorney General and the Office of General Counsel and shall

be executed by the Department of General Services, with the

concurrence of the Department of Environmental Protection, which

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

Commonwealth. The lease shall grant the lessee, and all

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

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

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

development of utility scale systems to convert wind energy to

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

successors, assigns and sublessees, the right to develop,

construct and operate one or more submarine electrical

transmission cables from the above-described premises to the

shoreline in Erie County.

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

concurrence of the Department of Environmental Protection,

acting on behalf of the Commonwealth, is also specifically

authorized to enter into one or more nondisturbance agreements

with any sublessee of the premises described in this section

pursuant to which the Commonwealth will agree that, if the

Commonwealth succeeds to the interest of the sublessor under a

sublease, it will not terminate the sublease unless the

sublessee is in default.

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

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

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

consideration as it shall, with the concurrence of the

Department of Environmental Protection, establish through the

lease agreements.

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

authorized by this section shall be borne by the lessee,

including the costs incurred by the Department of General

Services and the Department of Environmental Protection, in the

preparation, execution and review of the lease, nondisturbance

agreements and related documents.

Section 3.  Other applicable legislation.

Nothing herein shall affect or otherwise limit the

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

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

Act, which may require further measures to provide for public

access and use of the land and adjacent water.

Section 4.  Sunset provision.

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

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

the authority contained in this act shall be void.

Section 5.  Effective date.

This act shall take effect immediately.

Section 1.  Lands within the Lake Erie Basin.

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

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

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

the concurrence of the Department of Environmental Protection,

acting on behalf of the Commonwealth, is hereby authorized to

grant exclusive options to lease and to lease submerged lands in

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

through a competitive process to be established and administered

by the Department of Environmental Protection for the assessment

and development of utility scale systems to convert wind, solar

or kinetic energy to electricity. The competitive process shall

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

expertise, experience and financial capacity. This development

may include electrical collection and transmission facilities,

submarine electrical transmission cables and other related

structures.

Section 2.  Exclusive option to lease and lease conditions.

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

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

restricted to lessees who can demonstrate the expertise and

capability to develop wind, solar or kinetic energy generation

systems in a marine environment and who have a high likelihood

of community and public acceptance in Erie County. The lease

approved under section 1 shall also include the requirement to

file with the Department of Environmental Protection a bond

payable to the Commonwealth for removal of facilities developed

pursuant to this act and located in submerged lands of Lake

Erie.

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

lease and subsequent long-term lease approved under section 1

shall ensure reasonable accommodation for fishing, maritime

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

and future commercial and recreational uses of the waters of the

Commonwealth held in the public trust.

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

to lease a parcel or contiguous parcels of submerged lands of

this Commonwealth not to exceed 10,000 contiguous acres per

parcel, through a competitive process under section 1 for

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

for reasonable consideration, which option may be renewed or

transferred to a person meeting the qualifying criteria

established under section 1, with the approval of the Department

of Environmental Protection, for additional five-year terms.

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

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

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

extent of the facilities to be constructed for an initial term

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

removal of wind, solar or kinetic energy generation systems and

transmission facilities in Lake Erie and which may be extended

for all or any portion of the leased premises for additional

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

provision for termination if the lessee has not initiated

construction of wind, solar or kinetic energy generation systems

within a reasonable period of time to be established in the

terms of the lease.

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

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

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

including electrical collection and transmission facilities,

submarine electrical transmission cables and other related

structures. No assessment, construction, installation or

operation of wind, solar or kinetic energy conversion facilities

or other related structures on the lands subject to lease shall

commence without adherence to Federal and State laws and prior

receipt of all applicable Federal and State permits.

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

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

sublessee and their respective successors and assigns. Should

the lessee, any sublessee or any of their respective successors

or assigns permit the parcels authorized to be optioned or

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

a manner inconsistent with the conditions contained in this

subsection, all rights and interests in the option or lease

authorized by this act shall terminate immediately.

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

any other documents hereby contemplated shall be approved as to

form and legality by the Attorney General and the Office of

General Counsel and shall be executed by the Department of

General Services, with the concurrence of the Department of

Environmental Protection, which approvals shall not be

unreasonably withheld, in the name of the Commonwealth. The

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

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

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

sublease of the submerged lands of the Commonwealth in

accordance with this act for the purposes of assessment and

development of utility scale systems to convert wind, solar or

kinetic energy to electricity. The lease shall also grant the

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

sublease or permit the sublease of the submerged lands of the

Commonwealth in accordance with this act for the purpose of

assessment, development, construction and operation of one or

more collection facilities and associated submarine electrical

transmission cables.

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

concurrence of the Department of Environmental Protection,

acting on behalf of the Commonwealth, is also specifically

authorized to enter into one or more nondisturbance agreements

with any sublessee of the submerged lands of the Commonwealth in

accordance with this act pursuant to which the Commonwealth will

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

sublessor under a sublease, it will not terminate the sublease

unless the sublessee is in default.

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

grant exclusive options to lease and lease the land within the

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

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

concurrence of the Department of Environmental Protection,

establish.

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

authorized by this section shall be borne by the lessee,

including the costs incurred by the Department of General

Services and the Department of Environmental Protection, in the

preparation, execution and review of the lease, nondisturbance

agreements and related documents.

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

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

include any transfer of any mineral or other surface or

subsurface interest associated with Lake Erie submerged lands of

the Commonwealth.

Section 3.  Other applicable legislation.

Except as provided in section 1, nothing herein shall affect

or otherwise limit the requirements of the provisions of the act

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

and Encroachments Act, which may require further measures to

provide for public access and use of the land and adjacent

water.

Section 4.  Expiration.

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

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

months following the effective date of this act, the authority

contained in this act shall be void.

Section 5.  Effective date.

This act shall take effect immediately.