The land issue concerns thousands of households and supports various industries, and any construction project cannot do without the support of land use policies. The author has been engaged in research on land laws and policies for a long time, providing clients with various legal services related to land. Now, fifteen types of projects are selected to sort out their land use policies for the benefit of readers. This article is the fifth analysis of fifteen types of projects: land policies for onshore wind power projects.
2020 was a year of explosive growth for China's wind power industry. In 2020, the national wind power added 71.67 million kilowatts of grid connected installed capacity, including 68.61 million kilowatts of onshore wind power and 3.06 million kilowatts of offshore wind power. By the end of 2020, the cumulative installed capacity of wind power in China was 281 million kilowatts, including 271 million kilowatts of onshore wind power and approximately 9 million kilowatts of offshore wind power. In order to achieve China's strategic goals of "carbon peak and carbon neutrality", it is expected that wind power projects will continue to grow rapidly in the coming period. Given that wind energy is a clean and abundant renewable resource, the country has also introduced a series of relevant policies, including land use policies, to support the development of the wind power industry.
Land for onshore wind power projects generally has the characteristics of large land area, wide scope, and multiple types, and the land use procedures involved are relatively complex. Therefore, investors should fully consider factors such as project site selection, land occupation category, land use method, and land use standards when investing in wind power projects. This article aims to analyze and sort out the main issues related to land use for wind power projects from the perspective of current legal policies.
1、 Basic principles of land use for wind power projects
The land policy for onshore wind power projects can be traced back to the "Interim Measures for Land Use and Environmental Protection Management of Wind Farm Engineering Construction" (NDRC Energy [2005] No. 1511) issued by the National Development and Reform Commission and other ministries in 2005. The measures mainly clarify the following points regarding the construction land for wind power projects:
The construction land for wind farm projects shall be calculated and requisitioned based on the actual occupied land area. Among them, the land for wind turbines in non enclosed wind farms shall be requisitioned based on the actual occupied area of the foundation; Land for other permanent facilities of the wind farm shall be requisitioned based on the actual occupied area; Temporary land use during the construction period shall be handled in accordance with the law and regulations;
When the project construction unit applies for approval of the project, it must attach the preliminary review opinion of the provincial land and resources management department. Without pre-approval opinions or pre-approval, construction projects shall not be approved;
After the wind farm project is approved, the project construction unit shall apply for the use of land in accordance with the law. If it involves agricultural land and collective land, the procedures for the conversion of agricultural land and land acquisition shall be handled in accordance with the law.
In 2012, the Ministry of Housing and Urban Rural Development, the former Ministry of Land and Resources, and the former State Electricity Regulatory Commission approved the release of the "Construction Land Index for Power Engineering Projects (Wind Farm)", which divided wind power project land into five categories according to functional zoning (including land for wind turbines and turbine substations, land for collection lines, land for step-up substations and operation management centers, land for transportation engineering, and temporary land). For projects that occupy permanent land, construction land approval procedures should be handled. For wind power projects that use unused land, the portion of land that does not occupy land or change the surface form can be obtained through leasing or other means without changing the land use.
In 2015, the former Ministry of Land and Resources and six other ministries jointly issued the "Opinions on Supporting the Development of New Industries and New Business Forms to Promote Mass Entrepreneurship and Innovation in Land Use" (Guotu Zi Gui [2015] No. 5, hereinafter referred to as "Document No. 5"), and the Ministry of Natural Resources updated and issued the "Guidelines for the Implementation of Industrial Land Use Policies (2019 Edition)" (Natural Resources Office [2019] No. 31, hereinafter referred to as "2019 Edition Industrial Land Policy") in 2019, which determined the overall land use principle of "adopting differentiated land use policies to support the development of new business forms". Specifically, for projects such as photovoltaic and wind power generation that use unused land such as Gobi, deserts, and grasslands, the portion of land that does not occupy the land or change the surface form can be identified as original land use without changing the land use, and marked during the annual land change survey. Land use is allowed to be obtained through leasing or other means, and both parties sign a compensation agreement. The land use should be reported to the local county-level land and resources department (now the natural resources department, the same below) for filing; For the permanent construction land of the project, the procedures for construction land should be handled in accordance with the law. For construction that occupies agricultural land, all land use should be managed as construction land.
Based on this, China has established a comprehensive model of "differentiated management and multiple acquisition methods" for the land use of wind power construction projects.
2、 Regarding the acquisition method of land for wind power projects
According to existing laws and policies, similar to photovoltaic power generation projects, wind power projects can acquire land through various means, mainly leasing collective land and obtaining state-owned construction land through leasing, allocation, and transfer.
1. Leasing collective land
According to Document No. 5, for projects such as photovoltaic and wind power generation that use unused land such as Gobi, desert, and grassland, the portion of land that does not occupy or change the surface form can be recognized as original land without changing the land use... Land use is allowed to be obtained through leasing or other means, and both parties shall sign a compensation agreement. The land use shall be reported to the local county-level land and resources department for filing. Based on this, unused land in collective land can be acquired through signing lease/compensation agreements with collective economic organizations.
In practice, when signing lease/compensation agreements with collective economic organizations, land users should pay special attention to whether the land ownership is clear, whether the democratic decision-making process of the village collective has been fulfilled, whether the decision-making process is legal, and whether the land has been contracted or transferred, in order to avoid potential legal flaws and losses.
2. Obtaining state-owned construction land through leasing, allocation, and transfer of state-owned land
Firstly, state-owned land leasing can be used to acquire land for wind power project construction. According to Document No. 5, for state-owned unused land, the land user can sign relevant lease agreements with the local land and resources bureau. For state-owned non unused land or where local authorities explicitly require the handling of construction land procedures, according to the 2019 version of the Industrial Land Policy, the state encourages "the supply of industrial land can be provided through long-term leasing, lease before transfer, a combination of leasing and transfer, and flexible terms". Therefore, land users can apply for state-owned construction land to the local natural resources department of the city or county people's government for wind farm land. After completing a series of procedures such as project approval, construction land planning permit, and construction land approval, they can sign a state-owned land use contract with the city or county land authority to use state-owned land.
Secondly, those who meet the conditions can obtain project land through allocation. According to Document No. 5, land for new industrial projects that meets the requirements of the "Catalogue of Allocated Land" can be allocated for supply. The "Catalogue of Allocated Land" stipulates that the land for power facilities, including the main power plant facilities and supporting warehouse facilities, special transportation facilities for power plants (stations), supporting environmental protection and safety protection facilities, new energy power generation project motors, box transformers, power transmission (including special transmission projects), substation facilities, resource observation facilities, etc., can be supplied through allocation.
In addition, for obtaining project land through transfer, which is consistent with photovoltaic land, Document No. 5 also clearly stipulates that for land that needs to be supplied through bidding, auction, and listing in accordance with the law, under the premise of fairness, impartiality, and not excluding competition from multiple market entities, the industry type, production technology, industry standards, and product quality requirements proposed by the investment and industry regulatory authorities can be used as prerequisites for land supply. Therefore, it also provides convenience for investors to obtain land for wind power projects to a certain extent.
3、 Land use standards for wind power projects
According to the "Indicators for Construction Land of Power Engineering Projects (Wind Farm)", wind power project land can be divided into five categories, namely: land for wind turbines, land for unit substations, land for collection lines, land for step-up substations and operation management centers, and land for transportation engineering. We have compiled the following table and sorted out the land use standards corresponding to the permanent land used in these five functional zones:
4、 Special Policies on the Use of Forest Land and Grassland in Wind Power Projects
In the construction process of onshore wind farm projects, wind turbines are often deployed along high mountain ridges and hills, and roads and collection lines are constructed accordingly. With multiple points and long lines, it often involves the issue of occupying forest or grassland. These forests and grasslands are not only important watersheds in mountainous ecosystems, but also the most ecologically fragile areas; The use of forests and grasslands for wind turbine foundation excavation, site leveling, road and power collection line construction, etc. may cause large-scale disturbance to the surface and damage to surface vegetation, which can easily lead to large-scale soil erosion and have a significant impact on the overall ecological function of forests and grasslands. Therefore, the country has also made special regulations on the occupation of forest land and grassland by wind power projects.
1. The issue of occupying forest land
The State Forestry and Grassland Administration issued the "Notice on Standardizing the Use of Forest Land for Wind Farm Project Construction" (Linzifa [2019] No. 17) in February 2019, which mainly stipulates the following contents:
■ (Prohibited Areas) Natural heritage sites, national parks, nature reserves, forest parks, wetland parks, geological parks, scenic spots, major bird migration routes and migration areas, as well as coastal backbone forest belts and wave dissipating forest belts, are prohibited areas for wind farm project construction;
■ (Restricted scope) Wind turbine foundations, construction and maintenance roads, booster stations, power collection lines, etc. are prohibited from occupying natural tree forests (bamboo forests), forest land with an annual rainfall of less than 400 millimeters, forest land in first level national public welfare forests, and forest land in second level national public welfare forests;
The construction and maintenance roads of wind farms should make use of existing forest fire prevention roads, forest roads, rural roads, and other roads as much as possible. The expansion of wind farm roads based on them should not change the nature of existing roads in principle. The construction of supporting roads for wind farms should go through the procedures for using forest land together with the wind farm; For temporary occupation of forest land such as lifting platforms, construction roads, waste disposal sites, and power collection lines, forestry production conditions should be restored within one year after the expiration of the temporary occupation period, and vegetation should be restored in a timely manner.
In addition, according to the "Management Measures for the Review and Approval of Forest Land Use in Construction Projects", the occupation of forest land by wind power construction projects shall be approved by the forestry competent department after review (paying forest vegetation restoration fees in advance according to national standards and obtaining a forest land use review consent form), and then the construction unit shall handle the construction land approval procedures in accordance with laws and regulations.
2. The issue of occupying grassland
Article 38 of the Grassland Law of the People's Republic of China stipulates that "mineral mining and engineering construction shall not occupy or occupy less grassland; if it is necessary to expropriate, requisition or use grassland, it must be reviewed and approved by the grassland administrative department of the people's government at or above the provincial level, and the approval procedures for construction land shall be handled in accordance with relevant land management laws and administrative regulations." Article 39 stipulates: "If collective owned grassland is expropriated or requisitioned for construction, compensation shall be given in accordance with the provisions of the Land Administration Law of the People's Republic of China; if state-owned grassland is expropriated or used for construction, compensation shall be given to grassland contractors in accordance with relevant regulations of the State Council. If grassland is expropriated, requisitioned or used for construction, grassland vegetation restoration fees shall be paid
Based on this, if a wind farm occupies grassland, it should be promptly reported to the competent department at or above the provincial level for review, and compensation fees and grassland vegetation restoration fees should be paid according to local standards.
