AB774: Bill Text

LRB-1884/2

RNK:wlj:jf

2013 - 2014 LEGISLATURE

2013 Assembly BILL 774

February 18, 2014 - Introduced by Representatives T. Larson, Bernier, Bewley, Brooks, Knudson, Kulp, Marklein, Murtha, A. Ott, Petryk, Severson, Smith, Thiesfeldt, Vruwink, Wachs and Williams, cosponsored by Senators Tiffany, Harsdorf and Moulton. Referred to Committee on Energy and Utilities.

AB774,1,11 An Act to repeal 30.025 (1s) (b), 30.025 (2g) and 30.025 (2s) (a) 1. and 2.; to renumber 30.025 (1b) (a), 30.025 (1e) (c) and 30.025 (5); to renumber and amend 30.025 (1e) (a), 30.025 (1e) (b), 30.025 (2s) (a) (intro.), 30.025 (3) (intro.) (except 30.025 (3) (title)), 30.025 (3) (a) and 30.025 (3) (b); to amend 30.025 (1b) (b), 30.025 (1b) (c), 30.025 (1m), 30.025 (1s) (a), 30.025 (2), 30.025 (4), 196.491 (3) (a) 3. a. and 196.491 (3) (a) 3. b.; to repeal and recreate 30.025 (2s) (b) and 30.025 (5) (title); and to create 30.025 (1b) (ag), 30.025 (1b) (aj), 30.025 (1b) (am), 30.025 (1b) (bm), 30.025 (1b) (d), 30.025 (1s) (c) to (f), 30.025 (2m), 30.025 (3) (c) to (e), 30.025 (4m), 30.025 (5) (d), 30.12 (1mn), 30.20 (1g) (d), 59.692 (1n) and 196.492 of the statutes; relating to: procedures for utility projects that require a permit from the Department of Natural Resources.

Analysis by the Legislative Reference Bureau

This bill changes the procedures for obtaining permits from the Department of Natural Resources (DNR) for utility facilities that undertake construction activities affecting navigable waters. The bill also exempts certain utility projects from requirements to obtain permits from DNR and from certain shoreland zoning ordinances.

Procedures under current law

Under current law, with certain exceptions, a public utility may not begin construction on a utility project unless the Public Service Commission (PSC) has issued a certificate for the project. A public utility is a company or political subdivision that produces or delivers heat, light, water, or power to or for the public. Current law also prohibits any person, including a public utility, from constructing a large electric generating facility or a high-voltage transmission line (electric facility) without another type of certificate from the PSC. Current law also generally requires a person, including a public utility or electric facility (utility), to obtain a permit from DNR before engaging in an activity affecting navigable waters. Those permits include permits for the placement of a structure in navigable waters, for the construction or maintenance of a dam, or for activities affecting a wetland (DNR permits). Generally, under current law, a person must submit an application to DNR for each required permit. If the applicant is a utility that is required to obtain a certificate from the PSC, however, the utility must submit a single application to DNR requesting all of the DNR permits that the utility requires for a given project affecting navigable waters (utility application) and must follow a different procedure for obtaining these DNR permits (utility application procedure).

Under current law, a person proposing to submit a utility application to DNR must first notify DNR of the intention to file that application. After DNR receives the notice, DNR must confer with that person and, in cooperation with the PSC, make certain assessments and analyses concerning the project. Once the utility application is complete, DNR may schedule the matter for a public hearing. DNR must grant or deny the application within 30 days of the date on which the PSC issues its decision on the utility's application for a certificate.

Current law also specifies that as a part of the utility application procedure, DNR must review the proposed utility project to assess whether the location, site, or route is capable of meeting the criteria for obtaining the required DNR permits and must provide this information to the PSC. DNR must also participate in PSC investigations or proceedings relating to the application for a certificate for the utility project. If the PSC issues the certificate for that utility project, after considering DNR's participation in the PSC's proceedings and after considering certain other factors, DNR may not require the applicant to make any further analysis of project alternatives, except that DNR may identify adjustments that may be required to address permitting issues within the location, site, or route for which the certificate is issued.

Applicability of the utility application procedure

This bill expands the applicability of the utility application procedure so that a utility that is not required to obtain a certificate from the PSC in order to construct, extend, improve, or maintain a utility facility, including a cooperative association organized for the purpose of producing or furnishing heat, light, power, or water to its members, may also use the utility application procedure. Under the bill, if a utility for which a PSC certificate is not required elects to use the utility application procedure, the requirements to provide information to the PSC and to participate in PSC proceedings do not apply. If a PSC certificate is not required for a utility project and the utility chooses not to use the combined permit procedure, the utility must follow the current law procedure that otherwise applies with respect to applying for and obtaining a permit from DNR.

Additional procedures for all applicants

This bill makes changes to the utility application procedure that applies under current law. Among those changes are the following: 1) a requirement that the utility application include information concerning each location, site, or route proposed for the utility project in sufficient detail for DNR to assess whether the location, site, or route is likely to meet the criteria for DNR to issue the necessary permits; 2) a requirement that DNR review the application within 30 days after submission; 3) a prohibition against allowing DNR to make more than one request for additional information during the 30-day period; 4) a requirement that DNR notify the applicant as to whether the utility application is complete; and 5) a requirement that if DNR determines the utility application to be incomplete, DNR notify the applicant of the reason for that determination and of the specific additional information that DNR requires. The bill also establishes a date of closure for a utility application submitted to DNR.

Application review; PSC proceedings

The bill maintains certain utility application procedures that apply under current law. As under current law, the bill requires 1) an applicant to notify DNR of its intention to file a utility application with DNR; 2) the applicant to file the utility application at the same time the applicant applies for a PSC certificate, if such a certificate is required; 3) DNR to participate in PSC investigations or proceedings; and 4) DNR in its review of the application to assess whether each proposed location, site, or route for the utility project can meet the criteria for obtaining the necessary DNR permits. In addition to these provisions, the bill also provides that, for an applicant who is required to obtain a PSC certificate, DNR must identify and communicate to the PSC certain specified information including the factors that would require DNR to deny a permit or impose conditions on a permit.

Current law provides that with respect to the information that DNR must provide to the PSC, it may provide only information that is relevant to environmental issues concerning the proposed utility facility, public rights in navigable waters that may be affected by the proposed utility facility, and location, site or route issues concerning the proposed utility facility, including alternative locations, sites, or routes. This bill specifies, instead, that DNR must provide the PSC with information that is relevant to only the statutes that DNR administers and has explicit authority to enforce.

Practicable alternatives

Under current law, DNR must treat the PSC's decision with respect to issuance of a certificate as concluding that there is no practicable alternative for the utility facility if DNR participated in the PSC's investigations or proceedings and the PSC's decision is consistent with DNR's assessment and information. Under this bill, DNR must treat the PSC's approval of a location, site, or route for the utility project as a conclusion that there is no practicable alternative to the location, site, or route for the project. The bill also specifies that if DNR imposes conditions on a DNR permit, the conditions may not require the applicant to undertake the project at a location or site or along a route other than that approved by the PSC.

The bill also provides that if the applicant is not required to obtain a PSC certificate, and the application concerns a project to extend, improve, maintain, or add to an existing utility facility, DNR may not find that there is a practicable alternative to undertaking the utility project except within the existing location, site, route, or right-of-way of the utility facility.

Deadlines

This bill also establishes new deadlines that apply to a utility application. Under the bill, if a utility application is submitted to DNR with respect to a project for which a PSC certificate is required, DNR must grant or deny each permit requested in the application within 30 days of the date on which the PSC issues its certificate decision or within 120 days of the date of closure for the application. If no PSC certificate is required for the project, DNR must grant or deny each permit requested in the application within 120 days of the date of closure. The bill provides that if DNR fails to comply with relevant time limits, a decision issuing the permits requested in the application is considered to be rendered.

Other utility application procedures

This bill also requires DNR to provide to an applicant and, if a proposed project requires a PSC certificate, to the PSC a written statement demonstrating that any information provided, or any finding or determination made, by DNR is consistent with DNR's explicit statutory authority and is based on sufficient facts or data.

The bill also prohibits DNR from denying a permit requested in an application under the utility application procedure if DNR did not identify factors during the application review process that would require it to deny the permit. DNR is also prohibited from imposing conditions on a permit that are different from conditions identified as necessary during the application review process.

Navigable waters permits

Under current law, with certain exceptions, no person may deposit material or place a structure on the bed of a navigable water without a permit from DNR (structure permit). Current law also prohibits, with certain exceptions, the removal of material from the bed of a navigable water without a permit from DNR (removal permit). This bill creates exemptions to the structure permit and the removal permit requirements. Under the bill, the exemption applies to an electric public utility or a wholesale electric cooperative (cooperative) that deposits material on the bed of a navigable water if the deposit or removal of material is associated with the response to or cleanup of a release of drilling fluid associated with directional boring and if the deposit or removal does not affect more than one-tenth of one acre of lake bed. The bill also exempts an electric public utility or a cooperative from the structure permit requirement for the temporary use or placement within an existing utility corridor of equipment, a structure, or a vehicle on the bed of a navigable water for a purpose associated with the construction of a utility facility.

Under current law, a county must enact a shoreland zoning ordinance for all shorelands in its unincorporated area. Current law defines a shoreland to be an area within a certain distance from the edge of a navigable water. This bill specifies that a shoreland zoning ordinance does not apply to a project to construct certain utility facilities if DNR has issued all the permits required for the project or, if no permits are required by DNR for the project, the person conducting the project employs best management practices related to storm water management.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB774,1 Section 1. 30.025 (1b) (a) of the statutes is renumbered 30.025 (1b) (ar).

AB774,2 Section 2. 30.025 (1b) (ag) of the statutes is created to read:

AB774,5,4 30.025 (1b) (ag) "Applicant" means a person proposing to undertake a utility project for which a permit is required.

AB774,3 Section 3. 30.025 (1b) (aj) of the statutes is created to read:

AB774,5,8 30.025 (1b) (aj) "Application" means a submission to the department that requests that the department issue all of the permits that an applicant requires to undertake a utility project.

AB774,4 Section 4. 30.025 (1b) (am) of the statutes is created to read:

AB774,5,11 30.025 (1b) (am) "Certificate" means a certificate issued by the commission under s. 196.49 or 196.491 (3).

AB774,5 Section 5. 30.025 (1b) (b) of the statutes, as affected by 2013 Wisconsin Act 20, is amended to read:

AB774,6,4 30.025 (1b) (b) "Permit" means an individual permit, authority to proceed under a general permit, an approval, or a contract required under this subchapter or subch. II, a permit or an approval required under ch. 31, an incidental taking permit required under s. 29.604 (6m), a storm water discharge permit required under s. 283.33 (1) (a) or (am), authority to proceed under a storm water discharge general permit required under s. 283.35, or a wetland general permit or wetland individual permit required under s. 281.36 or under rules promulgated under subch. II of ch. 281 to implement 33 USC 1341 (a).

AB774,6 Section 6. 30.025 (1b) (bm) of the statutes is created to read:

AB774,6,6 30.025 (1b) (bm) "Public utility" has the meaning given in s. 196.01 (5).

AB774,7 Section 7. 30.025 (1b) (c) of the statutes is amended to read:

AB774,6,12 30.025 (1b) (c) "Utility facility" means a project, as defined in s. 196.49 (3) (a), plant, equipment, property, or a facility, as defined in s. 196.491 (1) (e) owned or operated by a public utility or by a cooperative association organized under ch. 185 for the purpose of producing or furnishing heat, light, power, or water to its members only.

AB774,8 Section 8. 30.025 (1b) (d) of the statutes is created to read:

AB774,6,15 30.025 (1b) (d) "Utility project" means a project to construct, extend, improve, maintain, or add to a utility facility.

AB774,9 Section 9. 30.025 (1e) (a) of the statutes, as affected by 2013 Wisconsin Act 1, is renumbered 30.025 (1e) and amended to read: