LRBs0247/2
MDK/JK/RNK:kmg:pg
2003 - 2004 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 1,
TO 2003 ASSEMBLY BILL 632
November 4, 2003 - Offered by Representatives Jensen, Steinbrink, Ziegelbauer
and Powers.
AB632-ASA1,2,2
1An Act to repeal 196.491 (3) (g) 1m.;
to renumber 85.02 and 196.491 (3) (h);
to
2renumber and amend 30.025 (1), 196.491 (3) (g) 1. and 196.491 (4) (c);
to
3amend 15.795 (1), 16.969 (4), 30.02 (1), 30.02 (2), 30.025 (title), 30.025 (2),
430.025 (3) (intro.), 30.025 (4), 66.0119 (1) (a), 79.04 (7) (c) 1m., 91.75 (4), 196.025
5(2) (intro.), 196.491 (3) (a) 1., 196.491 (3) (a) 3. a., 196.491 (3) (b), 196.491 (3) (d)
6(intro.), 196.491 (3) (e), 196.491 (3) (gm) and 196.491 (3) (j); and
to create 1.12
7(6), 23.09 (22m), 30.025 (1b), 30.025 (1e), 30.025 (1m), 30.025 (1s) (title), 30.025
8(1s) (b), 30.025 (2g), 30.025 (2s), 30.025 (3m), 30.206 (1m), 32.03 (5) (c), 79.04
9(6) (c) 3., 79.04 (7) (d), 85.02 (2), 196.02 (5m), 196.025 (1m), 196.025 (2m), 196.20
10(7), 196.49 (4), 196.491 (3) (d) 8., 196.491 (3b), 196.491 (4) (c) 2., 196.491 (4) (c)
113. and 196.491 (6) (title) of the statutes;
relating to: construction of certain
1public utility facilities, utility aid payments, utility condemnations, and
2granting rule-making authority.
Analysis by the Legislative Reference Bureau
This substitute amendment does all of the following: 1) changes requirements
for the Public Service Commission (PSC) to approve the construction of certain public
utility projects; 2) changes requirements for the Department of Natural Resources
(DNR) to issue permits that are required for the construction of certain public utility
projects; 3) changes requirements for the PSC and DNR to consider the
environmental impacts of such projects; 3) declares a state policy regarding the siting
of electric transmission facilities; 4) modifies utility aid payments; and 5) allows
electric utilities to negotiate with property owners regarding condemnations.
PSC requirements
Under current law, with certain exceptions, a person may not begin the
construction of certain electric generating facilities or high-voltage transmission
lines before the PSC has issued a certificate of public convenience and necessity to
the person. A "high-voltage transmission line" is defined as a line of more than one
mile in length that is designed to operate at 100 or more kilovolts. Current law
specifies the procedure that a person must follow to apply for a certificate to construct
electric generating facilities or high-voltage transmission lines. In addition, current
law specifies the findings that the PSC must make before issuing a certificate.
The substitute amendment changes an exemption under current law that
applies to the construction of certain high-voltage transmission lines. Under
current law, a certificate is not required if the line operates at 230 or less kilovolts,
and if all construction activity takes place entirely within an existing electric
transmission right-of-way. The substitute amendment changes the exemption to
apply to a line that operates at 345 or less kilovolts. The substitute amendment also
provides that construction of a line that qualifies for the exemption may proceed even
if it is prohibited by a local ordinance.
The substitute amendment also creates an expedited procedure for obtaining
a certificate for constructing a high-voltage transmission line. The procedure
applies only if the construction is limited to adding conductors to existing
transmission poles or towers and if all construction activity takes place entirely
within an existing electric transmission right-of-way. The PSC must promulgate
rules for applying for a certificate under the expedited procedure. If the PSC receives
an application that complies with the rules, the PSC must, as soon as practicable,
notify the applicant that the PSC has received a complete application. After a
complete application is received, the applicant is considered to have been issued a
certificate, unless the PSC notifies the applicant within 30 days after the PSC
receives a complete application that the public interest requires the applicant to
obtain the PSC's approval for the construction. If the PSC makes such a notification,
the substitute amendment requires the applicant to obtain a certificate that is
required under current law for certain public utility construction projects, rather
than the certificate of public convenience and necessity that is described above.
In addition, the substitute amendment changes requirements under current
law that apply to an application for a certificate to construct an electric generating
facility or a high-voltage transmission line that is subject to regulatory approval in
another state. Under current law, the PSC must complete action on an application
within 180 days after the application is complete. (Current law also provides for an
extension of this deadline under certain circumstances.) However, current law
creates an exemption from the deadline if another state is also taking action on such
a facility or line. This substitute amendment eliminates the exemption to the
deadline.
The substitute amendment also makes the following changes:
1. The substitute amendment allows the PSC to use a procedure under current
law to obtain an inspection warrant for the purpose of inspecting property to gather
information related to preparing or reviewing an application for a certificate
described above or a certificate required for certain other nontelecommunications
utility projects (such as, for example, the construction of a natural gas pipeline). The
substitute amendment specifies that the information that may be gathered includes
any information necessary to evaluate environmental features or effects that are
relevant to such an application.
2. The substitute amendment allows a county, town, village, or city that
receives certain distributions that are funded with fees paid by persons that
construct high-voltage transmission lines to use the distributions for any purpose,
if the PSC finds that the purpose is in the public interest. Under current law, such
distributions may be used only for park, conservancy, wetland, or other similar
environmental programs.
3. The substitute amendment requires the PSC to consider whether, to the
extent practicable, brownfields are used when a person applies for a certificate to
construct electric generating facilities. "Brownfields" are defined as abandoned, idle,
or underused industrial or commercial facilities or sites, the expansion or
redevelopment of which is adversely affected by actual or perceived environmental
contamination.
4. The substitute amendment requires a person who applies for a certificate to
construct a high-voltage line to submit a detailed project plan to DNR. Under
current law, the type of plan that a person must submit to DNR for such a line is
called an engineering plan, instead of a project plan.
5. The substitute amendment requires a person who applies for a certificate of
public convenience and necessity for certain electric generating facilities or
high-voltage transmission lines to provide a brief description of the anticipated
effects of the facility or line on air and water quality, wetlands, solid waste disposal
capacity, and other natural resources. Current law limits the description to effects
on air and water quality.
DNR requirements
Generally, under current law, a person proposing to construct a utility facility
in a manner that requires the placement of a structure in navigable waters or that
involves the construction or maintenance of a dam is required to obtain one or more
permits from DNR. Current law requires DNR to hold a public hearing before
granting certain of these permits. Current law also prohibits a person from
discharging dredged or fill material into a nonfederal wetland unless the person is
issued a water quality certification by DNR.
Under current law, electric utilities that propose to construct an electric
generating facility or high-voltage transmission line adjacent to a waterway may
use an optional permit procedure to obtain certain DNR permits. Under that
optional procedure, if the utility must obtain more than one permit from DNR
relating to the placement of structures in navigable waters or the construction or
maintenance of a dam, the utility may, instead of submitting separate applications
for the permits, submit an engineering plan to DNR. If the utility submits an
engineering plan instead of separate applications for permits, DNR is required to
schedule the entire matter for a public hearing, rather than scheduling separate
hearings for each permit application. After the hearing, DNR must grant all of the
necessary permits if certain conditions are met.
This substitute amendment provides that any utility facility, other than a
telecommunications facility, that is required to obtain a certificate from the PSC and
that is also required to obtain one or more permits from DNR for the placement of
a structure in navigable waters, or for the construction or maintenance of a dam, or
to obtain a water quality certification for discharging material in a nonfederal
wetland, must use a procedure that requires the utility facility to submit only one
application for all of those permits. Under that procedure, a person proposing to
construct a utility facility must first notify DNR of its intention to file an 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. The
substitute amendment provides that once the application is completed, DNR may
schedule the matter for a public hearing. The hearing may not be conducted as a
contested case hearing. In a contested case, all parties must be given an opportunity
for a hearing and must be given the opportunity to present evidence.
Under the substitute amendment, DNR must grant the permits for the utility
facility if DNR makes certain findings, including that the proposal complies with
certain environmental statutes and that it does not unduly affect public rights and
interests in navigable waterways. The substitute amendment requires DNR to
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.
The substitute amendment also specifies that as a part of this permit procedure
DNR must review the proposed utility facility to assess whether the location, site,
or route is capable of meeting the criteria for obtaining the required permits from
DNR and must provide this information to the PSC. DNR must also participate in
PSC investigations or proceedings relating to the application for a certificate of
public convenience and necessity for the utility facility. The substitute amendment
provides that if the PSC issues the certificate for that utility facility, 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 utility
facility 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.
Under current law, for certain activities affecting navigable waters that are
undertaken by riparian owners, or for activities relating to the construction,
dredging, or enlarging of certain waterways, DNR may issue general permits
authorizing a class of activities. This substitute amendment requires DNR to issue
a general permit for the construction of those high-voltage transmission line projects
to which the expedited procedure created in this substitute amendment for obtaining
a certificate from the PSC applies.
Environmental impacts
Current law requires state agencies, including the PSC and DNR, to consider
the environmental impacts of proposed actions, including proposals to issue the
certificates, permits, and approvals described above. These requirements were
created by the Wisconsin Environmental Policy Act (WEPA). The PSC and DNR
have promulgated rules for complying with WEPA. Under these rules, the PSC or
DNR must prepare an environmental impact statement (EIS) for major actions that
significantly affect the quality of the human environment and an environmental
assessment (EA) for actions that have the potential to significantly affect the quality
of the human environment. Based on the results of an EA, the PSC or DNR may also
prepare an EIS.
The substitute amendment requires the PSC and DNR to coordinate their
compliance with WEPA when the PSC and DNR receive applications for certificates,
permits, and approvals that are required from both the PSC and DNR for the
construction of electric generating facilities and high-voltage transmission lines and
certain other nontelecommunications utility projects (such as, for example,
construction of a natural gas pipeline). The substitute amendment also requires
such coordination when public utilities that are not telecommunications utilities
apply to the PSC for certificates authorizing other types of construction projects.
Such coordination is also required when a natural gas utility applies to the PSC for
a certificate authorizing a project involving switching sources of natural gas
supplies.
Under the substitute amendment, if the rules of either the PSC or DNR require
the preparation of an EIS for an application for a certificate, permit, or approval
described above, the PSC and DNR must cooperatively prepare an EIS. If neither
agency's rules require an EIS, but either agency's rules require an EA, the PSC and
DNR must cooperatively prepare an EA. The joint EIS or EA that is required under
the substitute amendment must include all of the information necessary for both the
PSC and DNR to comply with WEPA. In addition, the substitute amendment does
not waive the duty of the PSC or DNR to comply with WEPA, except that the PSC
and DNR are only required to consider the project that is the subject of the
application and one alternative to the project. Under current law, the PSC and DNR
must consider more than one alternative under WEPA. In addition, the substitute
amendment does not waive any duty of the PSC or DNR to take any other action
required by law regarding the project.
The substitute amendment also specifies that the PSC is not required to
prepare an EIS for construction of a high-voltage line that does not require a
certificate from the PSC. As discussed above, this exemption is changed by the
substitute amendment to apply to certain construction activities related to
high-voltage transmission lines that operate at 345 or less kilovolts. Although an
EIS is not required, the substitute amendment requires the PSC to prepare an EA
for construction that is subject to the exemption, but only if the PSC's rules require
an EA for the construction.
State policy on siting of electric transmission facilities
Current law makes certain declarations of state energy policy, including goals
for conserving energy and meeting energy demands. This substitute amendment
declares a new policy regarding the siting of new electric transmission facilities,
including high-voltage transmission lines. The substitute amendment provides
that, in the siting of such facilities, it is state policy to utilize the following corridors
in the following order of priority: 1) existing utility corridors; 2) highway and
railroad corridors; 3) recreational trails; and 4) new corridors. The corridors must
be utilized in such a manner to the greatest extent feasible that is consistent with
economic and engineering considerations, reliability of the electric system, and
protection of the environment. Also, recreational trails must be utilized to the extent
that facilities may be constructed below ground and do not significantly impact
environmentally sensitive areas.
The substitute amendment also directs the PSC, DNR, and Department of
Transportation to implement the policy described above in making all decisions,
rules, and orders affecting the siting of new electric transmission facilities.
Utility aid payment
Under current law, generally, each municipality and county in which a power
production plant is located annually receives utility aid payments based on the net
value of the production plant. Beginning with utility aid payments in 2005, each
municipality and county in which a production plant is located will receive a
payment based on the megawatt capacity of the production plant, if the plant began
operating after December 31, 2003. If a plant is located in more than one
municipality, the payment is divided among the municipalities in which the plant is
located based on the net value of that portion of the plant located in each
municipality. Under this substitute amendment, if a plant is located in more than
one county, the payment is divided among the counties in which the plant is located
based on the net value of that portion of the plant located in each county.
Under current law, for production plants that begin operating after December
31, 2003, each municipality and county in which such a production plant is located
may receive an additional utility aid payment based on the production plant's
megawatt capacity if the plant is built on the site of an existing or decommissioned
production plant or on brownfields or if the plant is a baseload electric generating
facility, derives energy from an alternative energy resource, or is a cogeneration
production plant. Under this substitute amendment, if such a production plant is
located in more than one municipality or county, the payment is divided among the
municipalities or counties in which the plant is located based on the net value of that
portion of the plant located in each municipality or county.
Under current law, a county or municipality that receives a utility aid payment
based on a cogeneration production plant located in the county or municipality may
not receive a payment based on a production plant that derives energy from an
alternative energy resource and that is located in the county or municipality. Under
this substitute amendment, a county or municipality that receives a utility aid
payment based on a cogeneration production plant located in the county or
municipality may also receive a payment based on a production plant that derives
energy from an alternative energy resource, if the production plant that derives
energy from an alternative energy resource is not the cogeneration production plant.
Under this substitute amendment, generally, an electric public utility may not
recover in rates the cost of any payments paid to a local unit of government to
mitigate the impact of an electric generating facility on the local unit of government,
unless the agreement providing for the payments is received by the PSC before June
10, 2003, and the PSC finds the agreement to be reasonable.
Under current law, electric utilities (and other public utilities) are allowed,
under certain circumstances, to acquire property by condemnation. For construction
by an electric utility that requires a certificate of public convenience and necessity
from the PSC, current law provides that the utility's authority to condemn property
for the construction does not exist until the certificate is issued.
This substitute amendment allows an electric utility to negotiate with a
property owner before a certificate is issued. However, the electric utility must
advise the property owner that the electric utility does not have the right to condemn
the property until the certificate is issued.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB632-ASA1,7,72
1.12
(6) Siting of electric transmission facilities. In the siting of new electric
3transmission facilities, including high-voltage transmission lines, as defined in s.
4196.491 (1) (f), it is the policy of this state that, to the greatest extent feasible that
5is consistent with economic and engineering considerations, reliability of the electric
6system, and protection of the environment, the following corridors should be utilized
7in the following order of priority:
AB632-ASA1,7,88
(a) Existing utility corridors.
AB632-ASA1,8,1
1(b) Highway and railroad corridors.
AB632-ASA1,8,42
(c) Recreational trails, to the extent that the facilities may be constructed below
3ground and that the facilities do not significantly impact environmentally sensitive
4areas.
AB632-ASA1,8,55
(d) New corridors.
AB632-ASA1,8,147
15.795
(1) Office of the commissioner of railroads. There is created an office
8of the commissioner of railroads which is attached to the public service commission
9under s. 15.03, provided that s. 85.02
(1) does not apply to the office of the
10commissioner of railroads. The commissioner of railroads shall have expertise in
11railroad issues and may not have a financial interest in a railroad, as defined in s.
12195.02 (1). The commissioner may not serve on or under any committee of a political
13party. The commissioner shall hold office until a successor is appointed and
14qualified.
AB632-ASA1,8,2316
16.969
(4) A county, town, village
, or city that receives a distribution under sub.
17(3) (b) may use the distribution only for park, conservancy, wetland or other similar
18environmental programs
, unless the commission approves a different use under this
19subsection. A county, town, village, or city that receives a distribution may request
20in writing at any time that the commission approve a different use. The commission
21shall make a decision no later than 14 days after receiving such a request. The
22commission shall approve a request if it finds that the request is in the public
23interest.
AB632-ASA1,9,3
123.09
(22m) Siting of electric transmission facilities. The department shall
2implement the policy specified in s. 1.12 (6) in making all decisions, orders, and rules
3affecting the siting of new electric transmission facilities.
AB632-ASA1,9,75
30.02
(1) In Except as provided in s. 30.025, in any proceeding under this
6chapter where public notice is required, the department shall follow the procedures
7in subs. (3) and (4).
AB632-ASA1,9,129
30.02
(2) In Except as provided in s. 30.025, in any proceeding under this
10chapter where public notice is not required, the department shall follow the
11procedures in subs. (3) and (4) if it determines that substantial interests of any party
12may be adversely affected by the proceeding.
AB632-ASA1, s. 7
13Section
7. 30.025 (title) of the statutes is amended to read:
AB632-ASA1,9,15
1430.025 (title)
Optional permit
Permit procedure for certain electric
15generating facilities and high-voltage transmission lines
utility facilities.
AB632-ASA1, s. 8
16Section
8. 30.025 (1) of the statutes is renumbered 30.025 (1s) (a) and
17amended to read:
AB632-ASA1,9,2518
30.025
(1s) (a) Any
electric utility, as defined in s. 196.491 (1) (d), person 19proposing to construct a
utility facility
, as defined in s. 196.491 (1) (e), which facility
20is to be located adjacent to a waterway in such a manner as to require one or more
21permits to be issued under this chapter and ch. 31 may to which this section applies
22shall, in lieu of separate application for permits
under those chapters, submit
an
23engineering plan one application for permits together with any additional
24information required by the department.
Such plan
The application shall be filed
25with the department
within 20 days after at the same time that an application for
1a certificate
of public convenience and necessity is filed with the
public service 2commission under s.
196.49 or in a manner consistent with s. 196.491 (3)
and shall
3include the detailed information that the department requires to determine whether
4an application is complete and to carry out its obligations under sub. (4). The
5department may require supplemental information to be furnished thereafter.
AB632-ASA1,10,77
30.025
(1b) Definitions. In this section:
AB632-ASA1,10,88
(a) "Commission" means the public service commission.
AB632-ASA1,10,129
(b) "Permit" means a permit or approval required under this chapter or ch. 31,
10a storm water discharge permit required under s. 283.33 (1) (a), or a water quality
11certification required under s. 281.36 or under rules promulgated under subch. II of
12ch. 281 to implement
33 USC 1341 (a).
AB632-ASA1,10,1413
(c) "Utility facility" means a project, as defined in s. 196.49 (3) (a), or a facility,
14as defined in s. 196.491 (1) (e).
AB632-ASA1,10,1816
30.025
(1e) Applicability. (a) Except as provided in par. (b), this section applies
17to a proposal to construct a utility facility if the utility facility is required to obtain
18one or more permits.
AB632-ASA1,10,21
19(b) This section does not apply to a proposal to construct a utility facility if the
20only permit that the utility facility is required to obtain from the department is a
21storm water discharge permit under s. 283.33 (1) (a).