LRB-1884/2
RNK:wlj:jf
2013 - 2014 LEGISLATURE
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
1An Act to repeal 30.025 (1s) (b), 30.025 (2g) and 30.025 (2s) (a) 1. and 2.;
to
2renumber 30.025 (1b) (a), 30.025 (1e) (c) and 30.025 (5);
to renumber and
3amend 30.025 (1e) (a), 30.025 (1e) (b), 30.025 (2s) (a) (intro.), 30.025 (3) (intro.)
4(except 30.025 (3) (title)), 30.025 (3) (a) and 30.025 (3) (b);
to amend 30.025 (1b)
5(b), 30.025 (1b) (c), 30.025 (1m), 30.025 (1s) (a), 30.025 (2), 30.025 (4), 196.491
6(3) (a) 3. a. and 196.491 (3) (a) 3. b.;
to repeal and recreate 30.025 (2s) (b) and
730.025 (5) (title); and
to create 30.025 (1b) (ag), 30.025 (1b) (aj), 30.025 (1b)
8(am), 30.025 (1b) (bm), 30.025 (1b) (d), 30.025 (1s) (c) to (f), 30.025 (2m), 30.025
9(3) (c) to (e), 30.025 (4m), 30.025 (5) (d), 30.12 (1mn), 30.20 (1g) (d), 59.692 (1n)
10and 196.492 of the statutes;
relating to: procedures for utility projects that
11require 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
1Section
1. 30.025 (1b) (a) of the statutes is renumbered 30.025 (1b) (ar).
AB774,2
2Section
2. 30.025 (1b) (ag) of the statutes is created to read:
AB774,5,43
30.025
(1b) (ag) "Applicant" means a person proposing to undertake a utility
4project for which a permit is required.
AB774,3
5Section
3. 30.025 (1b) (aj) of the statutes is created to read:
AB774,5,86
30.025
(1b) (aj) "Application" means a submission to the department that
7requests that the department issue all of the permits that an applicant requires to
8undertake a utility project.
AB774,4
9Section
4. 30.025 (1b) (am) of the statutes is created to read:
AB774,5,1110
30.025
(1b) (am) "Certificate" means a certificate issued by the commission
11under s. 196.49 or 196.491 (3).
AB774,6,414
30.025
(1b) (b) "Permit" means an individual permit,
authority to proceed
15under a general permit, an approval, or a contract required under this subchapter
16or subch. II, a permit or an approval required under ch. 31,
an incidental taking
17permit required under s. 29.604 (6m), a storm water discharge permit required under
1s. 283.33 (1) (a) or (am),
authority to proceed under a storm water discharge general
2permit required under s. 283.35, or a wetland general permit or wetland individual
3permit required under s. 281.36 or under rules promulgated under subch. II of ch.
4281 to implement
33 USC 1341 (a).
AB774,6
5Section
6. 30.025 (1b) (bm) of the statutes is created to read:
AB774,6,66
30.025
(1b) (bm) "Public utility" has the meaning given in s. 196.01 (5).
AB774,7
7Section
7. 30.025 (1b) (c) of the statutes is amended to read:
AB774,6,128
30.025
(1b) (c) "Utility facility" means a
project, as defined in s. 196.49 (3) (a), 9plant, equipment, property, or a facility
, as defined in s. 196.491 (1) (e) owned or
10operated by a public utility or by a cooperative association organized under ch. 185
11for the purpose of producing or furnishing heat, light, power, or water to its members
12only.
AB774,8
13Section
8. 30.025 (1b) (d) of the statutes is created to read:
AB774,6,1514
30.025
(1b) (d) "Utility project" means a project to construct, extend, improve,
15maintain, or add to a utility facility.
AB774,9
16Section
9. 30.025 (1e) (a) of the statutes, as affected by
2013 Wisconsin Act 1,
17is renumbered 30.025 (1e) and amended to read: