Amendment ASA1-AB632

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, s. 1 Section 1. 1.12 (6) of the statutes is created to read:

AB632-ASA1,7,7 1.12 (6) Siting of electric transmission facilities. In the siting of new electric transmission facilities, including high-voltage transmission lines, as defined in s. 196.491 (1) (f), it is the policy of this state that, to the greatest extent feasible that is consistent with economic and engineering considerations, reliability of the electric system, and protection of the environment, the following corridors should be utilized in the following order of priority:

AB632-ASA1,7,8 (a) Existing utility corridors.

AB632-ASA1,8,1 (b) Highway and railroad corridors.

AB632-ASA1,8,4 (c) Recreational trails, to the extent that the facilities may be constructed below ground and that the facilities do not significantly impact environmentally sensitive areas.

AB632-ASA1,8,5 (d) New corridors.

AB632-ASA1, s. 2 Section 2. 15.795 (1) of the statutes is amended to read:

AB632-ASA1,8,14 15.795 (1) Office of the commissioner of railroads. There is created an office of the commissioner of railroads which is attached to the public service commission under s. 15.03, provided that s. 85.02 (1) does not apply to the office of the commissioner of railroads. The commissioner of railroads shall have expertise in railroad issues and may not have a financial interest in a railroad, as defined in s. 195.02 (1). The commissioner may not serve on or under any committee of a political party. The commissioner shall hold office until a successor is appointed and qualified.

AB632-ASA1, s. 3 Section 3. 16.969 (4) of the statutes is amended to read:

AB632-ASA1,8,23 16.969 (4) A county, town, village, or city that receives a distribution under sub. (3) (b) may use the distribution only for park, conservancy, wetland or other similar environmental programs, unless the commission approves a different use under this subsection. A county, town, village, or city that receives a distribution may request in writing at any time that the commission approve a different use. The commission shall make a decision no later than 14 days after receiving such a request. The commission shall approve a request if it finds that the request is in the public interest.

AB632-ASA1, s. 4 Section 4. 23.09 (22m) of the statutes is created to read:

AB632-ASA1,9,3 23.09 (22m) Siting of electric transmission facilities. The department shall implement the policy specified in s. 1.12 (6) in making all decisions, orders, and rules affecting the siting of new electric transmission facilities.

AB632-ASA1, s. 5 Section 5. 30.02 (1) of the statutes is amended to read:

AB632-ASA1,9,7 30.02 (1) In Except as provided in s. 30.025, in any proceeding under this chapter where public notice is required, the department shall follow the procedures in subs. (3) and (4).

AB632-ASA1, s. 6 Section 6. 30.02 (2) of the statutes is amended to read:

AB632-ASA1,9,12 30.02 (2) In Except as provided in s. 30.025, in any proceeding under this chapter where public notice is not required, the department shall follow the procedures in subs. (3) and (4) if it determines that substantial interests of any party may be adversely affected by the proceeding.

AB632-ASA1, s. 7 Section 7. 30.025 (title) of the statutes is amended to read:

AB632-ASA1,9,15 30.025 (title) Optional permit Permit procedure for certain electric generating facilities and high-voltage transmission lines utility facilities.

AB632-ASA1, s. 8 Section 8. 30.025 (1) of the statutes is renumbered 30.025 (1s) (a) and amended to read:

AB632-ASA1,9,25 30.025 (1s) (a) Any electric utility, as defined in s. 196.491 (1) (d), person proposing to construct a utility facility, as defined in s. 196.491 (1) (e), which facility is to be located adjacent to a waterway in such a manner as to require one or more permits to be issued under this chapter and ch. 31 may to which this section applies shall, in lieu of separate application for permits under those chapters, submit an engineering plan one application for permits together with any additional information required by the department. Such plan The application shall be filed with the department within 20 days after at the same time that an application for a certificate of public convenience and necessity is filed with the public service commission under s. 196.49 or in a manner consistent with s. 196.491 (3) and shall include the detailed information that the department requires to determine whether an application is complete and to carry out its obligations under sub. (4). The department may require supplemental information to be furnished thereafter.

AB632-ASA1, s. 9 Section 9. 30.025 (1b) of the statutes is created to read:

AB632-ASA1,10,7 30.025 (1b) Definitions. In this section:

AB632-ASA1,10,8 (a) "Commission" means the public service commission.

AB632-ASA1,10,12 (b) "Permit" means a permit or approval required under this chapter or ch. 31, a storm water discharge permit required under s. 283.33 (1) (a), or a water quality certification required under s. 281.36 or under rules promulgated under subch. II of ch. 281 to implement 33 USC 1341 (a).

AB632-ASA1,10,14 (c) "Utility facility" means a project, as defined in s. 196.49 (3) (a), or a facility, as defined in s. 196.491 (1) (e).

AB632-ASA1, s. 10 Section 10. 30.025 (1e) of the statutes is created to read:

AB632-ASA1,10,18 30.025 (1e) Applicability. (a) Except as provided in par. (b), this section applies to a proposal to construct a utility facility if the utility facility is required to obtain one or more permits.

AB632-ASA1,10,21 (b) This section does not apply to a proposal to construct a utility facility if the only permit that the utility facility is required to obtain from the department is a storm water discharge permit under s. 283.33 (1) (a).

AB632-ASA1, s. 11 Section 11. 30.025 (1m) of the statutes is created to read:

AB632-ASA1,11,4 30.025 (1m) Preapplication process. Before filing an application under this section, a person proposing to construct a utility facility shall notify the department of the intention to file an application. After receiving such notice, the department shall confer with the person, in cooperation with the commission, to make a preliminary assessment of the project's scope, to make an analysis of alternatives, to identify potential interested persons, and to ensure that the person making the proposal is aware of all of the following:

AB632-ASA1,11,5 (a) The permits that the person may be required to obtain.

AB632-ASA1,11,6 (b) The information that the person will be required to provide.

AB632-ASA1,11,9 (c) The timing of information submissions that the person will be required to provide in order to enable the department to participate in commission review procedures and to process the application in a timely manner.

AB632-ASA1, s. 12 Section 12. 30.025 (1s) (title) of the statutes is created to read:

AB632-ASA1,11,11 30.025 (1s) (title) Application for permits.

AB632-ASA1, s. 13 Section 13. 30.025 (1s) (b) of the statutes is created to read:

AB632-ASA1,11,15 30.025 (1s) (b) A person who applies to the commission for a certificate under s. 196.49 or 196.491 (3) is eligible to apply under par. (a) for any permit that the utility facility may require and to receive such permit.

AB632-ASA1, s. 14 Section 14. 30.025 (2) of the statutes is amended to read:

AB632-ASA1,12,2 30.025 (2) Hearing. Once electric utilities have met the applicant meets the requirements of sub. (1) (1s) (a), the department shall may schedule the matter for a public hearing. Notice of the hearing shall be given to the applicant and shall be published as a class 1 notice under ch. 985. The department may give such further notice as it deems proper, and shall give notice to persons requesting same. One copy of the application shall be available for public inspection at the office of the department, at least one copy in the district regional office of the department, and at least one copy at the main public library, of the area affected. Notwithstanding s. 227.42, the hearing shall be an informational hearing and may not be treated as a contested case hearing nor converted to a contested case hearing.

AB632-ASA1, s. 15 Section 15. 30.025 (2g) of the statutes is created to read:

AB632-ASA1,12,8 30.025 (2g) Participation in commission proceedings. (a) The department shall review every proposed utility facility subject to this section, including each location, site, or route proposed for the utility facility, to assess whether each proposed location, site, or route can meet the criteria for obtaining the required permits, and shall provide that information to the commission.

AB632-ASA1,12,13 (b) The department shall participate in commission investigations or proceedings under s. 196.49 or 196.491 (3) with regard to any proposed utility facility that is subject to this section. In order to ensure that the commission's decision is consistent with the department's responsibilities, the department shall provide the commission with information that is relevant to only the following:

AB632-ASA1,12,14 1. Environmental issues that concern the proposed utility facility.

AB632-ASA1,12,16 2. Public rights in navigable waters that may be affected by the proposed utility facility.

AB632-ASA1,12,18 3. Location, site, or route issues concerning the proposed utility facility, including alternative locations, sites, or routes.

AB632-ASA1, s. 16 Section 16. 30.025 (2s) of the statutes is created to read:

AB632-ASA1,12,22 30.025 (2s) Consideration of alternatives. (a) The department shall treat the commission's decision under s. 196.49 or 196.491 (3) as concluding that there is no practicable alternative for the utility facility if all of the following apply:

AB632-ASA1,12,24 1. The department has participated in the commission's investigations or proceedings under sub. (2g).

AB632-ASA1,13,3 2. The commission's decision under s. 196.49 or 196.491 (3) is consistent with the department's assessment and information under sub. (2g) considering those factors required to be considered by the commission under s. 196.49 or 196.491 (3).

AB632-ASA1,13,10 (b) If par. (a) applies, the department may not require the applicant for the proposed utility facility to undertake further analysis of any utility facility alternatives, including an analysis of alternative methods of meeting the need for the project or alternative locations, sites, or routes in order to satisfy the criteria under sub. (3). The department may identify adjustments that may be required to address permitting issues within the location, site, or route approved by the commission under s. 196.49 or 196.491 (3).

AB632-ASA1, s. 17 Section 17. 30.025 (3) (intro.) of the statutes is amended to read:

AB632-ASA1,13,13 30.025 (3) Permit issuance. (intro.) The department shall grant the necessary permits if, after hearing, it finds that the applicant has shown that the proposal:

AB632-ASA1, s. 18 Section 18. 30.025 (3m) of the statutes is created to read:

AB632-ASA1,13,20 30.025 (3m) Environmental assessments for certain projects. The department is not required to prepare an environmental impact statement under s. 1.11 (2) (c) for the construction of a project that is specified in s. 196.491 (4) (c) 1. and for which one or more permits are required, but shall prepare an environmental assessment regarding the construction if the department's rules require an environmental assessment.

AB632-ASA1, s. 19 Section 19. 30.025 (4) of the statutes is amended to read:

AB632-ASA1,14,2 30.025 (4) Permit conditions. The permit may be issued upon stated conditions deemed necessary to assure compliance with the criteria designated under sub. (3). The department shall grant or deny the application within the time limit applicable under s. 196.491 (3) (a) 3. b. for a permit for the utility facility within 30 days of the date on which the commission issues its decision under s. 196.49 or 196.491 (3).

AB632-ASA1, s. 20 Section 20. 30.206 (1m) of the statutes is created to read:

AB632-ASA1,14,6 30.206 (1m) The department shall issue a general permit under this section for the construction of projects for which the commission is considered to have issued a certificate under s. 196.491 (3b).

AB632-ASA1, s. 21 Section 21. 32.03 (5) (c) of the statutes is created to read:

AB632-ASA1,14,13 32.03 (5) (c) This subsection does not prohibit an electric utility from negotiating with the owner, or one of the owners, of a property, or the representative of an owner, before the issuance of a certificate of public convenience and necessity, if the electric utility advises the owner or representative that the electric utility does not have the authority to acquire the property by condemnation until the issuance of a certificate of public convenience and necessity.

AB632-ASA1, s. 22 Section 22. 66.0119 (1) (a) of the statutes is amended to read:

AB632-ASA1,14,22 66.0119 (1) (a) "Inspection purposes" include includes such purposes as building, housing, electrical, plumbing, heating, gas, fire, health, safety, environmental pollution, water quality, waterways, use of water, food, zoning, property assessment, meter and obtaining data required to be submitted in an initial site report or feasibility report under subch. III of ch. 289 or s. 291.23, 291.25, 291.29 or 291.31 or an environmental impact statement related to one of those reports. "Inspection purposes" also includes purposes for obtaining information specified in s. 196.02 (5m) by or on behalf of the public service commission.

AB632-ASA1, s. 23 Section 23. 79.04 (6) (c) 3. of the statutes is created to read:

AB632-ASA1,15,4 79.04 (6) (c) 3. For the purpose of determining the amount of the payment under par. (b), if a production plant is located in more than one county, the payment amount under par. (b) shall be divided among the counties in which the plant is located based on the net book value of that portion of the plant located in each county as of December 31, 2004, or as of the date on which the plant is operational, whichever is later.

AB632-ASA1, s. 24 Section 24. 79.04 (7) (c) 1m. of the statutes, as created by 2003 Wisconsin Act 31, is amended to read: