Legislative Program Review and Investigations Committee
Chapter VII
CSC Jurisdiction
One specific area of analysis listed in the study scope was the examination of the range of jurisdiction, powers, duties, role, and responsibilities of the council. In this chapter, the committee outlines the council's current scope of jurisdiction, discusses industry changes affecting CSC jurisdiction, and describes other state models for comparison.
Scope of CSC Regulated Community
First created as the Power Facility Evaluation Council in 1971, the council's primary charge was to oversee the placement of electric facilities. Over the years, the council's scope of jurisdiction has been expanded to include site regulation of certain telecommunications towers, hazardous waste facilities, and low-level radioactive waste (LLRW) disposal areas. The council also has an indirect role in the siting of certain ash residue landfills.
Given its jurisdictional scope, the Connecticut Siting Council is responsible for siting a number of traditionally unwanted facilities from electric generating plants to telecommunications towers. At times, the siting of these facilities is resisted by the proposed municipalities and surrounding communities. As pointed out previously, the council has been effective in getting energy and telecommunication facilities established in a timely manner. However, the council process has not been fully tested in that it has yet to be applied to other areas it can regulate - low-level radioactive and hazardous waste facilities.
The council has carried siting authority for hazardous waste projects since 1981. To date, the council has never received an application to site a new hazardous waste facility. The need for constructing LLRW facilities has been preempted by the inclusion of Connecticut into the Atlantic Interstate Low Level Radioactive Waste Management Compact. Barring changes to the compact, Connecticut will not need to site a low level radioactive waste disposal facility for approximately 50 years.
In addition to siting decisions, the council is also statutorily responsible for a variety of siting related proceedings. It must annually assess forecasts for the supply and demand of electric power and conduct studies of transmission line life-cycle costs every five years.
CSC staffing has remained relatively constant over the years. Currently, the council is served by a nine member staff, including the executive director, three analysts, a durational analyst, a fiscal administrative officer, and three administrative support personnel. The program review evaluation of these CSC functions concludes that presently the council adheres to its statutory mandates and timeframes and seems able to fulfill these roles and responsibilities.
Even as it meets its mandates, the council's workload in each area under its jurisdiction has been impacted by external factors such as industry and regulatory changes. For example, the recent restructuring of the energy industry has renewed interest in project developments in the last few years. At the moment, the council appears to be handling the volume in energy certifications and petitions. One reason may be the telecommunications industry movement away from cellular service which is under the council's jurisdiction and toward personal communication service10 (PCS) under local control. It is not known whether the council's ability to adhere to statutory mandates and timeframes would be compromised if the present regulatory status or industry climate in any of the CSC jurisdictions changed.
Industry Changes Affecting CSC Jurisdiction
The Connecticut Siting Council has regulatory jurisdiction encompassing major industry areas. It is difficult to definitively conclude whether there is an appropriate level of siting regulation in each. To assist in this evaluation, committee staff asked current council members whether the council's existing scope of jurisdiction should be expanded, reduced, or remain the same. Based upon their responses, the committee finds all current regulatory areas seem sufficient to ensure proper review of environmental impact of utility projects except one - telecommunications. The following discussion focuses on recent industry changes affecting CSC regulation.
Telecommunications. In 1996, the federal government restructured the telecommunications industry by opening the market to competition and fundamentally changing its regulation. Under the federal Telecommunications Act of 1996, state and local governments can regulate the siting of wireless telecommunications facilities, including cellular and PCS towers. However, the act prohibits unreasonable regulatory discrimination against functionally equivalent services.
Since 1984, the Connecticut Siting Council has had siting authority for cellular towers. Connecticut statutes define a "facility" under CSC jurisdiction to include among other things "such telecommunications towers, including associated telecommunications equipment....used in a cellular system, as defined in the Code of Federal regulations Title 47, Part 22, as amended, which may have a substantial adverse environmental effect, as said council shall, by regulation, prescribe." (C.G.S. 16-50i(a)(6))
PCS technology did not exist when the CSC telecommunications definition was first enacted in 1984 and was just emerging when the statute was last amended in 1994. By expressly including only cellular services, the statutory definition seems to exclude PCS.
This is the official interpretation by CSC, which believes any other position would be beyond its authority as an administrative agency. As a result, Connecticut municipalities are left siting control of PCS facilities by default, while CSC continues to regulate cellular tower siting.
This bifurcation of jurisdiction is the subject of an ongoing lawsuit filed in January 1998. Sprint PCS has taken the issue to federal court arguing that the state's split jurisdiction constitutes unreasonable discrimination of functionally equivalent services in violation of the Telecommunications Act of 1996. (See sidebar)
PCS vs. Cellular Service
PCS and cellular service are both considered "commercial mobile radio services" (CMRS) under the Federal Communications Commission (FCC) regulations. The FCC addresses PCS and cellular services in separate parts of its regulations, Part 24 and Part 22 respectively. However, the Sprint claim asserts that PCS is functionally equivalent in that it satisfies the component parts of the cellular system definition found in the FCC regulations.
Traditional cellular carriers use a system of broadcast towers to transmit communications to and from their mobile users. PCS is a relatively new technology that is superceding cellular systems. Unlike the earlier analog versions of cellular, PCS uses digital signals to allow for better coverage and wider range of services such as wireless data transmission.
Although similar in some respects, a PCS system differs from a cellular system in that PCS is authorized by FCC to operate at the 1850 -1910 and 1930-1990 megahertz (MHz) bands of the radio spectrum. Traditional cellular uses analog technology and operates at the 800-900 MHz bands of the radio spectrum. Because PCS uses higher frequencies and thus has less power than cellular systems, PCS technology requires that towers and antennas be placed closer to each other than does cellular technology.
Municipal response. When setting up their system networks, telecommunications providers must seek approval from CSC for cellular facilities or from approximately 169 local jurisdictions for PCS. As mentioned in the previous chapter, this issue was frequently mentioned in the municipal surveys conducted by program review staff. The municipal survey responses provided committee staff information regarding the siting experience of telecommunications facilities under municipal jurisdiction.
Approximately 70 percent of the 121 municipalities responding to the committee survey indicated they made one or more telecommunications siting decisions falling under their jurisdiction since 1994. Their written comments to the survey suggest municipalities fall into one of three positions on the split jurisdiction issue: municipalities should retain local control; CSC should have exclusive jurisdiction; or a combined system should be established.
A common sentiment found in the written responses was locals know their community and potentially viable alternatives. Some were concerned a statewide entity would not be in touch with the preferences of local regulators or the community. Many felt the decision should be kept at the local level in the best interest of the community. Some believe they have the ability to regulate these facilities on their own. A few suggested an intertown/regional approach for siting.
More of the written comments seem to prefer some type of collaborative approach. One suggestion was to allow for CSC review of towers under local regulations. Others proposed a statutory requirement that CSC provide technical assistance and advisory comments to municipalities. A couple indicated it would be helpful to have another group review the proposed projects before a town decision to lessen their workload. A few mentioned that as long as local issues are considered, jurisdiction should not be a problem.
A much less common position was to give CSC exclusive jurisdiction over telecommunications. Most of those municipal officials also stated they felt they lack the necessary expertise to make the decision. A few stated they did not have the resources to handle the number of tower applications.
Among the resources used by the responding municipalities in making a siting decision, that falls exclusively under municipal jurisdiction are: town planner (86 percent); town engineer (65 percent); inland wetlands commissioner (70 percent); consultant hired by the municipality (38 percent); planning and zoning representative (26 percent); Connecticut Siting Council (22 percent); and Department of Environmental Protection (12 percent). Other resources used include: town attorney; board of selectmen; land use official; building inspector; environmental planner; area conservation group; regional planning group; and ad hoc committee.
Unfortunately, the emergence of PCS may have caught a number of municipalities unprepared to handle the situation. Problems have arisen in some municipalities that have tried or wanted to adopt "moratoriums" on the processing of siting application to better cope with this situation and in hopes of revamping or developing regulations that would assist in the decision making. Although several towns would like time to study the relevant issues and important regulations surrounding siting, the industry has argued in other states these moratoria violate the Telecommunications Act of 1996 because they in effect constitute a prohibition of wireless service and impose unreasonable delay. Service providers and the industry have challenged these moratoria in the courts.
Council member response. The survey responses of CSC council members support telecommunications jurisdiction under one entity. Among the council members comments: the split jurisdiction results in various siting criteria allowing more and higher towers than required; and local authorities, even if they had the expertise to site, are not aware of how their tower relates to the overall scheme of things on a statewide basis.
Past legislative proposals. For the past several years, the state legislature struggled with the question of who should have jurisdiction over telecommunication tower siting. According to the Office of Legislative Research, legislation was introduced in the last four years to alter the jurisdiction over tower siting. Bills placing PCS towers under council jurisdiction were proposed in 1996, 1997, and 1998. Each year the Energy and Technology committee favorably reported the legislation but it subsequently died when many legislators objected favoring local control.
After these efforts led to impasse, compromise legislation was proposed. For example, in 1997, the Energy and Technology committee raised a bill to transfer PCS facilities to the council's jurisdiction but postpone CSC hearings to permit the applicant and the municipality to negotiate alternative sites and require a two-thirds CSC vote to approve such facilities (HB 6019). In 1999, the committee raised another bill transferring PCS jurisdiction to the council but allowing a municipality to go to binding arbitration if aggrieved by the council's decision (SB 108).
Bills were also raised in the Planning and Development committee in 1998 and 1999. In each year, the committee proposed legislation allowing municipalities to choose to regulate all personal wireless service facilities or none, in which case the jurisdiction would go to the council. All of these proposed bills were favorably reported by their committees but none were ultimately enacted. There were no bills addressing siting jurisdiction issues in the 2000 session. However, there were amendments offered requiring CSC to provide technical assistance to a municipality on issues involving telecommunications towers and mandating municipalities file with CSC the location and height of existing and proposed telecommunications towers. None were passed.
Committee recommendation. There is no doubt that the development of emerging technologies will continue to create new and complex regulatory issues. In fact, the bifurcated jurisdictional status of cellular and PCS telecommunications was recently challenged in court as a violation of federal law. In its ruling, the federal court interpreted Connecticut's existing statutory definition to include both cellular and PCS telecommunications under the Connecticut Siting Council's jurisdiction.
On December 5, 2000, the program review committee made a recommendation of its own on this issue. The committee recommended municipal planning and zoning boards have siting jurisdiction over PCS telecommunications facilities. The Connecticut Siting Council may participate as an intervenor in any such planning and zoning board proceedings. Municipal planning and zoning boards shall establish timeframes for these proceedings.
Tower sharing information. Regardless of the final jurisdiction authority, the committee believes a statewide perspective on how telecommunication projects are developing across the state is necessary to be consistent with legislative policy on tower proliferation. Without a mechanism to oversee statewide impact, it would be difficult, if not impossible, to control tower proliferation.
Currently, the siting council is responsible for promoting tower sharing. Given its statewide jurisdiction on cellular facilities, the council is in a good position to view the big picture and recognize opportunities for shared use. By law, the council can order the owner of an existing PCS or other telecommunications tower to share it with another telecommunications provider, notwithstanding the split jurisdiction over siting. The committee found the council routinely explores the possibility for tower sharing in its decisions. According to CSC reports, the council reviewed and acknowledged 94 requests in FY 00 for tower sharing at existing facilities to avoid the construction of new telecommunications towers.
The program review committee found a weakness, recognized by council staff, in the current tower sharing system. The council does not have complete information on telecommunications facilities sited only by municipalities. There is no statutory requirement the council compile nor municipalities or service carriers provide information on telecommunications facilities under local jurisdiction. The council does maintain a database on towers staff becomes aware of during the course of their work. While this database is probably the most comprehensive tower listing available, council staff acknowledges it is not complete.
It is difficult to maintain updated information about tower siting, in part because there are so many players involved. Information collected from the municipal survey indicates at least 74 municipalities made siting decisions under their own jurisdiction. The program review committee finds comprehensive information gathering is essential to properly promote tower sharing and thereby reducing proliferation. Therefore, the program review committee recommends CSC develop a method of collecting information on all telecommunications towers in Connecticut, and establish and maintain a statewide inventory of these telecommunications towers.
The recommended inventory of towers is key to effective implementation of tower sharing policy. It may also serve decision makers, under any regulatory scheme, in locating future facilities. The information may assist in determining telecommunications coverage and need.
Energy. Another significant regulatory change which will likely impact the council's work is the restructuring of the state's electric utilities. In 1998, following the passage of electric restructuring legislation, the council was authorized to approve, by declaratory ruling rather than certification, certain new generating plants. The plants had to use fuel other than coal or nuclear energy, and be proposed for an existing generating plant site, unless the council determined the plant would cause substantial environmental harm.
The amount of time the council had to issue a siting decision for any new generating plant was reduced from 12 to six months. In addition, the requirement the council determine need for such plants was eliminated. Finally, the council was required to examine its procedures for siting new generating facilities in a restructured electric industry and determine how siting can be expedited while taking environmental concerns into account. The results were presented to the legislature last year and still under consideration.
In its report to the legislature, the council noted a number of suggested changes to be consistent with existing CSC practice and in recognition of the provisions for competitive electric generation as provided by Public Act 98-28. Among its recommendations are changes to the reporting requirements for entities in the new restructured environment. Specifically, changes to the information companies have to provide to assist the council in the development of the annual forecast of load and resources report were recommended. According to council staff, these changes will be proposed this legislative session.
The impact of restructuring is still evolving and the extent of any necessary additional changes still unknown. Nonetheless, the council recommended changes are practical in light of the redefining of electric utilities and would assist the council in fulfilling its mandates.
Siting Authority and Processes in Other States
As part of its study, the program review committee compared selected other states' siting authority to that of the Connecticut Siting Council. Because CSC jurisdiction encompasses a number of major industries but has limited activities in some, the committee focused its attention on comparisons in the energy and telecommunications fields.
The states used for this profile were selected for one or more of the following reasons: geographical proximity to Connecticut, mentioned in environmental policy literature, or for regional contrast. Based on these criteria, the following 13 states were chosen: California, Florida, Iowa, Maine, Massachusetts, New Hampshire, New Jersey, New York, North Carolina, Rhode Island, Texas, Vermont, and Wisconsin. The information was compiled through a review of other state statutes and regulations as well as telephone interviews with other state regulators. Appendix D provides a synopsis of each state's siting authority and characteristics.
In terms of jurisdictional structure, the Connecticut Siting Council is unique in that no other single entity, within the states reviewed, has such broad siting jurisdiction. Most states separate the siting authority of energy and telecommunications facilities. The siting of energy facilities is usually performed by a statewide entity with little to no local regulation. As with Connecticut, some states reserve the authority to preempt local regulation for certain energy facilities.
In the states reviewed, the primary energy siting authority can be classified as an interagency entity in which members are commissioners or representatives of existing state agencies or a group of independent representatives usually appointed by the governor and confirmed by one or more legislative house. This is comparable to the Connecticut Siting Council membership which consists of both gubernatorial and legislative appointments.
Connecticut is the only state in the committee profile which has exclusive siting jurisdiction over telecommunications facilities on non-state land. The siting of telecommunications, including cellular, is most commonly found on the municipal level with some exceptions. In a few cases, the state will assume siting authority if the proposed site involves state property or the proposed structure is over a certain height (New Hampshire, Vermont). In Massachusetts, the state may exempt certain telecommunications facilities from local authority if it finds that the facility is necessary for the convenience or welfare of the public.
The committee also tried to collect information on siting process and criteria in other states. Similar to Connecticut, the siting criteria for energy facilities in other states usually include a determination of need, effect on public health and safety, assessment of the environmental impact, and cost. Given the time and resources needed to contact the various local siting authorities involved, the committee was not able to compile information on siting criteria for telecommunications in other states.
Based on the other state information, the program review committee finds Connecticut is unique in its structure and authority. It is difficult to determine whether any one approach is better than another. According to academic literature, no single set of procedures can guarantee uncontroversial siting in every case. Oftentimes, it seems the ability of the state to locate publicly needed but locally unwanted facilities has less to do with the process used than the nature of the facility proposed or the past experience of the community chosen to host the facility. Therefore, the committee concludes that no one model or organizational structure appears to be a better alternative to the present.
Conclusions. The council's current statutory authority grants it siting jurisdiction over a broad range of industries including energy, telecommunications, hazardous waste, and low level radioactive waste. The majority of the council's work involves energy and telecommunications. The council adheres to its statutory mandates and timeframes allowing it to fulfill its roles and responsibilities. However, it is unknown whether the council's ability to do this would be compromised if the present regulatory status or industry climate in any of the CSC facility jurisdiction changed.
Current state law grants exclusive jurisdiction over cellular telecommunication towers to CSC and by default grants municipalities control over the siting of other telecommunications facilities. Legislative efforts to change the current telecommunication siting structure have failed in recent years. The bifurcation of jurisdiction in the siting of telecommunications facilities has caused controversy and has been the subject of a pending federal lawsuit.
Compared to other states, Connecticut is unique in granting siting jurisdiction to one entity for a broad scope of industries. In terms of siting energy facilities, Connecticut is similar to several other states. Telecommunications siting authority is more commonly found on the municipal level in other states. However, no one model or organizational structure appears to offer more or less benefits than the Connecticut Siting Council.
10 PCS refers to a recent generation of wireless service using digital transmission to provide wireless telecommunications services.