Legislative Program Review and Investigations Committee

Appendix D

Siting Authority In Selected Other States

The following provides a brief synopsis of the siting authority and process used to site electric transmission lines, electric generating and telecommunications facilities in California, Florida, Iowa, Maine, Massachusetts, New Hampshire, New Jersey, New York, North Carolina, Rhode Island, Texas, Vermont, and Wisconsin.

California

Transmission lines. The California Public Utility Commission regulates the siting of transmission lines. The Governor appoints the five commissioners, who must be confirmed by the Senate. An in depth analysis of environmental issues is required under California's Environmental Quality Act (CEQA).

The commission has twelve months, after the submission of a complete application, to site a transmission line but can authorize a shorter period because of exceptional circumstances. The commission may hold public hearings at its discretion. One commissioner is assigned to oversee the siting proceeding. Based upon the presiding commissioner's recommendation, all five commissioners vote on the application. The criteria the commission uses to make siting decisions includes if a facility is necessary to promote the safety, health, comfort, and convenience of the public.

In instances where the public utilities and local agencies are unable to resolve their differences, the commission has the statutory authority to preempt local regulation.

Electric generating facilities. The California Energy Commission regulates the siting of electric generating facilities. The Governor appoints, with Senate confirmation, the five commissioners, one of which represents the public at large. The criteria the commission uses to make siting decisions includes factors related to safety, reliability, and environmental impact. Need was eliminated as a criterion when the state moved toward electric competition. As with transmission lines, an in depth analysis of environmental issues is required under California's Environmental Quality Act (CEQA).

The commission has twelve months, after the submission of a complete application, to make a decision on an application but the applicant can request an extension. The Energy Commission conducts public informational presentations and nonadjudicatory hearings prior to the certification hearing in order to understand the electrical demand basis for the facility and obtain knowledge of the proposed facility and sites. The commission then holds a formal adjudicatory hearing. All five commissioners vote on the application.

In instances where the public utilities and local agencies are unable to resolve their differences, the commission has the statutory authority to preempt local regulation.

Telecommunications towers. The California Public Utility Commission defers to local government to regulate the location of telecommunications towers and to act as the lead agency for purposes of satisfying CEQA requirements. According to commission personnel, there have been recent discussions as to whether or not the state should override or preempt local decisions when there is clear conflict with the commission's goals and/or statewide interest.

Florida

Transmission lines and electric generating facilities: The Florida Public Service Commission, Department of Environmental Protection, and a gubernatorial appointed board are all involved in the siting process. The Governor appoints the five public service commissioners, who must be confirmed by the Senate. The siting board consists of the governor and seven cabinet members, all elected officials.

The commission determines need and the Department of Environmental Protection reviews environmental issues. An administrative law judge holds a certification hearing to determine if the proposed site is consistent and in compliance with existing zoning ordinances. The board reviews the judge's recommended order, and determines if the proposed site conforms to existing land use plans. The board has the statutory authority to preempt local regulation. The board has final authority over certification and siting and considers reliability and the balance between need and impact on the public when making siting decisions.

Telecommunication towers. A certificate of necessity is required from the Public Service Commission prior to construction or operation of any telecommunications facility or extension; however, the siting of towers is left to local authorities.

Iowa

Transmission lines and electric generating facilities. The Iowa Utility Board, within the Department of Commerce, has siting jurisdiction over transmission lines and electric generating facilities. The Governor appoints, with Senate confirmation, the three board members. The board determines whether the transmission line is necessary to serve a public use and its relationship to an overall plan of transmitting electricity. For electric generating facilities, the board considers if the facility is required for public convenience, use and necessity, has minimum adverse land and environmental impacts.

The board has the statutory authority to preempt local zoning requirements for transmission lines and electric generating facilities.

Telecommunications towers. A certificate of public convenience and necessity is required from the board prior to a utility providing land-line local telephone service; however, the siting of towers is left to local authorities.

Maine

Transmission lines. The Public Utility Commission has siting jurisdiction over transmission lines. The Governor appoints the three commissioners, subject to review by the joint standing committee of the state legislature having jurisdiction over public utilities. The commission issues a certificate of public convenience if a need for the proposed transmission line exists.

A public hearing can be held at the discretion of the commission. The issuance of a certificate by the commission does not supercede municipal authorities to regulate the siting of a proposed transmission line; however, if the applicant is a public service corporation the commission can preempt local regulation after a public hearing. A public service corporation includes every gas utility, natural gas pipeline utility, electric utility, telephone utility, water utility, public heating utility and ferry.

Electric generating facilities. The siting of electric generating facilities is left to local authorities since the state enacted law to restructure electric utilities and establish retail competition for electricity generation.

Telecommunications towers. The siting of telecommunications towers is left to local authorities.

Massachusetts

Transmission lines and electric generating facilities. The Energy Facility Siting Board, an independent state review board within the Department of Telecommunications and Energy, has siting jurisdiction over transmission lines and electric generating facilities. The board has nine members including commissioners of Department of Telecommunications and Energy, the Secretary of Environmental Affairs, the Director of Economic Development, the Commissioner of Division of Energy Resources, and public members appointed by Governor.

The board considers need, alternatives, environmental impact, cost, and reliability when making siting decisions for transmission line siting decisions. Siting decisions for electric generating facilities also consider these factors except for need. Need was eliminated as a criterion since the state enacted law to restructure electric utilities and establish retail competition for electricity generation.

The board uses an adjudicatory process to reach siting decisions. A public hearing is a required component of the board's siting process. A hearing officer, who is an attorney for the Department of Telecommunications and Energy's Siting Division, oversees the public and evidentiary hearings and determines intervenors. After the evidentiary hearing, the board staff drafts a tentative decision based on the record of evidence, the board then votes, decisions require a majority vote.

The board does have the statutory authority to preempt local regulation of transmission lines and electric generating facilities.

Telecommunications towers. The siting of telecommunications towers is primarily left to local authorities; however, land or structures used by a public service corporation may be exempted from local zoning upon petition to the Department of Telecommunications and Energy, which will conduct a public hearing. Cellular providers are considered public service corporations. The Department of Telecommunications and Energy can preempt local regulations if it finds that a structure is necessary for public convenience or welfare.

New Hampshire

Transmission lines and electric generating facilities. The Site Evaluation Committee and the Public Utilities Commission have siting jurisdiction over transmission lines and electric generating facilities. The Committee is an interagency group with fifteen members consisting of the three Public Utilities Commissioners and the Chief Engineer of the Public Utilities Commission, Commissioner of the Department of Environmental Services (or designee), Director of the Division of Water; Commissioner of the Department of Resources and Economic Development (or Director of the Division of Economic Development as designee); Commissioner of the Department of Health and Human Services (or designee); Executive Director of the Fish and Game Department; Director of the Office of State Planning; Director of the Division of Parks and Recreation; Director of the Division of Forests and Lands; Director of the Division of Air Resources; Director of the Governor's Office of Energy and Community Services (or designee); and the Commissioner of the Department of Transportation (or designee).

The committee holds joint hearings with the commission. A public hearing is a mandatory component of the siting process. The commission must find the proposed facility is needed and will not adversely affect system reliability and economic factors. Upon a majority vote, the commission decided whether to grant or deny a certificate.

Once a certificate is granted, the Site Evaluation Committee must balance environmental concerns with public need when making siting decisions. A proposed project must be consistent with regional development and not have adverse effect on aesthetics, historic sites, environment, public health and safety. Committee decisions require a majority vote of a full committee. The committee has the statutory authority to preempt local regulation for the siting of transmission lines and electric generating facilities.

Telecommunications towers. The siting of telecommunications towers is under the authority of local planning boards, however, if it is a state owned facility on state property then Commissioner of Transportation with the approval of the Governor can site and is exempt from local regulation. If it is a state-owned facility but not on state property then local regulation is binding.

Recent legislation (HB733), signed by the Governor, requires the Office of State Planning to establish a wireless master plan which identifies the location of all existing towers and develop model municipal ordinances relative to the deployment of personal wireless facilities. Wireless carriers doing business in the state are required to provide the director of the office of state planning all of their tower locations. The new law also establishes a study committee to look at the state's wireless communications policy.

New Jersey

Transmission lines. The Board of Public Utilities has siting jurisdiction over transmission lines. The Governor with the consent of the Senate appoints the three board members; not more than two of the members can be members of the same political party. The board considers need, alternative corridors, safety, and adequacy of the transmission line when making its decision.

The board requires the applicant to obtain local zoning approval but does have the statutory authority to preempt local regulation of transmission lines. If it is an uncontested case, the board will hear and vote on the application. If it becomes a contested case, the board usually sends the application to the Office of Administrative Law, which will hold a hearing before an administrative law judge who will make a decision. The board can accept, reject or amend the judge's decision. A public hearing can be held but it is not mandatory. Application decisions require a majority vote.

Electric generating facilities. The siting of electric generating facilities is left to local authorities since the state enacted law to restructure electric utilities and establish retail competition for electricity generation.

Telecommunications towers. The siting of telecommunications towers is left to local authorities.

New York

Transmission lines. The Public Service Commission, within the Department of Public Service, has siting jurisdiction over transmission lines. The commission consists five gubernatorial appointments confirmed by Senate. In making its decisions the board considers need, environmental impact, and whether the transmission line does not pose any undue hazard.

The Commission has the statutory authority to preempt local regulation of transmission lines. The amount of time the Commission has to make its decision on an application depends on the size of the line and complexity of the application. The commission, at its discretion, may hold hearings. If the application is contested, a mandated hearing(s) must be overseen by an administrative law judge. Commission decisions require a majority vote.

Electric generating facilities. The New York State Board on Electric Generation Siting and the Environment, which is part of the Department of Public Service, has siting jurisdiction over electric generating facilities. The board consists of seven members: five permanent members (Chairman of the Public Service Commission, Commissioner of the Department of Environmental Conservation, Commissioner of the Department of Health, Commissioner of the Department of Economic Development, and Chairman of the Energy Research and Development Authority, or their designees) and two public members, a resident from the judicial district and one from the county where a facility is proposed to be located, are named by Governor.

Applicants are required to establish communication with the public early in the pre-application process, which includes a public involvement program. An applicant must hold public meetings, offer presentations to individual groups and organizations, and establish a community presence via a local office, toll-free telephone number, an internet web site, or through some other means. After an applicant submits its preliminary statement of it's intent to construct a facility, a public forum is held by the Department of Public Service staff to explain the siting process how the public can participate.

The siting board is required in making its decision to consider whether the facility is consistent with state energy plan or the electricity generated by the facility will be sold into the competitive market, minimizes the environmental impacts, is in public's interest, and is compatible with public health and safety. Board decisions require a majority vote and retains the statutory authority to preempt local regulation of electric generating facilities.

Telecommunications towers. The siting of telecommunications towers is left to local authorities.

North Carolina

Transmission lines and electric generating facilities. The North Carolina Utilities Commission, an administrative board of the General Assembly, has siting authority over transmission lines and electric generating facilities. The seven members of the commission are appointed by the Governor and confirmed by the General Assembly by joint resolution. The commission considers need, cost, location, and environmental compatibility when making siting decisions for transmission lines. Environmental impact, need, reliability, efficiency, and economical service are considered for electric generating facility siting decisions.

All seven commission members may hear cases but usually commissioners sit in panels of three. A public hearing is a mandatory component of the siting process if requested. Commission decisions require a majority vote. The commission can preempt local regulation for the siting of transmission lines and electric generating facilities.

Telecommunications towers. The siting of telecommunications towers is left to local authorities.

Rhode Island

Transmission lines and electric generating facilities. The Energy Facility Siting Board has siting jurisdiction over transmission lines and electric generating facilities. The board consists of three members: the chairperson of the Public Utilities Commission, the Director of the Department of Environmental Management; and the Associate Director of Administration for Planning. State law requires that the board, in making its decision whether to grant a license, determine whether the facility: is necessary to meet the needs of the state for energy, is cost-justified; will not cause unacceptable harm to the environment; and will enhance the socio-economic fabric of the state.

The board members conducted contested case proceedings. Other state agencies and political subdivisions of the state, at the direction of the board, render advisory opinions on issues with the proposed facility. The board is required to conduct at least one public hearing in each town or city affected by the proposed facility prior to taking any final action on an application. A majority vote of the board is required for all actions.

The Energy Facility Siting Board does have the statutory authority to preempt local regulation of transmission lines and electric generating facilities.

Telecommunications towers. The siting of telecommunications towers is left to local authorities.

Texas

Transmission lines. The Public Utility Commission consisting of three gubernatorial appointments has jurisdiction over the siting of transmission lines. The commission solicits recommendations of the Electric Reliability Council of Texas (ERCOT) and the Independent System Operator (ISO) in determining the need of a transmission line.

If the application is contested, an administrative law judge decides intervenors and parties; conducts evidentiary hearings; and issues a proposed order. The proposed order is put on the Public Unities Commission agenda. Public hearings are held. By law, the commission must consider if the facility is necessary for the service, accommodation, convenience or safety of the public. Commission decisions to approve or deny an application require a majority vote and can preempt local regulation.

Electric generating facilities. The siting of electric generating facilities is left to local authorities.

Telecommunications towers. The siting of telecommunications towers is left to local authorities.

Vermont

Transmission lines and electric generating facilities. The Public Service Board has siting jurisdiction over any facility that will connect to the electrical grid. The Governor appoints, with confirmation by the Senate, the three board members. In making its decision, the board considers need, environmental impact, public health and safety, economic benefit to the state and its residents, and if the facility is consistent with the development of the region.

The siting process is treated as a contested case proceeding, including public hearings in at least one county in which the proposed facility will be located. The board considers the recommendations of the municipal bodies and regional planning commissions of any affected municipality but has the authority to preempt local regulation. Board decisions to approve or deny an application require a majority vote.

Telecommunications towers. The siting of telecommunications towers is left to local authorities. However, if the facility will be located on state property the Secretary of Administration must issue siting approval using a tower siting advisory committee consisting of consumers and representatives of various state agencies. In addition, towers proposed over 20 feet require a permit from the State Environmental Board.

Wisconsin

Transmission lines and electric generating facilities. The Public Service Commission has final siting jurisdiction over transmission lines and electric generating facilities. The Governor appoints, with Senate confirmation, the three commission members.

The commission holds contested case proceedings within 180 days. However, an extension of an additional 180 days can be made with court approval. A public hearing must be held in the area to be affected by the facility. Commission staff identifies issues and prepares briefings on the proposed facility for commission consideration. The commission considers need, environmental impact, alternatives, and cost when siting these facilities. The commission has the authority to preempt local regulation and must approve or reject a facility by a majority vote.

Telecommunications towers. The siting of telecommunications towers is left to local authorities.

 

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