Vermont Legislature SmartTranscripts:

[Rep. Kathleen James (Chair)]: Alright. Welcome back everybody, to House Energy and Digital Infrastructure. We are shifting gears. We are working on h five twenty seven, which is an act relating to extending the sunset of 30 VSA 248A. And so as we like to do, we have legislative council here to walk through 30 BSA, two forty eight, whatever. 30 BSA, yes, two forty eight A. So we understand what statute we're being asked to extend. So I'm representative Kathleen James from Manchester.

[Unidentified Committee Member(s)]: Scott Campbell from Saint Johnsbury. Richard Bailey, Lamoille Two. Chris Morrow, Windham, Windsor, Bennington. Michael Southworth, Caledonia two. Christopher Howland, Rutland Floor.

[Rep. Christopher Howland (Member)]: Dara Torre, Washington two. Graham Kleppner, Chittenden 13, Burlington.

[Ellen Takasby (Office of Legislative Counsel)]: Laura Sibilia. I'm living with him.

[Rep. Kathleen James (Chair)]: Great. And in the room. I'm Isabelle with the Vermont Chamber of Commerce. Great. Dara Torre Perry, Nick Crasson Group. Super. Claire Buckley from Leone Public Affairs for CTIA. Great. And then Alison Despathy, Vermonters for Clean Environment. Super. Hi. Thank you, everybody. Alright. For the

[Ellen Takasby (Office of Legislative Counsel)]: record, Ellen Takasby, office of legislative council. So I'm here on h 527, which is a very short demo. What it does is extend by three years. The sunset on 30 DSA section two forty eight a. Currently that statute has a sunset in it that as of 07/01/2026, no new applications may be filed under it. And so this would have extended to 2029. And so the question is, what is Get. Section two forty eight a? So section two forty eight a is an option for citing permitting for telecommunications facilities. It was created in 2007. At the time and and still, telecommunications facilities went through the concurrent jurisdiction of act two fifty for a permit and municipal zoning for a permit. Initially, in 2007, two forty eight was created for, telecommunications facilities that were putting in multiple towers at once or or over a period of three years. And then in 2009, it was amended to just be for any telecommunications siting project. They have the option of this siting process to go through instead of act two fifty and municipal zoning. So technically, still within the statute, someone looking to construct and operate a telecommunications facility has the option to choose either act two fifty and, you know, still zoning or section two forty eight a, which is a process that, is a permitting by the Public Utility Commission.

[Unidentified Committee Member(s)]: So I understand if you choose 248A, you can ignore municipal zoning.

[Ellen Takasby (Office of Legislative Counsel)]: Yes. Facilities that get a 248A are exempt from municipal regulation.

[Unidentified Committee Member(s)]: And do you know, does the PUC take into consideration municipal zoning when they are considering 248A applications? The municipalities are

[Ellen Takasby (Office of Legislative Counsel)]: Pardon me? Yes. So one of the criteria that I'm gonna I'm gonna get to that. But they the the orderly development of the region, which relates to regional and municipal planning is part of the criteria under two forty eight a.

[Unidentified Committee Member(s)]: Thank you.

[Ellen Takasby (Office of Legislative Counsel)]: So you do have the Public Utility Commission coming tomorrow. Right. And so they will be able to answer things more specifically than I can. So I am gonna walk you through the statute and what it entails because I think, well, I'm not the regulator, so there will be some questions. Because I have all the documents printed out here, but I have never been through a two forty eight case myself. The statute itself is 10 pages long and then there are procedural documents that go with it. So like other permitting processes, these are things that require some level of expertise. Yeah. And that's actually a

[Rep. Kathleen James (Chair)]: great reminder because I think this is the first time this session that we've had led counsel well, besides Rick earlier. Had led counsel in to walk us through the statute as sort of background. So it's a it's a good reminder to me that you're here to walk us through the law as it's written and explain the laws that's written and there's probably a lot of questions that we will all have on the bill as we move forward with the bill that are better suited for the PUC or for other experts in the field. It's a good reminder to me we gotta stay focused on And I'll try. The walkthrough. I'll try, but I'm not I'm a little rusty on

[Ellen Takasby (Office of Legislative Counsel)]: this because it only comes up every three years Yeah. In the statute. So so as I started to mention, in 2009 when this process was created and then since then, I think almost every time it had been renewed forever for three year increments. And the legislature has done that, I think, largely to check-in to see if this is a process that is still working for all the parties involved. So it's a little unusual that it does come up every three years or so for review by the legislative. So the statute is 10 pages. Did you want me to walk through the statute? Yeah. Oh, okay. So

[Rep. Kathleen James (Chair)]: I think it'd be do you guys agree? I think it'd be helpful. Yeah. I'd like to walk through the statute, see what's in it.

[Ellen Takasby (Office of Legislative Counsel)]: Okay. So 30 BSA two forty eight a certificate of public good for communication facility.

[Rep. Kathleen James (Chair)]: Mhmm. Can we get it on the screen?

[Ellen Takasby (Office of Legislative Counsel)]: I don't have my laptop.

[Rep. Kathleen James (Chair)]: Okay. I don't think Alex can do that. Why don't we all take a minute?

[Unidentified Committee Member(s)]: Oh, it's alright.

[Ellen Takasby (Office of Legislative Counsel)]: No. I'm gonna pull it up.

[Rep. Kathleen James (Chair)]: Give me one sec. I can't share it on the screen, but I'm just give me one sec to get out of food. So we are in title 30, public service. And section two forty eight a. So that's under chapter five. Right? Yep. Okay.

[Ellen Takasby (Office of Legislative Counsel)]: And chapter five is the chapter where most of the PUC's permitting authority is. And so you will recall that PUC issues permits for other things, including electric generation facilities, we call those certificates of public good. So this is, or CPG. So this is a CPG statute. It is, in a lot of ways, very similar to the two forty eight procedure, which is for electric generation facilities and energy storage and transmission. And so it's very similar to that process, but it is specific for communications facilities. Okay. So, subsection A, notwithstanding any of the provision of law, if the applicant seeks approval for the construction or installation of telecommunications facilities that are to be interconnected with other telecommunications facilities proposed or already in existence, the applicant may obtain a certificate of public good issued by the Public Utility Commission under this section, which the Commission may grant if it finds that the facilities will promote the general good of the state. So that's always the guiding principle. Certificate of Public Good. Is it in the good of the state? Consistent with two zero two c b of this title, which is the statute that lays out the state energy policy. A single application may seek approval for of one or more telecommunication facilities. An application under this section shall include a copy of each other state and local permit certificate or approval that has been issued for a facility under a statute of ordinance or bylaw pertaining to the environment or land use. I'll also give another piece of information for context. At the federal level, the Telecommunications Act of 1996 governs telecommunications facilities, and that piece of federal legislation largely preempts most of the regulation of telecommunications facilities, with the big exception, which is for land use. Ah. And so what has been left to the states is land use permitting. So it leaves up to the states whether or not that will be a local decision, I. E. At the municipality level or a state level decision. And so a lot of states have it structured so that municipality is the one who issue land use permits. And in Vermont, we still have that option if a telecommunications facility wants to go through the municipal permitting process, they can, or they can go through the state level process. So, there may be things, as you hear the list of things that are part of this permitting process, you may think, shouldn't they look at life? The answer is potentially no. That's already been preempted by the federal regulation because the feds have a lot of say over telecommunications generally. What we're left with is largely where it can go. Yes. Okay. And the environmental impacts under that and related to that. So then there's a number of definitions. Do you want me to read through all of them?

[Rep. Kathleen James (Chair)]: No. Maybe any that you find to be super important or relevant or any that

[Ellen Takasby (Office of Legislative Counsel)]: we need to really understand. So there's definition of ancillary improvements and then de minimis modification. So these are sort of the smaller other associated parts of the telecommunications facility that are part of the analysis. Broadly, I read through the statute, you will see there are sort of three different types of processes under 248A. There is a full 248A process, which is very similar to a CPG process. Then there are projects of limited size and scope. I'll read you that definition in a minute. And then there are de minimis processes. The definition for de minimis is an addition, modification, or replacement of telecommunications equipment, antenna, or ancillary improvements on a telecommunications facility or existing support structure, whether or not the structure was constructed as telecommunications facility or the reconstruction of such facility or support structure, provided that the height and width of the facility or support structure, excluding equipment, antennas or ancillary improvements are not increased. The total amount of impervious surface, including access roads around the facility or support structure, is not increased by more than 300 square feet. The addition, modification, or replacement of an antenna or other equipment on a facility or support structure does not extend vertically more than 10 feet above the facility or support structure and does not extend horizontally more than 10 feet, and additional equipment, antennas, or ancillary improvements on the support structure, excluding cables, does not increase the aggregate surface area of the faces of the equipment, or ancillary improvements on the support structure by more than 75 square feet. So the process for de minimis 248A is the most limited and it is a very quick process. I think it's in here, I'll read through, but basically if you're doing such small modifications to this facility that it's less than 300 square feet of impervious surface, less than 10 feet, either vertically or horizontally, less than 75 square feet is being added, to diminish this modification. And so we'll go through the the fastest process. For Sibilia? And if I recall, this is, like, fixed wireless antennas and or, like, battery or cabinets for cell towers. So it's not just the towers themselves. Yes. Right.

[Rep. Kathleen James (Chair)]: Okay.

[Ellen Takasby (Office of Legislative Counsel)]: The next definition in the statute is for good cause. And so, good cause is used in a definition with substantial deference. So, is there good cause to ignore the municipal input, which normally would get substantial deference. So it's a showing of evidence that the substantial deference required would create a substantial shortcoming detrimental to the public good or the state's interest. And then, substantial deference is the plans and recommendations under C2, which is one of the notice provisions, are presumed correct, valid, and reasonable unless there is good cause that they aren't. And so these definitions are going to be used further out, well further on in statute.

[Rep. Kathleen James (Chair)]: Okay. So, PUC in considering one of these projects is required to show substantial deference to the local whatever. Unless there's a reason to not.

[Ellen Takasby (Office of Legislative Counsel)]: Yes. Okay. Yep. So then definition number four is limited size and scope. And so this is the next sort of classification of act of two forty eight a permit. So it's a new telecommunications facility, including the ancillary improvements that does not exceed 140 feet in height, or in addition, modification, replacement, or removal of telecommunications equipment at a lawfully constructed facility or at an existing support structure and ancillary improvements that would result in a facility of a total height of less than 200 feet and does not increase the width of existing support structure by more than 20 feet. So, the menace are the very small ones. This is then the next size, which is does not exceed 140 feet or add more than 20 feet of width. And then, oh, additionally, part of that, it shall not disturb more than 10,000 square feet of earth, and disturbed does not, means the exposure of soil to the erosion effects of wind, rain, or runoff. If earth is just moved temporarily, that is not considered disturbed under later part of the statute. And then there's a definition of telecommunications facility. Do you want to hear that definition or do you think we all know what telecommunications facility refers to?

[Rep. Kathleen James (Chair)]: Okay. So it looks okay? Yep. Move on.

[Ellen Takasby (Office of Legislative Counsel)]: And then there's also a definition of wireless service. So then subsection C of 248A is the findings. So before the PUC shall issue a certificate of public good, it shall find that. These are the criteria that they will look at as part of the review process. So, these criteria are not applicable to the de minimis projects. So, the proposed facility will not have an undue adverse effect on aesthetics, historic sites, air or water purity, the natural environment, and the public health and safety, and the public's use and enjoyment of the I-eighty 9 and I-ninety 1 scenic corridors or any highway that has been designated as a scenic road under 19 BSA twenty five zero one or a scenic highway under the federal statute. With due consideration having been given to the relevant criteria in 10 BSA fourteen twenty four AD, and that's oh, is that wetlands? And then also, APT two fifty criteria one through eight and nine k. This is very similar to the criteria that are used in two forty eight for electric facilities, but it's incorporated by reference the F250 criteria as well.

[Rep. Kathleen James (Chair)]: I wondered about that. So, we can't have an undue adverse effect on aesthetics, historic sites. There's the list. And interestingly, I, that's interesting that it specifically then calls out the I-eighty 9 and I-ninety one quarters. I just had a question about that this morning. So funny. And I'm just like, oh, really nice. And then can you explain to me then the when you get to respect to telecom facilities of limited size and scope, what happens there later in that? We didn't get there yet. Oh, okay. We didn't even get there yet. Yeah. Sorry.

[Ellen Takasby (Office of Legislative Counsel)]: No. Because they're yes. I didn't I didn't get there yet. Okay. Sorry. So with respect to limited size and scope, the commission shall waive the criteria other than the Act two fifty one d, which is floodways, and then FAD two fifty criterion eight, which is aesthetics, scenic beauty, historic sites, rare and irreplaceable natural areas, endangered species, and wildlife habitat. So the statute almost sort of reads in reverse of how I would have presented it, but you have these three size classifications for projects. I'm going to read you some more criteria, and the full list of criteria apply to the full size projects. But for limited size and scope projects, which are the medium size, they have a much smaller list of criteria that apply to them during a review, and that includes floodways and aesthetics. And for de minimis, it's an even shorter list of things that they're under review for. But such a waiver of the criteria for size and scope shall be on the condition that the commission may determine pursuant to its procedures, that a petition raises significant issue with respect to any criteria of this subdivision and a telecommunications facility of limited size and scope shall comply at a minimum with the requirements of the low risk site handbook for erosion prevention and sediment control issued by the Department of Environmental Conservation. So, there is a comment period for limited size and scope facilities and during that comment period, anyone can weigh in and raise that while, the criteria aren't necessarily always applied to limited size and scope, that this particular project does raise a concern under the other criteria and that it should be brought into the review for that project. Still under findings number two, unless there is good cause to find otherwise, substantial deference has been given to the plans of the affected municipalities. So the PUC is gonna look at, did the municipality have planning around the location of telecommunication facilities? And they get substantial deference if so, but is there a good cause to find otherwise? So it's to the recommendations of the municipal legislative bodies and the municipal planning commissions regarding the municipal plans and the recommendations of the regional planning commission concerning the regional plan. Nothing in this section shall prevent the municipal body from facing its recommendations to which substantial deference is required on an ordinance adopted under their ordinance authority or a bylaw adopted under their municipal bylaw authority. Rebuttal presumption respecting compliance with the applicable plan shall be created by a letter from the affected municipal legislative body or planning commission concerning compliance with the municipal plan or a letter from the regional planning commission concerning compliance with the regional plan. Number three, if the proposed facility relates to the provision of wireless service, the proposed facility reasonably cannot be co located at, on or at an existing telecommunications facility, or such colocation was caused an undue adverse effect on aesthetics. For wireless facilities, they look at whether or not the applicant explored colocation as a possibility.

[Unidentified Committee Member(s)]: You know, favorable.

[Rep. Kathleen James (Chair)]: Yep. Sounds to me like they're I might be reading this wrong. Sounds to me like they're discouraging colocation. No. No. Encouraging. Yes.

[Unidentified Committee Member(s)]: But in other words, another antenna on an existing tower. Okay. Is that correct?

[Rep. Kathleen James (Chair)]: Yep. Okay. Thanks.

[Unidentified Committee Member(s)]: Excuse me. In addition. Okay. Yeah. But without the same caveats of the square footage and 10 feet and all these other things that were in a previous paragraph, De minimis, it was under the de minimis of the two.

[Ellen Takasby (Office of Legislative Counsel)]: So it might be. It could fall under de minimis, but there is additional language under this section too.

[Unidentified Committee Member(s)]: There's some square footage, but that was de minimis, so that they could be greater than the size that was in the de minimis. They could be, yes. And

[Ellen Takasby (Office of Legislative Counsel)]: so if a proposed new support structure for a new telecommunications facility that provides wireless service will exceed 50 feet in height in a cleared area, or will exceed 20 feet in height above the average tree line measured within a 100 foot radius of the structure in a wooded area. The application shall identify all existing telecommunication facilities within the area to be served by the proposed structure and for such existing facility, shall include a projection of the coverage and an estimate of additional capacity that would be provided if the applicant's proposed telecommunication facility were located on or at the existing facility. They shall compare such projection and estimation to the coverage and capacity that would be provided at the site of the proposed structure. So, this fleshes it out even a little bit more. If they're trying to propose a new structure that's near an existing structure, do they have a proposal that is actually that this new structure would provide additional coverage in wireless service than adding it to an existing structure would have. They need to make that demonstration. Otherwise, the PUC does not encourage new structures over co locating. Okay. To obtain a finding that the proposed facility cannot reasonably be co located on or at an existing facility, they must demonstrate that co locating, will result in sufficient reduction of the area being served or the capacity provided, would impede coverage or capacity objectives for the proposed facility. Proposed antennas or equipment will exceed the structural or spatial capacity of the existing or approved tower, and the existing tower cannot be reinforced, modified, or replaced to accommodate planned or equivalent equipment at a reasonable cost. The owner of the existing facility will not provide space for the applicant's proposed equipment a commercial or will add commercially reasonable terms. So, the existing owner is not gonna let them in or gonna charge them a lot of money. Or the proposed antenna equipment will cause radio frequency interference that will materially impact the usefulness of other existing or permitted equipment at the existing tower, such that it can't be mitigated at a reasonable cost. Again, these are the factors they look at whether or not something can be reasonably co located. Existing permits. When issuing a certificate of public good under this section, the Commission shall give due consideration to all conditions in an existing state or local permit and shall harmonize the conditions in this certificate of public good to the extent feasible. Subsection E is notice. So, this is not going to apply to the de minimis process, but one aspect of section two forty eight that is interesting is that there is a pre application notice. So, no less than sixty days prior to filing the application for CPG, the applicant shall serve written notice with the commission to and to the legislative bodies of the municipal and regional planning commission in the community in which the application is proposing to install the app the facility to the secretary of natural resources, the secretary of transportation, the Division of Historic Preservation, the Commissioner of Public Service, and its Director of Public Advocacy, the Land Use Review Board if it concerns if it's a facility that previously had an Act two fifty permit, and the landowners of record of the property adjoining the project site. At least one copy shall be filed with each of the municipal and regional planning commissions. Notice to the legislative body and planning commission shall attach a statement that itemizes the rights and opportunities available to those bodies that get notice, including subsections M, N, and O of this section, and form some of the guide published under section P and how to obtain a copy of this guide. So there's a guide required by the statute on how all of this works and is available to the public on how to participate in this. This sixty day pre application notice is provided to the state agencies and the adjoining landowners to give them an opportunity to weigh in on the application and sort out any problems before it's actually applied for at the PUC and before the review process actually starts. And so this is not for the de minimis projects, it's for the larger projects. If upon motion, the PUC shall direct further personal or public notice to be provided if they find that further public notice will not unduly delay consideration of the merits and is necessary for fair consideration of the application. On request of the municipal legislative body or planning commission, the applicant shall attend a public meeting with the legislative body or planning commission or both within the sixty day notice period. The Department of Public Service shall attend the public meeting at the request of the municipality. The department shall consider comments made and information obtained at the meeting and making recommendations to the commission on the application and determining whether to retain additional personnel. The Public Utility Commission, through the Director of Public Advocacy, acts as the public advocate or advocate for the public at these 248A hearings. DPS attends the public hearings to hear what the comments and complaints are so that they can represent those positions before the PUC. With notice required, the applicant shall include assessment of the colocation requirements that I read to you before that pertain to the proposed facility. A request of the municipality, the Department of Public Service shall retain an expert to review the applicant's colocation assessment and conduct further analysis if necessary. Within forty five days following receipt of the applicant's notice and colocation assessment, the department shall report its own preliminary findings and recommendations regarding colocation to the applicant and to all persons required to receive notice. DPS can do independent review or hire an expert to do independent review of the colocation to test if they met the requirement about coverage and if a new facility is necessary over co locating. Subsection F, review period. If the PUC determines that an application does not raise a significant issue, they have to issue a final determination on the application within sixty days following its filing, or if the original filing did not substantially comply with their rules within sixty days following the date on which the clerk notifies the applicant that the filing is complete. So, if the application is submitted and there's no significant issues raised, the PUC has to issue their decision within sixty days. If there is a significant issue raised, it shall issue a final determined application within one hundred and eighty days following the filing. Or again, if they did not substantially comply with the requirements within one hundred and eighty days following the day which the clerk determines the application is complete.

[Rep. Kathleen James (Chair)]: Sorry. So, if the significant issue is not raised, then the PUC has to issue its determination within sixty days. And what's the one I need?

[Ellen Takasby (Office of Legislative Counsel)]: If there is a significant issue. Okay. And the reason that is is because there will be at here at least one hearing if a significant issue is raised. I think I'm probably gonna get to that. Okay. But I know this I feel like this statute was kind of written in reverse of how this process plays out. Subsection g, letter of intent. Nothing in this section shall be construed to prohibit an applicant from executing a letter of intent or entering into a contract before the issuance of a certificate of public good, provided that the obligations under the letter of intent or contract are made subject to compliance with the requirement of this section. Subsection H, exemptions from other law. An applicant using the procedures in this section shall not be required to obtain a permit or permit amendment from a municipal zoning permit or an Act two fifty permit, that they may have already received. This exemption from obtaining a permit shall not affect the substantial deference given to the plan or recommendation by the municipality. An applicant using this procedure shall not be required to obtain approval from the municipality under any ordinance that they may have adopted or a charter that otherwise would applied. Disputes over jurisdiction under this section shall be resolved by the Public Utility Commission, subject to appeal as provided in section 12 of this title, which allows appeals from PUC decisions to go up to the Supreme Court. An applicant that has obtained or been denied a permit or permit amendment under municipal zoning permit or Act two fifty may not apply for approval from the commission for the same or substantially the same facility. So, if someone has already attempted to go through the Act two fiftymunicipal process and then been denied, they can then apply to the PUC. Subsection I is the sunset, and so this is the subject of h five twenty seven, effective on 07/01/2026, no new applications for a certificate of public good may be considered. And so that date has been, being re upped since the statute was created in 2007. Subsection J lays out the procedure for projects of limited size and scope. So, the commission may subject to such conditions as it may otherwise lawfully impose issue a certificate of public good in accordance with the provisions of this subsection and without the notice and hearing requirements by any provisions other than subsection two Subdivision two of this subsection. If it finds that the facilities will be of limited size and scope and the application does not bring a significant issue with respect to the substantive criteria of this section, the commission may make findings based on the application and supporting evidence submitted by the applicant. If the applicant requests approval of multiple telecommunications facility and a single application, the commission may issue a certificate of public good in accordance with the provisions of this subsection for all or some of the telecommunications facilities. Any person seeking to proceed under the limited size and scope shall file a proposed certificate of public good and proposed findings of fact with its application within two business days following the notice from the PUC that the filing is complete, the applicant shall serve notice and a copy of the application, proposed certificate of public good, and proposed findings on the Commissioner of Public Service and Director of Public Advocacy, Secretary of Natural Resources, Division of Historic Preservation, and Land Use Review Board, if they're in the permit of previous Act two fifty permit, and the legislative bodies of the municipality and the Regional Planning Commission where the project is located. Within two business days, the commission, following notice that the filing is complete, the applicant shall also serve notice, on the landowner of record of the property, adjoining properties adjoining the project site or site, unless the commission has previously determined that good cause exists to waive or modify the notice requirement to the landowners. Such notice shall request comment to the commission within thirty days following the date of service on the question of whether the application raises a significant issue with respect to the substantive criteria. If the PUC finds that the application raises a significant issue, the commission shall appear evidence on such issue.

[Rep. Kathleen James (Chair)]: So the adjoining landowner owners are directly notified sixty days before the application is filed and then after it's been approved?

[Ellen Takasby (Office of Legislative Counsel)]: No.

[Unidentified Committee Member(s)]: It appears to be some exception that some finding that an adjacent landowner don't have to.

[Ellen Takasby (Office of Legislative Counsel)]: Yes. I'll get to your question next. So, let's see, oh yes, no, so for limited size and scope, there is a sixty day advance notification and then there is notice that the application has been filed and provides them the opportunity to provide comments within the thirty day comment period. Okay. And then the PUC determines at that point if a hearing is needed because a hearing is not automatic for limited size control. So we're going to file, we have filed. Yeah. Okay. Yeah. So this is a provision that related to the PUC can decide if the adjacent property owners are sort of too voluminous or if they're redundant. So this provision is in two forty eight and in act the act two fifty statutes because a lot of them require notification to the adjoining landowners. In some cases, it can be hundreds or or dozens of adjoining landowners if it's a very large parcel and it's like a whole neighborhood. Okay. And so they may require just a general public notice in the area as opposed to individual notice to every single landowner. You may wanna hear from the PUC when they use that provision of the pass, but it is, yeah. It's usually because they may have a different way of communicating with those people as opposed to individual mailers

[Unidentified Committee Member(s)]: to all of them. We haven't seen anything about elevation of the land that this is being cited on. The voluminous too many landowners. I look at you can't build a home above 2,000 feet. So you've got somebody owns the mountain, what's left of the mountain, and all the land that's down below that's been got road torn everywhere. It's subdivision lots. But Right now, it's just my perception. I know. Yeah.

[Ellen Takasby (Office of Legislative Counsel)]: Yeah. Maybe you you there isn't anything specific in here about elevation, but that is a slightly unusual provision about modifying the notice. You may wanna ask them about examples they've had before. So the next subdivision under this actually is about the notice to adjoining landowners. An applicant seeking a waiver or modification of the notice requirements shall file a request for such a waiver modification with the POC not less than thirty days prior to serving written notice on those people, together with the description of the project, its location, and the reasons for seeking modification, and the applicant's demonstration that the standard for granting a waiver or modification is met. Any granting of such a waiver shall be based on a determination that the landowner subject to the waiver could not reasonably be affected by one or more of the proposed facilities, and that notice would constitute a significant administrative burden without corresponding public benefit. And the the PUC shall rule on this request within twenty one days following. So that's one of the considerations there. If the PUC accepts a request to consider an application under limited size and scope, then unless the PUC subsequently determines that the application raises significant issue, the PUC shall issue a final determination on the application within sixty days.

[Rep. Kathleen James (Chair)]: And

[Ellen Takasby (Office of Legislative Counsel)]: if they rule that there is a significant issue, they shall issue the determination within ninety days of the filing of the application. I have a cheat sheet that I assume what PUC is gonna bring in, but they have this procedure with like, flowcharts in it Yep. On their website. They also have a written handout that describes more of the procedures. I didn't think I should bring them because it is their documents that they created, but they do have helpful notes for the public, and that is required in the statute as I already sort of alluded to. Okay. Subsection K is the de minimis process. I've already mentioned it a couple times. So an applicant intending to make a de minimis modification to a facility shall provide written notice of its intent, including a description of the modification, its plans for the modification, and certification that the project constitutes a de minimis modification. This notice shall be to the following: the landowner of the property, the legislative body of the municipality, the Commissioner of Public Service, and Director of Public Advocacy. Unless an objection to the classification of the proposed project as de minimis is filed within thirty days following this notice, a CPG shall be issued. Objections may be filed only by persons entitled to notice of this project. If an objection of the classification of the proposed project is timely, the commission may determine whether the project meets the definition de minimis under the statute. So, for de minimis, there is just this notification requirement, and then there's a twenty one day comment period open. And if there is no substantial or a significant issue raised with the definition or if they meet the basic criteria that the PUC has to issue the determination with right after the close, of the twenty one day comment period. So it's a significantly shorter timeframe than the others. Subsection L is the rules provision. So the PUC may issue rules and orders implementing 248A. They shall seek to simplify the application process as appropriate for the categories. They may, by rule or order, waive the requirements of this section if they determine they're not applicable to the facilities that are of limited size and scope. Subsection M is of municipal participation, The legislative body and the planning commission where the proposed facility is located have the right to appear and participate in any application under 248A. Then subsection N is their recommendations. The PUC shall consider the comments and recommendations submitted by the municipal legislative body and planning commission. PUC's decision to issue or deny a CPG shall include a detailed rate response to each of the recommendations of the municipal legislative body or planning commission. Retention of experts is subsection O. The Department of Public Service may retain experts and other personnel identified in 30 BSA section 20, which is their ability to hire independent experts, to provide information essential to a full consideration of the application. The department may allocate expenses incurred in retaining these personnel. This will be called bill back authority. So if they need to hire an expert to review the application, they can potentially bill back the applicant for those costs. The department may commence retention of personnel once the application has filed the sixty day notice period. The municipal body or planning commission may request the department retain these personnel. Granting such a request shall not oblige the department or personnel it retains to agree with the position of the municipality. Subsection P is the review process guide. DPS in consultation with the commission shall create, maintain, and make available to the public a guide to the process of reviewing telecommunications facilities under this section for use by local governments and regional planning commissions and members of the public who seek to participate in this process. On October 2014, the department shall create this guide and make it publicly available. I'm pretty

[Rep. Kathleen James (Chair)]: sure that's what this is. I was gonna ask. Okay.

[Ellen Takasby (Office of Legislative Counsel)]: I think that's what this is. There's also on the PUC's website a longer, more written narrative that they have available. That's what I was it's it is it's only six pages instead of 10 pages. But it does have, like, a flowchart in it showing the steps, so it is it's useful. Okay. Subsection Q, and I am almost done. Subsection Q is the emergency waiver. So when the governor has declared a state of emergency, and for one hundred and eighty days after the declared state of emergency, the PUC may waive for specified and limited time, the prohibitions, site preparation or construction for temporary telecommunications facilities for maintaining or improving access to telecommunication services. Waivers issued under this subsection shall be valid for a period not to exceed the duration of the declared emergency plus one hundred and eighty days. During a time of emergency, telecommunications facilities can go up quickly without going through the CPG process. After the declared emergency ends, they then have to apply for their CPG. Has that happened? I don't So, we worked on this during COVID. CAS. Right? House? I don't know. Didn't we didn't we work on this during COVID at one point? Yeah. Don't make me go back. I know. I think I think it has been used.

[Rep. Kathleen James (Chair)]: Mhmm.

[Ellen Takasby (Office of Legislative Counsel)]: But you could ask the PUC that. Yeah. I was just curious. Seems COVID y. So they have to file a petition with the PUC provide copies to DPS and Agency of Natural Resources that they're doing this, and the PUC shall conduct an expedited preliminary hearing. An order granting a waiver will include the terms, conditions, safeguards to mitigate significant adverse impacts, including posting a bond or other security based on the scope and duration of the request. A waiver shall be granted only when the Commission finds that good cause exists due to emergency situation. The waiver is necessary to maintain or provide access to wireless telecommunication services. Procedures will be followed to minimize significant adverse impacts under criteria and taking into account any terms, conditions, or safeguards they may require, that this will promote the general good of the state. That's all for temporary. Yep. So, upon expiration, certificate of If the certificate of public good has not been issued, the PUC shall require the removal, relocation, or alteration of the facilities. So, yes, so they're supposed to give notice to PUC and DPS and ANR that they're gonna construct these facilities quickly, and then they have to actually apply for and receive a CPG once the hopefully before the emergency has ended, but, before the expiration of 01/1980 dates. Yeah. I'm not sure. I think yeah. And it's come up a couple of times since I've been here, but I don't know if anyone has actually used this procedure. So that's the whole statute. There are documents that the PUC has issued that put this in a more ease in an

[Rep. Kathleen James (Chair)]: easier to read read way. Okay. Is that hearing from them tomorrow morning? Yeah. Reps Sibilia.

[Ellen Takasby (Office of Legislative Counsel)]: And so to be clear, if we take no action this year, this section of law is repealed. Does it this it prohibits further people from applying. So it's not an automatic repeal. It just does the sunset on people being able to apply and use this process. It then would force people to use the Act two fiftymunicipal permit process if they were seeking to construct health Yeah. Communications

[Rep. Kathleen James (Chair)]: So,

[Ellen Takasby (Office of Legislative Counsel)]: section doesn't really give you the what happens at a hearing. So and and you can talk to the PUC about this tomorrow if you'd like, but for for full projects, not limited size and scope or de minimis necessarily, but there is usually an evidentiary hearing going over the criteria. People can apply All those people who got notice may or may not be statutory parties, the municipality, the party, DPS is a party, but other people can apply to intervene and become a party in the case. There is a separate PUC rule laying out which the standard is for intervening as a party to join a case. And then a hearing is held. It is a bit of a formal process at the PUC. It's not exactly court, but it's very similar to court. So, this statute doesn't really detail how that process works, so you may wanna hear from them about that. Okay. I'll also add one tidbit. I wanna open a can of worms, representative Sibilia may remember that on further under the federal law, there's something called the shot clock. Shock clock? Shot. No. Like in basketball. The shot clock. The shot clock. So the in addition to having largely preempted the field on regulating telecommunications, one of the things that the telecommunications act requires is that if states or municipalities are going to be doing this permitting, they have to do it within a reasonable time. So there's a shot clock. I don't have the dates in front of me, but it's either it's either ninety days or a hundred and fifty days depending on the complexity of the project. And so, in the past, I had looked at whether or not our statutes comply. The PUC is aware of the federal requirements, and so they aim to comply with those federal requirements. And I think they get them under the clock requirement, generally. Okay. So just something to be aware of, and that is why there are times in this statute that they have to comply with.

[Unidentified Committee Member(s)]: Does the federal requirement preempt the state?

[Ellen Takasby (Office of Legislative Counsel)]: It does. Okay.

[Rep. Kathleen James (Chair)]: Yes. Ellen, thank you so much. Yeah, I really appreciate it. We are we a little agenda change. It's been posted on the website, but Rutland was able to come in earlier, which I appreciate. So I scrapped my billing pro. We can do that. So other time, I just wanted to make sure that we had time for reps out for them. Do need to adjourn by 04:20 at the latest. So keeping in tradition with, you know, every bill gets fifteen minutes. Just as a quick intro, almost like a pitch from the sponsors, that's what we're doing now. So I'll we can get to my bill down road, and we'll just take a quick break.