Chapter 182

182.017(8) (8) Commission review.

182.017(8)(a) (a) Upon complaint by a company that a regulation by a municipality under sub. (1r) is unreasonable, the commission shall set a hearing and, if the commission finds that the regulation is unreasonable, the regulation shall be void. Subject to pars. (am) to (c), if the commission determines that a municipal regulation that was in effect on January 1, 2007, and immediately prior to January 9, 2008, or that a community standard, as demonstrated through consistent practice and custom in the municipality, that was in effect on January 1, 2007, and immediately prior to January 9, 2008, is substantially the same as the municipal regulation complained of, there is a rebuttable presumption that the latter regulation is reasonable.

182.017(8)(am) (am) A municipal regulation is unreasonable if it has the effect of creating a moratorium on the placement of company lines or systems under sub. (1r) or on the entrance into the municipality of a video service provider, as defined in s. 66.0420 (2) (zg), or is inconsistent with the purposes of s. 66.0420.

182.017(8)(as) (as) Notwithstanding sub. (2), a municipal regulation is unreasonable if it requires a company to pay any part of the cost to modify or relocate the company’s facilities to accommodate an urban rail transit system.

182.017(8)(b) (b) A municipal regulation is unreasonable if it requires a company to pay more than the actual cost of functions undertaken by the municipality to manage company access to and use of municipal rights-of-way. These management functions include all of the following:

182.017(8)(b)1. 1. Registering companies, including the gathering and recording of information necessary to conduct business with a company.

182.017(8)(b)2. 2. Except as provided in provided in par. (c), issuing, processing, and verifying excavation or other company permit applications, including supplemental applications.

182.017(8)(b)3. 3. Inspecting company job sites and restoration projects.

182.017(8)(b)4. 4. Maintaining, supporting, protecting, or moving company equipment during work in municipal rights-of-way.

182.017(8)(b)5. 5. Undertaking restoration work inadequately performed by a company after providing notice and the opportunity to correct the work.

182.017(8)(b)6. 6. Revoking company permits.

182.017(8)(b)7. 7. Maintenance of databases.

182.017(8)(b)8. 8. Scheduling and coordinating highway, street, and right-of-way work relevant to a company permit.

182.017(8)(c) (c) A municipal regulation is unreasonable if it requires a company to be responsible for fees under s. 182.0175 (1m) (bm) that may be assessed to a municipality as a member of the one-call system under s. 182.0175.

182.017(8)(d) (d) It is reasonable for a municipal regulation to provide for the recovery of costs incurred under par. (b) 1., 2., 3., and 7. through a preexcavation permit fee.

182.017(8)(e) (e) It is reasonable for a municipal regulation to provide for the recovery of costs incurred under par. (b) 4., 5., and 6. only from the company that is responsible for causing the municipality to incur the costs.

182.017(9) (9) Time limit for permits. If a municipality establishes a permit process under sub. (1r), the municipality shall approve or deny a permit application no later than 60 days after receipt of the application, and, if the municipality fails to do so, the municipality shall be considered to have approved the application and granted the permit. If a municipality denies a permit application, the municipality shall provide the applicant a written explanation of the reasons for the denial at the time that the municipality denies the application.

182.017 History History: 1971 c. 40; 1975 c. 68, 199; 1979 c. 34, 323; 1985 a. 297 s. 76; 1989 a. 31; 1993 a. 213, 246, 371; 1997 a. 204; 2005 a. 441; 2007 a. 42; 2011 a. 22; 2013 a. 20 s. 1564m, 1978d to 1978t; 2013 a. 165, 168; 2015 a. 195 s. 82.

182.017 Annotation Sub. (2) is a safety statute, the violation of which constitutes negligence per se. An allegation that a power pole located within 4 feet of the traveled portion of a roadway violated this provision stated a cause of action. Weiss v. Holman, 58 Wis. 2d 608, 207 N.W.2d 660 (1973).

182.017 Annotation Sub. (5) is limited to damages arising from the construction, maintenance, or abandonment of facilities within a right-of-way. Vogel v. Grant-Lafayette Electric Cooperative, 195 Wis. 2d 198, 536 N.W.2d 140 (Ct. App. 1995), 94-0822.

182.017 Annotation Sub. (7) (a) governs what must be specified in a conveyance of an easement. Because the easements here were conveyed prior to the enactment of the statute, the conveyances were not subject to the statute’s requirements. The circuit court’s conclusion that the utility was required to obtain new easements complying with sub. (7) (a) was premised on its erroneous conclusion that the utility’s easement rights were limited by the easements’ current use. Wisconsin Public Service Corporation v. Andrews, 2009 WI App 30, 316 Wis. 2d 734, 766 N.W.2d 232, 07-2673.

182.0175 182.0175 Damage to transmission facilities.

182.0175(1) (1) Definitions. In this section:

182.0175(1)(aa) (aa) “Agricultural activity” has the meaning given in s. 101.10 (1) (a).

182.0175(1)(ab) (ab) “Commission” means the public service commission.

182.0175(1)(ac) (ac) “Complainant” means a person who files a complaint under sub. (3) (bg) 1. or 2.

182.0175(1)(ag) (ag) “Damage prevention fund” means the fund established under sub. (1m) (d) 11.

182.0175(1)(am) (am) “Emergency” means a condition that poses a clear and immediate danger to life or health, or a significant loss of property.

182.0175(1)(b) (b) “Excavation” means any operation in which earth, rock or other material in or on the ground is moved, removed or otherwise displaced by means of any tools, equipment or explosives and includes grading, trenching, digging, ditching, drilling, augering, tunneling, scraping, cable or pipe plowing and driving and means any operation by which a structure or mass of material is wrecked, razed, rended, moved or removed.

182.0175(1)(bm) (bm) “Excavator” means a person who engages in excavation.

182.0175(1)(bo) (bo) “Local governmental unit” means a political subdivision of this state, a special purpose district in this state, an instrumentality or corporation of such a political subdivision or special purpose district, a combination or subunit of any of the foregoing or an instrumentality of the state and any of the foregoing.

182.0175(1)(bq) (bq) “One-call system” means the system established under sub. (1m) (a).

182.0175(1)(br) (br) “Panel” means the panel appointed under sub. (1m) (d) 8.

182.0175(1)(bu) (bu) “Pavement” means asphalt or concrete pavement.

182.0175(1)(bw) (bw) “Political subdivision” means a city, village, town, or county.

182.0175(1)(bx) (bx) “Private transmission facilities” means transmission facilities that are owned by a person, other than a governmental unit, and that are located on private property owned or leased by that person and that do not cross a public right-of-way.

182.0175(1)(by) (by) “Respondent” means a person or a person’s agent who is alleged in a complaint filed under sub. (3) (bg) 1. or 2. to have taken an action that the person or agent knew or should have known was in violation of this section.

182.0175(1)(bz) (bz) “State agency” has the meaning given in s. 16.004 (12) (a).

182.0175(1)(c) (c) “Transmission facilities” includes all pipes, pipelines, wires, cables, ducts, wirelines and associated facilities, whether underground or aboveground, regardless of the nature of their transmittants or of their in-service application. The term includes, but is not restricted to, utility facilities, government-owned facilities, facilities transporting hazardous materials, communications and data facilities, drainage and water facilities and sewer systems. The term does not include culverts.

182.0175(1)(d) (d) “Working days” means days other than Saturday, Sunday and legal holidays.

182.0175(1m) (1m) One-call system.

182.0175(1m)(a) (a) Statewide system. Owners of transmission facilities, other than private transmission facilities, shall establish or designate a nonprofit organization governed by a board of directors as the operator of a one-call system and shall be members of the system. The one-call system shall be a statewide communication system in which a single operational center receives excavation notices and transmits notice information to affected-member transmission facilities owners. Owners of private transmission facilities may be members.

182.0175(1m)(bm) (bm) Membership fees. A member may be assessed an initial start-up fee equal to the system’s costs in adding the member to the one-call system, except that any initial start-up fee may not exceed $100 for a member whose transmission facilities serve less than 5,000 customers. For purposes of assessing the initial start-up fee, affiliated transmission facilities owners shall be considered a single member. Under this paragraph, a transmission facilities owner is affiliated with another transmission facilities owner if the transmission facilities owner, directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, the other transmission facilities owner. Members shall also be assessed a fee per notice of intended excavation activity. Membership in the one-call system ceases if a fee assessed under this paragraph is more than 90 days past due. A transmission facilities owner may be reinstated as a member upon payment of the amount past due.

182.0175(1m)(c) (c) Liability. Any transmission facilities owner who is required to be a member of the one-call system and has not complied with the membership requirement is liable for all damages to the owner’s transmission facilities and for any other damages that occur as a result of a properly noticed excavation to the one-call system.

182.0175(1m)(d) (d) System functions. The one-call system shall do all of the following:

182.0175(1m)(d)1. 1. Publicize the availability and use of the one-call system.

182.0175(1m)(d)2. 2. Provide toll-free communication to the one-call system.

182.0175(1m)(d)3. 3. Accept notices of intended excavation activity.

182.0175(1m)(d)4. 4. Accept notices of intended emergency location or emergency excavation activity 24 hours a day.

182.0175(1m)(d)4m. 4m. Disclose to persons providing notice that the one-call system does not include private transmission facilities as required under par. (e) 1.

182.0175(1m)(d)5. 5. Inform the person providing notice of the names of affected-member transmission facilities owners who will receive the notice information.

182.0175(1m)(d)6. 6. Promptly transmit notice information to affected-member transmission facilities owners.

182.0175(1m)(d)7. 7. Retain records of notices for a period of not less than 6 years.

182.0175(1m)(d)8. 8. Appoint a panel consisting of the following 7 members to carry out the duties specified in sub. (3) (bg) and (br):

182.0175(1m)(d)8.a. a. Two transmission facility owners.

182.0175(1m)(d)8.b. b. Two excavators.

182.0175(1m)(d)8.c. c. One employee of the operational center established under par. (a).

182.0175(1m)(d)8.d. d. One member who represents the interests of a political subdivision.

182.0175(1m)(d)8.e. e. One person employed as an underground line locator.

182.0175(1m)(d)9. 9. Establish policies, procedures, and forms as necessary to implement the requirements under sub. (3) (bg) and (br).

182.0175(1m)(d)10. 10. Provide for the production and administration of the educational course under sub. (3) (br) 4.

182.0175(1m)(d)11. 11. Establish and maintain a damage prevention fund consisting of fees under sub. (3) (br) 4. and (c) 5. and surcharges under sub. (3) (d) 2.

182.0175(1m)(d)12. 12. Use the damage prevention fund at the one-call system’s discretion to pay the cost of producing and administering the educational course under sub. (3) (br) 4. or providing for public outreach and underground utility damage prevention awareness programs.

182.0175(1m)(e) (e) Information system.

182.0175(1m)(e)1. 1. The operator of the one-call system shall ensure, through information distributed to the public by phone, Internet, or printed materials, that a person providing notice on intended excavation activity is informed that private transmission facilities are not subject to the one-call system and that the person providing notice is referred to other entities to be contacted by the person for determining the location of private transmission facilities. In providing this information, the operator shall specifically use the term “propane” in describing the type of private transmission facilities that are not subject to the one-call system.

182.0175(1m)(e)2. 2. The department of safety and professional services may promulgate a rule that requires retailers, as defined in s. 101.16 (1) (d), of propane to inform their customers each year of the obligation of owners of transmission facilities under this section.

182.0175(2) (2) Excavator and planner responsibilities.

182.0175(2)(a) (a) Planning. Every person who is responsible for the preparation of plans and specifications for nonemergency excavation and every excavator shall do all of the following:

182.0175(2)(a)1. 1. Take reasonable action to learn the location of any transmission facilities in and near the area where the excavation is to be conducted.

182.0175(2)(a)2. 2. Plan the excavation to avoid to the extent possible interference with transmission facilities in and near the excavation area.

182.0175(2)(am) (am) Excavation notice and other duties. An excavator shall do all of the following:

182.0175(2)(am)1. 1. Provide advance notice not less than 3 working days before the start of nonemergency excavation to the one-call system.

182.0175(2)(am)2. 2. In an emergency, take all reasonable precautions to avoid to the extent possible interference with existing transmission facilities in and near the excavation area and notify as promptly as possible the owners of transmission facilities which may be affected by the emergency excavation.

182.0175(2)(am)4. 4. Provide a repeat notice to the one-call system if marks are destroyed or covered by excavation site activities, if the excavation does not start within 10 days of the scheduled start date or if excavation is interrupted for more than 10 days.

182.0175(2)(am)5. 5. Provide support for existing transmission facilities in and near the excavation area that may be reasonably necessary or that is specified by the transmission facility owner for the protection of the facilities, unless protection is required of the owner of the transmission facility under s. 66.0831.

182.0175(2)(am)6. 6. Before backfilling, inspect all transmission facilities exposed during excavation to ascertain if the transmission facilities have been or may have been struck, damaged, dislocated or disrupted.

182.0175(2)(am)6m. 6m. Refrain from backfilling an excavation until an inspection is conducted and any necessary repairs have been made by the owner of the transmission facility.

182.0175(2)(am)7. 7. Immediately notify the owner of a transmission facility if an inspection reveals that the transmission facility has been or may have been struck, damaged, dislocated, or disrupted and, if flammable, toxic, or corrosive gas or liquid has escaped that may endanger life, cause bodily harm, or result in damage to property, promptly make a report to the 911 emergency telephone number.

182.0175(2)(am)8. 8. Backfill an excavation as specified by the owner of the existing transmission facilities or in a manner and with materials that may be reasonably necessary for the protection of, and to provide reliable support during backfilling and following backfilling for, existing transmission facilities in and near the excavation area.

182.0175(2)(as) (as) Minimum clearance.

182.0175(2)(as)1. 1. An excavator shall maintain an estimated minimum clearance of 18 inches between a marking for an unexposed underground transmission facility that is marked under sub. (2m) and the cutting edge or point of any power-operated excavating or earthmoving equipment, except as is necessary at the beginning of the excavation process to penetrate and remove the surface layer of pavement.

182.0175(2)(as)2. 2. When an underground transmission facility becomes exposed or if a transmission facility is already exposed, the excavator may reduce the clearance to 2 times the known limit of control of the cutting edge or point of the equipment or 12 inches, whichever is greater.

182.0175(2)(bm) (bm) Notice contents. An excavation notice shall include all of the following information:

182.0175(2)(bm)1. 1. The name of the person providing notice.

182.0175(2)(bm)2. 2. The name, address and telephone number of the excavator.

182.0175(2)(bm)3. 3. The specific location and description of the excavation area, including the county, place, street address, nearest intersecting road, distance and direction from the nearest intersection and marking instructions.

182.0175(2)(bm)4. 4. A description of the intended excavation activity.

182.0175(2)(bm)5. 5. The intended starting date of the excavation.

182.0175(2)(c) (c) Exemption for cemeteries. This subsection does not apply to any excavation in connection with the burial, as defined in s. 157.061 (1), of human remains in a cemetery, as defined in s. 157.061 (1p).