State Codes and Statutes

Statutes > Wisconsin > 196 > 196.491

196.491

196.491 Strategic energy assessment; electric generating facilities and transmission lines.

196.491(1)

(1) Definitions. In this section:

196.491(1)(am)

(am) "Affiliated interest" has the meaning given in s. 196.52 (1).

196.491(1)(b)

(b) "Commencement of construction" means site clearing, excavation, placement of facilities or any other substantial action adversely affecting the natural environment of the site, but does not mean borings necessary to determine foundation conditions or other preconstruction monitoring to establish background information related to site or environmental suitability.

196.491(1)(bm)

(bm) "Cooperative association" means a cooperative association organized under ch. 185 for the purpose of generating, distributing or furnishing electric energy at retail or wholesale to its members only.

196.491(1)(c)

(c) "Department" means the department of natural resources.

196.491(1)(d)

(d) "Electric utility" means any public utility, as defined in s. 196.01, which is involved in the generation, distribution and sale of electric energy, and any corporation, company, individual or association, and any cooperative association, which owns or operates, or plans within the next 3 years to construct, own or operate, facilities in the state.

196.491(1)(e)

(e) "Facility" means a large electric generating facility or a high-voltage transmission line.

196.491(1)(f)

(f) Except as provided in subs. (2) (b) 8. and (3) (d) 3m., "high-voltage transmission line" means a conductor of electric energy exceeding one mile in length designed for operation at a nominal voltage of 100 kilovolts or more, together with associated facilities, and does not include transmission line relocations that the commission determines are necessary to facilitate highway or airport projects.

196.491(1)(g)

(g) "Large electric generating facility" means electric generating equipment and associated facilities designed for nominal operation at a capacity of 100 megawatts or more.

196.491(1)(w)

(w)

196.491(1)(w)1.

1. "Wholesale merchant plant" means, except as provided in subd. 2., electric generating equipment and associated facilities located in this state that do not provide service to any retail customer and that are owned and operated by any of the following:

196.491(1)(w)1.a.

a. Subject to the approval of the commission under sub. (3m) (a), an affiliated interest of a public utility.

196.491(1)(w)1.b.

b. A person that is not a public utility.

196.491(1)(w)2.

2. "Wholesale merchant plant" does not include an electric generating facility or an improvement to an electric generating facility that is subject to a leased generation contract, as defined in s. 196.52 (9) (a) 3.

196.491(2)

(2) Strategic energy assessment.

196.491(2)(a)

(a) The commission shall prepare a biennial strategic energy assessment that evaluates the adequacy and reliability of the state's current and future electrical supply. The strategic energy assessment shall do all of the following:

196.491(2)(a)3.

3. Identify and describe large electric generating facilities on which an electric utility plans to commence construction within 3 years.

196.491(2)(a)3g.

3g. Assess the adequacy and reliability of purchased generation capacity and energy to serve the needs of the public.

196.491(2)(a)3m.

3m. Identify and describe high-voltage transmission lines on which an electric utility plans to commence construction within 3 years.

196.491(2)(a)3r.

3r. Identify and describe any plans for assuring that there is an adequate ability to transfer electric power into the state and the transmission area, as defined in s. 196.485 (1) (g), in a reliable manner.

196.491(2)(a)4.

4. Identify and describe the projected demand for electric energy and the basis for determining the projected demand.

196.491(2)(a)7.

7. Identify and describe activities to discourage inefficient and excessive power use.

196.491(2)(a)9.

9. Identify and describe existing and planned generating facilities that use renewable sources of energy.

196.491(2)(a)10.

10. Consider the public interest in economic development, public health and safety, protection of the environment and diversification of sources of energy supplies.

196.491(2)(a)11.

11. Assess the extent to which the regional bulk-power market is contributing to the adequacy and reliability of the state's electrical supply.

196.491(2)(a)12.

12. Assess the extent to which effective competition is contributing to a reliable, low-cost and environmentally sound source of electricity for the public.

196.491(2)(a)13.

13. Assess whether sufficient electric capacity and energy will be available to the public at a reasonable price.

196.491(2)(ag)

(ag) The commission shall promulgate rules that establish procedures and requirements for reporting information that is necessary for the commission to prepare strategic energy assessments under par. (a).

196.491(2)(b)

(b) On or before July 1, 2000, and on or before July 1 of each even-numbered year thereafter, the commission shall issue a draft of the biennial strategic energy assessment that it prepares under par. (a) to each of the following:

196.491(2)(b)1.

1. Department of administration.

196.491(2)(b)2.

2. Department of commerce.

196.491(2)(b)3.

3. Department of health services.

196.491(2)(b)4.

4. Department of justice.

196.491(2)(b)5.

5. Department of natural resources.

196.491(2)(b)6.

6. Department of transportation.

196.491(2)(b)7.

7. The director or chairperson of each regional planning commission constituted under s. 66.0309 which has jurisdiction over any area where a facility is proposed to be located or which requests a copy of such plan.

196.491(2)(b)8.

8. The lower Wisconsin state riverway board if the draft includes an assessment of the construction, modification or relocation of a high-voltage transmission line, as defined in s. 30.40 (3r), that is located in the lower Wisconsin riverway as defined in s. 30.40 (15).

196.491(2)(b)9.

9. Each person that is required to report information to the commission under the rules promulgated under par. (ag).

196.491(2)(b)10.

10. The clerk of each city, village, town and county that, as determined by the commission, is affected by the assessment.

196.491(2)(e)

(e) Any state agency, as defined in s. 560.9810 (1), county, municipality, town or person may submit written comments to the commission on a strategic energy assessment within 90 days after copies of the draft are issued under par. (b).

196.491(2)(f)

(f) Section 1.11 (2) (c) shall not apply to a strategic energy assessment prepared under par. (a) but the commission shall prepare a single environmental assessment on the strategic energy assessment, which shall include a discussion of generic issues and environmental impacts. The commission shall make the environmental assessment available to the public at least 30 days prior to the hearing under par. (g).

196.491(2)(g)

(g) No sooner than 30 and no later than 90 days after copies of the draft are issued under par. (b), the commission shall hold a hearing on the draft which may not be a hearing under s. 227.42 or 227.44. The hearing shall be held in an administrative district, established by executive order 22, issued August 24, 1970, which the commission determines will be significantly affected by facilities on which an electric utility plans to commence construction within 3 years. The commission may thereafter adjourn the hearing to other locations or may conduct the hearing by interactive video conference or other electronic method. Notice of such hearing shall be given by class 1 notice, under ch. 985, published in the official state newspaper and such other regional papers of general circulation as may be designated by the commission. At such hearing the commission shall briefly describe the strategic energy assessment and give all interested persons an opportunity, subject to reasonable limitations on the presentation of repetitious material, to express their views on any aspect of the strategic energy assessment. A record of the hearing shall be made and considered by the commission as comments on the strategic energy assessment under par. (e).

196.491(2)(gm)

(gm) Based on comments received on a draft, the commission shall prepare a final strategic energy assessment within 90 days after a hearing under par. (g). The commission shall provide copies of the final strategic energy assessment to any state agency, county, municipality, town or other person who submitted comments on the draft under par. (e) and to the persons specified in par. (b).

196.491 - ANNOT.

Cross Reference: See also ch. PSC 111, Wis. adm. code.

196.491(2r)

(2r) Local ordinances. No local ordinance may prohibit or restrict testing activities undertaken by an electric utility for purposes of determining the suitability of a site for the placement of a facility. Any local unit of government objecting to such testing may petition the commission to impose reasonable restrictions on such activity.

196.491(3)

(3) Certificate of public convenience and necessity.

196.491(3)(a)

(a)

196.491(3)(a)1.

1. Except as provided in sub. (3b), no person may commence the construction of a facility unless the person has applied for and received a certificate of public convenience and necessity under this subsection. An application for a certificate issued under this subsection shall be in the form and contain the information required by commission rules and shall be filed with the commission not less than 6 months prior to the commencement of construction of a facility. Within 10 days after filing an application under this subdivision, the commission shall send a copy of the application to the clerk of each municipality and town in which the proposed facility is to be located and to the main public library in each such county.

196.491(3)(a)2.

2. The commission shall determine whether an application filed under subd. 1. is complete and, no later than 30 days after the application is filed, notify the applicant about the determination. If the commission determines that the application is incomplete, the notice shall state the reason for the determination. An applicant may supplement and refile an application that the commission has determined to be incomplete. There is no limit on the number of times that an applicant may refile an application under this subdivision. If the commission fails to determine whether an application is complete within 30 days after the application is filed, the application shall be considered to be complete.

196.491(3)(a)2m.

2m. If an application for a large electric generating facility is complete in all other respects, the commission shall determine that the application is complete under subd. 2. even if one or more of the following apply:

196.491(3)(a)2m.a.

a. The application includes some but not all of the information necessary to evaluate or approve the construction of transmission facilities that may be associated with the proposed electric generating facility and a person other than the applicant will construct, or be responsible for the construction of, the transmission facilities.

196.491(3)(a)2m.b.

b. The applicant proposes alternative construction sites for the facility that are contiguous or proximate, provided that at least one of the proposed sites is a brownfield, as defined in s. 560.13 (1) (a), or the site of a former or existing large electric generating facility.

196.491(3)(a)2m.c.

c. The applicant has not yet obtained all the permits or approvals required for construction.

196.491(3)(a)3.

3.

196.491(3)(a)3.a.

a. At least 60 days before a person files an application under subd. 1., the person shall provide the department with an engineering plan if the facility is a large electric generating facility or a detailed project plan if the facility is a high-voltage transmission line. The engineering or project plan shall show the location of the facility, a description of the facility, including the major components of the facility that have a significant air, water or solid waste pollution potential, and a brief description of the anticipated effects of the facility on air quality, water quality, wetlands, solid waste disposal capacity, and other natural resources. Within 30 days after a person provides an engineering or project plan, the department shall provide the person with a listing of each department permit or approval which, on the basis of the information contained in the engineering or project plan, appears to be required for the construction or operation of the facility.

196.491(3)(a)3.b.

b. Within 20 days after the department provides a listing specified in subd. 3. a. to a person, the person shall apply for the permits and approvals identified in the listing. The department shall determine whether an application under this subd. 3. b. is complete and, no later than 30 days after the application is filed, notify the applicant about the determination. If the department determines that the application is incomplete, the notice shall state the reason for the determination. An applicant may supplement and refile an application that the department has determined to be incomplete. There is no limit on the number of times that an applicant may refile an application under this subd. 3. b. If the department fails to determine whether an application is complete within 30 days after the application is filed, the application shall be considered to be complete. The department shall complete action on an application under this subd. 3. b. for any permit or approval that is required prior to construction of a facility within 120 days after the date on which the application is determined or considered to be complete.

196.491(3)(b)

(b) The commission shall hold a public hearing on an application filed under par. (a) 1. that is determined or considered to be complete in the area affected pursuant to s. 227.44. A class 1 notice, under ch. 985, shall be given at least 30 days prior to the hearing.

196.491(3)(d)

(d) Except as provided under par. (e) and s. 196.493, the commission shall approve an application filed under par. (a) 1. for a certificate of public convenience and necessity only if the commission determines all of the following:

196.491(3)(d)2.

2. The proposed facility satisfies the reasonable needs of the public for an adequate supply of electric energy. This subdivision does not apply to a wholesale merchant plant.

196.491(3)(d)3.

3. The design and location or route is in the public interest considering alternative sources of supply, alternative locations or routes, individual hardships, engineering, economic, safety, reliability and environmental factors, except that the commission may not consider alternative sources of supply or engineering or economic factors if the application is for a wholesale merchant plant. In its consideration of environmental factors, the commission may not determine that the design and location or route is not in the public interest because of the impact of air pollution if the proposed facility will meet the requirements of ch. 285.

196.491(3)(d)3m.

3m. For a high-voltage transmission line, as defined in s. 30.40 (3r), that is to be located in the lower Wisconsin state riverway, as defined in s. 30.40 (15), the high-voltage transmission line will not impair, to the extent practicable, the scenic beauty or the natural value of the riverway. The commission may not require that a high-voltage transmission line, as defined in s. 30.40 (3r), be placed underground in order for it to approve an application.

196.491(3)(d)3r.

3r. For a high-voltage transmission line that is proposed to increase the transmission import capability into this state, existing rights-of-way are used to the extent practicable and the routing and design of the high-voltage transmission line minimizes environmental impacts in a manner that is consistent with achieving reasonable electric rates.

196.491(3)(d)3t.

3t. For a high-voltage transmission line that is designed for operation at a nominal voltage of 345 kilovolts or more, the high-voltage transmission line provides usage, service or increased regional reliability benefits to the wholesale and retail customers or members in this state and the benefits of the high-voltage transmission line are reasonable in relation to the cost of the high-voltage transmission line.

196.491(3)(d)4.

4. The proposed facility will not have undue adverse impact on other environmental values such as, but not limited to, ecological balance, public health and welfare, historic sites, geological formations, the aesthetics of land and water and recreational use. In its consideration of the impact on other environmental values, the commission may not determine that the proposed facility will have an undue adverse impact on these values because of the impact of air pollution if the proposed facility will meet the requirements of ch. 285.

196.491(3)(d)5.

5. The proposed facility complies with the criteria under s. 196.49 (3) (b) if the application is by a public utility as defined in s. 196.01.

196.491(3)(d)6.

6. The proposed facility will not unreasonably interfere with the orderly land use and development plans for the area involved.

196.491(3)(d)7.

7. The proposed facility will not have a material adverse impact on competition in the relevant wholesale electric service market.

196.491(3)(d)8.

8. For a large electric generating facility, brownfields, as defined in s. 560.13 (1) (a), are used to the extent practicable.

196.491(3)(dg)

(dg) In making a determination under par. (d) that applies to a large electric generating facility, if the large electric generating facility is a wind energy system, as defined in s. 66.0403 (1) (m), the commission shall consider whether installation or use of the facility is consistent with the standards specified in the rules promulgated by the commission under s. 196.378 (4g) (b).

196.491(3)(dm)

(dm) In making a determination required under par. (d), the commission may not consider a factual conclusion in a strategic energy assessment unless the conclusion is independently corroborated in the hearing under par. (b).

196.491(3)(e)

(e) If an application filed under par. (a) 1. does not meet the criteria under par. (d), the commission shall reject the application or approve the application with such modifications as are necessary for an affirmative finding under par. (d).

196.491(3)(g)

(g) The commission shall take final action on an application filed under par. (a) 1. within 180 days after the application is determined or considered to be complete under par. (a) 2. If the commission fails to take final action within the 180-day period, the commission is considered to have issued a certificate of public convenience and necessity with respect to the application, unless the commission, within the 180-day period, petitions the circuit court for Dane County for an extension of time for taking final action on the application and the court grants an extension. Upon a showing of good cause, the court may extend the 180-day period for no more than an additional 180 days. If the commission fails to take final action within the extended period, the commission is considered to have issued a certificate of public convenience and necessity with respect to the application.

196.491(3)(gm)

(gm) The commission may not approve an application filed after October 29, 1999, under this subsection for a certificate of public convenience and necessity for a high-voltage transmission line that is designed for operation at a nominal voltage of 345 kilovolts or more unless the approval includes the condition that the applicant shall pay the fees specified in sub. (3g) (a). If the commission has approved an application under this subsection for a certificate of public convenience and necessity for a high-voltage transmission line that is designed for operation at a nominal voltage of 345 kilovolts or more that was filed after April 1, 1999, and before October 29, 1999, the commission shall require the applicant to pay the fees specified in sub. (3g) (a). For any application subject to this paragraph, the commission shall determine the cost of the high-voltage transmission line, identify the counties, towns, villages and cities through which the high-voltage transmission line is routed and allocate the amount of investment associated with the high-voltage transmission line to each such county, town, village and city.

196.491(3)(i)

(i) If installation or utilization of a facility for which a certificate of convenience and necessity has been granted is precluded or inhibited by a local ordinance, the installation and utilization of the facility may nevertheless proceed.

196.491(3)(j)

(j) Any person whose substantial rights may be adversely affected or any county, municipality or town having jurisdiction over land affected by a certificate of public convenience and necessity for which an application is filed under par. (a) 1. may petition for judicial review, under ch. 227, of any decision of the commission regarding the certificate.

196.491(3)(k)

(k) No person may purchase, or acquire an option to purchase, any interest in real property knowing that such property is being purchased to be used for the construction of a high-voltage transmission line unless the person gives written notice to the prospective seller of the size, maximum voltage and structure type of any transmission line planned to be constructed thereon and the person by whom it will be operated. Contracts made in violation of this paragraph are subject to rescission by the seller at any time prior to the issuance of a certificate of public convenience and necessity for the high-voltage transmission line by the commission.

196.491(3b)

(3b) Expedited review.

196.491(3b)(a)

(a) A person who proposes to construct a high-voltage transmission line may apply for a certificate under this subsection if the construction is limited to adding conductors to existing transmission poles or towers and if all related construction activity takes place entirely within the area of an existing electric transmission line right-of-way.

196.491(3b)(b)

(b) The commission shall promulgate rules specifying the information that must be included in an application under this subsection. If the commission receives an application that complies with rules, the commission shall, as soon as practicable, notify the applicant that the commission has received a complete application.

196.491(3b)(c)

(c) The commission is considered to have issued a certificate of public convenience and necessity under sub. (3) for construction specified in an application under par. (a) unless the commission notifies the applicant, no later than 30 business days after the date on which the commission notifies an applicant under par. (b) that the application is complete, that the commission has determined that the public interest requires the applicant to obtain a certificate under s. 196.49.

196.491(3c)

(3c) Commencement of construction of large electric generating facilities.

196.491(3c)(a)

(a) Except as provided in par. (b), an electric utility that has received a certificate of public convenience and necessity under sub. (3) for constructing a large electric generating facility shall commence construction no later than one year after the latest of the following:

196.491(3c)(a)1.

1. The date on which the commission issues the certificate of public convenience and necessity.

196.491(3c)(a)2.

2. The date on which the electric utility has been issued every federal and state permit, approval, and license that is required prior to commencement of construction.

196.491(3c)(a)3.

3. The date on which every deadline has expired for requesting administrative review or reconsideration of every federal and state permit, approval, and license that is required prior to commencement of construction.

196.491(3c)(a)4.

4. The date on which the electric utility has received the final decision, after exhaustion of judicial review, in every proceeding for judicial review described in sub. (3) (j).

196.491(3c)(b)

(b) Upon showing of good cause, the commission may grant an extension to the deadline specified in par. (a).

196.491(3c)(c)

(c) If an electric utility does not commence construction of a large electric generating facility within the deadline specified in par. (a) or extended under par. (b), the certificate of public convenience and necessity is void, and the electric utility may not commence construction of the large electric generating facility.

196.491(3e)

(3e) Conveyance of property to an electric utility.

196.491(3e)(ag)

(ag) In this subsection, "electric utility" has the meaning given in s. 196.485 (1) (bs).

196.491(3e)(am)

(am) Notwithstanding s. 32.03 (1), if an electric utility receives a certificate of public convenience and necessity from the commission under sub. (3) for the construction of a high-voltage transmission line that will be constructed over, on, or under land owned by a county, city, village, town, public board or commission, the owner of the land shall convey to the electric utility, at fair market value as determined under par. (b), the interest in the land necessary for the construction, operation, and maintenance of the high-voltage transmission line.

196.491(3e)(b)

(b) If the electric utility and owner of the land cannot agree on the fair market value of the interest in land sought by the electric utility within 90 days after the electric utility notifies the owner that the certificate of public convenience and necessity has been issued, the issue of the fair market value of the interest shall be determined by an arbitrator appointed by the circuit court of the county in which the land is located, except that the electric utility and owner of the land may agree to extend the 90-day period by an additional 90 days if necessary to reach an agreement concerning fair market value in lieu of arbitration. The interest in land shall be conveyed to the electric utility upon commencement of the arbitration proceeding. Any arbitration under this paragraph shall be conducted on an expedited basis to the extent that an expedited proceeding is available. The arbitrator and circuit court appointing the arbitrator shall have the powers and duties specified in ch. 788. The decision of an arbitrator concerning fair market value shall be binding on the parties, except as otherwise provided under ch. 788.

196.491(3g)

(3g) Fees for certain high-voltage transmission lines.

196.491(3g)(a)

(a) A person who receives a certificate of public convenience and necessity for a high-voltage transmission line that is designed for operation at a nominal voltage of 345 kilovolts or more under sub. (3) shall pay the department of administration an annual impact fee as specified in the rules promulgated by the department of administration under s. 16.969 (2) (a) and shall pay the department of administration a one-time environmental impact fee as specified in the rules promulgated by the department of administration under s. 16.969 (2) (b).

196.491(3g)(b)

(b) A person that pays a fee under par. (a) may not use the payment to offset any other mitigation measure that is required in an order by the commission under sub. (3) regarding the certificate of public convenience and necessity specified in par. (a).

196.491(3m)

(3m) Wholesale merchant plants.

196.491(3m)(a)

(a) Commission approval required. Except as provided in par. (e), an affiliated interest of a public utility may not own, control or operate a wholesale merchant plant without the approval of the commission. The commission shall grant its approval only if each of the following is satisfied:

196.491(3m)(a)1.

1. The public utility has transferred control over its transmission facilities, as defined in s. 196.485 (1) (h), to an independent system operator, as defined in s. 196.485 (1) (d), that is approved by the federal energy regulatory commission or the public utility has divested its interest in the transmission facilities to an independent transmission owner, as defined in s. 196.485 (1) (dm).

196.491(3m)(a)2.

2. The commission finds that the ownership, control or operation will not have a substantial anticompetitive effect on electricity markets for any classes of customers.

196.491(3m)(b)

(b) Duty to promulgate rules.

196.491(3m)(b)1.

1. The commission shall promulgate rules that establish requirements and procedures for an affiliated interest to apply for an approval under par. (a). The rules shall do each of the following:

196.491(3m)(b)1.a.

a. Describe the showing that an applicant is required to make for the commission to grant an approval under par. (a).

196.491(3m)(b)1.am.

am. Establish screening tests and safe harbors for proposed wholesale merchant plant projects, including projects in which an affiliated interest is a passive investor and over which the affiliated interest is not able to exercise control or influence and projects in which an affiliated interest's ownership interest is less than 5%.

196.491(3m)(b)1.b.

b. Describe the analytical process that the commission shall use in determining whether to make a finding under par. (a) 2. and describe the factors specified in subd. 3.

196.491(3m)(b)1.c.

c. Allow an interested person to request a hearing on an application under s. 227.42.

196.491(3m)(b)2.

2. The analytical process specified in subd. 1. b. shall, to the extent practicable, be consistent with the analytical process described in the merger enforcement policy, as defined in s. 196.485 (1) (dr).

196.491(3m)(b)3.

3. The commission shall use the following factors in determining whether to make a finding under par. (a) 2.:

196.491(3m)(b)3.a.

a. The degree of market concentration resulting from the affiliated interest's proposed ownership, operation or control.

196.491(3m)(b)3.b.

b. The extent of control that the affiliated interest proposes to exercise over the wholesale merchant plant.

196.491(3m)(b)3.d.

d. Any other factor that the commission determines is necessary to determine whether to make a finding under par. (a) 2.

196.491(3m)(c)

(c) Sales by affiliated interests.

196.491(3m)(c)1.

1. In this paragraph:

196.491(3m)(c)1.a.

a. "Electric sale" means a sale of electricity that is generated at a wholesale merchant plant that is owned, operated or controlled by an affiliated interest.

196.491(3m)(c)1.b.

b. "Firm sale" means an electric sale in which electricity is intended to be available to a purchaser at all times during a specified period on an uninterruptible basis.

196.491(3m)(c)2.

2. The commission shall review any electric sale by an affiliated interest to a public utility with which the affiliated interest is affiliated. If the commission finds that an electric sale is not in the public interest, the commission shall do any of the following:

196.491(3m)(c)2.a.

a. Disallow the public utility's costs related to the sale in a rate-setting proceeding.

196.491(3m)(c)2.b.

b. Order the public utility to provide a refund, in an amount determined by the commission, to its customers.

196.491(3m)(c)2.c.

c. Order the public utility or affiliated interest to take any action that the commission determines is in the public interest, except that the commission may not order the public utility or affiliated interest to void the sale.

196.491(3m)(c)3.

3. An affiliated interest may not make any firm sale to a public utility with which the affiliated interest is affiliated if the firm sale satisfies any of the following:

196.491(3m)(c)3.a.

a. The period of the firm sale is 3 years or more.

196.491(3m)(c)3.b.

b. The period of the firm sale is less than 3 years and either the public utility or the affiliated interest has an option to extend the period to 3 years or more.

196.491(3m)(d)

(d) Retail sales outside this state. The commission may not promulgate rules or issue orders that prohibit owners or operators of wholesale merchant plants from providing electric service to retail customers in another state.

196.491(3m)(e)

(e) Exemption. An approval under par. (a) is not required for an affiliated interest to own, operate or control a wholesale merchant plant in Grant County if the affiliated interest owned, operated or controlled the wholesale merchant plant before January 1, 1998.

196.491 - ANNOT.

Cross Reference: See also s. PSC 100.11, Wis. adm. code.

196.491(4)

(4) Exemptions.

196.491(4)(b)

(b) Subsection (3) does not apply to a person that constructs electric generating equipment and associated facilities if the person satisfies each of the following:

196.491(4)(b)1.

1. The person is not a public utility or a cooperative association organized under ch. 185 for the purpose of generating, distributing or furnishing electric energy at retail or wholesale to its members only.

196.491(4)(b)2.

2. The person shows to the satisfaction of the commission that the person reasonably anticipates, at the time that construction of the equipment or facilities commences, that on each day that the equipment and facilities are in operation the person will consume no less than 70% of the aggregate kilowatt hours output from the equipment and facilities in manufacturing processes at the site where the equipment and facilities are located.

196.491(4)(c)

(c)

196.491(4)(c)1e.

1e. In this paragraph, "centerline" means a line drawn through the centerline of an electric transmission line along its length.

196.491(4)(c)1m.

1m. Except as provided in subd. 1s., a certificate under sub. (3) is not required for a person to construct a high-voltage transmission line designed for operation at a nominal voltage of less than 345 kilovolts if the centerline of the new high-voltage transmission line is located within 60 feet on either side of the centerline of an existing electric transmission line operating at a nominal voltage of 69 kilovolts or more and the applicant demonstrates all of the following:

196.491(4)(c)1m.a.

a. That the project will not have undue adverse environmental impacts.

196.491(4)(c)1m.b.

b. That the new high-voltage transmission line requires the acquisition in total of one-half mile or less of rights-of-way from landowners from which rights-of-way were not required to be acquired for the existing electric transmission line.

196.491(4)(c)1s.

1s. A certificate under sub. (3) is not required for a cooperative association organized under ch. 185 for the purpose of producing or furnishing heat, light, power, or water to its members to construct a high-voltage transmission line designed for operation at a nominal voltage of less than 345 kilovolts if all related construction activity takes place entirely within the area of an existing electric transmission line right-of-way.

196.491(4)(c)2.

2. The commission is not required to prepare an environmental impact statement under under s. 1.11 (2) (c) for construction that is specified in subd. 1m. or 1s., but shall prepare an environmental assessment regarding the construction if an environmental assessment is required under the commission's rules.

196.491(4)(c)3.

3. If construction or utilization of a high-voltage transmission line described in subd. 1m. or 1s. is precluded or inhibited by a local ordinance, the construction and utilization of the line may nevertheless proceed.

196.491(5)

(5) Service standards for electric generation, transmission and distribution facilities. The commission shall promulgate rules that establish all of the following:

196.491(5)(a)

(a) Standards for inspecting, maintaining and repairing each of the following:

196.491(5)(a)1.

1. Electric generation facilities in this state that are owned by public utilities or provide service to public utilities under contracts with terms of 5 years or more.

196.491(5)(a)2.

2. Electric transmission or distribution facilities in this state that are owned by public utilities.

196.491(5)(b)

(b) Standards that the commission determines are necessary for the safe and reliable operation of each of the following:

196.491(5)(b)1.

1. Electric generation facilities in this state that are owned by public utilities or provide service to public utilities under contracts with terms of 5 years or more.

196.491(5)(b)2.

2. Electric transmission or distribution facilities in this state that are owned by public utilities.

196.491(6)

(6) Waiver. The commission may waive compliance with any requirement of this section to the extent necessary to restore service which has been substantially interrupted by a natural catastrophe, accident, sabotage or act of God.

196.491 - ANNOT.

History: 1975 c. 68, 199; 1979 c. 221, 361; 1983 a. 53 s. 114; 1983 a. 192, 401; 1985 a. 182 s. 57; 1989 a. 31; 1993 a. 184; 1995 a. 27 ss. 9116 (5), 9126 (19); 1995 a. 227, 409; 1997 a. 27, 35, 204; 1999 a. 9; 1999 a. 150 s. 672; 2001 a. 16; 2003 a. 33, 89; 2005 a. 24, 29; 2007 a. 20 s. 9121 (6) (a); 2009 a. 40, 378, 379.

196.491 - ANNOT.

Cross Reference: See also ch. PSC 112, Wis. adm. code.

196.491 - ANNOT.

It was reasonable for the PSC to issue a certificate conditioned on the issuance of DNR permits when legislatively imposed time constraints could not have been met if sub. (3) (e) had been strictly followed and all permits required before the issuance of the certificate. Responsible Use of Rural & Agricultural Land v. PSC, 2000 WI 129, 239 Wis. 2d 660, 619 N.W.2d 888, 99-2430.

196.491 - ANNOT.

While sub. (3) (a) 1. does not provide standards to determine if an application for a certificate of public convenience and necessity is complete, it specifically states that an application must contain the information required by PSC rules and PSC is not free to ignore those requirements in making its completeness determination. Although the PSC's decision that an application is complete is not itself a final decision, it is nonetheless subject to judicial review. Clean Wisconsin, Inc. v. Public Service Commission, 2005 WI 93, 282 Wis. 2d 250, 700 N.W.2d 768, 04-3179.

196.491 - ANNOT.

Interpreting a PSC rule to require a certificate of public convenience and necessity applicant to file the actual regulatory approvals before the application can be deemed to be complete would conflict with sub. (3) (a) 3. a. and b. The statute expressly contemplates that an applicant will not have the required DNR permits in hand at the time the PSC must render its completeness determination. Clean Wisconsin, Inc. v. Public Service Commission, 2005 WI 93, 282 Wis. 2d 250, 700 N.W.2d 768, 04-3179.

196.491 - ANNOT.

There is nothing unreasonable in the PSC determining an application to be complete yet requesting further information to assist in its review of the certificate of public convenience and necessity application. Clean Wisconsin, Inc. v. Public Service Commission, 2005 WI 93, 282 Wis. 2d 250, 700 N.W.2d 768, 04-3179.

196.491 - ANNOT.

PSC decisions under sub. (3) (d) are entitled to great weight deference. Examining the numerous requirements in sub. (3) (d) 2. to 8. and forecasting future energy needs and prices is a highly technical exercise that the PSC is charged with performing. Deciding what economic factors are to be included in a computer model is precisely the type of determination that the PSC should be given great deference to carry out. Great weight deference review of the alternate energy sources is not concerned with the actual procedures utilized by the PSC, but whether there is a rational basis for the determination of the PSC. Clean Wisconsin, Inc. v. Public Service Commission, 2005 WI 93, 282 Wis. 2d 250, 700 N.W.2d 768, 04-3179.

196.491 - ANNOT.

Sub. (3) (i) expressly withdraws the power of municipalities to act, once the PSC has issued a certificate of public convenience and necessity, on any matter that the PSC has addressed or could have addressed in that administrative proceeding. American Transmission Co., LLC v. Dane County, 2009 WI App 126, ___ Wis. 2d ___, 772 N.W.2d 731, 08-2604.

State Codes and Statutes

Statutes > Wisconsin > 196 > 196.491

196.491

196.491 Strategic energy assessment; electric generating facilities and transmission lines.

196.491(1)

(1) Definitions. In this section:

196.491(1)(am)

(am) "Affiliated interest" has the meaning given in s. 196.52 (1).

196.491(1)(b)

(b) "Commencement of construction" means site clearing, excavation, placement of facilities or any other substantial action adversely affecting the natural environment of the site, but does not mean borings necessary to determine foundation conditions or other preconstruction monitoring to establish background information related to site or environmental suitability.

196.491(1)(bm)

(bm) "Cooperative association" means a cooperative association organized under ch. 185 for the purpose of generating, distributing or furnishing electric energy at retail or wholesale to its members only.

196.491(1)(c)

(c) "Department" means the department of natural resources.

196.491(1)(d)

(d) "Electric utility" means any public utility, as defined in s. 196.01, which is involved in the generation, distribution and sale of electric energy, and any corporation, company, individual or association, and any cooperative association, which owns or operates, or plans within the next 3 years to construct, own or operate, facilities in the state.

196.491(1)(e)

(e) "Facility" means a large electric generating facility or a high-voltage transmission line.

196.491(1)(f)

(f) Except as provided in subs. (2) (b) 8. and (3) (d) 3m., "high-voltage transmission line" means a conductor of electric energy exceeding one mile in length designed for operation at a nominal voltage of 100 kilovolts or more, together with associated facilities, and does not include transmission line relocations that the commission determines are necessary to facilitate highway or airport projects.

196.491(1)(g)

(g) "Large electric generating facility" means electric generating equipment and associated facilities designed for nominal operation at a capacity of 100 megawatts or more.

196.491(1)(w)

(w)

196.491(1)(w)1.

1. "Wholesale merchant plant" means, except as provided in subd. 2., electric generating equipment and associated facilities located in this state that do not provide service to any retail customer and that are owned and operated by any of the following:

196.491(1)(w)1.a.

a. Subject to the approval of the commission under sub. (3m) (a), an affiliated interest of a public utility.

196.491(1)(w)1.b.

b. A person that is not a public utility.

196.491(1)(w)2.

2. "Wholesale merchant plant" does not include an electric generating facility or an improvement to an electric generating facility that is subject to a leased generation contract, as defined in s. 196.52 (9) (a) 3.

196.491(2)

(2) Strategic energy assessment.

196.491(2)(a)

(a) The commission shall prepare a biennial strategic energy assessment that evaluates the adequacy and reliability of the state's current and future electrical supply. The strategic energy assessment shall do all of the following:

196.491(2)(a)3.

3. Identify and describe large electric generating facilities on which an electric utility plans to commence construction within 3 years.

196.491(2)(a)3g.

3g. Assess the adequacy and reliability of purchased generation capacity and energy to serve the needs of the public.

196.491(2)(a)3m.

3m. Identify and describe high-voltage transmission lines on which an electric utility plans to commence construction within 3 years.

196.491(2)(a)3r.

3r. Identify and describe any plans for assuring that there is an adequate ability to transfer electric power into the state and the transmission area, as defined in s. 196.485 (1) (g), in a reliable manner.

196.491(2)(a)4.

4. Identify and describe the projected demand for electric energy and the basis for determining the projected demand.

196.491(2)(a)7.

7. Identify and describe activities to discourage inefficient and excessive power use.

196.491(2)(a)9.

9. Identify and describe existing and planned generating facilities that use renewable sources of energy.

196.491(2)(a)10.

10. Consider the public interest in economic development, public health and safety, protection of the environment and diversification of sources of energy supplies.

196.491(2)(a)11.

11. Assess the extent to which the regional bulk-power market is contributing to the adequacy and reliability of the state's electrical supply.

196.491(2)(a)12.

12. Assess the extent to which effective competition is contributing to a reliable, low-cost and environmentally sound source of electricity for the public.

196.491(2)(a)13.

13. Assess whether sufficient electric capacity and energy will be available to the public at a reasonable price.

196.491(2)(ag)

(ag) The commission shall promulgate rules that establish procedures and requirements for reporting information that is necessary for the commission to prepare strategic energy assessments under par. (a).

196.491(2)(b)

(b) On or before July 1, 2000, and on or before July 1 of each even-numbered year thereafter, the commission shall issue a draft of the biennial strategic energy assessment that it prepares under par. (a) to each of the following:

196.491(2)(b)1.

1. Department of administration.

196.491(2)(b)2.

2. Department of commerce.

196.491(2)(b)3.

3. Department of health services.

196.491(2)(b)4.

4. Department of justice.

196.491(2)(b)5.

5. Department of natural resources.

196.491(2)(b)6.

6. Department of transportation.

196.491(2)(b)7.

7. The director or chairperson of each regional planning commission constituted under s. 66.0309 which has jurisdiction over any area where a facility is proposed to be located or which requests a copy of such plan.

196.491(2)(b)8.

8. The lower Wisconsin state riverway board if the draft includes an assessment of the construction, modification or relocation of a high-voltage transmission line, as defined in s. 30.40 (3r), that is located in the lower Wisconsin riverway as defined in s. 30.40 (15).

196.491(2)(b)9.

9. Each person that is required to report information to the commission under the rules promulgated under par. (ag).

196.491(2)(b)10.

10. The clerk of each city, village, town and county that, as determined by the commission, is affected by the assessment.

196.491(2)(e)

(e) Any state agency, as defined in s. 560.9810 (1), county, municipality, town or person may submit written comments to the commission on a strategic energy assessment within 90 days after copies of the draft are issued under par. (b).

196.491(2)(f)

(f) Section 1.11 (2) (c) shall not apply to a strategic energy assessment prepared under par. (a) but the commission shall prepare a single environmental assessment on the strategic energy assessment, which shall include a discussion of generic issues and environmental impacts. The commission shall make the environmental assessment available to the public at least 30 days prior to the hearing under par. (g).

196.491(2)(g)

(g) No sooner than 30 and no later than 90 days after copies of the draft are issued under par. (b), the commission shall hold a hearing on the draft which may not be a hearing under s. 227.42 or 227.44. The hearing shall be held in an administrative district, established by executive order 22, issued August 24, 1970, which the commission determines will be significantly affected by facilities on which an electric utility plans to commence construction within 3 years. The commission may thereafter adjourn the hearing to other locations or may conduct the hearing by interactive video conference or other electronic method. Notice of such hearing shall be given by class 1 notice, under ch. 985, published in the official state newspaper and such other regional papers of general circulation as may be designated by the commission. At such hearing the commission shall briefly describe the strategic energy assessment and give all interested persons an opportunity, subject to reasonable limitations on the presentation of repetitious material, to express their views on any aspect of the strategic energy assessment. A record of the hearing shall be made and considered by the commission as comments on the strategic energy assessment under par. (e).

196.491(2)(gm)

(gm) Based on comments received on a draft, the commission shall prepare a final strategic energy assessment within 90 days after a hearing under par. (g). The commission shall provide copies of the final strategic energy assessment to any state agency, county, municipality, town or other person who submitted comments on the draft under par. (e) and to the persons specified in par. (b).

196.491 - ANNOT.

Cross Reference: See also ch. PSC 111, Wis. adm. code.

196.491(2r)

(2r) Local ordinances. No local ordinance may prohibit or restrict testing activities undertaken by an electric utility for purposes of determining the suitability of a site for the placement of a facility. Any local unit of government objecting to such testing may petition the commission to impose reasonable restrictions on such activity.

196.491(3)

(3) Certificate of public convenience and necessity.

196.491(3)(a)

(a)

196.491(3)(a)1.

1. Except as provided in sub. (3b), no person may commence the construction of a facility unless the person has applied for and received a certificate of public convenience and necessity under this subsection. An application for a certificate issued under this subsection shall be in the form and contain the information required by commission rules and shall be filed with the commission not less than 6 months prior to the commencement of construction of a facility. Within 10 days after filing an application under this subdivision, the commission shall send a copy of the application to the clerk of each municipality and town in which the proposed facility is to be located and to the main public library in each such county.

196.491(3)(a)2.

2. The commission shall determine whether an application filed under subd. 1. is complete and, no later than 30 days after the application is filed, notify the applicant about the determination. If the commission determines that the application is incomplete, the notice shall state the reason for the determination. An applicant may supplement and refile an application that the commission has determined to be incomplete. There is no limit on the number of times that an applicant may refile an application under this subdivision. If the commission fails to determine whether an application is complete within 30 days after the application is filed, the application shall be considered to be complete.

196.491(3)(a)2m.

2m. If an application for a large electric generating facility is complete in all other respects, the commission shall determine that the application is complete under subd. 2. even if one or more of the following apply:

196.491(3)(a)2m.a.

a. The application includes some but not all of the information necessary to evaluate or approve the construction of transmission facilities that may be associated with the proposed electric generating facility and a person other than the applicant will construct, or be responsible for the construction of, the transmission facilities.

196.491(3)(a)2m.b.

b. The applicant proposes alternative construction sites for the facility that are contiguous or proximate, provided that at least one of the proposed sites is a brownfield, as defined in s. 560.13 (1) (a), or the site of a former or existing large electric generating facility.

196.491(3)(a)2m.c.

c. The applicant has not yet obtained all the permits or approvals required for construction.

196.491(3)(a)3.

3.

196.491(3)(a)3.a.

a. At least 60 days before a person files an application under subd. 1., the person shall provide the department with an engineering plan if the facility is a large electric generating facility or a detailed project plan if the facility is a high-voltage transmission line. The engineering or project plan shall show the location of the facility, a description of the facility, including the major components of the facility that have a significant air, water or solid waste pollution potential, and a brief description of the anticipated effects of the facility on air quality, water quality, wetlands, solid waste disposal capacity, and other natural resources. Within 30 days after a person provides an engineering or project plan, the department shall provide the person with a listing of each department permit or approval which, on the basis of the information contained in the engineering or project plan, appears to be required for the construction or operation of the facility.

196.491(3)(a)3.b.

b. Within 20 days after the department provides a listing specified in subd. 3. a. to a person, the person shall apply for the permits and approvals identified in the listing. The department shall determine whether an application under this subd. 3. b. is complete and, no later than 30 days after the application is filed, notify the applicant about the determination. If the department determines that the application is incomplete, the notice shall state the reason for the determination. An applicant may supplement and refile an application that the department has determined to be incomplete. There is no limit on the number of times that an applicant may refile an application under this subd. 3. b. If the department fails to determine whether an application is complete within 30 days after the application is filed, the application shall be considered to be complete. The department shall complete action on an application under this subd. 3. b. for any permit or approval that is required prior to construction of a facility within 120 days after the date on which the application is determined or considered to be complete.

196.491(3)(b)

(b) The commission shall hold a public hearing on an application filed under par. (a) 1. that is determined or considered to be complete in the area affected pursuant to s. 227.44. A class 1 notice, under ch. 985, shall be given at least 30 days prior to the hearing.

196.491(3)(d)

(d) Except as provided under par. (e) and s. 196.493, the commission shall approve an application filed under par. (a) 1. for a certificate of public convenience and necessity only if the commission determines all of the following:

196.491(3)(d)2.

2. The proposed facility satisfies the reasonable needs of the public for an adequate supply of electric energy. This subdivision does not apply to a wholesale merchant plant.

196.491(3)(d)3.

3. The design and location or route is in the public interest considering alternative sources of supply, alternative locations or routes, individual hardships, engineering, economic, safety, reliability and environmental factors, except that the commission may not consider alternative sources of supply or engineering or economic factors if the application is for a wholesale merchant plant. In its consideration of environmental factors, the commission may not determine that the design and location or route is not in the public interest because of the impact of air pollution if the proposed facility will meet the requirements of ch. 285.

196.491(3)(d)3m.

3m. For a high-voltage transmission line, as defined in s. 30.40 (3r), that is to be located in the lower Wisconsin state riverway, as defined in s. 30.40 (15), the high-voltage transmission line will not impair, to the extent practicable, the scenic beauty or the natural value of the riverway. The commission may not require that a high-voltage transmission line, as defined in s. 30.40 (3r), be placed underground in order for it to approve an application.

196.491(3)(d)3r.

3r. For a high-voltage transmission line that is proposed to increase the transmission import capability into this state, existing rights-of-way are used to the extent practicable and the routing and design of the high-voltage transmission line minimizes environmental impacts in a manner that is consistent with achieving reasonable electric rates.

196.491(3)(d)3t.

3t. For a high-voltage transmission line that is designed for operation at a nominal voltage of 345 kilovolts or more, the high-voltage transmission line provides usage, service or increased regional reliability benefits to the wholesale and retail customers or members in this state and the benefits of the high-voltage transmission line are reasonable in relation to the cost of the high-voltage transmission line.

196.491(3)(d)4.

4. The proposed facility will not have undue adverse impact on other environmental values such as, but not limited to, ecological balance, public health and welfare, historic sites, geological formations, the aesthetics of land and water and recreational use. In its consideration of the impact on other environmental values, the commission may not determine that the proposed facility will have an undue adverse impact on these values because of the impact of air pollution if the proposed facility will meet the requirements of ch. 285.

196.491(3)(d)5.

5. The proposed facility complies with the criteria under s. 196.49 (3) (b) if the application is by a public utility as defined in s. 196.01.

196.491(3)(d)6.

6. The proposed facility will not unreasonably interfere with the orderly land use and development plans for the area involved.

196.491(3)(d)7.

7. The proposed facility will not have a material adverse impact on competition in the relevant wholesale electric service market.

196.491(3)(d)8.

8. For a large electric generating facility, brownfields, as defined in s. 560.13 (1) (a), are used to the extent practicable.

196.491(3)(dg)

(dg) In making a determination under par. (d) that applies to a large electric generating facility, if the large electric generating facility is a wind energy system, as defined in s. 66.0403 (1) (m), the commission shall consider whether installation or use of the facility is consistent with the standards specified in the rules promulgated by the commission under s. 196.378 (4g) (b).

196.491(3)(dm)

(dm) In making a determination required under par. (d), the commission may not consider a factual conclusion in a strategic energy assessment unless the conclusion is independently corroborated in the hearing under par. (b).

196.491(3)(e)

(e) If an application filed under par. (a) 1. does not meet the criteria under par. (d), the commission shall reject the application or approve the application with such modifications as are necessary for an affirmative finding under par. (d).

196.491(3)(g)

(g) The commission shall take final action on an application filed under par. (a) 1. within 180 days after the application is determined or considered to be complete under par. (a) 2. If the commission fails to take final action within the 180-day period, the commission is considered to have issued a certificate of public convenience and necessity with respect to the application, unless the commission, within the 180-day period, petitions the circuit court for Dane County for an extension of time for taking final action on the application and the court grants an extension. Upon a showing of good cause, the court may extend the 180-day period for no more than an additional 180 days. If the commission fails to take final action within the extended period, the commission is considered to have issued a certificate of public convenience and necessity with respect to the application.

196.491(3)(gm)

(gm) The commission may not approve an application filed after October 29, 1999, under this subsection for a certificate of public convenience and necessity for a high-voltage transmission line that is designed for operation at a nominal voltage of 345 kilovolts or more unless the approval includes the condition that the applicant shall pay the fees specified in sub. (3g) (a). If the commission has approved an application under this subsection for a certificate of public convenience and necessity for a high-voltage transmission line that is designed for operation at a nominal voltage of 345 kilovolts or more that was filed after April 1, 1999, and before October 29, 1999, the commission shall require the applicant to pay the fees specified in sub. (3g) (a). For any application subject to this paragraph, the commission shall determine the cost of the high-voltage transmission line, identify the counties, towns, villages and cities through which the high-voltage transmission line is routed and allocate the amount of investment associated with the high-voltage transmission line to each such county, town, village and city.

196.491(3)(i)

(i) If installation or utilization of a facility for which a certificate of convenience and necessity has been granted is precluded or inhibited by a local ordinance, the installation and utilization of the facility may nevertheless proceed.

196.491(3)(j)

(j) Any person whose substantial rights may be adversely affected or any county, municipality or town having jurisdiction over land affected by a certificate of public convenience and necessity for which an application is filed under par. (a) 1. may petition for judicial review, under ch. 227, of any decision of the commission regarding the certificate.

196.491(3)(k)

(k) No person may purchase, or acquire an option to purchase, any interest in real property knowing that such property is being purchased to be used for the construction of a high-voltage transmission line unless the person gives written notice to the prospective seller of the size, maximum voltage and structure type of any transmission line planned to be constructed thereon and the person by whom it will be operated. Contracts made in violation of this paragraph are subject to rescission by the seller at any time prior to the issuance of a certificate of public convenience and necessity for the high-voltage transmission line by the commission.

196.491(3b)

(3b) Expedited review.

196.491(3b)(a)

(a) A person who proposes to construct a high-voltage transmission line may apply for a certificate under this subsection if the construction is limited to adding conductors to existing transmission poles or towers and if all related construction activity takes place entirely within the area of an existing electric transmission line right-of-way.

196.491(3b)(b)

(b) The commission shall promulgate rules specifying the information that must be included in an application under this subsection. If the commission receives an application that complies with rules, the commission shall, as soon as practicable, notify the applicant that the commission has received a complete application.

196.491(3b)(c)

(c) The commission is considered to have issued a certificate of public convenience and necessity under sub. (3) for construction specified in an application under par. (a) unless the commission notifies the applicant, no later than 30 business days after the date on which the commission notifies an applicant under par. (b) that the application is complete, that the commission has determined that the public interest requires the applicant to obtain a certificate under s. 196.49.

196.491(3c)

(3c) Commencement of construction of large electric generating facilities.

196.491(3c)(a)

(a) Except as provided in par. (b), an electric utility that has received a certificate of public convenience and necessity under sub. (3) for constructing a large electric generating facility shall commence construction no later than one year after the latest of the following:

196.491(3c)(a)1.

1. The date on which the commission issues the certificate of public convenience and necessity.

196.491(3c)(a)2.

2. The date on which the electric utility has been issued every federal and state permit, approval, and license that is required prior to commencement of construction.

196.491(3c)(a)3.

3. The date on which every deadline has expired for requesting administrative review or reconsideration of every federal and state permit, approval, and license that is required prior to commencement of construction.

196.491(3c)(a)4.

4. The date on which the electric utility has received the final decision, after exhaustion of judicial review, in every proceeding for judicial review described in sub. (3) (j).

196.491(3c)(b)

(b) Upon showing of good cause, the commission may grant an extension to the deadline specified in par. (a).

196.491(3c)(c)

(c) If an electric utility does not commence construction of a large electric generating facility within the deadline specified in par. (a) or extended under par. (b), the certificate of public convenience and necessity is void, and the electric utility may not commence construction of the large electric generating facility.

196.491(3e)

(3e) Conveyance of property to an electric utility.

196.491(3e)(ag)

(ag) In this subsection, "electric utility" has the meaning given in s. 196.485 (1) (bs).

196.491(3e)(am)

(am) Notwithstanding s. 32.03 (1), if an electric utility receives a certificate of public convenience and necessity from the commission under sub. (3) for the construction of a high-voltage transmission line that will be constructed over, on, or under land owned by a county, city, village, town, public board or commission, the owner of the land shall convey to the electric utility, at fair market value as determined under par. (b), the interest in the land necessary for the construction, operation, and maintenance of the high-voltage transmission line.

196.491(3e)(b)

(b) If the electric utility and owner of the land cannot agree on the fair market value of the interest in land sought by the electric utility within 90 days after the electric utility notifies the owner that the certificate of public convenience and necessity has been issued, the issue of the fair market value of the interest shall be determined by an arbitrator appointed by the circuit court of the county in which the land is located, except that the electric utility and owner of the land may agree to extend the 90-day period by an additional 90 days if necessary to reach an agreement concerning fair market value in lieu of arbitration. The interest in land shall be conveyed to the electric utility upon commencement of the arbitration proceeding. Any arbitration under this paragraph shall be conducted on an expedited basis to the extent that an expedited proceeding is available. The arbitrator and circuit court appointing the arbitrator shall have the powers and duties specified in ch. 788. The decision of an arbitrator concerning fair market value shall be binding on the parties, except as otherwise provided under ch. 788.

196.491(3g)

(3g) Fees for certain high-voltage transmission lines.

196.491(3g)(a)

(a) A person who receives a certificate of public convenience and necessity for a high-voltage transmission line that is designed for operation at a nominal voltage of 345 kilovolts or more under sub. (3) shall pay the department of administration an annual impact fee as specified in the rules promulgated by the department of administration under s. 16.969 (2) (a) and shall pay the department of administration a one-time environmental impact fee as specified in the rules promulgated by the department of administration under s. 16.969 (2) (b).

196.491(3g)(b)

(b) A person that pays a fee under par. (a) may not use the payment to offset any other mitigation measure that is required in an order by the commission under sub. (3) regarding the certificate of public convenience and necessity specified in par. (a).

196.491(3m)

(3m) Wholesale merchant plants.

196.491(3m)(a)

(a) Commission approval required. Except as provided in par. (e), an affiliated interest of a public utility may not own, control or operate a wholesale merchant plant without the approval of the commission. The commission shall grant its approval only if each of the following is satisfied:

196.491(3m)(a)1.

1. The public utility has transferred control over its transmission facilities, as defined in s. 196.485 (1) (h), to an independent system operator, as defined in s. 196.485 (1) (d), that is approved by the federal energy regulatory commission or the public utility has divested its interest in the transmission facilities to an independent transmission owner, as defined in s. 196.485 (1) (dm).

196.491(3m)(a)2.

2. The commission finds that the ownership, control or operation will not have a substantial anticompetitive effect on electricity markets for any classes of customers.

196.491(3m)(b)

(b) Duty to promulgate rules.

196.491(3m)(b)1.

1. The commission shall promulgate rules that establish requirements and procedures for an affiliated interest to apply for an approval under par. (a). The rules shall do each of the following:

196.491(3m)(b)1.a.

a. Describe the showing that an applicant is required to make for the commission to grant an approval under par. (a).

196.491(3m)(b)1.am.

am. Establish screening tests and safe harbors for proposed wholesale merchant plant projects, including projects in which an affiliated interest is a passive investor and over which the affiliated interest is not able to exercise control or influence and projects in which an affiliated interest's ownership interest is less than 5%.

196.491(3m)(b)1.b.

b. Describe the analytical process that the commission shall use in determining whether to make a finding under par. (a) 2. and describe the factors specified in subd. 3.

196.491(3m)(b)1.c.

c. Allow an interested person to request a hearing on an application under s. 227.42.

196.491(3m)(b)2.

2. The analytical process specified in subd. 1. b. shall, to the extent practicable, be consistent with the analytical process described in the merger enforcement policy, as defined in s. 196.485 (1) (dr).

196.491(3m)(b)3.

3. The commission shall use the following factors in determining whether to make a finding under par. (a) 2.:

196.491(3m)(b)3.a.

a. The degree of market concentration resulting from the affiliated interest's proposed ownership, operation or control.

196.491(3m)(b)3.b.

b. The extent of control that the affiliated interest proposes to exercise over the wholesale merchant plant.

196.491(3m)(b)3.d.

d. Any other factor that the commission determines is necessary to determine whether to make a finding under par. (a) 2.

196.491(3m)(c)

(c) Sales by affiliated interests.

196.491(3m)(c)1.

1. In this paragraph:

196.491(3m)(c)1.a.

a. "Electric sale" means a sale of electricity that is generated at a wholesale merchant plant that is owned, operated or controlled by an affiliated interest.

196.491(3m)(c)1.b.

b. "Firm sale" means an electric sale in which electricity is intended to be available to a purchaser at all times during a specified period on an uninterruptible basis.

196.491(3m)(c)2.

2. The commission shall review any electric sale by an affiliated interest to a public utility with which the affiliated interest is affiliated. If the commission finds that an electric sale is not in the public interest, the commission shall do any of the following:

196.491(3m)(c)2.a.

a. Disallow the public utility's costs related to the sale in a rate-setting proceeding.

196.491(3m)(c)2.b.

b. Order the public utility to provide a refund, in an amount determined by the commission, to its customers.

196.491(3m)(c)2.c.

c. Order the public utility or affiliated interest to take any action that the commission determines is in the public interest, except that the commission may not order the public utility or affiliated interest to void the sale.

196.491(3m)(c)3.

3. An affiliated interest may not make any firm sale to a public utility with which the affiliated interest is affiliated if the firm sale satisfies any of the following:

196.491(3m)(c)3.a.

a. The period of the firm sale is 3 years or more.

196.491(3m)(c)3.b.

b. The period of the firm sale is less than 3 years and either the public utility or the affiliated interest has an option to extend the period to 3 years or more.

196.491(3m)(d)

(d) Retail sales outside this state. The commission may not promulgate rules or issue orders that prohibit owners or operators of wholesale merchant plants from providing electric service to retail customers in another state.

196.491(3m)(e)

(e) Exemption. An approval under par. (a) is not required for an affiliated interest to own, operate or control a wholesale merchant plant in Grant County if the affiliated interest owned, operated or controlled the wholesale merchant plant before January 1, 1998.

196.491 - ANNOT.

Cross Reference: See also s. PSC 100.11, Wis. adm. code.

196.491(4)

(4) Exemptions.

196.491(4)(b)

(b) Subsection (3) does not apply to a person that constructs electric generating equipment and associated facilities if the person satisfies each of the following:

196.491(4)(b)1.

1. The person is not a public utility or a cooperative association organized under ch. 185 for the purpose of generating, distributing or furnishing electric energy at retail or wholesale to its members only.

196.491(4)(b)2.

2. The person shows to the satisfaction of the commission that the person reasonably anticipates, at the time that construction of the equipment or facilities commences, that on each day that the equipment and facilities are in operation the person will consume no less than 70% of the aggregate kilowatt hours output from the equipment and facilities in manufacturing processes at the site where the equipment and facilities are located.

196.491(4)(c)

(c)

196.491(4)(c)1e.

1e. In this paragraph, "centerline" means a line drawn through the centerline of an electric transmission line along its length.

196.491(4)(c)1m.

1m. Except as provided in subd. 1s., a certificate under sub. (3) is not required for a person to construct a high-voltage transmission line designed for operation at a nominal voltage of less than 345 kilovolts if the centerline of the new high-voltage transmission line is located within 60 feet on either side of the centerline of an existing electric transmission line operating at a nominal voltage of 69 kilovolts or more and the applicant demonstrates all of the following:

196.491(4)(c)1m.a.

a. That the project will not have undue adverse environmental impacts.

196.491(4)(c)1m.b.

b. That the new high-voltage transmission line requires the acquisition in total of one-half mile or less of rights-of-way from landowners from which rights-of-way were not required to be acquired for the existing electric transmission line.

196.491(4)(c)1s.

1s. A certificate under sub. (3) is not required for a cooperative association organized under ch. 185 for the purpose of producing or furnishing heat, light, power, or water to its members to construct a high-voltage transmission line designed for operation at a nominal voltage of less than 345 kilovolts if all related construction activity takes place entirely within the area of an existing electric transmission line right-of-way.

196.491(4)(c)2.

2. The commission is not required to prepare an environmental impact statement under under s. 1.11 (2) (c) for construction that is specified in subd. 1m. or 1s., but shall prepare an environmental assessment regarding the construction if an environmental assessment is required under the commission's rules.

196.491(4)(c)3.

3. If construction or utilization of a high-voltage transmission line described in subd. 1m. or 1s. is precluded or inhibited by a local ordinance, the construction and utilization of the line may nevertheless proceed.

196.491(5)

(5) Service standards for electric generation, transmission and distribution facilities. The commission shall promulgate rules that establish all of the following:

196.491(5)(a)

(a) Standards for inspecting, maintaining and repairing each of the following:

196.491(5)(a)1.

1. Electric generation facilities in this state that are owned by public utilities or provide service to public utilities under contracts with terms of 5 years or more.

196.491(5)(a)2.

2. Electric transmission or distribution facilities in this state that are owned by public utilities.

196.491(5)(b)

(b) Standards that the commission determines are necessary for the safe and reliable operation of each of the following:

196.491(5)(b)1.

1. Electric generation facilities in this state that are owned by public utilities or provide service to public utilities under contracts with terms of 5 years or more.

196.491(5)(b)2.

2. Electric transmission or distribution facilities in this state that are owned by public utilities.

196.491(6)

(6) Waiver. The commission may waive compliance with any requirement of this section to the extent necessary to restore service which has been substantially interrupted by a natural catastrophe, accident, sabotage or act of God.

196.491 - ANNOT.

History: 1975 c. 68, 199; 1979 c. 221, 361; 1983 a. 53 s. 114; 1983 a. 192, 401; 1985 a. 182 s. 57; 1989 a. 31; 1993 a. 184; 1995 a. 27 ss. 9116 (5), 9126 (19); 1995 a. 227, 409; 1997 a. 27, 35, 204; 1999 a. 9; 1999 a. 150 s. 672; 2001 a. 16; 2003 a. 33, 89; 2005 a. 24, 29; 2007 a. 20 s. 9121 (6) (a); 2009 a. 40, 378, 379.

196.491 - ANNOT.

Cross Reference: See also ch. PSC 112, Wis. adm. code.

196.491 - ANNOT.

It was reasonable for the PSC to issue a certificate conditioned on the issuance of DNR permits when legislatively imposed time constraints could not have been met if sub. (3) (e) had been strictly followed and all permits required before the issuance of the certificate. Responsible Use of Rural & Agricultural Land v. PSC, 2000 WI 129, 239 Wis. 2d 660, 619 N.W.2d 888, 99-2430.

196.491 - ANNOT.

While sub. (3) (a) 1. does not provide standards to determine if an application for a certificate of public convenience and necessity is complete, it specifically states that an application must contain the information required by PSC rules and PSC is not free to ignore those requirements in making its completeness determination. Although the PSC's decision that an application is complete is not itself a final decision, it is nonetheless subject to judicial review. Clean Wisconsin, Inc. v. Public Service Commission, 2005 WI 93, 282 Wis. 2d 250, 700 N.W.2d 768, 04-3179.

196.491 - ANNOT.

Interpreting a PSC rule to require a certificate of public convenience and necessity applicant to file the actual regulatory approvals before the application can be deemed to be complete would conflict with sub. (3) (a) 3. a. and b. The statute expressly contemplates that an applicant will not have the required DNR permits in hand at the time the PSC must render its completeness determination. Clean Wisconsin, Inc. v. Public Service Commission, 2005 WI 93, 282 Wis. 2d 250, 700 N.W.2d 768, 04-3179.

196.491 - ANNOT.

There is nothing unreasonable in the PSC determining an application to be complete yet requesting further information to assist in its review of the certificate of public convenience and necessity application. Clean Wisconsin, Inc. v. Public Service Commission, 2005 WI 93, 282 Wis. 2d 250, 700 N.W.2d 768, 04-3179.

196.491 - ANNOT.

PSC decisions under sub. (3) (d) are entitled to great weight deference. Examining the numerous requirements in sub. (3) (d) 2. to 8. and forecasting future energy needs and prices is a highly technical exercise that the PSC is charged with performing. Deciding what economic factors are to be included in a computer model is precisely the type of determination that the PSC should be given great deference to carry out. Great weight deference review of the alternate energy sources is not concerned with the actual procedures utilized by the PSC, but whether there is a rational basis for the determination of the PSC. Clean Wisconsin, Inc. v. Public Service Commission, 2005 WI 93, 282 Wis. 2d 250, 700 N.W.2d 768, 04-3179.

196.491 - ANNOT.

Sub. (3) (i) expressly withdraws the power of municipalities to act, once the PSC has issued a certificate of public convenience and necessity, on any matter that the PSC has addressed or could have addressed in that administrative proceeding. American Transmission Co., LLC v. Dane County, 2009 WI App 126, ___ Wis. 2d ___, 772 N.W.2d 731, 08-2604.

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Statutes > Wisconsin > 196 > 196.491

196.491

196.491 Strategic energy assessment; electric generating facilities and transmission lines.

196.491(1)

(1) Definitions. In this section:

196.491(1)(am)

(am) "Affiliated interest" has the meaning given in s. 196.52 (1).

196.491(1)(b)

(b) "Commencement of construction" means site clearing, excavation, placement of facilities or any other substantial action adversely affecting the natural environment of the site, but does not mean borings necessary to determine foundation conditions or other preconstruction monitoring to establish background information related to site or environmental suitability.

196.491(1)(bm)

(bm) "Cooperative association" means a cooperative association organized under ch. 185 for the purpose of generating, distributing or furnishing electric energy at retail or wholesale to its members only.

196.491(1)(c)

(c) "Department" means the department of natural resources.

196.491(1)(d)

(d) "Electric utility" means any public utility, as defined in s. 196.01, which is involved in the generation, distribution and sale of electric energy, and any corporation, company, individual or association, and any cooperative association, which owns or operates, or plans within the next 3 years to construct, own or operate, facilities in the state.

196.491(1)(e)

(e) "Facility" means a large electric generating facility or a high-voltage transmission line.

196.491(1)(f)

(f) Except as provided in subs. (2) (b) 8. and (3) (d) 3m., "high-voltage transmission line" means a conductor of electric energy exceeding one mile in length designed for operation at a nominal voltage of 100 kilovolts or more, together with associated facilities, and does not include transmission line relocations that the commission determines are necessary to facilitate highway or airport projects.

196.491(1)(g)

(g) "Large electric generating facility" means electric generating equipment and associated facilities designed for nominal operation at a capacity of 100 megawatts or more.

196.491(1)(w)

(w)

196.491(1)(w)1.

1. "Wholesale merchant plant" means, except as provided in subd. 2., electric generating equipment and associated facilities located in this state that do not provide service to any retail customer and that are owned and operated by any of the following:

196.491(1)(w)1.a.

a. Subject to the approval of the commission under sub. (3m) (a), an affiliated interest of a public utility.

196.491(1)(w)1.b.

b. A person that is not a public utility.

196.491(1)(w)2.

2. "Wholesale merchant plant" does not include an electric generating facility or an improvement to an electric generating facility that is subject to a leased generation contract, as defined in s. 196.52 (9) (a) 3.

196.491(2)

(2) Strategic energy assessment.

196.491(2)(a)

(a) The commission shall prepare a biennial strategic energy assessment that evaluates the adequacy and reliability of the state's current and future electrical supply. The strategic energy assessment shall do all of the following:

196.491(2)(a)3.

3. Identify and describe large electric generating facilities on which an electric utility plans to commence construction within 3 years.

196.491(2)(a)3g.

3g. Assess the adequacy and reliability of purchased generation capacity and energy to serve the needs of the public.

196.491(2)(a)3m.

3m. Identify and describe high-voltage transmission lines on which an electric utility plans to commence construction within 3 years.

196.491(2)(a)3r.

3r. Identify and describe any plans for assuring that there is an adequate ability to transfer electric power into the state and the transmission area, as defined in s. 196.485 (1) (g), in a reliable manner.

196.491(2)(a)4.

4. Identify and describe the projected demand for electric energy and the basis for determining the projected demand.

196.491(2)(a)7.

7. Identify and describe activities to discourage inefficient and excessive power use.

196.491(2)(a)9.

9. Identify and describe existing and planned generating facilities that use renewable sources of energy.

196.491(2)(a)10.

10. Consider the public interest in economic development, public health and safety, protection of the environment and diversification of sources of energy supplies.

196.491(2)(a)11.

11. Assess the extent to which the regional bulk-power market is contributing to the adequacy and reliability of the state's electrical supply.

196.491(2)(a)12.

12. Assess the extent to which effective competition is contributing to a reliable, low-cost and environmentally sound source of electricity for the public.

196.491(2)(a)13.

13. Assess whether sufficient electric capacity and energy will be available to the public at a reasonable price.

196.491(2)(ag)

(ag) The commission shall promulgate rules that establish procedures and requirements for reporting information that is necessary for the commission to prepare strategic energy assessments under par. (a).

196.491(2)(b)

(b) On or before July 1, 2000, and on or before July 1 of each even-numbered year thereafter, the commission shall issue a draft of the biennial strategic energy assessment that it prepares under par. (a) to each of the following:

196.491(2)(b)1.

1. Department of administration.

196.491(2)(b)2.

2. Department of commerce.

196.491(2)(b)3.

3. Department of health services.

196.491(2)(b)4.

4. Department of justice.

196.491(2)(b)5.

5. Department of natural resources.

196.491(2)(b)6.

6. Department of transportation.

196.491(2)(b)7.

7. The director or chairperson of each regional planning commission constituted under s. 66.0309 which has jurisdiction over any area where a facility is proposed to be located or which requests a copy of such plan.

196.491(2)(b)8.

8. The lower Wisconsin state riverway board if the draft includes an assessment of the construction, modification or relocation of a high-voltage transmission line, as defined in s. 30.40 (3r), that is located in the lower Wisconsin riverway as defined in s. 30.40 (15).

196.491(2)(b)9.

9. Each person that is required to report information to the commission under the rules promulgated under par. (ag).

196.491(2)(b)10.

10. The clerk of each city, village, town and county that, as determined by the commission, is affected by the assessment.

196.491(2)(e)

(e) Any state agency, as defined in s. 560.9810 (1), county, municipality, town or person may submit written comments to the commission on a strategic energy assessment within 90 days after copies of the draft are issued under par. (b).

196.491(2)(f)

(f) Section 1.11 (2) (c) shall not apply to a strategic energy assessment prepared under par. (a) but the commission shall prepare a single environmental assessment on the strategic energy assessment, which shall include a discussion of generic issues and environmental impacts. The commission shall make the environmental assessment available to the public at least 30 days prior to the hearing under par. (g).

196.491(2)(g)

(g) No sooner than 30 and no later than 90 days after copies of the draft are issued under par. (b), the commission shall hold a hearing on the draft which may not be a hearing under s. 227.42 or 227.44. The hearing shall be held in an administrative district, established by executive order 22, issued August 24, 1970, which the commission determines will be significantly affected by facilities on which an electric utility plans to commence construction within 3 years. The commission may thereafter adjourn the hearing to other locations or may conduct the hearing by interactive video conference or other electronic method. Notice of such hearing shall be given by class 1 notice, under ch. 985, published in the official state newspaper and such other regional papers of general circulation as may be designated by the commission. At such hearing the commission shall briefly describe the strategic energy assessment and give all interested persons an opportunity, subject to reasonable limitations on the presentation of repetitious material, to express their views on any aspect of the strategic energy assessment. A record of the hearing shall be made and considered by the commission as comments on the strategic energy assessment under par. (e).

196.491(2)(gm)

(gm) Based on comments received on a draft, the commission shall prepare a final strategic energy assessment within 90 days after a hearing under par. (g). The commission shall provide copies of the final strategic energy assessment to any state agency, county, municipality, town or other person who submitted comments on the draft under par. (e) and to the persons specified in par. (b).

196.491 - ANNOT.

Cross Reference: See also ch. PSC 111, Wis. adm. code.

196.491(2r)

(2r) Local ordinances. No local ordinance may prohibit or restrict testing activities undertaken by an electric utility for purposes of determining the suitability of a site for the placement of a facility. Any local unit of government objecting to such testing may petition the commission to impose reasonable restrictions on such activity.

196.491(3)

(3) Certificate of public convenience and necessity.

196.491(3)(a)

(a)

196.491(3)(a)1.

1. Except as provided in sub. (3b), no person may commence the construction of a facility unless the person has applied for and received a certificate of public convenience and necessity under this subsection. An application for a certificate issued under this subsection shall be in the form and contain the information required by commission rules and shall be filed with the commission not less than 6 months prior to the commencement of construction of a facility. Within 10 days after filing an application under this subdivision, the commission shall send a copy of the application to the clerk of each municipality and town in which the proposed facility is to be located and to the main public library in each such county.

196.491(3)(a)2.

2. The commission shall determine whether an application filed under subd. 1. is complete and, no later than 30 days after the application is filed, notify the applicant about the determination. If the commission determines that the application is incomplete, the notice shall state the reason for the determination. An applicant may supplement and refile an application that the commission has determined to be incomplete. There is no limit on the number of times that an applicant may refile an application under this subdivision. If the commission fails to determine whether an application is complete within 30 days after the application is filed, the application shall be considered to be complete.

196.491(3)(a)2m.

2m. If an application for a large electric generating facility is complete in all other respects, the commission shall determine that the application is complete under subd. 2. even if one or more of the following apply:

196.491(3)(a)2m.a.

a. The application includes some but not all of the information necessary to evaluate or approve the construction of transmission facilities that may be associated with the proposed electric generating facility and a person other than the applicant will construct, or be responsible for the construction of, the transmission facilities.

196.491(3)(a)2m.b.

b. The applicant proposes alternative construction sites for the facility that are contiguous or proximate, provided that at least one of the proposed sites is a brownfield, as defined in s. 560.13 (1) (a), or the site of a former or existing large electric generating facility.

196.491(3)(a)2m.c.

c. The applicant has not yet obtained all the permits or approvals required for construction.

196.491(3)(a)3.

3.

196.491(3)(a)3.a.

a. At least 60 days before a person files an application under subd. 1., the person shall provide the department with an engineering plan if the facility is a large electric generating facility or a detailed project plan if the facility is a high-voltage transmission line. The engineering or project plan shall show the location of the facility, a description of the facility, including the major components of the facility that have a significant air, water or solid waste pollution potential, and a brief description of the anticipated effects of the facility on air quality, water quality, wetlands, solid waste disposal capacity, and other natural resources. Within 30 days after a person provides an engineering or project plan, the department shall provide the person with a listing of each department permit or approval which, on the basis of the information contained in the engineering or project plan, appears to be required for the construction or operation of the facility.

196.491(3)(a)3.b.

b. Within 20 days after the department provides a listing specified in subd. 3. a. to a person, the person shall apply for the permits and approvals identified in the listing. The department shall determine whether an application under this subd. 3. b. is complete and, no later than 30 days after the application is filed, notify the applicant about the determination. If the department determines that the application is incomplete, the notice shall state the reason for the determination. An applicant may supplement and refile an application that the department has determined to be incomplete. There is no limit on the number of times that an applicant may refile an application under this subd. 3. b. If the department fails to determine whether an application is complete within 30 days after the application is filed, the application shall be considered to be complete. The department shall complete action on an application under this subd. 3. b. for any permit or approval that is required prior to construction of a facility within 120 days after the date on which the application is determined or considered to be complete.

196.491(3)(b)

(b) The commission shall hold a public hearing on an application filed under par. (a) 1. that is determined or considered to be complete in the area affected pursuant to s. 227.44. A class 1 notice, under ch. 985, shall be given at least 30 days prior to the hearing.

196.491(3)(d)

(d) Except as provided under par. (e) and s. 196.493, the commission shall approve an application filed under par. (a) 1. for a certificate of public convenience and necessity only if the commission determines all of the following:

196.491(3)(d)2.

2. The proposed facility satisfies the reasonable needs of the public for an adequate supply of electric energy. This subdivision does not apply to a wholesale merchant plant.

196.491(3)(d)3.

3. The design and location or route is in the public interest considering alternative sources of supply, alternative locations or routes, individual hardships, engineering, economic, safety, reliability and environmental factors, except that the commission may not consider alternative sources of supply or engineering or economic factors if the application is for a wholesale merchant plant. In its consideration of environmental factors, the commission may not determine that the design and location or route is not in the public interest because of the impact of air pollution if the proposed facility will meet the requirements of ch. 285.

196.491(3)(d)3m.

3m. For a high-voltage transmission line, as defined in s. 30.40 (3r), that is to be located in the lower Wisconsin state riverway, as defined in s. 30.40 (15), the high-voltage transmission line will not impair, to the extent practicable, the scenic beauty or the natural value of the riverway. The commission may not require that a high-voltage transmission line, as defined in s. 30.40 (3r), be placed underground in order for it to approve an application.

196.491(3)(d)3r.

3r. For a high-voltage transmission line that is proposed to increase the transmission import capability into this state, existing rights-of-way are used to the extent practicable and the routing and design of the high-voltage transmission line minimizes environmental impacts in a manner that is consistent with achieving reasonable electric rates.

196.491(3)(d)3t.

3t. For a high-voltage transmission line that is designed for operation at a nominal voltage of 345 kilovolts or more, the high-voltage transmission line provides usage, service or increased regional reliability benefits to the wholesale and retail customers or members in this state and the benefits of the high-voltage transmission line are reasonable in relation to the cost of the high-voltage transmission line.

196.491(3)(d)4.

4. The proposed facility will not have undue adverse impact on other environmental values such as, but not limited to, ecological balance, public health and welfare, historic sites, geological formations, the aesthetics of land and water and recreational use. In its consideration of the impact on other environmental values, the commission may not determine that the proposed facility will have an undue adverse impact on these values because of the impact of air pollution if the proposed facility will meet the requirements of ch. 285.

196.491(3)(d)5.

5. The proposed facility complies with the criteria under s. 196.49 (3) (b) if the application is by a public utility as defined in s. 196.01.

196.491(3)(d)6.

6. The proposed facility will not unreasonably interfere with the orderly land use and development plans for the area involved.

196.491(3)(d)7.

7. The proposed facility will not have a material adverse impact on competition in the relevant wholesale electric service market.

196.491(3)(d)8.

8. For a large electric generating facility, brownfields, as defined in s. 560.13 (1) (a), are used to the extent practicable.

196.491(3)(dg)

(dg) In making a determination under par. (d) that applies to a large electric generating facility, if the large electric generating facility is a wind energy system, as defined in s. 66.0403 (1) (m), the commission shall consider whether installation or use of the facility is consistent with the standards specified in the rules promulgated by the commission under s. 196.378 (4g) (b).

196.491(3)(dm)

(dm) In making a determination required under par. (d), the commission may not consider a factual conclusion in a strategic energy assessment unless the conclusion is independently corroborated in the hearing under par. (b).

196.491(3)(e)

(e) If an application filed under par. (a) 1. does not meet the criteria under par. (d), the commission shall reject the application or approve the application with such modifications as are necessary for an affirmative finding under par. (d).

196.491(3)(g)

(g) The commission shall take final action on an application filed under par. (a) 1. within 180 days after the application is determined or considered to be complete under par. (a) 2. If the commission fails to take final action within the 180-day period, the commission is considered to have issued a certificate of public convenience and necessity with respect to the application, unless the commission, within the 180-day period, petitions the circuit court for Dane County for an extension of time for taking final action on the application and the court grants an extension. Upon a showing of good cause, the court may extend the 180-day period for no more than an additional 180 days. If the commission fails to take final action within the extended period, the commission is considered to have issued a certificate of public convenience and necessity with respect to the application.

196.491(3)(gm)

(gm) The commission may not approve an application filed after October 29, 1999, under this subsection for a certificate of public convenience and necessity for a high-voltage transmission line that is designed for operation at a nominal voltage of 345 kilovolts or more unless the approval includes the condition that the applicant shall pay the fees specified in sub. (3g) (a). If the commission has approved an application under this subsection for a certificate of public convenience and necessity for a high-voltage transmission line that is designed for operation at a nominal voltage of 345 kilovolts or more that was filed after April 1, 1999, and before October 29, 1999, the commission shall require the applicant to pay the fees specified in sub. (3g) (a). For any application subject to this paragraph, the commission shall determine the cost of the high-voltage transmission line, identify the counties, towns, villages and cities through which the high-voltage transmission line is routed and allocate the amount of investment associated with the high-voltage transmission line to each such county, town, village and city.

196.491(3)(i)

(i) If installation or utilization of a facility for which a certificate of convenience and necessity has been granted is precluded or inhibited by a local ordinance, the installation and utilization of the facility may nevertheless proceed.

196.491(3)(j)

(j) Any person whose substantial rights may be adversely affected or any county, municipality or town having jurisdiction over land affected by a certificate of public convenience and necessity for which an application is filed under par. (a) 1. may petition for judicial review, under ch. 227, of any decision of the commission regarding the certificate.

196.491(3)(k)

(k) No person may purchase, or acquire an option to purchase, any interest in real property knowing that such property is being purchased to be used for the construction of a high-voltage transmission line unless the person gives written notice to the prospective seller of the size, maximum voltage and structure type of any transmission line planned to be constructed thereon and the person by whom it will be operated. Contracts made in violation of this paragraph are subject to rescission by the seller at any time prior to the issuance of a certificate of public convenience and necessity for the high-voltage transmission line by the commission.

196.491(3b)

(3b) Expedited review.

196.491(3b)(a)

(a) A person who proposes to construct a high-voltage transmission line may apply for a certificate under this subsection if the construction is limited to adding conductors to existing transmission poles or towers and if all related construction activity takes place entirely within the area of an existing electric transmission line right-of-way.

196.491(3b)(b)

(b) The commission shall promulgate rules specifying the information that must be included in an application under this subsection. If the commission receives an application that complies with rules, the commission shall, as soon as practicable, notify the applicant that the commission has received a complete application.

196.491(3b)(c)

(c) The commission is considered to have issued a certificate of public convenience and necessity under sub. (3) for construction specified in an application under par. (a) unless the commission notifies the applicant, no later than 30 business days after the date on which the commission notifies an applicant under par. (b) that the application is complete, that the commission has determined that the public interest requires the applicant to obtain a certificate under s. 196.49.

196.491(3c)

(3c) Commencement of construction of large electric generating facilities.

196.491(3c)(a)

(a) Except as provided in par. (b), an electric utility that has received a certificate of public convenience and necessity under sub. (3) for constructing a large electric generating facility shall commence construction no later than one year after the latest of the following:

196.491(3c)(a)1.

1. The date on which the commission issues the certificate of public convenience and necessity.

196.491(3c)(a)2.

2. The date on which the electric utility has been issued every federal and state permit, approval, and license that is required prior to commencement of construction.

196.491(3c)(a)3.

3. The date on which every deadline has expired for requesting administrative review or reconsideration of every federal and state permit, approval, and license that is required prior to commencement of construction.

196.491(3c)(a)4.

4. The date on which the electric utility has received the final decision, after exhaustion of judicial review, in every proceeding for judicial review described in sub. (3) (j).

196.491(3c)(b)

(b) Upon showing of good cause, the commission may grant an extension to the deadline specified in par. (a).

196.491(3c)(c)

(c) If an electric utility does not commence construction of a large electric generating facility within the deadline specified in par. (a) or extended under par. (b), the certificate of public convenience and necessity is void, and the electric utility may not commence construction of the large electric generating facility.

196.491(3e)

(3e) Conveyance of property to an electric utility.

196.491(3e)(ag)

(ag) In this subsection, "electric utility" has the meaning given in s. 196.485 (1) (bs).

196.491(3e)(am)

(am) Notwithstanding s. 32.03 (1), if an electric utility receives a certificate of public convenience and necessity from the commission under sub. (3) for the construction of a high-voltage transmission line that will be constructed over, on, or under land owned by a county, city, village, town, public board or commission, the owner of the land shall convey to the electric utility, at fair market value as determined under par. (b), the interest in the land necessary for the construction, operation, and maintenance of the high-voltage transmission line.

196.491(3e)(b)

(b) If the electric utility and owner of the land cannot agree on the fair market value of the interest in land sought by the electric utility within 90 days after the electric utility notifies the owner that the certificate of public convenience and necessity has been issued, the issue of the fair market value of the interest shall be determined by an arbitrator appointed by the circuit court of the county in which the land is located, except that the electric utility and owner of the land may agree to extend the 90-day period by an additional 90 days if necessary to reach an agreement concerning fair market value in lieu of arbitration. The interest in land shall be conveyed to the electric utility upon commencement of the arbitration proceeding. Any arbitration under this paragraph shall be conducted on an expedited basis to the extent that an expedited proceeding is available. The arbitrator and circuit court appointing the arbitrator shall have the powers and duties specified in ch. 788. The decision of an arbitrator concerning fair market value shall be binding on the parties, except as otherwise provided under ch. 788.

196.491(3g)

(3g) Fees for certain high-voltage transmission lines.

196.491(3g)(a)

(a) A person who receives a certificate of public convenience and necessity for a high-voltage transmission line that is designed for operation at a nominal voltage of 345 kilovolts or more under sub. (3) shall pay the department of administration an annual impact fee as specified in the rules promulgated by the department of administration under s. 16.969 (2) (a) and shall pay the department of administration a one-time environmental impact fee as specified in the rules promulgated by the department of administration under s. 16.969 (2) (b).

196.491(3g)(b)

(b) A person that pays a fee under par. (a) may not use the payment to offset any other mitigation measure that is required in an order by the commission under sub. (3) regarding the certificate of public convenience and necessity specified in par. (a).

196.491(3m)

(3m) Wholesale merchant plants.

196.491(3m)(a)

(a) Commission approval required. Except as provided in par. (e), an affiliated interest of a public utility may not own, control or operate a wholesale merchant plant without the approval of the commission. The commission shall grant its approval only if each of the following is satisfied:

196.491(3m)(a)1.

1. The public utility has transferred control over its transmission facilities, as defined in s. 196.485 (1) (h), to an independent system operator, as defined in s. 196.485 (1) (d), that is approved by the federal energy regulatory commission or the public utility has divested its interest in the transmission facilities to an independent transmission owner, as defined in s. 196.485 (1) (dm).

196.491(3m)(a)2.

2. The commission finds that the ownership, control or operation will not have a substantial anticompetitive effect on electricity markets for any classes of customers.

196.491(3m)(b)

(b) Duty to promulgate rules.

196.491(3m)(b)1.

1. The commission shall promulgate rules that establish requirements and procedures for an affiliated interest to apply for an approval under par. (a). The rules shall do each of the following:

196.491(3m)(b)1.a.

a. Describe the showing that an applicant is required to make for the commission to grant an approval under par. (a).

196.491(3m)(b)1.am.

am. Establish screening tests and safe harbors for proposed wholesale merchant plant projects, including projects in which an affiliated interest is a passive investor and over which the affiliated interest is not able to exercise control or influence and projects in which an affiliated interest's ownership interest is less than 5%.

196.491(3m)(b)1.b.

b. Describe the analytical process that the commission shall use in determining whether to make a finding under par. (a) 2. and describe the factors specified in subd. 3.

196.491(3m)(b)1.c.

c. Allow an interested person to request a hearing on an application under s. 227.42.

196.491(3m)(b)2.

2. The analytical process specified in subd. 1. b. shall, to the extent practicable, be consistent with the analytical process described in the merger enforcement policy, as defined in s. 196.485 (1) (dr).

196.491(3m)(b)3.

3. The commission shall use the following factors in determining whether to make a finding under par. (a) 2.:

196.491(3m)(b)3.a.

a. The degree of market concentration resulting from the affiliated interest's proposed ownership, operation or control.

196.491(3m)(b)3.b.

b. The extent of control that the affiliated interest proposes to exercise over the wholesale merchant plant.

196.491(3m)(b)3.d.

d. Any other factor that the commission determines is necessary to determine whether to make a finding under par. (a) 2.

196.491(3m)(c)

(c) Sales by affiliated interests.

196.491(3m)(c)1.

1. In this paragraph:

196.491(3m)(c)1.a.

a. "Electric sale" means a sale of electricity that is generated at a wholesale merchant plant that is owned, operated or controlled by an affiliated interest.

196.491(3m)(c)1.b.

b. "Firm sale" means an electric sale in which electricity is intended to be available to a purchaser at all times during a specified period on an uninterruptible basis.

196.491(3m)(c)2.

2. The commission shall review any electric sale by an affiliated interest to a public utility with which the affiliated interest is affiliated. If the commission finds that an electric sale is not in the public interest, the commission shall do any of the following:

196.491(3m)(c)2.a.

a. Disallow the public utility's costs related to the sale in a rate-setting proceeding.

196.491(3m)(c)2.b.

b. Order the public utility to provide a refund, in an amount determined by the commission, to its customers.

196.491(3m)(c)2.c.

c. Order the public utility or affiliated interest to take any action that the commission determines is in the public interest, except that the commission may not order the public utility or affiliated interest to void the sale.

196.491(3m)(c)3.

3. An affiliated interest may not make any firm sale to a public utility with which the affiliated interest is affiliated if the firm sale satisfies any of the following:

196.491(3m)(c)3.a.

a. The period of the firm sale is 3 years or more.

196.491(3m)(c)3.b.

b. The period of the firm sale is less than 3 years and either the public utility or the affiliated interest has an option to extend the period to 3 years or more.

196.491(3m)(d)

(d) Retail sales outside this state. The commission may not promulgate rules or issue orders that prohibit owners or operators of wholesale merchant plants from providing electric service to retail customers in another state.

196.491(3m)(e)

(e) Exemption. An approval under par. (a) is not required for an affiliated interest to own, operate or control a wholesale merchant plant in Grant County if the affiliated interest owned, operated or controlled the wholesale merchant plant before January 1, 1998.

196.491 - ANNOT.

Cross Reference: See also s. PSC 100.11, Wis. adm. code.

196.491(4)

(4) Exemptions.

196.491(4)(b)

(b) Subsection (3) does not apply to a person that constructs electric generating equipment and associated facilities if the person satisfies each of the following:

196.491(4)(b)1.

1. The person is not a public utility or a cooperative association organized under ch. 185 for the purpose of generating, distributing or furnishing electric energy at retail or wholesale to its members only.

196.491(4)(b)2.

2. The person shows to the satisfaction of the commission that the person reasonably anticipates, at the time that construction of the equipment or facilities commences, that on each day that the equipment and facilities are in operation the person will consume no less than 70% of the aggregate kilowatt hours output from the equipment and facilities in manufacturing processes at the site where the equipment and facilities are located.

196.491(4)(c)

(c)

196.491(4)(c)1e.

1e. In this paragraph, "centerline" means a line drawn through the centerline of an electric transmission line along its length.

196.491(4)(c)1m.

1m. Except as provided in subd. 1s., a certificate under sub. (3) is not required for a person to construct a high-voltage transmission line designed for operation at a nominal voltage of less than 345 kilovolts if the centerline of the new high-voltage transmission line is located within 60 feet on either side of the centerline of an existing electric transmission line operating at a nominal voltage of 69 kilovolts or more and the applicant demonstrates all of the following:

196.491(4)(c)1m.a.

a. That the project will not have undue adverse environmental impacts.

196.491(4)(c)1m.b.

b. That the new high-voltage transmission line requires the acquisition in total of one-half mile or less of rights-of-way from landowners from which rights-of-way were not required to be acquired for the existing electric transmission line.

196.491(4)(c)1s.

1s. A certificate under sub. (3) is not required for a cooperative association organized under ch. 185 for the purpose of producing or furnishing heat, light, power, or water to its members to construct a high-voltage transmission line designed for operation at a nominal voltage of less than 345 kilovolts if all related construction activity takes place entirely within the area of an existing electric transmission line right-of-way.

196.491(4)(c)2.

2. The commission is not required to prepare an environmental impact statement under under s. 1.11 (2) (c) for construction that is specified in subd. 1m. or 1s., but shall prepare an environmental assessment regarding the construction if an environmental assessment is required under the commission's rules.

196.491(4)(c)3.

3. If construction or utilization of a high-voltage transmission line described in subd. 1m. or 1s. is precluded or inhibited by a local ordinance, the construction and utilization of the line may nevertheless proceed.

196.491(5)

(5) Service standards for electric generation, transmission and distribution facilities. The commission shall promulgate rules that establish all of the following:

196.491(5)(a)

(a) Standards for inspecting, maintaining and repairing each of the following:

196.491(5)(a)1.

1. Electric generation facilities in this state that are owned by public utilities or provide service to public utilities under contracts with terms of 5 years or more.

196.491(5)(a)2.

2. Electric transmission or distribution facilities in this state that are owned by public utilities.

196.491(5)(b)

(b) Standards that the commission determines are necessary for the safe and reliable operation of each of the following:

196.491(5)(b)1.

1. Electric generation facilities in this state that are owned by public utilities or provide service to public utilities under contracts with terms of 5 years or more.

196.491(5)(b)2.

2. Electric transmission or distribution facilities in this state that are owned by public utilities.

196.491(6)

(6) Waiver. The commission may waive compliance with any requirement of this section to the extent necessary to restore service which has been substantially interrupted by a natural catastrophe, accident, sabotage or act of God.

196.491 - ANNOT.

History: 1975 c. 68, 199; 1979 c. 221, 361; 1983 a. 53 s. 114; 1983 a. 192, 401; 1985 a. 182 s. 57; 1989 a. 31; 1993 a. 184; 1995 a. 27 ss. 9116 (5), 9126 (19); 1995 a. 227, 409; 1997 a. 27, 35, 204; 1999 a. 9; 1999 a. 150 s. 672; 2001 a. 16; 2003 a. 33, 89; 2005 a. 24, 29; 2007 a. 20 s. 9121 (6) (a); 2009 a. 40, 378, 379.

196.491 - ANNOT.

Cross Reference: See also ch. PSC 112, Wis. adm. code.

196.491 - ANNOT.

It was reasonable for the PSC to issue a certificate conditioned on the issuance of DNR permits when legislatively imposed time constraints could not have been met if sub. (3) (e) had been strictly followed and all permits required before the issuance of the certificate. Responsible Use of Rural & Agricultural Land v. PSC, 2000 WI 129, 239 Wis. 2d 660, 619 N.W.2d 888, 99-2430.

196.491 - ANNOT.

While sub. (3) (a) 1. does not provide standards to determine if an application for a certificate of public convenience and necessity is complete, it specifically states that an application must contain the information required by PSC rules and PSC is not free to ignore those requirements in making its completeness determination. Although the PSC's decision that an application is complete is not itself a final decision, it is nonetheless subject to judicial review. Clean Wisconsin, Inc. v. Public Service Commission, 2005 WI 93, 282 Wis. 2d 250, 700 N.W.2d 768, 04-3179.

196.491 - ANNOT.

Interpreting a PSC rule to require a certificate of public convenience and necessity applicant to file the actual regulatory approvals before the application can be deemed to be complete would conflict with sub. (3) (a) 3. a. and b. The statute expressly contemplates that an applicant will not have the required DNR permits in hand at the time the PSC must render its completeness determination. Clean Wisconsin, Inc. v. Public Service Commission, 2005 WI 93, 282 Wis. 2d 250, 700 N.W.2d 768, 04-3179.

196.491 - ANNOT.

There is nothing unreasonable in the PSC determining an application to be complete yet requesting further information to assist in its review of the certificate of public convenience and necessity application. Clean Wisconsin, Inc. v. Public Service Commission, 2005 WI 93, 282 Wis. 2d 250, 700 N.W.2d 768, 04-3179.

196.491 - ANNOT.

PSC decisions under sub. (3) (d) are entitled to great weight deference. Examining the numerous requirements in sub. (3) (d) 2. to 8. and forecasting future energy needs and prices is a highly technical exercise that the PSC is charged with performing. Deciding what economic factors are to be included in a computer model is precisely the type of determination that the PSC should be given great deference to carry out. Great weight deference review of the alternate energy sources is not concerned with the actual procedures utilized by the PSC, but whether there is a rational basis for the determination of the PSC. Clean Wisconsin, Inc. v. Public Service Commission, 2005 WI 93, 282 Wis. 2d 250, 700 N.W.2d 768, 04-3179.

196.491 - ANNOT.

Sub. (3) (i) expressly withdraws the power of municipalities to act, once the PSC has issued a certificate of public convenience and necessity, on any matter that the PSC has addressed or could have addressed in that administrative proceeding. American Transmission Co., LLC v. Dane County, 2009 WI App 126, ___ Wis. 2d ___, 772 N.W.2d 731, 08-2604.

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