2017 - 2018 LEGISLATURE
October 11, 2017 - Introduced by Representative Kuglitsch, cosponsored by
Senator LeMahieu, by request of Public Service Commission. Referred to
Committee on Energy and Utilities.
1An Act to repeal
196.025 (4), 196.025 (5), 196.192 (2) (am) and 201.10 (1); to
16.95 (12), 182.0175 (1) (bt), 182.0175 (1) (bv) and 182.0175 (3) (b); 3to renumber and amend
16.955, 182.0175 (2) (am) 3., 182.0175 (3) (a) (title), 4
182.0175 (3) (a) and 196.192 (2) (bm); to amend
26.03 (1v) (b), 101.80 (1g), 5
182.0175 (2) (am) (title), 182.0175 (2) (am) 7., 182.0175 (2) (bm) (title), 182.0175 6
(2m) (b) (intro.), 182.0175 (4), 182.0175 (5), 196.192 (2) (c), 196.192 (3m), 7
196.193 (3), 196.49 (5g) (ag), 196.49 (5g) (ar) 2m. b., 196.49 (5g) (ar) 2m. c., 8
196.491 (4) (c) 1m. (intro.), 196.491 (4) (c) 1m. a., 196.491 (4) (c) 1m. b., 196.595 9
(1) (c), 201.10 (2), 348.17 (3) and 348.17 (4); to repeal and recreate
(3) (title); and to create
59.693 (11), 182.0175 (1) (ab), 182.0175 (1) (ac), 11
182.0175 (1) (ag), 182.0175 (1) (bq), 182.0175 (1) (br), 182.0175 (1) (bw), 12
182.0175 (1) (by), 182.0175 (1) (bz), 182.0175 (1m) (d) 8. to 12., 182.0175 (2) (as) 13
(title), 182.0175 (2) (as) 3., 182.0175 (3) (bg), (br) and (c), 182.0175 (3) (d) 2., 14
182.0175 (3) (e), 182.0175 (3) (f), 182.0175 (3) (g), 196.025 (7), 196.026 and
196.192 (2) (bm) 1. and 2. of the statutes; relating to: one-call system
2enforcement and other requirements, Public Service Commission authority
3regarding state energy policy, settlements between parties in Public Service
4Commission dockets, various public utility regulatory requirements, the
5regulation of utility facilities under a county construction site erosion control
6and storm water management zoning ordinance, granting rule-making
7authority, and providing a penalty.
Analysis by the Legislative Reference Bureau
This bill creates procedures for handling complaints about violations of
requirements under current law regarding excavations, which are commonly
referred to as “digger's hotline” requirements. The bill also makes other changes to
those requirements. In addition, the bill imposes duties on the Public Service
Commission regarding state energy policy and makes various other changes to the
PSC's regulation of public utilities. Also, the bill creates settlement requirements
in PSC dockets. Finally, the bill affects the treatment of certain utility facilities
under county construction site erosion control and storm water management zoning
digger's hotline requirements
Current law generally requires owners of transmission facilities, which include
pipes, pipelines, wires, cables, ducts, and associated facilities, to establish or
designate a nonprofit organization to operate a statewide communication system for
receiving excavation notices and transmitting information to transmission facility
owners affected by the notices. Current law requires excavators to provide advance
notice to the system and comply with other requirements. Transmission facility
owners must take certain actions in response to the notices, including marking their
facilities. The statewide communication system is called the “one-call system," and
current law generally requires transmission facility owners to be members of the
system and pay membership fees. Current law exempts from the requirements
transmission facilities on private property that do not cross public rights-of-way.
Current law allows a court to require a person who willfully and knowingly violates
the digger's hotline requirements to pay a forfeiture of $2,000 for each violation.
The bill creates procedures for handling complaints regarding violations of
digger's hotline requirements. The bill allows the one-call system to file a complaint,
as well as a city, village, town, or county (political subdivision) or the Department of
Transportation, but only if the political subdivision or DOT has property affected by
an alleged violation. In addition, a transmission facility owner, excavator, or
underground line locator may file a complaint if its property or activities are affected
by an alleged violation. If a complaint alleges that a person who is not a state agency
has violated or aided in a violation, the complaint must be filed with a panel
appointed by the one-call system. The panel has the following seven members: two
transmission facility owners; two excavators; one employee of the one-call system's
operational center; one member representing a political subdivision; and one person
employed as an underground line locator. If the complaint alleges that a state agency
has violated or aided in a violation, the complaint must be filed with the PSC.
A person who is allowed to file a complaint with the panel or the PSC must do
so no later than 120 days after the person discovers an alleged violation. However,
the bill allows the panel and the PSC for good cause to extend the filing deadline to
no more than one year after the discovery. Neither the panel nor the PSC may
dismiss a complaint solely due to absence of direct damage to the person filing the
complaint, whom the bill refers to as the complainant.
For a complaint filed with the panel, the bill requires the panel to provide notice
by certified mail to a person or a person's agent who is alleged to have violated or
aided in the violation of digger's hotline requirements. The bill refers to that person
or agent as the respondent. The bill also allows the panel to consolidate complaints.
The bill requires the respondent to file a response to the complaint within 20 days
after service of the notice, unless the panel extends the deadline upon request. In
the response, the respondent must admit or deny the alleged violation or advise the
panel that the complainant has agreed to dismiss the complaint based on the
respondent's satisfaction of the complaint. Within a specified deadline, the panel
must determine by majority vote whether there is probable cause that the
respondent violated or aided in the violation of digger's hotline requirements. If the
respondent files a timely response, the panel must make that determination within
20 days after the response is filed. The bill specifies different deadlines if the
respondent fails to file a timely response. The panel must dismiss a complaint for
lack of probable cause or at the request of the complainant. If the panel determines
that there is probable cause, the panel must either 1) refer the complaint to the PSC
or 2) allow the respondent to attend an educational course administered by the
If a person files a complaint with the PSC regarding a state agency, or the panel
refers a complaint to the PSC, the bill allows the PSC, with or without notice, to
investigate the complaint. If the PSC determines there is sufficient cause to warrant
a hearing, the PSC must set the matter for public hearing upon ten days' notice and
treat the complaint as a contested case under the state's administrative procedure
law. The PSC must also treat the complaint as contested case if the PSC determines
there is not sufficient cause to warrant a hearing, but the complainant or respondent
contests that determination. If the PSC holds a hearing and determines that
probable cause exists to believe that the respondent violated or aided in the violation
of digger's hotline requirements, the bill allows the PSC to issue an order that
directly assesses a forfeiture against the respondent, requires the respondent to
attend an educational course administered by the one-call system, or does both. The
bill also allows the PSC to dismiss the complaint by executing a consent agreement
with the respondent. Like an order, a consent agreement may directly assess a
forfeiture, require educational course attendance, or do both.
Regarding forfeitures, the bill allows a PSC order or consent agreement to
directly assess against the respondent a forfeiture of no more than $25,000 for each
violation, with each day of violation constituting a separate violation. The foregoing
replaces the $2,000 forfeiture under current law for willful and knowing violations
of digger's hotline requirements. The forfeitures must be deposited in the school
fund. The bill provides that no other forfeiture may be imposed for violating or aiding
in the violation of digger's hotline requirements. If the PSC assesses a forfeiture in
an order or consent agreement, the PSC must also require the respondent to pay a
surcharge to the one-call system that is equal to 10 percent of the forfeiture. If the
amount of a forfeiture is reduced on appeal, the surcharge must be proportionately
If the panel allows a respondent to attend the one-call system's educational
course, or a PSC order or consent agreement requires attendance, the respondent
must pay a fee for the course to the one-call system. The bill requires the one-call
system to establish a damage prevention fund and deposit the fees in the fund. The
one-call system must also deposit in the fund the surcharges described above. The
bill requires the one-call system to use the fund to pay for the cost of producing and
administering the educational course or for providing public outreach and
underground utility damage prevention awareness programs.
The bill makes other changes, including the following:
1. Requires excavators to promptly make a report to the 911 emergency
telephone number upon discovering that flammable, toxic, or corrosive gas or liquid
that may endanger life, cause bodily harm, or result in damage to property has
escaped from damaged transmission facilities.
2. Imposes requirements for parallel-type excavations and for using
power-operated excavating or earthmoving equipment on certain excavations.
3. Specifies that an owner has marked its transmission facilities in a
reasonable manner as required under current law if the owner has located and
marked the facilities to a level of accuracy and precision consistent with national
4. Creates a presumption of validity for determinations and orders of the PSC
under the bill.
5. Allows the one-call system to establish policies, procedures, and forms for
complaints made to the panel and allows the PSC to promulgate rules regarding its
duties under the bill.
state energy policy and other PSC changes
The bill transfers from the Department of Administration to the PSC powers
regarding energy alert orders that are issued by the governor. Current law allows
the governor to issue such an order upon determining that a disruption of energy
supplies poses a serious risk to economic well-being or public health or welfare. If
the governor issues such an order, current law authorizes DOA to issue orders and
promulgate rules requiring producers, importers, and sellers of coal and other
specified fuels to disclose information pertaining to fuel supply and demand. The bill
transfers that authority from DOA to the PSC.
The bill also allows the PSC to exercise the following powers and duties: 1)
maintaining data for state agency energy planning; 2) administering federal energy
grants when designated to do so by the governor; 3) preparing and maintaining
contingency plans for critical energy shortages; 4) providing technical assistance to
local governments regarding energy efficiency and renewable resources; and 5)
requiring public utilities to provide energy billing and use data about public schools.
The bill also requires the Department of Transportation to consult with the PSC,
instead of DOA, when DOT waives motor vehicle weight limits during energy
The bill eliminates two outdated PSC reporting requirements. First, current
law required the PSC to study the establishment of an incentive program for
developing small-scale electric generating facilities. Second, current law required
the PSC to contract for a study on the impact of horizontal market power on creating
a competitive retail electricity market. Current law required the PSC to submit
reports to the legislature on those studies by January 1, 2001. The bill eliminates
The bill also does the following:
1. Requires the PSC to approve market-based rates for investor-owned electric
utilities if the rates satisfy specified criteria.
2. Repeals an outdated filing requirement for such utilities regarding such
3. Requires the PSC to consider interest rates for state and local bonds when
setting the overall rate of return for municipal water and sewer utilities. This
requirement replaces a requirement under current law for the PSC to apply an
interest rate formula based on a federal reserve board publication.
4. Allows the PSC to regulate advertising by water public utilities to the same
extent that the PSC regulates advertising by other public utilities under current law.
5. Eliminates a requirement for an investor-owned public utility to pay a fee
when applying to the PSC to issue securities.
6. Makes changes to the criteria that must be satisfied to qualify for exemptions
from the PSC certifications required for constructing or rebuilding certain electric
Settlements in PSC dockets
The bill creates requirements regarding settlements in PSC “dockets,” which
the bill defines as investigations, proceedings, or other matters opened by a vote of
the PSC, except for rule making. The bill allows parties to a docket to agree upon
some or all of the facts, which must be evidenced by a written stipulation and filed
with the PSC or entered upon the record. The bill also allows the parties to agree
upon a resolution of some or all of the issues. If some of the parties propose a written
settlement agreement, those parties must submit the agreement and relevant
documents to the PSC and serve a copy of the agreement on all parties to the docket.
If not all parties support the proposed settlement agreement, the settling parties
must convene at least one conference for all parties to discuss the proposed
settlement agreement, except that a nonsettling party may waive its right to the
conference. Within 30 days of service of a proposed settlement agreement, each party
must make a written response that consists of the party's agreement, objection, or
nonobjection to the settlement agreement. A party must serve its response on all
parties. If a party objects to a settlement agreement, the party must state its
objections with particularity and specify how the party would be adversely affected
by the agreement. If a party fails to respond within the 30-day deadline, the failure
is considered a nonobjection, unless the PSC for good cause sets a different time for
The bill allows the PSC to approve a settlement agreement if all of the following
conditions are met. First, each party that responded with an objection or
nonobjection to the agreement or that failed to respond must have been given a
reasonable opportunity to present evidence and arguments in opposition to the
settlement agreement. Second, the PSC must find that the public interest is
adequately represented by the parties who entered into the agreement. Finally, the
PSC must find that the settlement agreement represents a fair and reasonable
resolution to the docket, is supported by substantial evidence on the record as a
whole, and complies with applicable law, including that any rates resulting from the
settlement agreement are just and reasonable. The bill also allows the PSC to
approve a settlement agreement in whole or in part and with conditions deemed
necessary by the PSC. If a settlement agreement does not resolve all of the issues
in the docket, the bill requires the PSC to decide the remaining issues in accordance
with applicable law and procedure.
construction site erosion control and storm water
The bill affects the treatment under a county construction site erosion control
and storm water management zoning ordinance of the construction or maintenance
of a facility, defined in the bill as property or equipment used for the transmission,
delivery, or furnishing of natural gas, heat, light, or power and owned by a public
utility or cooperative association organized for the purpose of producing or
furnishing heat, light, or power to its members only. Under the bill, the construction
and maintenance of a facility is considered to satisfy such a zoning ordinance if the
Department of Natural Resources has issued all required navigable water, water and
sewage, and pollution discharge permits or approvals authorizing the construction
or maintenance or, if no such permits or approvals are required, if the construction
and maintenance is conducted in a manner that employs best management practices
to infiltrate or otherwise control storm water runoff from that infrastructure. Under
current law, the construction and maintenance of a facility with these permits or
approvals is considered to satisfy a county's shoreland zoning ordinance.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
16.95 (12) of the statutes is renumbered 196.025 (7) (a) 3.
16.955 of the statutes is renumbered 196.029, and 196.029 (1), (3) 3
(a), (b) and (c) and (4) (a), (b) and (d), as renumbered, are amended to read:
196.029 (1) Information.
If the governor determines that a disruption of 5
energy supplies poses a serious risk to the economic well-being, health or welfare of 6
the citizens of this state, the governor may issue an order declaring an energy alert. 7
Upon declaration of an energy alert by the governor, the department commission 8
may issue general or special orders, as defined in s. 101.01 (7), or promulgate 9
emergency rules under ch. 227 to compel disclosure of information required for 10
purposes of this section. Any person, or agent of the person, who produces, imports 11
or sells, coal or other forms of fuel, other than electricity, natural gas or wood, who 12
is subject to an emergency rule or general or special order of the
within reasonable time limits specified in the order shall file or furnish 14
such reports, information, data, copies of extracts of originals as the department 15commission
deems necessary relating to existing and future energy supplies, 16
including but not limited to record of sales in years for 1970 and thereafter, storage 17
capacity, supplies on hand and anticipated supplies, and anticipated demand. To the 18
extent that the reports and data requested by the department commission
presently available from other state or federal agencies, the department commission 20
shall coordinate its data reporting requirements with the agencies to avoid 21
duplication of reporting.
(a) Any person, or agent of a person, who produces, imports or sells, coal or 23
other forms of fuel, other than electricity, natural gas or wood, who fails to provide 24
information requested by the department commission
at the time and in the manner 25
specified by the department commission
shall forfeit an amount not to exceed $1,000.
Each day the violation of this section continues from the day notice has been received 2
constitutes a separate offense.
(b) Upon request of the department commission
, the attorney general or the 4
district attorney of the proper county may aid in any investigation, enforce any 5
request of the department commission
for information under this section or seek 6
forfeitures for violations of this section.
(c) Upon request of the department commission
, the attorney general or the 8
district attorney of the proper county may apply to any court of competent 9
jurisdiction for a temporary or permanent injunction restraining any person from 10
violating this section.
(a) The department commission
or any of its authorized agents may, in 12
relation to any matter arising under this section, conduct hearings, administer 13
oaths, issue subpoenas and take testimony.
(b) The witnesses subpoenaed by the department
or its agent and 15
officers who serve subpoenas shall be entitled to the fees allowed in courts of record. 16
The fees shall be audited and paid by the state in the same manner as other expenses 17
of the department commission
are audited and paid. No witness subpoenaed at the 18
instance of any party other than the department
is entitled to payment 19
of fees by the state, unless the department commission
certifies that the testimony 20
of the witness was material.
(d) A record of all hearings shall be kept by the department commission
. All 22
hearings shall be public.
26.03 (1v) (b) of the statutes is amended to read:
(b) An electric cooperative, as defined in s. 196.025 (5) (ag) 101.80
59.693 (11) of the statutes is created to read:
59.693 (11) Utility facilities.
(a) In this subsection, “facility" means any 3
property or equipment of a public utility, as defined in s. 196.01 (5), or a cooperative 4
association organized under ch. 185 for the purpose of producing or furnishing heat, 5
light, or power to its members only, that is used for the transmission, delivery, or 6
furnishing of natural gas, heat, light, or power.
(b) The construction and maintenance of a facility is considered to satisfy the 8
requirements of this section and any county ordinance enacted under this section if 9
any of the following applies:
1. The department has issued all required permits or approvals authorizing the 11
construction or maintenance under ch. 30, 31, 281, or 283.
2. No department permit or approval under subd. 1. is required for the 13
construction or maintenance and the construction or maintenance is conducted in a 14
manner that employs best management practices to infiltrate or otherwise control 15
storm water runoff from the facility.
101.80 (1g) of the statutes is amended to read:
“Electric cooperative" has the meaning given in s. 196.025 (5) (ag) 18means a cooperative association organized under ch. 185 for the purpose of
19generating, distributing, or furnishing electric energy at retail or wholesale to its
182.0175 (1) (ab) of the statutes is created to read:
(ab) “Commission” means the public service commission.
182.0175 (1) (ac) of the statutes is created to read:
(ac) “Complainant” means a person who files a complaint under 25
sub. (3) (bg) 1. or 2.