Chapter 196

196.378(2)(b) (b) For purposes of determining compliance with par. (a):

196.378(2)(b)1. 1. The total amount of electricity that an electric provider sold to retail customers or members in a year shall be calculated on the basis of an average of the electric provider’s retail electric sales in this state during the prior 3 years.

196.378(2)(b)1m. 1m. The amount of electricity derived from small hydroelectric facilities that an electric provider may count toward satisfying the requirements of par. (a) 2. shall be all electricity provided by such facilities that the electric provider purchased in the reporting year plus all of the following:

196.378(2)(b)1m.a. a. The average of the amounts of hydroelectric power generated by small hydroelectric facilities owned or operated by the electric provider for 2001, 2002, and 2003, adjusted to reflect the permanent removal from service of any of those facilities and adjusted to reflect any capacity increases from improvements made to those facilities on or after January 1, 2004.

196.378(2)(b)1m.b. b. The amount of hydroelectric power generated in the reporting year by small hydroelectric facilities owned or operated by the electric provider that are initially placed in service on or after January 1, 2004.

196.378(2)(b)1o. 1o. An electric provider may count electricity derived from a large hydroelectric facility toward satisfying the requirements of par. (a) 2. only if the facility was initially placed in service on or after December 31, 2010, and, if the facility is located in Manitoba, Canada, all of the following are satisfied:

196.378(2)(b)1o.a. a. The province of Manitoba has informed the commission in writing that the interim licenses under which the Lake Winnipeg Regulation Project and the Churchill River Diversion Project were operating on December 31, 2015 have been replaced by final licenses.

196.378(2)(b)1o.b. b. The final licenses specified in subd. 1o. a. are in effect under Canadian law.

196.378(2)(b)2. 2. The amount of electricity supplied by a biomass cofired facility that may be counted toward satisfying the requirements of par. (a) shall be an amount equal to the product of the maximum amount of electricity that the facility is capable of generating and the ratio of the energy content of the biomass fuels to the energy content of both the biomass and conventional resources.

196.378(2)(b)4. 4. A wholesale supplier may sell credits that it creates and may aggregate and allocate the credits that it creates among its members or customers. A member or customer may sell credits or portions of a credit allocated to the member or customer by the wholesale supplier.

196.378(2)(b)5. 5. An electric provider that purchases renewable energy from a renewable energy supplier may use an allocated share of the renewable energy sold by the renewable energy supplier to comply with a requirement under par. (a) 2. or to create a credit under sub. (3) (a), provided that the cost of the renewable energy is included in the price the electric provider paid the renewable energy supplier.

196.378(2)(bm) (bm) Each electric provider shall annually retire renewable resource credits sufficient to satisfy the electric provider’s renewable energy percentage required under par. (a) 2.

196.378(2)(c) (c) No later than April 15 annually, or another annual date specified by the commission by rule, an electric provider shall submit a report to the commission that identifies the electric provider’s renewable energy percentage for the previous year and describes the electric provider’s compliance with par. (a) 2. and the electric provider’s implementation plans for future compliance. Reports under this paragraph may include certifications from renewable energy suppliers regarding the sources and amounts of renewable energy supplied to the electric provider. The commission may specify the documentation that is required to be included with reports submitted under this paragraph. The commission may require that electric providers submit the reports in a proceeding, initiated by the commission under this section relating to the implementation of s. 1.12, or in a proceeding for preparing a strategic energy assessment under s. 196.491 (2). No later than 90 days after the commission’s receipt of an electric provider’s report, the commission shall inform the electric provider whether the electric provider is in compliance with par. (a) 2.

196.378(2)(d) (d) The commission shall allow an electric utility to recover from ratepayers the cost of providing total renewable energy to its retail customers in amounts that equal or exceed the percentages specified in par. (a). Subject to any approval of the commission that is necessary, an electric utility may recover costs under this paragraph by any of the following methods:

196.378(2)(d)1. 1. Allocating the costs equally to all customers on a kilowatt-hour basis.

196.378(2)(d)2. 2. Establishing alternative price structures, including price structures under which customers pay a premium for renewable energy.

196.378(2)(d)3. 3. Any combination of the methods specified in subds. 1. and 2.

196.378(2)(e) (e) An electric provider, or a wholesale supplier for its members, may request that the commission grant a delay for complying with a deadline specified in par. (a) 2. The commission shall hold a hearing on the request and, if requested by the electric provider or wholesale supplier, treat the matter as a contested case. The commission shall grant a delay if the commission determines that the applicant has demonstrated good faith efforts to comply with the deadline and that any of the following applies:

196.378(2)(e)1. 1. Notwithstanding reasonable efforts to protect against undesirable impacts on the reliability of an electric provider’s system, compliance with the deadline will have an undesirable impact on the reliability of the applicant’s system.

196.378(2)(e)2. 2. Notwithstanding reasonable efforts to protect against unreasonable increases in rates of the applicant’s ratepayers or members, compliance with the deadline will result in unreasonable increases in rates of the applicant’s ratepayers or members, including increases that are due to the discontinuation of federal renewable energy tax credits or other federal policies intended to reduce the acquisition costs of renewable energy.

196.378(2)(e)3. 3. Notwithstanding reasonable efforts to obtain required approvals, the applicant cannot comply with the deadline because the applicant or a supplier has experienced or will experience delays in receiving required siting or permitting approvals for renewable energy projects.

196.378(2)(e)4. 4. Notwithstanding reasonable efforts to secure transmission service, the applicant cannot comply with the deadline because the applicant faces transmission constraints that interfere with the economic and reliable delivery of renewable energy to the applicant’s system.

196.378(2)(f) (f) A wholesale electric cooperative for its members or a municipal electric company for its members may delay compliance with a deadline specified in par. (a) 2. for any reason specified in par. (e) 1. to 4. A wholesale electric cooperative or a municipal electric company that delays compliance with a deadline specified in par. (a) 2. shall inform the commission of the delay and the reason for the delay, and shall submit information to the commission demonstrating that, notwithstanding good faith efforts by the wholesale electric cooperative or municipal electric company and its members, the members cannot meet the deadline for the stated reason.

196.378(2)(g) (g)

196.378(2)(g)1. 1. In this paragraph, “energy consumer advocacy group” means a group or organization that advocates on behalf of its members’ interests regarding the cost, availability, and reliability of energy or regarding utility regulation.

196.378(2)(g)2. 2. An energy consumer advocacy group may request that the commission grant to an electric provider that serves one or more members of the group a delay for complying with a deadline specified in par. (a) 2. The commission shall hold a hearing on the request and, if requested by the energy consumer advocacy group, treat the matter as a contested case. The commission shall grant a delay if the commission determines that the utility has demonstrated good faith efforts to comply with the deadline and that any of the conditions in par. (e) 1. to 4. apply.

196.378(3) (3) Renewable resource credits.

196.378(3)(a) (a)

196.378(3)(a)1. 1. Each megawatt hour of an electric provider’s total renewable energy creates one renewable resource credit for the electric provider. Subject to subd. 2., an electric provider that exceeds its renewable energy percentage required under sub. (2) (a) 2. may, in the applicable year, bank any excess renewable resource credits or any portion of any excess renewable resource credit for use in a subsequent year or sell any excess renewable resource credits or any portion of any excess renewable resource credit to any other electric provider at any negotiated price. An electric provider that creates or purchases a renewable resource credit or portion may use the credit or portion, as provided under par. (c), to establish compliance with sub. (2) (a) 2. The commission shall promulgate rules that establish requirements for the creation and use of a renewable resource credit created on or after January 1, 2004, including calculating the amount of a renewable resource credit, and for the tracking of renewable resource credits by a regional renewable resource credit tracking system. The rules shall specify the manner for aggregating or allocating credits under this subdivision or sub. (2) (b) 4. or 5.

196.378(3)(a)1m. 1m. The commission shall promulgate rules that allow an electric provider or customer or member of an electric provider to create a renewable resource credit based on use in a year by the electric provider, customer, or member of solar energy, including solar water heating and direct solar applications such as solar light pipe technology; wind energy; hydroelectric energy; geothermal energy; biomass; biogas; synthetic gas created by the plasma gasification of waste; densified fuel pellets described in sub. (1) (h) 1. i.; fuel described in sub. (1) (h) 1. j.; heat as described in sub. (1) (h) 1. k.; or heat that is a byproduct of a manufacturing process and is used to provide thermal energy for another purpose; but only if the use displaces the electric provider’s, customer’s, or member’s use of electricity that is derived from conventional resources, and only if the displacement is verifiable and measurable, as determined by the commission. The rules shall allow an electric provider, customer, or member to create a renewable resource credit based on 100 percent of the amount of the displacement. The rules shall also allow an electric provider, customer, or member to create a renewable resource credit under this subdivision regardless of when the source used to create the credit was placed in service. The rules may not allow an electric provider to create renewable resource credits under this subdivision based on renewable energy upon which renewable resource credits are created under subd. 1. The rules may also not allow an electric provider to create renewable resource credits under this subdivision based on hydroelectric energy that is not eligible for creating renewable resource credits under subd. 1.

196.378(3)(a)2. 2. The commission shall promulgate rules for calculating the amount of a renewable resource credit that is bankable from a renewable facility placed into service before January 1, 2004. The amount of a bankable renewable resource credit created on or after January 1, 2004, from such a renewable facility, except a renewable facility owned by a retail customer of an electric provider, is limited to the incremental increase in output from the renewable facility that is due to capacity improvements made on or after January 1, 2004.

196.378(3)(b) (b) The commission may promulgate rules that establish requirements and procedures for a sale under par. (a) 1.

196.378(3)(c) (c) A renewable resource credit created under s. 196.378 (3) (a), 2003 stats., may not be used after December 31, 2011. A renewable resource credit created under par. (a) 1., 1m., or 2. may not be used after the 4th year after the year in which the credit is created, except the commission may promulgate rules specifying a different period of time if the commission determines that such period is necessary for consistency with any regional renewable resource credit trading program that applies in this state.

196.378(4) (4) Renewable resource rules. The commission may promulgate rules that designate a resource, except for a conventional resource, as a renewable resource in addition to the resources specified in sub. (1) (h) 1. and 1m.

196.378(4g) (4g) Wind energy systems.

196.378(4g)(a) (a) In this subsection:

196.378(4g)(a)1. 1. “Application for approval” has the meaning given in s. 66.0401 (1e) (a).

196.378(4g)(a)2. 2. “Decommissioning” means removing wind turbines, buildings, cables, electrical components, roads, and any other facilities associated with a wind energy system that are located at the site of the wind energy system and restoring the site of the wind energy system.

196.378(4g)(a)3. 3. “Political subdivision” means a city, village, town, or county.

196.378(4g)(a)4. 4. “Wind energy system” has the meaning given in s. 66.0403 (1) (m).

196.378(4g)(b) (b) The commission shall, with the advice of the wind siting council, promulgate rules that specify the restrictions a political subdivision may impose on the installation or use of a wind energy system consistent with the conditions specified in s. 66.0401 (1m) (a) to (c). The subject matter of these rules shall include setback requirements that provide reasonable protection from any health effects, including health effects from noise and shadow flicker, associated with wind energy systems. The subject matter of these rules shall also include decommissioning and may include visual appearance, lighting, electrical connections to the power grid, setback distances, maximum audible sound levels, shadow flicker, proper means of measuring noise, interference with radio, telephone, or television signals, or other matters. A political subdivision may not place a restriction on the installation or use of a wind energy system that is more restrictive than these rules.

196.378(4g)(c) (c) In addition to the rules under par. (b), the commission shall, with the advice of the wind siting council, promulgate rules that do all of the following:

196.378(4g)(c)1. 1. Specify the information and documentation to be provided in an application for approval to demonstrate that a proposed wind energy system complies with rules promulgated under par. (b).

196.378(4g)(c)2. 2. Specify the information and documentation to be included in a political subdivision’s record of decision under s. 66.0401 (4) (b).

196.378(4g)(c)3. 3. Specify the procedure a political subdivision shall follow in reviewing an application for approval under s. 66.0401 (4).

196.378(4g)(c)4. 4. Specify the requirements and procedures for a political subdivision to enforce the restrictions allowed under par. (b).

196.378(4g)(d) (d) The commission shall promulgate rules requiring the owner of a wind energy system with a nominal operating capacity of at least one megawatt to maintain proof of financial responsibility ensuring the availability of funds for decommissioning the wind energy system upon discontinuance of use of the wind energy system. The rules may require that the proof can be established by a bond, deposit, escrow account, irrevocable letter of credit, or other financial commitment specified by the commission.

196.378(4g)(e) (e) The wind siting council shall survey the peer-reviewed scientific research regarding the health impacts of wind energy systems and study state and national regulatory developments regarding the siting of wind energy systems. No later than October 1, 2014, and every 5 years thereafter, the wind siting council shall submit a report to the chief clerk of each house of the legislature, for distribution to the appropriate standing committees under s. 13.172 (3), describing the research and regulatory developments and including any recommendations of the council for legislation that is based on the research and regulatory developments.

196.378(4m) (4m) Additional renewable resources requirements.

196.378(4m)(a) (a) The commission may not impose on an electric provider any requirement that increases the electric provider’s renewable energy percentage beyond that required under sub. (2) (a) 2. If an electric provider is in compliance with the requirements of sub. (2) (a) 2., the commission may not require the electric provider to undertake, administer, or fund any other renewable energy program. This paragraph does not limit the authority of the commission to enforce an electric provider’s obligations under s. 196.374.

196.378(4m)(b) (b) An electric utility may, with commission approval, administer or fund a program that increases the electric utility’s renewable energy percentage beyond that required under sub. (2) (a) 2. The commission may not order an electric utility to administer or fund a program under this paragraph.

196.378(4r) (4r) Reports. No later than July 1 of each even-numbered year, the commission shall submit a report to the governor and chief clerk of each house of the legislature for distribution to the legislature under s. 13.172 (2) that evaluates the impact of the requirements of this section on the rates and revenue requirements of electric providers and compares that impact with the impact that would have occurred if renewable energy practices of electric providers were subject to market forces in the absence of the requirements of this section.

196.378(5) (5) Penalty. Any person who violates sub. (2) or any renewable energy supplier who provides an electric provider with a false or misleading certification regarding the sources or amounts of renewable energy supplied at wholesale to the electric provider shall forfeit not less than $5,000 nor more than $500,000. Forfeitures under this subsection shall be enforced by action on behalf of the state by the attorney general. A court imposing a forfeiture under this subsection shall consider all of the following in determining the amount of the forfeiture:

196.378(5)(a) (a) The appropriateness of the forfeiture to the person’s or wholesale supplier’s volume of business.

196.378(5)(b) (b) The gravity of the violation.

196.378(5)(c) (c) Whether a violation of sub. (2) is due to circumstances beyond the violator’s control.

196.378 History History: 1999 a. 9; 2001 a. 30; 2005 a. 141; 2009 a. 40, 406; 2011 a. 34, 155; 2013 a. 290, 300; 2017 a. 53.

196.378 Cross-reference Cross-reference: See also chs. PSC 118 and 128, Wis. adm. code.

196.378 Annotation Rules promulgated under sub. (4g) (b), which directs the Public Service Commission to promulgate wind energy rules, do not require a housing impact report under s. 227.115. Wisconsin Realtors Association v. Public Service Commission of Wisconsin, 2015 WI 63, 363 Wis. 2d 430, 867 N.W.2d 364, 13-1407.

196.39 196.39 Change, amendment and rescission of orders; reopening cases.

196.39(1) (1) The commission at any time, upon notice to the public utility and after opportunity to be heard, may rescind, alter or amend any order fixing rates, tolls, charges or schedules, or any other order made by the commission, and may reopen any case following the issuance of an order in the case, for any reason.

196.39(2) (2) An interested party may request the reopening of a case under s. 227.49.

196.39(3) (3) Any order rescinding, altering, amending or reopening a prior order shall have the same effect as an original order.

196.39(4) (4) Within 30 days after service of an order, the commission may correct an error or omission in the order related to transcription, typing or calculation without hearing if the correction does not alter the intended effect of the order.

196.39(5) (5) This section does not apply to an order issued under s. 196.371.

196.39 History History: 1983 a. 53, 144, 538; 1997 a. 204; 2005 a. 7.

196.39 Annotation The PSC cannot order a change in rates by order, without notice and hearing, on the ground that the order is only a clarification of an earlier order. Mid-Plains Telephone, Inc. v. PSC 56 Wis. 2d 780, 202 N.W.2d 907 (1973).

196.395 196.395 Test, conditional, emergency and supplemental orders; order conditions.

196.395(1) (1) The commission may issue an order calling for a test of actual results under requirements prescribed by the order, during which test period the commission may retain jurisdiction of the subject matter. The commission may issue conditional, temporary, emergency and supplemental orders. If an order is issued upon certain stated conditions, any party acting upon any part of the order shall be deemed to have accepted and waived all objections to any condition contained in the order.

196.395(2) (2) As a condition of any order, the commission may not require a public utility to lobby on a legislative issue or to take a specific position on a legislative issue.

196.395 History History: 1983 a. 53; 2011 a. 155.

196.395 Annotation Temporary and emergency rates may be appropriately and widely used by the public service commission when justified by the circumstances. Friends of the Earth v. PSC, 78 Wis. 2d 388, 254 N.W.2d 299 (1977).

196.40 196.40 Orders and determinations; time of taking effect. Every order or determination of the commission shall take effect the day after the order or determination has been filed and served by personal delivery, mail, electronic mail, or any other method that the commission determines is likely to reach the parties or their attorneys, to all parties to the proceeding in which the order or determination was made or to their attorneys, unless the commission specifies a different date upon which the order or determination shall be effective. After the effective date every order or determination shall be on its face lawful and reasonable unless a court determines otherwise under s. 227.57.

196.40 History History: 1983 a. 53; 1985 a. 182 s. 57; 2011 a. 155.

196.41 196.41 Court review. Any order or determination of the commission may be reviewed under ch. 227.

196.41 History History: 1983 a. 53.

196.41 Annotation Statutory guidelines set forth in s. 227.52 allow only for an administrative decision to be reviewed, which the courts have defined as a decision that is supported by a record and based upon findings of fact and conclusions of law. However, this section permits judicial review of orders and determinations under ch. 227. Therefore, the Public Service Commission’s (PSC) order denying a petition for rehearing in this case was subject to judicial review. Regardless, the PSC’s process regarding the rehearing petition met the definition of an administrative decision subject to review under s. 227.52. Town of Holland v. Public Service Commission, 2018 WI App 38, 382 Wis. 2d 799, 913 N.W.2d 914, 17-1129.

196.43 196.43 Injunction procedure.

196.43(1) (1) No injunction may be issued in any proceeding for review under ch. 227 of an order of the commission, suspending or staying the order except upon application to the circuit court or presiding judge thereof, notice to the commission and any other party, and hearing. No injunction which delays or prevents an order of the commission from becoming effective may be issued in any other proceeding or action in any court unless the parties to the proceeding before the commission in which the order was made are also parties to the proceeding or action before the court.

196.43(2) (2) No injunction may be issued in any proceeding for review under ch. 227, or in any other proceeding or action, suspending or staying any order of the commission or having the effect of delaying or preventing any order of the commission from becoming effective, unless at least 2 sureties enter into an undertaking on behalf of the petitioner or plaintiff. The court or presiding judge of the court shall direct that the sum of the undertaking be enough to effect payment of any damage which the opposite party may sustain by the delay or prevention of the order of the commission from becoming effective, and to such further effect as the judge or court in its discretion directs. No order or judgment in any proceeding or action may be stayed upon appellate court review unless the petitioner or plaintiff enters into the undertaking under this subsection in addition to any undertaking required under s. 808.07.

196.43(3) (3) No injunction may be issued in any proceeding for review under ch. 227 of an order of the commission under s. 196.199 (3) (a) 2., suspending or staying the order, unless the court finds that the person seeking review of the order is likely to succeed on the merits and suffer irreparable harm without the suspension or stay and that the suspension or stay is in the public interest.

196.43 History History: Sup. Ct. Order, 67 Wis. 2d 585, 775 (1975); 1977 c. 187 s. 135; 1983 a. 53; 1997 a. 218.

196.44 196.44 Law enforcement.

196.44(1) (1) Duty of commission. The commission shall inquire into the neglect or violation of the laws of this state by public utilities, or by their officers, agents or employees or by persons operating public utilities, and shall enforce all laws relating to public utilities, and report all violations to the attorney general.

196.44(2) (2) Duties of attorney general and district attorneys. Upon request of the commission, the attorney general or the district attorney of the proper county shall aid in any investigation, hearing or trial had under this chapter, and shall institute and prosecute all necessary actions or proceedings for the enforcement of all laws relating to public utilities or telecommunications providers, and for the punishment of all violations.

196.44(3) (3) Actions, character, venue. Any forfeiture, fine or other penalty under this chapter may be recovered as a forfeiture in a civil action brought in the name of the state in the circuit court of Dane County or in the county that would be the proper place of trial under s. 801.50.

196.44 History History: Sup. Ct. Order, 67 Wis. 2d 585, 775 (1975); 1977 c. 29 ss. 1337, 1654 (10) (c), 1656 (43); 1977 c. 272; Stats. 1977 s. 196.44; 1981 c. 390 s. 252; 1983 a. 53; 1993 a. 496; 1997 a. 218; 1999 a. 9; 2001 a. 105.

196.48 196.48 Incriminating evidence. No person may be excused from testifying or from producing books, accounts and papers in any proceeding based upon or growing out of any violation of chs. 195 to 197, on the ground or for the reason that the testimony or evidence may tend to incriminate or subject the person to penalty or forfeiture. A person who testifies under this section may not be:

196.48(1) (1)