Chapter 196

196.49 Annotation Sub. (3) controls a utility’s application to construct an out-of-state electric generating facility. Section 196.491 (3) applies exclusively to in-state facilities. Under s. 196.01 (5) (a) and sub. (1) (am), every public utility has availed itself of the state’s regulatory jurisdiction by obtaining authorization to engage in public utility business. Therefore, when the Public Service Commission reviews an application under sub. (3) it is a statutory entity that is being regulated, not a person’s activity of constructing a facility, as is the case under s. 196.491 (3). Wisconsin Industrial Energy Group v. Public Service Commission, 2012 WI 89, 342 Wis. 2d 576, 819 N.W.2d 240, 10-2762.

196.491 196.491 Strategic energy assessment; electric generating facilities and transmission lines; natural gas 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 are within an electronics and information technology manufacturing zone designated under s. 238.396 (1m) or 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 safety and professional services.

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. 16.310 (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).

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 Cross-reference 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. A person who proposes to construct a large electric generating facility may apply for a certificate for that facility and for another certificate for an associated high-voltage transmission line for which a certificate under this subsection is required by submitting a single application, and the commission shall consider that single application by conducting a single proceeding and applying the requirements of this subsection to each facility addressed in that application in the same manner that the commission applies the requirements of this subsection to facilities for which separate applications are filed. 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 an electronic 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. At the request of such a clerk or main public library, the commission shall also send a paper copy of the application.

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 or refiled, the application shall be considered to be complete. Within 10 days after the commission determines that an application is complete or the application is considered to be complete, the commission shall send an electronic copy of the complete 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. At the request of such a clerk or main public library, the commission shall also send a paper copy of the application.

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; and the application is not a single application for both a certificate for a large electric generating facility and another certificate for a high-voltage transmission line.

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. 238.13 (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. The engineering 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 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 plan, appears to be required for the construction or operation of the facility.

196.491(3)(a)3.b. b. Except as provided under subd. 3. c., 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. Except as provided in s. 30.025 (4), 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)(a)3.c. c. The 20-day deadline specified in subd. 3. b. for applying for the applicable permits and approvals specified in the listing provided by the department does not apply to a person proposing to construct a utility facility for ferrous mineral mining and processing activities governed by subch. III of ch. 295.

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), 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. 238.13 (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 chairperson of the commission extends the time period for no more than an additional 180 days for good cause. 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).