Chapter 196

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).

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 or natural gas utility.

196.491(3e)(ag) (ag) In this subsection:

196.491(3e)(ag)1. 1. “Certificate” means, with respect to an electric utility, a certificate of public convenience and necessity under sub. (3) and, with respect to a natural gas public utility, a certificate under s. 196.49.

196.491(3e)(ag)2. 2. “Electric utility” has the meaning given in s. 196.485 (1) (bs).

196.491(3e)(ag)3. 3. “Line” means, with respect to an electric utility, a high-voltage transmission line and, with respect to a natural gas public utility, a natural gas transmission or distribution line.

196.491(3e)(ag)4. 4. “Utility” means an electric utility or natural gas public utility.

196.491(3e)(am) (am) Notwithstanding s. 32.03 (1), if a utility receives a certificate from the commission for the construction of a line 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 utility, at fair market value as determined under par. (b), the interest in the land necessary for the construction, operation, and maintenance of the line. This paragraph applies to a line for which construction commences before, on, or after February 6, 2016, except that this paragraph does not affect the terms of any conveyance of an interest in land that was completed before February 6, 2016.

196.491(3e)(b) (b) If the utility and owner of the land cannot agree on the fair market value of the interest in land sought by the utility within 90 days after the utility notifies the owner that the certificate 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 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 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 percent.

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, “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)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)(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 Cross-reference Cross-reference: See also s. PSC 100.11, Wis. adm. code.