Chapter 196

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.

196.491(4) (4) Exemptions.

196.491(4)(b) (b) Subsection (3) does not apply to a person that constructs electric generating equipment and associated facilities if the person satisfies each of the following:

196.491(4)(b)1. 1. The person is not a public utility or a cooperative association organized under ch. 185 for the purpose of generating, distributing or furnishing electric energy at retail or wholesale to its members only.

196.491(4)(b)2. 2. The person shows to the satisfaction of the commission that the person reasonably anticipates, at the time that construction of the equipment or facilities commences, that on each day that the equipment and facilities are in operation the person will consume no less than 70 percent of the aggregate kilowatt hours output from the equipment and facilities in manufacturing processes at the site where the equipment and facilities are located or in ferrous mineral mining and processing activities governed by subch. III of ch. 295 at the site where the equipment and facilities are located.

196.491(4)(c) (c)

196.491(4)(c)1e. 1e. In this paragraph, “centerline” means a line drawn through the centerline of an electric transmission line along its length.

196.491(4)(c)1m. 1m. Except as provided in subd. 1s., a certificate under sub. (3) is not required for a person to construct a high-voltage transmission line designed for operation at a nominal voltage of less than 345 kilovolts if not more than one-half mile of the centerline of the new high-voltage transmission line is located more than 60 feet on either side of the centerline of an existing electric transmission line operating at a nominal voltage of 69 kilovolts or more and all of the following apply:

196.491(4)(c)1m.a. a. The project will not have undue adverse environmental impacts.

196.491(4)(c)1m.b. b. The new high-voltage transmission line requires the acquisition in total of one-half mile or less of rights-of-way from landowners from which rights-of-way would not be required to be acquired for the existing electric transmission line.

196.491(4)(c)1s. 1s. A certificate under sub. (3) is not required for a cooperative association organized under ch. 185 for the purpose of producing or furnishing heat, light, power, or water to its members to construct a high-voltage transmission line designed for operation at a nominal voltage of less than 345 kilovolts if all related construction activity takes place entirely within the area of an existing electric transmission line right-of-way.

196.491(4)(c)2. 2. The commission is not required to prepare an environmental impact statement under s. 1.11 (2) (c) for construction that is specified in subd. 1m. or 1s., but shall prepare an environmental assessment regarding the construction if an environmental assessment is required under the commission’s rules.

196.491(4)(c)3. 3. If construction or utilization of a high-voltage transmission line described in subd. 1m. or 1s. is precluded or inhibited by a local ordinance, the construction and utilization of the line may nevertheless proceed.

196.491(5) (5) Service standards for electric generation, transmission and distribution facilities. The commission shall promulgate rules that establish all of the following:

196.491(5)(a) (a) Standards for inspecting, maintaining and repairing each of the following:

196.491(5)(a)1. 1. Electric generation facilities in this state that are owned by public utilities or provide service to public utilities under contracts with terms of 5 years or more.

196.491(5)(a)2. 2. Electric transmission or distribution facilities in this state that are owned by public utilities.

196.491(5)(b) (b) Standards that the commission determines are necessary for the safe and reliable operation of each of the following:

196.491(5)(b)1. 1. Electric generation facilities in this state that are owned by public utilities or provide service to public utilities under contracts with terms of 5 years or more.

196.491(5)(b)2. 2. Electric transmission or distribution facilities in this state that are owned by public utilities.

196.491(6) (6) Waiver. The commission may waive compliance with any requirement of this section to the extent necessary to restore service which has been substantially interrupted by a natural catastrophe, accident, sabotage or act of God.

196.491 History History: 1975 c. 68, 199; 1979 c. 221, 361; 1983 a. 53 s. 114; 1983 a. 192, 401; 1985 a. 182 s. 57; 1989 a. 31; 1993 a. 184; 1995 a. 27 ss. 9116 (5), 9126 (19); 1995 a. 227, 409; 1997 a. 27, 35, 204; 1999 a. 9; 1999 a. 150 s. 672; 2001 a. 16; 2003 a. 33, 89; 2005 a. 24, 29; 2007 a. 20 s. 9121 (6) (a); 2009 a. 40, 378, 379; 2011 a. 32, 155; 2011 a. 260 s. 81; 2013 a. 1, 10, 125, 173; 2015 a. 148, 344; 2017 a. 58, 136; 2019 a. 9; 2021 a. 24, 239.

196.491 Cross-reference Cross-reference: See also ch. PSC 112, Wis. adm. code.

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

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

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

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

196.491 Annotation Sub. (3) (i) expressly withdraws the power of municipalities to act, once the PSC has issued a certificate of public convenience and necessity, on any matter that the PSC has addressed or could have addressed in that administrative proceeding. American Transmission Co., LLC v. Dane County, 2009 WI App 126, 321 Wis. 2d 138, 772 N.W.2d 731, 08-2604.

196.491 Annotation Section 196.49 (3) controls a utility’s application to construct an out-of-state electric generating facility. Sub. (3) applies exclusively to in-state facilities. Under s. 196.01 (5) (a) and s. 196.491 (1) (am), every public utility has availed itself of Wisconsin’s regulatory jurisdiction by obtaining authorization to engage in public utility business. Therefore, when the Public Service Commission reviews an application under s. 196.49 (3) it is a statutory entity that is being regulated, not a person’s activity of constructing a facility, as is the case under sub. (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 Annotation The Public Service Commission’s (PSC) interpretation of the reasonable needs of the public is not limited to the existing infrastructure’s ability to “keep the lights on.” Rather, PSC takes into account additional relevant factors in making its determination, such as increased reliability, economic benefits, and public policy considerations. PSC’s interpretation of “reasonable needs” comports with the intent of sub. (3) (d). Town of Holland v. Public Service Commission, 2018 WI App 38, 382 Wis. 2d 799, 913 N.W.2d 914, 17-1129.

196.494 196.494 Regional transmission planning.

196.494(1) (1) In this section:

196.494(1)(a) (a) “Electric utility” means a public utility, other than a municipal utility, as defined in s. 196.377 (2) (a) 3., that provides retail electric service to customers in this state.

196.494(1)(b) (b) “Transmission facility” means any pipe, pipeline, duct, wire, line, conduit, pole, tower, equipment or other structure used for the transmission of electric power as determined by the commission.