Unreasonable or discriminatory rates, rules and practices. 66.0821(5)(a)(a)
If a user of a service complains to the public service commission that rates, rules and practices are unreasonable or unjustly discriminatory, or if a holder of a mortgage or revenue bond or mortgage certificate or other evidence of debt, secured by a mortgage on the sewerage system or any part of the system or pledge of the income of sewerage service charges, complains that rates are inadequate, the public service commission shall investigate the complaint. If there appears to be sufficient cause for the complaint, the commission shall set the matter for a public hearing upon 10 days' notice to the complainant and the town, village or city. After the hearing, if the public service commission determines that the rates, rules or practices complained of are unreasonable or unjustly discriminatory, it shall determine and by order fix reasonable rates, rules and practices and may make any other order respecting the complaint that is just and reasonable, including, in the case of standby charges imposed under sub. (4) (c)
, an order that a municipality refund to the user any amount of the standby charges that have been collected if the user has filed a complaint with the public service commission not later than 60 days after receiving the original notice of charge or after receiving a notice of charge that relates to an increased standby charge. The proceedings under this paragraph are governed, to the extent applicable, by ss. 196.26
. Except as provided in pars. (e)
, the commission shall bill any expense of the commission attributable to a proceeding under this paragraph to the town, village or city under s. 196.85 (1)
Judicial review of a determination of the public service commission under par. (a)
may be had by any person aggrieved in the manner prescribed in ch. 227
For purposes of this subsection, “user" of a service includes a licensed disposer, as defined in s. 281.49 (1) (b)
, who disposes of septage at a municipal sewage system under a disposal plan under s. 281.49 (5)
and initiates under s. 281.49 (11) (d)
a review under par. (a)
of a disputed septage disposal fee by the public service commission.
If the public service commission determines in a proceeding under par. (a)
that a septage disposal fee is unreasonable, the commission shall determine and fix under par. (a)
a reasonable fee that conforms with s. 281.49 (5) (c) 4.
Any expense of the commission attributable to a proceeding under par. (a)
that is initiated under s. 281.49 (11) (d)
is subject to the following:
If the commission determines in the proceeding that one or more septage disposal fees are unreasonable and determines and fixes by order reasonable septage disposal fees that, when combined with any other applicable septage disposal fees, total an amount that is at least 15 percent lower than the total amount of septage disposal fees established by the municipal sewage system for the quantity and type of septage specified in s. 281.49 (11) (b)
, the municipal sewage system that is a party to the dispute shall pay the entire amount of the assessment.
If the commission determines in the proceeding that one or more of the septage disposal fees are unreasonable and determines and fixes by order reasonable fees that, when combined with any other applicable septage disposal fees, total an amount that is not at least 15 percent lower than the total amount of septage disposal fees established by the municipal sewage system for the quantity and type of septage specified in s. 281.49 (11) (b)
, the commission may require the licensed disposer that is a party to the dispute to pay the entire amount of the assessment.
If the commission determines in the proceeding that the septage disposal fees are reasonable, the commission may require the licensed disposer that is a party to the dispute to pay the entire amount of the assessment.
If the commission terminates the proceeding before making a final determination on the reasonableness of the septage disposal fees, the commission may require the municipal sewage system and the licensed disposer that are parties to the dispute to each pay 50 percent of the assessment or a different allocation of the assessment agreed to by the parties.
The public service commission may bill a complainant for any expense of the commission attributable to a proceeding under par. (a)
If the commission determines in the proceeding that the rates, rules, or practices that are the subject of the complaint are not unreasonable, unjustly discriminatory, or inadequate, the commission may require the complainant to pay all or a portion, as determined by the commission, of the expenses.
If the commission terminates the proceeding before making a final determination, the commission may require the municipality and complainant to each pay 50 percent of the expenses or a different allocation of the expenses agreed to by the municipality and complainant.
The public service commission shall mail a complainant a bill for any expense the commission requires the complainant to pay under subd. 2.
The bill constitutes demand for payment. Within 30 days after the mailing of the bill, the complainant shall pay to the commission the amount billed. Ninety percent of the payment shall be credited to the appropriation account under s. 20.155 (1) (g)
If there is a sale of mortgaged sewerage system premises on a judgment of foreclosure and sale, the price paid for the premises may not exceed the amount of the judgment and the costs of sale to and including the recording of the sheriff's deed. The purchaser on the foreclosure sale may operate and maintain the sewerage system and collect sewerage service charges, and for that purpose is deemed to have a franchise from the municipality. The term “purchaser" includes the purchaser's successors or assigns. The rates to be charged, in addition to the contributions, if any, which the municipality has obligated itself to make toward the capital or operating costs of the plant, shall be sufficient to meet the requirements of operation, maintenance, repairs, depreciation, interest and an amount sufficient to amortize the judgment debts and all additional capital costs which the purchaser contributes to the plan over a period not exceeding 20 years. In addition, the purchaser of the premises may earn a reasonable amount, as determined by the public service commission, on the actual amount of the purchaser's investment in the premises represented by the purchase price of the premises, plus any additions made to the investment by the purchaser or minus any payments made by the municipality on account of the investments. The municipality may by payment reduce the investment of the purchaser and after full payment of the purchase price plus the cost of subsequent improvements the premises shall revert to the municipality. While the premises are owned by the private purchaser, the premises shall be considered a public utility and are subject to ch. 196
to the extent applicable.
Relation to other authority.
The authority under this section is in addition to any power which municipalities otherwise have with respect to sewerage or sewage disposal. Nothing in this section shall be construed as restricting or interfering with any powers and duties of the department of health services as prescribed by law.
See also ch. PSC 187
, Wis. adm. code.
NOTE: 2005 Wis. Act 347
, which affected this section, contains extensive explanatory notes.
A charge “in lieu of tax" was not an allowable method of sewerage treatment cost recovery under sub. (4). Fred Rueping Leather Co. v. City of Fond du Lac, 99 Wis. 2d 1
, 298 N.W.2d 227
(Ct. App. 1980).
The PSC is not authorized by sub. (9) [now sub. (5)] to set rates retroactively or to order refunds. Kimberly-Clark Corp. v. Public Service Commission, 110 Wis. 2d 455
, 329 N.W.2d 143
Mobile home owners who rented lots from a mobile home park on which their homes were placed who asserted the rate scheme applied to the park was discriminatory under this section could not complain directly under that statute. They were not “users" of the service within the meaning of sub. (5) when the service fee was assessed to the owners of the park and did not identify a legally protectible interest that would confer the standing necessary to obtain relief. Zehner v. Village of Marshall, 2006 WI App 6
, 288 Wis. 2d 660
, 709 N.W.2d 64
Joint local water authorities. 66.0823(1)(1)
Finding and declaration of necessity.
It is declared that the operation of water utility systems by local governmental units of this state and the improvement of the systems through joint action in the production, treatment, storage, transmission, distribution, purchase, sale and exchange of water is in the public interest and a matter of statewide concern; that there is a need in order to ensure the stability and continued viability of the local systems to provide for a means by which local governmental units which operate the systems may act jointly, including development of coordinated water production, treatment, storage, transmission and distribution; and that, the necessity in the public interest for the provisions of this section is declared as a matter of legislative determination.
As used in this section, unless the context clearly indicates otherwise:
“Authority" means a joint local water authority.
“Bonds" means any bonds, interim certificates, notes, debentures or other obligations of an authority issued under this section.
“Commission" means the public service commission.
“Contracting party" means a local governmental unit in this state, or a federally recognized Indian tribe or band located in this state, that contracts to establish or to join an authority under this section.
“Local governmental unit" means any city, village, town, county, town sanitary district, water utility district, or a public inland lake protection and rehabilitation district that has town sanitary district powers under s. 33.22 (3)
“Local water authority" means a public corporation created by contract between 2 or more contracting parties.
“Project" means any plant, works, system, facilities and real and personal property of any nature, together with all parts and appurtenances, that are used or useful in the production, treatment, storage, transmission, distribution, purchase, sale, or exchange of water. “Project" includes any interest in, or right to the capacity of, the plant, works, system, facilities or property. “Project" also includes the acquisition of water and the acquisition, construction or operation of facilities for producing, treating, storing, transmitting, or distributing water.
Creation by contract.
Any local governmental unit in this state may contract with one or more local governmental units in this state or federally recognized Indian tribes or bands located in the state to establish a separate governmental entity, to be known as a joint local water authority, to jointly produce, treat, store, transmit, distribute, purchase, sell or exchange water, in whole or in part for the benefit of the contracting parties. The parties to the contract may amend the contract as provided in the contract.
At least 30 days before becoming a contracting party by entering into a contract under this subsection, a local governmental unit shall hold a public hearing on the proposed contract. Notice of the hearing shall be published as a class 3 notice under ch. 985
The parties entering into a contract under this subsection shall file a copy of the contract with the secretary of state. Upon receipt, the secretary of state shall record the contract and issue a certificate of incorporation stating the name of the authority and the date and fact of incorporation. The corporate existence of the authority begins upon issuance of the certificate.
A contract establishing an authority under sub. (3)
shall specify all of the following:
The name and purpose of the authority and the functions or services to be provided by the authority. The name shall refer to the authority as an agency, authority or district.
The establishment and organization of a board of directors, in which all powers of the authority shall be vested. The contract may permit the board of directors to create an executive committee of the board of directors to which the board of directors may delegate any of its powers and duties, as specified by the board.
The number of directors, the manner of their appointment, the terms of their office, their compensation, if any, and the procedure for filling vacancies on the board of directors. The contracting parties shall appoint the members of the board of directors. Each contracting party shall be entitled to appoint an equal number of directors to the board of directors and may remove those directors at will.
The weight given to each director's vote. Unless specifically provided otherwise, each director's vote shall be given equal weight. If the contract provides for differing weights to be given to each director's vote, the contract shall specify the manner of calculating the weight to be given to each director's vote.
The manner of selection of the officers of the authority and their duties.
The voting requirements for action by the board of directors. Unless specifically provided otherwise, a majority of the authorized directors constitutes a quorum of the board of directors. Unless specifically provided otherwise, a majority of the voting power present is necessary for any action to be taken by the board of directors.
The duties of the board of directors, including the obligation to comply with this section and the laws of this state and with the terms of the contract under this subsection.
The manner in which additional local governmental units and Indian tribes or bands located in the state may become parties to the contract by amendment.
Provisions for the disposition, division or distribution of any property or assets of the authority on dissolution.
The term of the contract and the method, if any, of terminating or rescinding the contract. The term of the contract may be a definite period or it may be until rescinded or terminated. The contract may not be rescinded or terminated so long as the authority has bonds outstanding, unless provision for full payment of such bonds, by escrow or otherwise, has been made pursuant to the terms of the bonds or the resolution, trust indenture or security instrument securing the bonds.
The manner in which the contracting parties shall resolve any disputes.
The authority may do all of the following:
Plan, develop, acquire, construct, reconstruct, operate, manage, dispose of, participate in, maintain, repair, extend or improve one or more projects within the state, either solely or in conjunction with any other person.
Buy or sell interest in, or rights to the capacity of, projects.
Produce, treat, store, transmit, distribute, purchase, sell or exchange water in such amounts as the board of directors determines to be necessary and appropriate, subject to the limitations in this paragraph. An authority may not sell water at retail. An authority may not sell any water to a person other than a contracting party, except pursuant to an emergency services contract. An authority may enter into an emergency services contract to sell water at wholesale to a person other than a contracting party in emergency situations, to be specified in the contract.
Acquire, own, hold, use, lease as lessor or lessee, sell or otherwise dispose of, mortgage, pledge, or grant a security interest in any real or personal property, commodity or service.
Acquire property by condemnation using the procedure under s. 32.05
for the purposes set forth in this section.
Enter upon any state, county or municipal street, road or alley, or any public highway for the purpose of installing, maintaining and operating the authority's facilities. Whenever the work is to be done in a state, county or municipal highway, street, road or alley, the public authority having control thereof shall be duly notified, and the highway, street, road or alley shall be restored to as good a condition as existed before the commencement of the work with all costs incident to the work to be borne by the authority.
Install and maintain, without compensation to the state, any part of the authority's facilities over, upon or under any part of the bed of any river or of any land covered by any of the navigable waters of the state, the title to which is held by the state, and over, upon or under canals or through waterways. This paragraph does not relieve the authority of its obligation to obtain any permits or approvals otherwise required by law.
Require contracting parties to purchase water from the authority and to connect any contracting party's distribution system with the authority's distribution system.
Fix, maintain and revise fees, rates, rents and charges for functions, services, facilities or commodities provided by the authority.
Make, and from time to time amend and repeal, bylaws, rules and regulations to carry into effect the powers and purposes of the authority.
Join an organization, if the board of directors determines that membership is beneficial to accomplishment of the authority's purposes.
Incur debts, liabilities or obligations including the borrowing of money and the issuance of bonds, secured or unsecured, under sub. (9) (b)
Invest any funds held in reserve or sinking funds, or any funds not required for immediate disbursement, including the proceeds from the sale of any bonds, in such obligations, securities and other investments as the authority deems proper in accordance with s. 66.0603 (1m)
Do and perform any acts and things authorized by this section under, through or by means of an agent or by contracts with any person.
Exercise any other powers that the board of directors considers necessary and convenient to effectuate the purposes of the authority.
An authority is a political subdivision and body public and corporate of the state, exercising public powers, separate from the contracting parties. It has the duties, privileges, immunities, rights, liabilities and disabilities of a public body but does not have taxing power.
In this subsection, “purchase of water" includes any right to capacity or interest in any project.
Payments for commodities and services.
The contracting parties may agree to pay the authority funds for commodities to be procured or services to be rendered by the authority. The agreement may also provide for payments in the form of contributions to defray the cost of any purpose set forth in the contract under sub. (4)
or the agreement and, subject to repayment by the authority, for advances for any purpose set forth in the contract under sub. (4)
or the agreement.
The contracting parties may enter into purchase agreements with the authority for the purchase of water. Purchase agreements may include the following provisions:
A provision requiring the purchaser to make payments in amounts that are sufficient to enable the authority to meet its expenses, interest and principal payments, whether at maturity or upon debt service fund redemption, for its bonds, reasonable reserves for debt service, operation and maintenance and renewals and replacements and the requirements of any rate covenant with respect to debt service coverage contained in any resolution, trust indenture or other security instrument.
A provision requiring the purchaser to pay for water regardless of whether water is delivered to the purchaser or whether any project contemplated by any such agreement is completed, operable or operating, and notwithstanding suspension, interruption, interference, reduction or curtailment of the output of the project.
A provision requiring that, if one or more of the purchasers defaults in the payment of its obligations under a purchase agreement, the remaining purchasers shall accept and pay for, and shall be entitled proportionately to use or otherwise dispose of, the water that was to have been purchased by the defaulting purchaser.
A provision providing for a term for the purchase agreement. The term may be for the life of a project, for an indefinite period or for any other term.
Other terms and conditions that the authority and the purchasers determine.
Status of obligations under a purchase agreement.
To the extent that a purchase agreement with an authority provides that the obligations of a contracting party under the purchase agreement are special obligations of the contracting party, payable solely from the revenues and other moneys derived by the contracting party from its water utility, these obligations are not debt of the contracting party and shall be treated as operation and maintenance expenses of a water utility.
An authority may not issue bonds for the construction of a project until the commission has certified that public convenience and necessity require the project. A project need not be certified as being required by public convenience and necessity if no bonds are issued for the project. The commission may promulgate rules regarding the making of certifications of public convenience and necessity under this subsection.
The commission may refuse to certify a project under par. (a)
if it appears that the completion of the project will do any of the following:
Substantially impair the efficiency of the service of a contracting party's public utility.
Provide facilities unreasonably in excess of the probable future requirements.
When placed in operation, add to the cost of service without proportionately increasing the value or available quantity of service.
The commission may issue a certificate for the construction of a project or for any part of the project if the project complies with the requirements of par. (b)
. The commission may attach to the issuance of its certificate terms and conditions that will ensure that the construction of the project meets the requirements of par. (b)