In this subsection, "project" means construction of any new plant, equipment, property or facility, or extension, improvement or addition to its existing plant, equipment, property, apparatus or facilities. The commission may require by rule or special order that a public utility submit, periodically or at such times as the commission specifies and in such detail as the commission requires, plans, specifications and estimated costs of any proposed project which the commission finds will materially affect the public interest.
Except as provided in par. (d)
, the commission may require by rule or special order under par. (a)
that no project may proceed until the commission has certified that public convenience and necessity require the project. The commission may refuse to certify a project if it appears that the completion of the project will do any of the following:
Substantially impair the efficiency of the service of the 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 unless the public utility waives consideration by the commission, in the fixation of rates, of such consequent increase of cost of service.
The commission may issue a certificate for the project or for any part of the project which complies with the requirements of this section, or the commission may attach to the issuance of its certificate such terms and conditions as will ensure that the project meets the requirements of this section. The issuance of a certificate under this section shall not be a condition precedent to the exercise of eminent domain under ch. 32
A telecommunications utility is not required to obtain commission certification before beginning a construction project.
No public utility furnishing gas to the public in this state may construct, install or place in operation any new plant, equipment, property or facility, or construct or install any extension, improvement, addition or alteration to its existing plant, equipment, property or facilities for the purpose of connecting its properties and system to a source of supply of gaseous fuel for sale to the public which is different from that which has been sold previously, or for the purpose of adapting its facilities to use the different kind of gaseous fuel unless the commission certifies that the general public interest and public convenience and necessity require the connection to or use of the different fuel. No public utility may substitute natural gas or a mixture of natural and manufactured gas in lieu of manufactured gas for distribution and sale to the public unless it has obtained from the commission a certificate that the general public interest and public convenience and necessity require the substitution.
Proceedings for a certificate under par. (a)
shall be commenced by petition to the commission in a form prescribed by the commission, furnishing such information as the commission by rule or order prescribes. The commission shall prescribe the form of notice, to whom the notice shall be given, and how notice shall be given.
A petition under par. (b)
may include one or more municipalities, may be made by one or more public utilities as a joint petition, by any other interested person or by a public utility and any other interested person. The commission may direct the consolidation, separation or consideration of separate petitions as it deems necessary or expedient to a prompt hearing and disposition of the issue.
Upon the filing of a petition under par. (b)
, notice of hearing on the petition shall be given by the person filing the petition by publication of a class 2 notice, under ch. 985
, or by mailing or personal service, as the commission directs by the order under par. (b)
. Notice under this paragraph shall be given at least 2 weeks prior to hearing on the petition. Proof of notice shall be filed as directed by the commission.
The commission, with or without an order, prior to or during any hearing under this subsection, may frame and prescribe special issues and limit the issues or the nature and extent of proof so as to avoid unnecessary duplication. The commission, with or without an order, may proceed with the hearing as to part of a petition under par. (b)
as it may find desirable to a full but speedy hearing upon the petition.
The commission may accept as presumptive evidence in a commission proceeding the facts found in findings and orders of the federal energy regulatory commission or any federal agency having jurisdiction as to the availability of adequate supplies of natural gas, the adequacy or sufficiency of equipment and facilities to be employed in the delivery or storage of natural gas for any public utility, and any similar findings or determinations affecting the seller or person furnishing natural gas to any public utility and material to the ultimate determination of the issues in the proceeding. The commission may accept and take judicial notice of its own files and records, including all proceedings and the evidence therein which it finds to be material and relevant. The commission shall give notice of the taking of judicial notice under this paragraph prior to the conclusion of final hearings upon any proceeding so as to give interested parties the right to object to acceptance of the evidence or to contradict the evidence by other competent evidence.
A certificate granted under par. (a)
shall be authorized by an order following a hearing. The order shall contain any condition or limitation which the commission deems necessary or practicable, including, but not limited to, exceptions or regulations as to specific communities or public utilities, provision for protection of employes under existing labor contracts, as well as other employes, so as to avoid unemployment, regulations for accounting for expenses for change-over to the use of natural gas where necessary and to the extent necessary, provision for amortization of any expenditure or other items, and any other regulation, condition and limitation which the commission considers necessary in the public interest.
The commission by order may extend a certificate under par. (a)
to more than one public utility or municipality. The commission may prescribe different conditions and regulations for each public utility or municipality if the commission deems the different conditions and regulations necessary to carry out the purposes of this section.
In making a determination under this section, the commission shall consider all appropriate factors affecting the public interest, including, but not limited to, when the substitution of natural or a mixture of natural and manufactured gas is involved, the likelihood of substantial rate reduction from the substitution and the effect of the substitution upon employment, existing business and industries, railroads and other transportation agencies and facilities, upon conveniences, economies and savings to consumers, upon existing gas utilities and their ability to continue to serve the public and upon the state, any of its political subdivisions or any citizen or resident of the state.
If the commission finds that any public utility has taken or is about to take an action which violates or disregards a rule or special order under this section, the commission, in its own name either before or after investigation or public hearing and either before or after issuing any additional orders or directions it deems proper, may bring an action in the circuit court of Dane county to enjoin the action. If necessary to preserve the existing state of affairs, the court may issue a temporary injunction pending a hearing upon the merits. An appeal from an order or judgment of the circuit court may be taken to the court of appeals.
Sup. Ct. Order, 67 W (2d) 585, 775 (1975); 1977 c. 187
; 1979 c. 110
s. 60 (9)
; 1983 a. 53
; 1985 a. 60
; 1993 a. 496
; 1995 a. 227
There is no hearing requirement as to the issuance of a certificate authorizing service. Adams-Marquette E. Coop. v. P.S.C. 51 W (2d) 718, 188 NW (2d) 515.
Term "public" in (3) (b) includes all electric consumers in state, not simply ratepayers of utility seeking authorization. Wis. Power & Light v. Pub. Ser. Comm. 148 W (2d) 881, 437 NW (2d) 888 (Ct. App. 1989).
Strategic energy assessment; electric generating facilities and transmission lines. 196.491(1)(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.
"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.
"Department" means the department of natural resources.
"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.
"Facility" means a large electric generating facility or a high-voltage transmission line.
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 the commission determines are necessary to facilitate highway or airport projects.
"Large electric generating facility" means electric generating equipment and associated facilities designed for nominal operation at a capacity of 100 megawatts or more.
"Wholesale merchant plant" means 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:
Subject to the approval of the commission under sub. (3m) (a)
, an affiliated interest of a public utility.
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:
Identify and describe large electric generating facilities on which an electric utility plans to commence construction within 3 years.
Assess the adequacy and reliability of purchased generation capacity and energy to serve the needs of the public.
Identify and describe high-voltage transmission lines on which an electric utility plans to commence construction within 3 years.
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.
Identify and describe the projected demand for electric energy and the basis for determining the projected demand.
Identify and describe activities to discourage inefficient and excessive power use.
Identify and describe existing and planned generating facilities that use renewable sources of energy.
Consider the public interest in economic development, public health and safety, protection of the environment and diversification of sources of energy supplies.
Assess the extent to which the regional bulk-power market is contributing to the adequacy and reliability of the state's electrical supply.
Assess the extent to which effective competition is contributing to a reliable, low-cost and environmentally sound source of electricity for the public.
Assess whether sufficient electric capacity and energy will be available to the public at a reasonable price.
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)
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:
The director or chairperson of each regional planning commission constituted under s. 66.945
which has jurisdiction over any area where a facility is proposed to be located or which requests a copy of such plan.
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)
Each person that is required to report information to the commission under the rules promulgated under par. (ag)
The clerk of each city, village, town and county that, as determined by the commission, is affected by the assessment.
Any state agency, as defined in s. 16.375 (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)
(f) Section 1.11 (2) (c)
shall not apply to a strategic energy assessment prepared under par. (a)
but the commission shall prepare a single environmental assessment on the strategic energy assessment, which shall include a discussion of generic issues and environmental impacts. The commission shall make the environmental assessment available to the public at least 30 days prior to the hearing under par. (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
. 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)
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)
(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.
(3) Certificate of public convenience and necessity. 196.491(3)(a)1.1.
No person may commence the construction of a facility unless the person has applied for and received a certificate of public convenience and necessity from the commission as provided in this section. An application in the form and containing the information required by commission rules for such certificate 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 the application, the commission shall send a 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.
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, the application shall be considered to be complete.
At least 60 days before a person files an application under subd. 1.
, the person shall provide the department with an engineering plan showing 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 description of the anticipated effects of the facility on air and water quality. 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.
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. 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.
The commission shall hold a public hearing on an application 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.
Except as provided under par. (e)
and s. 196.493
, the commission shall approve an application for a certificate of public convenience and necessity only if the commission determines all of the following:
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.
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
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.
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
The proposed facility will not unreasonably interfere with the orderly land use and development plans for the area involved.
The proposed facility will not have a material adverse impact on competition in the relevant wholesale electric service market.
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)
If the application 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)
. The commission may not issue a certificate of public convenience and necessity until the department has issued all permits and approvals identified in the listing specified in par. (a) 3. a.
that are required prior to construction.
The commission shall take final action on an application 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 commission, within the 180-day period, petitions the circuit court for Dane County for an extension of time for taking final action on the application and the court grants an extension. Upon a showing of good cause, the court may extend the 180-day period for no more than an additional 180 days . 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.
1m. Subdivision 1.
does not apply to an application for a certificate of public convenience and necessity if another state is also taking action on the same or a related application.
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.
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.
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 may petition for judicial review, under ch. 227
, of any decision of the commission regarding the certificate.
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.