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196.49(5)(d) (d) 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.
196.49(5)(e) (e) 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.
196.49(5)(f) (f) 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.
196.49(5)(g) (g) 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 employees under existing labor contracts, as well as other employees, 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.
196.49(5)(h) (h) 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.
196.49(5)(i) (i) 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.
196.49(5g) (5g)
196.49(5g)(a)(a) A public utility is exempt from the requirement to obtain a certification or approval of the commission under sub. (2) or (3) before beginning a proposed project if the estimated gross cost of the proposed project is not more than one of the following cost thresholds:
196.49(5g)(a)1. 1. For an electric public utility whose electric operating revenues in the prior year were less than $5,000,000, the cost threshold is $250,000.
196.49(5g)(a)2. 2. For an electric public utility whose electric operating revenues in the prior year were $5,000,000 or more and less than $250,000,000, the cost threshold is 4 percent of those operating revenues.
196.49(5g)(a)3. 3. For an electric public utility whose electric operating revenues in the prior year were $250,000,000 or more, the cost threshold is $10,000,000.
196.49(5g)(a)4. 4. For a natural gas public utility, the cost threshold is $2,500,000 or 4 percent of the public utility's natural gas operating revenues in the prior year, whichever is less.
196.49(5g)(a)5. 5. For a water public utility or combined water and sewer public utility, the cost threshold is $250,000 or 25 percent of the utility's operating revenues in the prior year, whichever is less.
196.49(5g)(b) (b) Beginning on May 1, 2014, and on May 1 of each successive even-numbered year thereafter, the commission shall adjust the cost thresholds specified in par. (a) to reflect changes to the cost of utility construction based on the applicable industry cost index numbers published in the Handy-Whitman Index of Public Utility Construction Costs, or an equivalent successor index, and publicize the adjusted cost thresholds on the commission's Web site.
196.49(5r) (5r)
196.49(5r)(a)(a) If a hearing is held on an application filed under sub. (1), (2), (3), or (5), the commission shall take final action on the application within 180 days after the commission issues a notice of hearing on the application. The chairperson of the commission may extend the time period for an additional 180 days for good cause. If the commission fails to take final action within the initial 180-day period, or the extended 180-day time period, the commission is considered to have issued a certificate of authority with respect to the application.
196.49(5r)(b) (b) If a hearing is not held on an application filed under sub. (1), (2), (3), or (5), the commission shall take final action on the application within 90 days after the commission issues a notice opening a docket on the application. The chairperson of the commission may extend the time period for an additional 90 days for good cause. If the commission fails to take final action within the initial 90-day period, or the extended 90-day time period, the commission is considered to have issued a certificate of authority with respect to the application.
196.49(6) (6) 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.
196.49 History History: Sup. Ct. Order, 67 Wis. 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; 2003 a. 89; 2007 a. 227; 2011 a. 22, 32, 155; 2013 a. 125.
196.49 Cross-reference Cross-reference: See also chs. PSC 112, 113, 114, and 133, Wis. adm. code.
196.49 Annotation There is no hearing requirement for the issuance of a certificate authorizing service. Adams-Marquette Electric Cooperative v. PSC. 51 Wis. 2d 718, 188 N.W.2d 515 (1971).
196.49 Annotation The "public" in sub. (3) (b) includes all electric consumers in the state, not only the ratepayers of the utility seeking authorization. Wisconsin Power & Light Co. v. PSC, 148 Wis. 2d 881, 437 N.W.2d 888 (Ct. App. 1989).
196.49 Annotation Sub. (3) controls a utility's application to construct an out-of-state electric generating facility. Section 196.491 (3) applies exclusively to in-state facilities. Under s. 196.01 (5) (a) and sub. (1) (am), every public utility has availed itself of the state's regulatory jurisdiction by obtaining authorization to engage in public utility business. Therefore, when the Public Service Commission reviews an application under sub. (3) it is a statutory entity that is being regulated, not a person's activity of constructing a facility, as is the case under s. 196.491 (3). Wisconsin Industrial Energy Group v. Public Service Commission, 2012 WI 89, 342 Wis. 2d 576, 819 N.W.2d 240, 10-2762.
196.491 196.491 Strategic energy assessment; electric generating facilities and transmission lines.
196.491(1) (1) Definitions. In this section:
196.491(1)(am) (am) "Affiliated interest" has the meaning given in s. 196.52 (1).
196.491(1)(b) (b) "Commencement of construction" means site clearing, excavation, placement of facilities or any other substantial action adversely affecting the natural environment of the site, but does not mean borings necessary to determine foundation conditions or other preconstruction monitoring to establish background information related to site or environmental suitability.
196.491(1)(bm) (bm) "Cooperative association" means a cooperative association organized under ch. 185 for the purpose of generating, distributing or furnishing electric energy at retail or wholesale to its members only.
196.491(1)(c) (c) "Department" means the department of natural resources.
196.491(1)(d) (d) "Electric utility" means any public utility, as defined in s. 196.01, which is involved in the generation, distribution and sale of electric energy, and any corporation, company, individual or association, and any cooperative association, which owns or operates, or plans within the next 3 years to construct, own or operate, facilities in the state.
196.491(1)(e) (e) "Facility" means a large electric generating facility or a high-voltage transmission line.
196.491(1)(f) (f) Except as provided in subs. (2) (b) 8. and (3) (d) 3m., "high-voltage transmission line" means a conductor of electric energy exceeding one mile in length designed for operation at a nominal voltage of 100 kilovolts or more, together with associated facilities, and does not include transmission line relocations that the commission determines are necessary to facilitate highway or airport projects.
196.491(1)(g) (g) "Large electric generating facility" means electric generating equipment and associated facilities designed for nominal operation at a capacity of 100 megawatts or more.
196.491(1)(w)1.1. "Wholesale merchant plant" means, except as provided in subd. 2., electric generating equipment and associated facilities located in this state that do not provide service to any retail customer and that are owned and operated by any of the following:
196.491(1)(w)1.a. a. Subject to the approval of the commission under sub. (3m) (a), an affiliated interest of a public utility.
196.491(1)(w)1.b. b. A person that is not a public utility.
196.491(1)(w)2. 2. "Wholesale merchant plant" does not include an electric generating facility or an improvement to an electric generating facility that is subject to a leased generation contract, as defined in s. 196.52 (9) (a) 3.
196.491(2) (2)Strategic energy assessment.
196.491(2)(a)(a) The commission shall prepare a biennial strategic energy assessment that evaluates the adequacy and reliability of the state's current and future electrical supply. The strategic energy assessment shall do all of the following:
196.491(2)(a)3. 3. Identify and describe large electric generating facilities on which an electric utility plans to commence construction within 3 years.
196.491(2)(a)3g. 3g. Assess the adequacy and reliability of purchased generation capacity and energy to serve the needs of the public.
196.491(2)(a)3m. 3m. Identify and describe high-voltage transmission lines on which an electric utility plans to commence construction within 3 years.
196.491(2)(a)3r. 3r. Identify and describe any plans for assuring that there is an adequate ability to transfer electric power into the state and the transmission area, as defined in s. 196.485 (1) (g), in a reliable manner.
196.491(2)(a)4. 4. Identify and describe the projected demand for electric energy and the basis for determining the projected demand.
196.491(2)(a)7. 7. Identify and describe activities to discourage inefficient and excessive power use.
196.491(2)(a)9. 9. Identify and describe existing and planned generating facilities that use renewable sources of energy.
196.491(2)(a)10. 10. Consider the public interest in economic development, public health and safety, protection of the environment and diversification of sources of energy supplies.
196.491(2)(a)11. 11. Assess the extent to which the regional bulk-power market is contributing to the adequacy and reliability of the state's electrical supply.
196.491(2)(a)12. 12. Assess the extent to which effective competition is contributing to a reliable, low-cost and environmentally sound source of electricity for the public.
196.491(2)(a)13. 13. Assess whether sufficient electric capacity and energy will be available to the public at a reasonable price.
196.491(2)(ag) (ag) The commission shall promulgate rules that establish procedures and requirements for reporting information that is necessary for the commission to prepare strategic energy assessments under par. (a).
196.491(2)(b) (b) On or before July 1, 2000, and on or before July 1 of each even-numbered year thereafter, the commission shall issue a draft of the biennial strategic energy assessment that it prepares under par. (a) to each of the following:
196.491(2)(b)1. 1. Department of administration.
196.491(2)(b)2. 2. Department of safety and professional services.
196.491(2)(b)3. 3. Department of health services.
196.491(2)(b)4. 4. Department of justice.
196.491(2)(b)5. 5. Department of natural resources.
196.491(2)(b)6. 6. Department of transportation.
196.491(2)(b)7. 7. The director or chairperson of each regional planning commission constituted under s. 66.0309 which has jurisdiction over any area where a facility is proposed to be located or which requests a copy of such plan.
196.491(2)(b)8. 8. The lower Wisconsin state riverway board if the draft includes an assessment of the construction, modification or relocation of a high-voltage transmission line, as defined in s. 30.40 (3r), that is located in the lower Wisconsin riverway as defined in s. 30.40 (15).
196.491(2)(b)9. 9. Each person that is required to report information to the commission under the rules promulgated under par. (ag).
196.491(2)(b)10. 10. The clerk of each city, village, town and county that, as determined by the commission, is affected by the assessment.
196.491(2)(e) (e) Any state agency, as defined in s. 16.310 (1), county, municipality, town, or person may submit written comments to the commission on a strategic energy assessment within 90 days after copies of the draft are issued under par. (b).
196.491(2)(f) (f) Section 1.11 (2) (c) shall not apply to a strategic energy assessment prepared under par. (a) 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).
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)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. 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.
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.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) and s. 196.493, 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.
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2011-12 Wisconsin Statutes updated though 2013 Wis. Act 200 and all Supreme Court Orders entered before April 18, 2014. Published and certified under s. 35.18. Changes effective after April 18, 2014 are designated by NOTES. (Published 4-18-14)