1997 Wisconsin Act 204

204,48 Section 48 . 196.491 (2) (a) 7. of the statutes is amended to read:

196.491 (2) (a) 7. Identify and describe existing and planned programs and policies activities to discourage inefficient and excessive power use; and.

204,49 Section 49 . 196.491 (2) (a) 8. of the statutes is repealed.

204,50 Section 50 . 196.491 (2) (a) 9. to 13. of the statutes are created to read:

196.491 (2) (a) 9. Identify and describe existing and planned generating facilities that use renewable sources of energy.

10. Consider the public interest in economic development, public health and safety, protection of the environment and diversification of sources of energy supplies.

11. Assess the extent to which the regional bulk-power market is contributing to the adequacy and reliability of the state's electrical supply.

12. Assess the extent to which effective competition is contributing to a reliable, low-cost and environmentally sound source of electricity for the public.

13. Assess whether sufficient electric capacity and energy will be available to the public at a reasonable price.

204,51 Section 51 . 196.491 (2) (ag) of the statutes is created to read:

196.491 (2) (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).

204,52 Section 52 . 196.491 (2) (am) of the statutes is renumbered 196.491 (2r) and amended to read:

196.491 (2r) (title) Local ordinances. No local ordinance may prohibit or restrict testing activities undertaken by a an electric utility for purposes of preparing advance plans or 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.

204,53 Section 53 . 196.491 (2) (b) (intro.) of the statutes is repealed and recreated to read:

196.491 (2) (b) (intro.) 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:

204,54 Section 54 . 196.491 (2) (b) 8. of the statutes is amended to read:

196.491 (2) (b) 8. The lower Wisconsin state riverway board if the plan 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).

204,55 Section 55 . 196.491 (2) (b) 9. and 10. of the statutes are created to read:

196.491 (2) (b) 9. Each person that is required to report information to the commission under the rules promulgated under par. (ag).

10. The clerk of each city, village, town and county that, as determined by the commission, is affected by the assessment.

204,56 Section 56 . 196.491 (2) (c) and (d) of the statutes are repealed.

204,57 Section 57 . 196.491 (2) (e) of the statutes is amended to read:

196.491 (2) (e) Any state agency, as defined in s. 16.375 (1), county, municipality, town or person may submit written comments on any plan to the commission on a strategic energy assessment within 180 90 days after the plan is filed copies of the draft are issued under par. (b).

204,58 Section 58 . 196.491 (2) (f) of the statutes is amended to read:

196.491 (2) (f) Because the planning process for facilities siting otherwise incorporates consideration and analysis of environmental impact, s. Section 1.11 (2) (c) shall not apply to advance plans a strategic energy assessment prepared under par. (a) but the commission shall prepare a single environmental assessment on all plans submitted for approval under par. (a) the strategic energy assessment, which shall include a discussion of generic issues related thereto. Such and environmental impacts. The commission shall make the environmental assessment shall be made available to the public at least 30 days prior to the hearing under par. (g). The assessment on the plans is different from an environmental impact statement on a particular facility in that it need not identify the environmental effects of proposed sites for facilities in the plan with the same degree of detail as is required when a particular facility is considered for a certificate of public convenience and necessity under sub. (3). The assessment need not repeat information included in an assessment prepared for a plan submitted under par. (a) on a prior reporting date and with respect to which no material additional data is required or as to which there has been no material change in circumstances. Applicable portions of such assessment may be included by reference in any environmental impact statement prepared by the commission, including a statement prepared in connection with the consideration of an application for a certificate of public convenience and necessity under sub. (3).

204,59 Section 59 . 196.491 (2) (g) of the statutes, as affected by 1997 Wisconsin Act 35, is amended to read:

196.491 (2) (g) Within 180 No sooner than 30 and no later than 90 days after the plan is filed copies of the draft are issued under par. (b), the commission shall hold a hearing thereon 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 proposed in the plan to be constructed in the following 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 plan 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 plan. The presentation of such views need not be under oath nor subject to cross-examination. The commission shall advise all persons present of their right to express their views orally or in writing, under oath or otherwise, and of the legal effect of each such form of testimony strategic energy assessment. A record of unsworn testimony the hearing shall be made and considered by the commission as comments on the plan strategic energy assessment under par. (e). Persons presenting such views shall not be parties. The utility, any state agency, county, municipality, town, or any person whose substantial rights may be adversely affected by the testing for or construction of facilities described in an advance plan, shall, upon filing written notice setting forth its interest at least 10 days in advance, be afforded all the rights of a party in a contested case.

204,60 Section 60 . 196.491 (2) (gm) of the statutes is created to read:

196.491 (2) (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).

204,61 Section 61 . 196.491 (2) (i) to (m) of the statutes are repealed.

204,62 Section 62 . 196.491 (2m) (title) of the statutes is repealed.

204,63 Section 63 . 196.491 (2m) of the statutes is renumbered 196.491 (3) (a) 3. a. and amended to read:

196.491 (3) (a) 3. a. At least 120 days prior to the filing of an application for a certificate of public convenience and necessity under sub. (3) for a bulk or large electric generating facility, the applicant shall notify the department and the commission of its intention to make such application and 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 thereof having of the facility that have a significant air, water or solid waste pollution potential, and a description of the anticipated effects of such the facility on air and water quality. Within 60 30 days thereafter after a person provides an engineering plan, the department shall provide the applicant 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. The department shall, in consultation with the commission, also designate which permits and approvals, or portions thereof, must be obtained prior to the issuance of the certificate of public convenience and necessity. Such designation shall be based on a finding by the department that the granting or denial of the same could significantly affect overall facility design or location. At any time prior to the issuance of the certificate of public convenience and necessity, the department may, in consultation with the commission, waive the necessity of obtaining any such permit or approval in advance of such certificate.

204,64 Section 64 . 196.491 (3) (a) of the statutes is renumbered 196.491 (3) (a) 1. and amended to read:

196.491 (3) (a) 1. No person may commence the construction of a facility unless such 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 18 months prior to the commencement of construction of a bulk electric generating facility, and not less than 6 months prior to the commencement of construction of a large electric generating facility or a high-voltage transmission line. 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 applicant shall apply for any permits or approvals required by the department prior to the issuance of a certificate of public convenience and necessity within 20 days after the application to the commission. An applicant shall make a preliminary application for all other permits and approvals specified under sub. (2m). Such preliminary application shall be sufficient if it identifies the permits and approvals applied for and contains so much of the information required for each such permit or approval as is then available to the applicant. Thereafter the applicant shall supply necessary additional engineering and design information as it becomes available.

204,65 Section 65 . 196.491 (3) (a) 2. of the statutes is created to read:

196.491 (3) (a) 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, the application shall be considered to be complete.

204,66 Section 66 . 196.491 (3) (a) 3. b. of the statutes is created to read:

196.491 (3) (a) 3. b. 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.

204,67 Section 67 . 196.491 (3) (b) of the statutes is amended to read:

196.491 (3) (b) The commission shall hold a public hearing on the 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.

204,68 Section 68 . 196.491 (3) (d) (intro.) of the statutes is amended to read:

196.491 (3) (d) (intro.) Except as provided under par. (e) and s. 196.493, the commission shall approve an application for a certificate of public convenience and necessity shall be approved only if the commission determines that all of the following:

204,69 Section 69 . 196.491 (3) (d) 1. of the statutes is repealed.

204,70 Section 70 . 196.491 (3) (d) 2. of the statutes is amended to read:

196.491 (3) (d) 2. The proposed facility is necessary to satisfy satisfies the reasonable needs of the public for an adequate supply of electric energy. This subdivision does not apply to a wholesale merchant plant.

204,71 Section 71 . 196.491 (3) (d) 3. of the statutes is amended to read:

196.491 (3) (d) 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.

204,72 Section 72 . 196.491 (3) (d) 7. of the statutes is created to read:

196.491 (3) (d) 7. The proposed facility will not have a material adverse impact on competition in the relevant wholesale electric service market.

204,72m Section 72m. 196.491 (3) (dm) of the statutes is created to read:

196.491 (3) (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).

204,73 Section 73 . 196.491 (3) (e) of the statutes is amended to read:

196.491 (3) (e) 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 designated under sub. (2m) as necessary prior to the issuance of the certificate of public convenience and necessity identified in the listing specified in par. (a) 3. a. that are required prior to construction.

204,74 Section 74 . 196.491 (3) (f) and (ff) of the statutes are repealed.

204,75 Section 75 . 196.491 (3) (g) (intro.) and 1. of the statutes are consolidated, renumbered 196.491 (3) (g) 1. and amended to read:

196.491 (3) (g) 1. The commission shall take final action on the an application within : 1. 180 days after the application under this subsection for large electric generating facilities or high-voltage transmission lines 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.

204,76 Section 76 . 196.491 (3) (g) 1m. of the statutes is created to read:

196.491 (3) (g) 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.

204,77 Section 77 . 196.491 (3) (g) 2. of the statutes is repealed.

204,78 Section 78 . 196.491 (3) (hm) of the statutes is repealed:

204,79 Section 79 . 196.491 (3) (j) of the statutes is amended to read:

196.491 (3) (j) Any person whose substantial rights may be adversely affected or any county, municipality or town having jurisdiction over land affected by an advance plan or a certificate of public convenience and necessity may petition for judicial review, under ch. 227, of any decision of the commission regarding the advance plan or the certificate.

204,80 Section 80 . 196.491 (3) (k) of the statutes is amended to read:

196.491 (3) (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 electric utility 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 facility high-voltage transmission line by the commission.

204,81 Section 81 . 196.491 (3m) of the statutes is created to read:

196.491 (3m) Wholesale merchant plants. (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:

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).

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.

(b) Duty to promulgate rules. 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:

a. Describe the showing that an applicant is required to make for the commission to grant an approval under par. (a).

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%.

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.

c. Allow an interested person to request a hearing on an application under s. 227.42.

2. The analytical process specified in subd. 1. b. shall, to the extent practicable, be consistent with the analytical process described in the enforcement policy of the federal department of justice and the federal trade commission regarding horizontal acquisitions and mergers that are subject to 15 USC 1, 18 or 45.

3. The commission shall use the following factors in determining whether to make a finding under par. (a) 2.:

a. The degree of market concentration resulting from the affiliated interest's proposed ownership, operation or control.

b. The extent of control that the affiliated interest proposes to exercise over the wholesale merchant plant.

d. Any other factor that the commission determines is necessary to determine whether to make a finding under par. (a) 2.

(c) Sales by affiliated interests. 1. In this paragraph:

a. “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.

b. “Firm sale" means an electric sale in which electricity is intended to be available to a purchaser at all times during a specified period on an uninterruptible basis.

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:

a. Disallow the public utility's costs related to the sale in a rate-setting proceeding.

b. Order the public utility to provide a refund, in an amount determined by the commission, to its customers.

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.

3. An affiliated interest may not make any firm sale to a public utility with which the affiliated interest is affiliated if the firm sale satisfies any of the following:

a. The period of the firm sale is 3 years or more.

b. The period of the firm sale is less than 3 years and either the public utility or the affiliated interest has an option to extend the period to 3 years or more.