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)
(w) "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:
196.491(1)(w)1.
1. Subject to the approval of the commission under
sub. (3m) (a), an affiliated interest of a public utility.
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)7.
7. 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.
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. 16.375 (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).
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(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. 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.
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, the application shall be considered to be complete.
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 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.
196.491(3)(a)3.b.
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.
196.491(3)(b)
(b) 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.
196.491(3)(d)
(d) 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:
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)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.
196.491(3)(d)6.
6. The proposed facility will not unreasonably interfere with the orderly land use and development plans for the area involved.
196.491(3)(d)7.
7. The proposed facility will not have a material adverse impact on competition in the relevant wholesale electric service market.
196.491(3)(dm)
(dm) In making a determination required under
par. (d), the commission may not consider a factual conclusion in a strategic energy assessment unless the conclusion is independently corroborated in the hearing under
par. (b).
196.491(3)(e)
(e) If 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.
196.491(3)(g)1.1. 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.
196.491(3)(g)1m.
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.
196.491(3)(h)
(h) The commission may waive compliance with any requirement of this section to the extent necessary to restore service which has been substantially interrupted by a natural catastrophe, accident, sabotage or act of God.
196.491(3)(i)
(i) If installation or utilization of a facility for which a certificate of convenience and necessity has been granted is precluded or inhibited by a local ordinance, the installation and utilization of the facility may nevertheless proceed.
196.491(3)(j)
(j) Any person whose substantial rights may be adversely affected or any county, municipality or town having jurisdiction over land affected by a certificate of public convenience and necessity may petition for judicial review, under
ch. 227, of any decision of the commission regarding the certificate.
196.491(3)(k)
(k) No person may purchase, or acquire an option to purchase, any interest in real property knowing that such property is being purchased to be used for the construction of a high-voltage transmission line unless the person gives written notice to the prospective seller of the size, maximum voltage and structure type of any transmission line planned to be constructed thereon and the person by whom it will be operated. Contracts made in violation of this paragraph are subject to rescission by the seller at any time prior to the issuance of a certificate of public convenience and necessity for the high-voltage transmission line by the commission.
196.491(3m)(a)(a)
Commission approval required. Except as provided in
par. (e), an affiliated interest of a public utility may not own, control or operate a wholesale merchant plant without the approval of the commission. The commission shall grant its approval only if each of the following is satisfied:
196.491(3m)(a)1.
1. The public utility has transferred control over its transmission facilities, as defined in
s. 196.485 (1) (h), to an independent system operator, as defined in
s. 196.485 (1) (d), that is approved by the federal energy regulatory commission or the public utility has divested its interest in the transmission facilities to an independent transmission owner, as defined in
s. 196.485 (1) (dm).
196.491(3m)(a)2.
2. The commission finds that the ownership, control or operation will not have a substantial anticompetitive effect on electricity markets for any classes of customers.
196.491(3m)(b)1.1. The commission shall promulgate rules that establish requirements and procedures for an affiliated interest to apply for an approval under
par. (a). The rules shall do each of the following:
196.491(3m)(b)1.a.
a. Describe the showing that an applicant is required to make for the commission to grant an approval under
par. (a).
196.491(3m)(b)1.am.
am. Establish screening tests and safe harbors for proposed wholesale merchant plant projects, including projects in which an affiliated interest is a passive investor and over which the affiliated interest is not able to exercise control or influence and projects in which an affiliated interest's ownership interest is less than 5%.
196.491(3m)(b)1.b.
b. Describe the analytical process that the commission shall use in determining whether to make a finding under
par. (a) 2. and describe the factors specified in
subd. 3.
196.491(3m)(b)2.
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.
196.491(3m)(b)3.
3. The commission shall use the following factors in determining whether to make a finding under
par. (a) 2.:
196.491(3m)(b)3.a.
a. The degree of market concentration resulting from the affiliated interest's proposed ownership, operation or control.
196.491(3m)(b)3.b.
b. The extent of control that the affiliated interest proposes to exercise over the wholesale merchant plant.
196.491(3m)(b)3.d.
d. Any other factor that the commission determines is necessary to determine whether to make a finding under
par. (a) 2.
196.491(3m)(c)1.a.
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.
196.491(3m)(c)1.b.
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.
196.491(3m)(c)2.
2. The commission shall review any electric sale by an affiliated interest to a public utility with which the affiliated interest is affiliated. If the commission finds that an electric sale is not in the public interest, the commission shall do any of the following:
196.491(3m)(c)2.a.
a. Disallow the public utility's costs related to the sale in a rate-setting proceeding.
196.491(3m)(c)2.b.
b. Order the public utility to provide a refund, in an amount determined by the commission, to its customers.
196.491(3m)(c)2.c.
c. Order the public utility or affiliated interest to take any action that the commission determines is in the public interest, except that the commission may not order the public utility or affiliated interest to void the sale.
196.491(3m)(c)3.
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:
196.491(3m)(c)3.b.
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.
196.491(3m)(d)
(d)
Retail sales outside this state. The commission may not promulgate rules or issue orders that prohibit owners or operators of wholesale merchant plants from providing electric service to retail customers in another state.
196.491(3m)(e)
(e)
Exemption. An approval under
par. (a) is not required for an affiliated interest to own, operate or control a wholesale merchant plant in Grant County if the affiliated interest owned, operated or controlled the wholesale merchant plant before January 1, 1998.
196.491(4)(b)(b) Subsection (3) does not apply to a person that constructs electric generating equipment and associated facilities if the person satisfies each of the following:
