196.49(3)(a)(a) 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.
196.49(3)(b)
(b) 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:
196.49(3)(b)1.
1. Substantially impair the efficiency of the service of the public utility.
196.49(3)(b)2.
2. Provide facilities unreasonably in excess of the probable future requirements.
196.49(3)(b)3.
3. 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.
196.49(3)(c)
(c) 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.
196.49(3)(d)
(d) A telecommunications utility is not required to obtain commission certification before beginning a construction project.
196.49(5)(a)(a) 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.
196.49(5)(b)
(b) 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.
196.49(5)(c)
(c) 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.
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 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.
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(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 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.
196.49 Annotation
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.
196.49 Annotation
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).
196.491
196.491
Advance planning of electric generating facilities and transmission lines. 196.491(1)(a)
(a) "Bulk electric generating facility" means electric generating equipment and associated facilities designed for nominal operation at a capacity of 300,000 kilowatts or more.
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)(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 organized under
ch. 185 for the purpose of generating, distributing or furnishing electric energy at retail or wholesale to its members only, which owns or operates, or plans within the next 10 years to construct, own or operate, bulk electric generating facilities, large electric generating facilities or high-voltage transmission lines in the state.
196.491(1)(e)
(e) "Facility" means a bulk electric generating facility, 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 between 12,000 and 300,000 kilowatts.
196.491(2)(a)(a) On or before July 1 of each even-numbered year, or such other biennial period as the commission may approve, each electric utility shall file its plan with the commission and with those persons or agencies listed in
par. (b). Such plans may be appropriate portions of a single regional plan or may be prepared jointly by 2 or more utilities, and shall:
196.491(2)(a)1.
1. Describe the general location, size and type of facilities which are expected to be owned or operated in whole or in part by such utility and the construction of which is expected to commence during the ensuing 10 years, or such longer period as the commission deems necessary, and shall identify all existing facilities intended to be removed from service during such period or upon completion of such construction;
196.491(2)(a)2.
2. Identify practical alternates to the general location, fuel type and method of generation of the proposed electric generating facilities, and set forth in detail the reasons for selecting the proposed general location, fuel type and method of generation;
196.491(2)(a)3.
3. Identify the location of proposed and alternative specific sites for all bulk electric generating facilities and all large electric generating facilities over 200,000 kilowatts for which a certificate of public convenience and necessity has not been applied for under
sub. (3) but the commencement of whose construction is planned within 3 years, or such longer period as the commission deems necessary and indicate the impacts of the proposed and alternative generating facilities on the environment and the means by which potential adverse effects on such values will be avoided or minimized;
196.491(2)(a)3m.
3m. Identify the location of tentative and alternative routes for high-voltage transmission lines on which construction is intended to be commenced in the succeeding 18 months and indicate the effects of such transmission lines on the environment and the means by which potential adverse effects will be avoided or minimized;
196.491(2)(a)4.
4. Indicate in detail the projected demand for electric energy and the basis for determining the projected demand;
196.491(2)(a)5.
5. Describe the utility's relationship to other utilities and regional associations, power pools and networks;
196.491(2)(a)6.
6. Identify and describe all major research projects and programs which will continue or commence in the succeeding 3 years and set forth the reasons for selecting specific areas for research;
196.491(2)(a)7.
7. Identify and describe existing and planned programs and policies to discourage inefficient and excessive power use; and
196.491(2)(a)8.
8. Provide any other information required by the commission.
196.491(2)(am)
(am) No local ordinance may prohibit or restrict testing activities undertaken by a 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.
196.491(2)(b)
(b) A copy of each advance plan shall, at the time it is filed with the commission, also be filed with 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 plan includes 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)(c)
(c) Those agencies receiving copies under
par. (b) shall review the plans and submit their comments to the commission within 180 days after their receipt of the plans. Comments shall include:
196.491(2)(c)1.
1. A description of any statutory permits or approvals required by the agency.
196.491(2)(c)2.
2. A description of the types and forms of information required for adequate review of an application for each permit or approval.
196.491(2)(c)3.
3. A detailed discussion as to the areas in which the plans coordinate with the agency's plans, policies, functions and programs and the areas in which the plans conflict and the significance of such conflicts.
196.491(2)(c)4.
4. To the extent practicable and consistent with its program responsibilities, a discussion of the environmental impacts of the plan.
196.491(2)(d)
(d) The commission shall, within 10 days after the plan is filed, send a copy of such plan, or the applicable portion thereof, to the county planner, or, if none exists, to the county clerk of each county affected by the plan, to the main public library of each such county, and to any other county planner, county clerk or public library which requests copies of such plans or portions of plans. The commission shall send a copy of the applicable portion of the plan to the clerk of each municipality and town in which a bulk or large electric generating facility is proposed to be located, and shall notify each public library in such municipality or town that copies of the plan are available upon request.
196.491(2)(e)
(e) Any county, municipality, town or person may submit written comments on any plan to the commission within 180 days after the plan is filed.
196.491(2)(f)
(f) Because the planning process for facilities siting otherwise incorporates consideration and analysis of environmental impact,
s. 1.11 (2) (c) shall not apply to advance plans prepared under
par. (a) but the commission shall prepare a single environmental assessment on all plans submitted for approval under
par. (a), which shall include a discussion of generic issues related thereto. Such 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).
196.491(2)(g)
(g) Within 180 days after the plan is filed, the commission shall hold a hearing thereon. 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 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 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. A written record of unsworn testimony shall be made and considered by the commission as comments on the plan 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.
196.491(2)(i)
(i) Except as provided under
s. 196.493, a plan shall be approved if, upon the record of the hearing and the written comments submitted under
pars. (c) and
(e), the commission determines that the plan meets all of the following conditions:
196.491(2)(i)1.
1. Will provide for a reasonably adequate supply of electrical energy to meet the needs of the public during the planning period.
196.491(2)(i)2.
2. Is in the public interest when considering engineering, economic, health, safety, reliability, efficiency and environmental factors and alternate methods of generation or sources of supply.
196.491(2)(i)3.
3. Is reasonably coordinated with long-range plans and policies of other agencies or that a reasonable effort has been made to coordinate with such plans and policies.
196.491(2)(i)4.
4. Provides for programs which discourage inefficient and excessive power use.
196.491(2)(j)
(j) If any portion of the plan does not meet the criteria under
par. (i), the commission shall disapprove the plan or portion thereof, or approve them, subject to such modifications as may be necessary to meet those criteria.
196.491(2)(jm)
(jm) The commission shall either approve or disapprove each plan within 18 months after it is filed.
196.491(2)(k)
(k) Any portion of the plan that is not approved, may be resubmitted by the utility after entry of the order of disapproval, and, if resubmitted, shall be reviewed under this section in the same manner as a new advance plan, except that the commission may reduce the time for comments thereon to not less than 30 days.
196.491(2)(km)
(km) A utility may file an amendment to a previously approved plan with the commission at any time. The commission may grant review and approval under
pars. (b) to
(L), and may reduce the time for comments thereon to not less than 30 days.
196.491(2)(L)
(L) Once a plan has been approved, the commission may limit the scope of the issues before it upon review of a subsequent plan to those directly related to material changes.
196.491(2)(m)
(m) Any major contract relating to a facility for which a certificate of public convenience and necessity has not been applied for under
sub. (3), other than a contract relating to acquisition of real property, shall be reported in writing to the commission, indicating the general nature and amount of that commitment, within 30 days after it has been entered into.
196.491(2m)
(2m) Applicant to furnish engineering plan to department. 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 provide the department with an engineering plan showing the location of the facility, a description of the facility, including the major components thereof having a significant air, water or solid waste pollution potential, and a description of the anticipated effects of such facility on air and water quality. Within 60 days thereafter, the department shall provide the applicant 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.
196.491(3)
(3) Certificate of public convenience and necessity. 196.491(3)(a)(a) No person may commence the construction of a facility unless such 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.
196.491(3)(b)
(b) The commission shall hold a public hearing on the application 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
s. 196.493, the application for a certificate of public convenience and necessity shall be approved if the commission determines that:
196.491(3)(d)1.
1. The proposed facility is in substantial compliance with the most recent advance plan filed under
sub. (2) and approved by the commission under
sub. (2) (i), except the commission may waive the requirement of this subdivision for large electric generating facilities or high-voltage transmission lines if it finds that the need for the facilities or lines could not have been reasonably foreseen by the utility at the time of the filing of its most recent advance plan approved by the commission.
196.491(3)(d)2.
2. The proposed facility is necessary to satisfy the reasonable needs of the public for an adequate supply of electric energy.
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. 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)(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 designated under
sub. (2m) as necessary prior to the issuance of the certificate of public convenience and necessity.
196.491(3)(f)
(f) The department shall complete action on all necessary permits and approvals required before issuance of a certificate of public convenience and necessity within:
196.491(3)(f)1.
1. 150 days after application under this subsection for large electric generating facilities or high-voltage transmission lines.
196.491(3)(f)2.
2. 480 days after application under this subsection for bulk electric generating stations.
196.491(3)(ff)
(ff) The department shall complete action on each permit and approval for which preliminary application has been made under
par. (a) within 90 days after the applicant has supplied all information required by the rules of the department.
