196.49(4)
(4) The commission may not issue a certificate under
sub. (1),
(2), or
(3) for the construction of electric generating equipment and associated facilities unless the commission determines that brownfields, as defined in
s. 560.13 (1) (a), are used to the extent practicable.
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 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(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 Cross-reference
Cross Reference: See also chs.
PSC 112,
113,
114, and
162, 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).
196.491
196.491
Strategic energy assessment; electric generating facilities and transmission lines. 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)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)(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. 66.0309 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. 560.9810 (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. 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 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 if the facility is a large electric generating facility or a detailed project plan if the facility is a high-voltage transmission line. The engineering or project 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 or project 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 or project 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 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.
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 an application filed under
par. (a) 1. 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 under this subsection 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)
(g) The commission shall take final action on an application filed under
par. (a) 1. 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)(gm)
(gm) The commission may not approve an application filed after October 29, 1999, under this subsection for a certificate of public convenience and necessity for a high-voltage transmission line that is designed for operation at a nominal voltage of 345 kilovolts or more unless the approval includes the condition that the applicant shall pay the fees specified in
sub. (3g) (a). If the commission has approved an application under this subsection for a certificate of public convenience and necessity for a high-voltage transmission line that is designed for operation at a nominal voltage of 345 kilovolts or more that was filed after April 1, 1999, and before October 29, 1999, the commission shall require the applicant to pay the fees specified in
sub. (3g) (a). For any application subject to this paragraph, the commission shall determine the cost of the high-voltage transmission line, identify the counties, towns, villages and cities through which the high-voltage transmission line is routed and allocate the amount of investment associated with the high-voltage transmission line to each such county, town, village and city.
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 for which an application is filed under
par. (a) 1. 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(3b)(a)(a) A person who proposes to construct a high-voltage transmission line may apply for a certificate under this subsection if the construction is limited to adding conductors to existing transmission poles or towers and if all related construction activity takes place entirely within the area of an existing electric transmission line right-of-way.
