Obama Administration Releases National Ocean Policy Implementation Plan

Almost three years ago, I reported that  the White House Council on Environmental Quality had issued the Final Recommendations of the Interagency Ocean Policy Task Force.  Since that time, the Nation Ocean Council, formed by President Obama in Executive Order 13547, has been working diligently to prepare an agency roadmap to put the new National Ocean Policy into action.

On April 16, 2013, the National Ocean Council did just that when it published the National Ocean Policy Implementation Plan (the "Implementation Plan").  The Implementation Plan represents a significant step forward for the National Ocean Policy, and marine industries should be aware that the new interagency processes and actions it mandates – while not new law – may result in additional hurdles despite its express intent to streamline regulatory processes.  For a more detailed summary of the Implementation Plan, take a look at the Ocean Law Alert we published earlier this week and feel free to contact us with any questions you may have.

Army Holds Pre-Proposal Conference in Huntsville on Renewable Energy Procurement

On August 22, 2012, the U.S. Army Engineering & Support Center in Huntsville, AL held a pre-proposal conference to discuss the final multi-award task order contract that was issued on August 7, 2012 (the “Final RFP” or “MATOC”).  My colleague, Lane Tucker, and I attended to hear the Army’s presentations and to engage directly with renewable energy developers, consultants, seasoned government contractors, large energy service contractors (ESCOs), and others. The conference provided attendees a great opportunity to explore the field of potential contractors and subcontractors and start (or continue) conversations about potential teaming arrangements that could result in both a MATOC award and one or more base task order awards. 

For those who could not attend, fear not; all of the presentation materials will soon be available on the Army EITF website and the Huntsville team will post all of the questions presented, along with the Army’s formal responses, to the ProjNet website. Also important is that Tonju Butler, the Procuring Contracting Officer, indicated that the deadline for questions on the Final RFP would be extended from today until September 7, 2012, so that individuals and teams can have additional time to formulate and posit questions that may be important to their proposals.  However, that change has not yet been posted to the FedBizOpps website as an amendment.  It is too early to tell whether this extension foreshadows an extension of the October 5, 2012 proposal deadline. Right now, the Army is holding firm to that date, so individuals and teams that intend to respond should plan accordingly. Keep an eye out for other amendments to the Final RFP, too. Conference attendees were assured that more would be forthcoming to clarify small technical issues and, hopefully, to flush out the structure for proposing prices. All amendments will be posted to the FedBizOpps website for the MATOC.

Here are a few takeaways and a short discussion about some important issues. Be sure to check the Q&A on the ProjNet website for any official responses from the Army on these topics. 

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OPT Receives 35-Year FERC License for Wave Energy Project in Oregon

On August 13, 2012, Ocean Power Technologies ("OPT"), received some fantastic news when the Federal Energy Regulatory Commission ("FERC" or "the Commission") issued a first-of-its-kind, 35-year license to construct and operate a wave energy project off the coast of Oregon to its subsidiary, OPT Reedsport Wave Park, LLC.  Stoel Rives attorneys are pleased with the FERC order, having worked with OPT to negotiate and draft a comprehensive settlement agreement between the company and 14 state and federal agencies and other stakeholder groups, and to navigate the state and federal permitting and licensing processes. 

Once constructed, the project will have a total installed capacity of 1.5 MW and will consist of ten 150 kW PowerBuoys.  The project will be located approximately 2.5 miles off the coast of Reedsport, in Douglas County, Oregon and will be constructed in two phases.  In Phase 1, a single PowerBuoy will be installed to test the mooring system and device operation and to collect measurements of electromagnetic fields and acoustic emissions.  Phase 2 will be implemented after at least one season of monitoring the single device, at which point the remaining nine PowerBuoys will be installed.  

This is a landmark decision by FERC.  While it has recently issued shorter-term pilot project licenses for tidal energy devices, this is the first 35-year license that the Commission has issued for a marine hydrokinetic energy project of any kind.  Our congratulations to OPT!

For more information, you can access FERC's order here.  You can also view related information through the Commission's eLibrary by searching for Docket No. P-12713.

BOEM and FERC Revise Guidelines for Wave and Ocean Current Technologies on the OCS

Today, at the HydroVision International conference in Louisville, Kentucky, the Bureau of Ocean Energy Management ("BOEM") and the Federal Energy Regulatory Commission ("FERC") announced the publication of revised guidelines for potential marine and hydrokinetic ("MHK") developers interested in pursuing technology testing and commercial project development on the outer continental shelf (the "OCS").  The revised guidelines, organized in a question-and-answer format, were published "in order to clarify the jurisdictional responsibilities" of MHK developers on the OCS consistent with the Memorandum of Understanding ("MOU") signed between FERC and BOEM's predecessor, the Minerals Management Service, on April 9, 2009.  That MOU set out the original agreement between the agencies over a jurisdictional overlap between FERC's authority to license non-federal hydropower projects under the Federal Power Act and BOEM's authority to issue leases on the OCS. 

DOE Concludes 1603 a Big Job Creator

A surprise to no one involved in renewable energy, the DOE (via NREL) has just issued a report concluding 1603 created tens of thousands of new jobs.

See the report at http://www.nrel.gov/docs/fy12osti/52739.pdf

 

Gov. Kitzhaber Names Margi Hoffman as Oregon's Energy Policy Advisor

Oregon Governor John Kitzhaber announced today that he has named Margi Hoffman to serve as his Energy Policy Advisor.  She will join the Governor's office on April 2.

Ms. Hoffman has served as Senior Vice President and Director of Oregon Operations with Strategies360, a strategic consulting firm, and has also worked closely with Renewable Northwest Project (RNP) .  The news release from the Governor's office can be found here.

Congratulations, Margi!

New DOE Resource Assessments Nudge Wave and Tidal Energy Forward

The U.S. Department of Energy (“DOE”) recently released two new nationwide resource assessments for wave and tidal energy projects in the U.S. The reports, funded by the DOE and prepared by the Electric Power Research Institute ("EPRI") and the Georgia Tech Research Corporation, present the most rigorous and comprehensive analysis to date on the magnitude of the resources available for electricity generation and where those resources are located.

Wave Energy: The wave energy report, “Mapping and Assessment of the United States Ocean Wave Energy Resource” states (as most expected) that the best resources are on the West Coast, including Alaska and Hawai’i. EPRI calculated the resource’s potential to be 400 gigawatts nationally.

Tidal Energy: The tidal energy report, “Assessment of Energy Production Potential from Tidal Streams in the United States” follows on the heels of the DOE’s release of its interactive national tidal resource database in July 2011. For more on the database and relevant links, see my blog on the topic.

Ocean Current, Ocean Thermal Gradients, and New Hydropower: In addition to these two new reports, the DOE anticipates releasing additional resource assessments for developers of ocean current, ocean thermal gradient, and new hydropower projects.

Based on our experience assisting clients to develop wave, current, and tidal energy projects across the country, we are encouraged by both the results of the resource assessments and the DOE's encouraging perspective on the role that new hydropower and hydrokinetic projects should have in expanding the nation's renewable energy resource mix.

For detailed information on all aspects of marine and hydrokinetic project development, download a PDF of our recently updated Law of Marine and Hydrokinetic Energy.

Verdant Power Receives First FERC Pilot Project License

Today, the Federal Energy Regulatory Commission ("FERC") issued its first pilot project license for a tidal energy project to Verdant Power, LLC for its Roosevelt Island Tidal Energy ("RITE") Project in New York's East River (pictured at right).  As a first-of-its-kind license, this is a significant step for the burgeoning tidal energy industry in the United States.

According to the license, the project will be construted in three phases over a five year period.  When complete, the project will consist of thirty 35-kW, 5-meter-diameter axial flow Kinetic Hydropower System ("KHPS") turbines with a total installed nameplate capacity of 1.05 MW.  Verdant must begin construction on Phase 1 within the next two years and must complete Phase 3 within six years.  The license was issued for the full 10 years requested in Verdant's license application.

Although the levelized cost of energy for the RITE project is high relative to other energy sources, the Commission stated clearly that "[t]his project's value . . . lies in its successful testing and demonstration of Verdant's KHPS turbine technology, and the project's ability to raise the profile of, and advance, the emergent tidal energy industry." 

The license can be found on FERC's website under Docket No. P-12611-005.

For more detailed information on the FERC pilot project licensing process, see Chapter 3 of our recently updated Law of Marine and Hydrokinetic Energy.

What's Happening in Small Hydro and Hydrokinetics?

Some very noteworthy things have happened this month in the world(s) of small hydro and hydrokinetics in the United States. Here’s a quick summary:

1.         U.S. Departments of Energy and the Interior Award ~$17 Million for Advanced Hydropower R&D. On September 6, 2011, Secretaries Chu and Salazar announced that the two agencies will provide nearly $17 million in funding over three years for research and development projects to advance hydropower technology. The money was awarded to 16 projects in 11 states through a competitive grant process first announced at the National Hydropower Association conference in April 2011. Congratulations to the winners:

 

·         Sustainable Small Hydro Projects: Earth by Design, Hydro Green Energy (2 awards), Percheron Power, Sacramento Municipal Utility District, Near Space Systems, Natel Energy, New Mexico State University, Walker Wellington, and Weisenberger Mills.

 

·         Sustainable Pumped Storage Hydropower: Sacramento Municipal Utility District, Argonne National Laboratory.

 

·         Environmental Mitigation Technologies for Conventional Hydropower: Electric Power Research Institute (EPRI), Pacific Northwest National Laboratory, Regents of the University of Minnesota.

 

·         System Testing at Bureau of Reclamation Facility: Natel Energy.

 

For more on the announcement and the categories considered under the Funding Opportunity Announcement (DE-FOA-0000486), see my blog covering the announcement from April 2011. 

 

2.         FERC Approves First Small Hydro Project Under MOU with Colorado. In August of 2010, the Federal Energy Regulatory Commission (“FERC”) and the State of Colorado signed a Memorandum of Understanding (“MOU”) which has finally borne fruit. On September 14, 2011, FERC granted a license exemption for the 23 kW Meeker Wenschhof hydroelectric project (FERC Docket No. P-14230), to be located on an existing irrigation pipeline near the town of Meeker in Rio Blanco County. This is the first project approved by FERC under the new simplified procedures adopted under the MOU. The approval took a mere 2 months. The announcement can be found here. For FERC’s press release, click here. To read more about the MOU, see my blog from last year which includes a summary and a link to the MOU.

 

3.         The Marine and Hydrokinetic Renewable Energy Promotion Act of 2011 Introduced in the U.S. House of Representatives. On September 21, 2011, Congressman Jay Inslee (D-WA), together with Congressman Ted Deutch (D-FL) and Congressman Don Young (R-AK), introduced H.R. 2994, legislation that would boost research grants, loans and tax incentives available for scientists, engineers, and entrepreneurs working to develop and deploy ocean-generated energy in the United States. Mr. Deutch’s district (Florida 19) is home to the Southeast Marine Renewable Energy Center located at Florida Atlantic University. The bill has been referred to the House Science, Space, and Technology Committee as well as the House Energy and Commerce Committee. For the full text of the bill, click here.

Section 1603 Cash Grants for Renewable Energy Projects TeleBriefing

With the end of 2011 drawing near, many renewable energy developers are seeking to qualify their projects for the Section 1603 cash grant.  Developers continue to try to understand the complexities surrounding the grant requirements, especially the determination of when projects are considered to have met the “beginning construction” requirement.

On August 24, I'll moderate a Law Seminars International (LSI) Telebriefing on Section 1603, featuring Stoel Rives partner Greg Jenner and  Victoria McDowell, the Compliance Program Manager, Section 1603 Program, U.S. Department of the Treasury. 

The TeleBriefing will take place from 10 AM – 11 AM Pacific Time/ 1 PM -- 2 PM Eastern Time.  During the briefing, attendees will learn how to meet the “beginning construction” test and receive clarification from the Treasury Department on project requirements.  We'll also discuss the fate of projects that fail to qualify for the cash grant.

 

Registration is available online through Law Seminars International.

 

Puget Sound Energy Files for WUTC Review of "All-Source" RFP

Puget Sound Energy (PSE) has filed with the Washington Utilities and Transportation Commission (WUTC) a Request for Proposals for All Generation Sources (the all-source RFP) and a Request for Proposals for Electric and Demand Side Resources (energy-efficiency RFP). PSE filed the draft all source RFP on August 1, 2011 and plans to issue a separate energy efficiency RFP later.  

Under the all source RFP, PSE is seeking proposals for energy generation resources as capacity generation resources, as well as transmission products from BPA’s system to PSE's system. PSE is willing to consider both existing generation resources and resources that are under development but expected to achieve commercial operation no later than December 2015. According to PSE, a revised assessment of its portfolio needs and peak customer power requirements demonstrates a need for approximately 500 MW of capacity by the end of 2012.  PSE would be willing to consider various commercial arrangements under the RFP, including power purchase agreements, temporal exchange agreements, ownership arrangements (e.g., a transfer of development assets, a build-transfer arrangement, or sale of an existing asset), as well as transmission-only products from BPA’s system.

 

PSE will be hosting an RFP Proposal Conference on August 16, 2011, in Bellevue, Washington, to discuss the all-source RFP. To register for the conference, email janice.brown@pse.com. Public comments on the draft RFP are due on September 2, 2011, and PSE expects to receive WUTC approval by September 28. If the schedule holds, PSE plans to issue the final RFP solicitation on October 5, 2011.  PSE expects to select a final short list and notify respondents in 1Q 2012.

PSE’s web page for the RFP (including its proposed schedule and the draft RFP itself) can be found here.

PNWER Annual Summit Hosts First Ocean Energy Panel and Moderated Forum

Last week, the Pacific Northwest Economic Region (“PNWER”) Annual Summit here in Portland, Oregon played host to its first-ever ocean energy panel and moderated forum. The four-hour session was organized by Oregon state Representative Deborah “Debbie” Boone (D.- Cannon Beach) and Richard “Rick” Williams of Science Applications International Corporation. The five initial panelists [1] were joined by members of the Alaska and Washington legislature, industry representatives, environmental and project development consultants, and others in a frank discussion about the potential for developing an offshore wave and tidal energy industry in the Pacific Northwest.

The conversation was a good one, with a handful of topics taking up the majority of the air time:

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U.S. Department of Energy Announces Interactive Tidal Energy Resource Map

Today, Mike Reed, the Water Power Team Lead for the U.S. Department of Energy's ("DOE") Wind & Water Power Program, announced a new resource to help developers assess the quality of the tidal energy resource along the coast of the United States.

Called the "Assessment of Energy Production Potential from Tidal Streams in the United States," the online database was developed at Georgia Tech's Center for Geographic Information Systems, in cooperation with (and with the help of grant funding from) the DOE.  The interactive map provides unprecedented visualization, allowing users to zoom and pan over maps of color-coded information on water depth, mean current speed, and the available kinetic power density of tidal streams along the entire coastline.  However, developers should note that the assessment does not include (1) any assumptions about technology or (2) any flow field effects from energy extraction.  In other words, the tidal stream database provides excellent data for initial, "big picture" site assessment, but developers will still need to conduct their own site-specific studies using acoustic doppler current profilers ("ADCPs") and similar technologies to get the micrositing data necessary to optimize device performance.

As of today, the Federal Energy Regulatory Commission ("FERC") has issued 27 preliminary permits for tidal energy projects and 2 additional preliminary permit applications are pending.  In December 2010, Verdant Power submitted a Final License Application to FERC for its Roosevelt Island Tidal Energy ("RITE") project in New York's East River (Docket No. P-12611).  If Verdant's pilot license application is approved, it will be the first FERC-licensed tidal energy project in the United States. 

The image to the right is of Delhaven Wharf in the Bay of Fundy, Nova Scotia, where the ebb and flow of the world's strongest tides leave fishing boats stranded when the tide runs out.

LexisNexis Selects Renewable + Law Blog to its Top 50 Environmental Law Blogs List

Having first reported to our readers in February that LexisNexis had nominated the Stoel Rives Renewable + Law Blog for its Top 50 Environmental Law & Climate Change Blogs for 2011 award, we are pleased to announce we made the list of winners! In publishing its Top 50 list, LexisNexis declared that our Renewable + Law bloggers’ “avowed passion for solar energy, wind energy, biofuels, ocean and hydrokinetic energy, biomass, waste-to-energy, geothermal and other clean technologies is evident in the care they take with this blog-the posts are frequent, the topics are interesting and cutting edge, and the writing is top notch.”

 

Thanks again to all our readers who make regular use of Renewable + Law Blog and those who wrote in to support us for this award. We're honored and inspired, and we plan to keep those Blogs and letters coming.

 

4th Annual Global Marine Renewable Energy Conference

On Friday April 29, Stoel Rives partner Cherise Oram will be presenting on "Accelerating the Decision Making Process for MHK Facilities" at the 4th Annual Global Marine Renewable Energy Conference in Washington, D.C.

This year's conference takes place from April 27 - 29.  Here's a brief summary of what to expect:

  • Wednesday April 27 is Industry Development Day.  Sandia National Laboratories, the  National Renewable Energy Laboratory and the Department of Energy will provide updates on issues facing the industry including marine and hydrokinetic ("MHK") reference models, instrumentation and measurements for MHK devices, and the role of ocean renewables in ocean planning.
  • Thursday April 28 features industry updates from CEOs, and presentations from government officials including Paul O'Brien of Scottish Development International, Michael Bromwich, Director of the Bureau of Ocean Energy Management, Regulation and Enforcement ("BOEMRE"), and John Wellinghoff, Chairman of the Federal Energy Regulatory Commission ("FERC").
  • Friday April 29 will feature reports from MHK test centers that are already up and running, updates on RD&D efforts in the United States and abroad, and presentations from government laboratories on their work to support the advancement of the MHK industry.

The conference will also feature technical posters, exhibits, networking opportunities.  We hope you'll be able to join Stoel Rives attorneys and others at the conference who are working to bring clean renewable ocean power to the grid.

 

COMMISSIONER FLORIO NOTICES ALL-PARTY MEETING CONCERNING 2011 RENEWABLE PORTFOLIO STANDARD PROCUREMENT

 

On February 11, 2011, California Public Utilities Commission (CPUC) Administrative Law Judge Burton Mattson issued a Proposed Decision conditionally accepting the 2011 Renewables Portfolio Standard (RPS) Procurement Plans for Southern California Edison, Pacific Gas and Electric Company, and San Diego Gas and Electric Company.  If adopted, the Decision would set a schedule for the utilities’ 2011 RPS solicitation.  The Decision was on the agenda for the CPUC’s March 24, 2011 business meeting, but was held at Commissioner Florio’s request until the April 14 meeting.

 

On March 17, 2011, Commissioner Florio noticed an all-party meeting on the Proposed Decision for March 25, 2011.  Yesterday, Commission Florio circulated an agenda for the meeting.  Among the issues raised by the agenda is whether an RPS solicitation in 2011 is necessary and prudent.

 

Stoel Rives’ Partner Seth Hilton will be present at the all-party meeting, and will provide an update afterwards. 

Army Corps Proposes New Nationwide Permit for Offshore Wind and Hydrokinetic Pilot Projects

The Army Corps of Engineers (the “Corps”) is seeking comments on a new proposed nationwide permit (“NWP”) for offshore wind and hydrokinetic pilot projects.  In its February 16, 2011 Proposal to Reissue and Modify Nationwide Permits, the Corps described a new NWP for “Water-Based Renewable Energy Pilot Projects” that could give developers a reprieve from obtaining permits under § 10 of the Rivers and Harbors Act and § 404 of the Clean Water Act for the “construction, expansion, or modification of water-based wind or hydrokinetic pilot projects and their attendant features.”  

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BOEMRE Proposes to Streamline Leasing on the OCS

There’s good news for offshore wind and hydrokinetic project developers looking to site projects on the Outer Continental Shelf (“OCS”). The Bureau of Ocean Energy Management, Regulation and Enforcement (“BOEMRE” or the “Bureau”) issued a Notice of Proposed Rulemaking (“NOPR”) on February 16, 2010 to delete a step in the regulatory process for issuing noncompetitive leases to renewable energy projects on the OCS when an applicant responds to a Request for Interest (“RFI”) or a Call for Information and Nomination (“Call”) issued by BOEMRE. 

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New Jersey Adopts Rules for Offshore Wind Energy Approval

In a long-awaited announcement, last week the New Jersey Board of Public Utilities adopted rules to codify the State’s Offshore Wind Economic Development Act. The new rules provide the process for an applicant to submit project information and to propose a pricing method and structure for Offshore Renewable Energy Credits (ORECs) for the Board’s consideration. If approved, each retail provider of electricity in New Jersey will be required to buy Board mandated levels of ORECs in proportion to retail sales.

The application process requires detailed disclosures concerning the proposer’s business information, its collective project experience, and key employees. A proposal must describe the proposed technology, the anticipated schedule for completion, the financial details of the project including a specified cost-benefit analysis, and documentation that the project has applied for all applicable State and federal grants, rebates, tax credits and other incentive programs. In addition, the applicant must describe its anticipated operations and maintenance plan, its decommissioning plan and must provide segregated decommissioning funds. Upon receipt of completion of application, the Board shall approve, conditionally approve, or deny the application within 180 days. Perhaps the most complex aspect of the required application is the cost-benefit analysis. The rules suggest the use of one of four listed input-output models, but will allow applicant to us any model that successfully calculates the economic benefit that the proposed project will bring to the State of New Jersey. The Board will assess the net economic benefit, with a “particular emphasis” on in-state manufacturing employment, as well as the net environmental benefit of the project in terms of anticipated reductions in carbon dioxide and air emissions. The rules also allow the Board to perform its own net benefit analysis, which may result in additional conditions of approval.

Separately, even before the Board issued its rules, Fishermen’s Energy of New Jersey, LLC filed an application for the first phase of its proposed 300MW project offshore Atlantic City.

National Offshore Wind Strategy Announced

On Monday February 7, 2011, the DOE issued an ambitious plan to spur development of offshore wind facilities in federal and state waters off the eastern seaboard. The report identifies the key challenges to widespread development are reducing both the cost and the timeline of project development. It estimates that the current cost of offshore facilities must be cut by more than half from the current installed capital cost of $4,250 per kW in order to achieve the report’s goal of 54 GW of offshore power by 2030.

In an effort to drive this massive effort forward, the DOE offers $50.5 million in grants for the development of tools and hardware in wind turbine factories, market studies and research on electrical infrastructure and funding for research into next-generation wind-turbine drive trains. Perhaps more importantly, the report designates four “Wind Energy Areas” for expedited approval evaluation and possible lease offerings by the end of 2011 or in early 2012. The report promises that this “Smart from the Start” program will accelerate the leasing process by cutting the current approval timeline of 7 to 10 year in half.

Most notably, the National Offshore Wind Strategy presents the eastern United States with tremendous potential to generate significant economic activity through the installation of facilities that will produce clean, renewable energy. The industry will benefit from the program outlined in this report, particularly if it is followed by an extension of tax credits applicable to these types of renewable energy projects.

Click here for the complete National Offshore Wind Strategy: Creating an Offshore Wind Industry in the United States.

Click here for more information on the Smart from the Start Initiative.

Click here for a map of the mid-Atlantic WEA’s.

More information is available at: http://www.boemre.gov/offshore/RenewableEnergy/index.htm andwww.windandwater.energy.gov.

PG&E Suspends WaveConnect Project

On October 28, 2010, Pacific Gas & Electric ("PG&E") announced that it was suspending development of its Humboldt WaveConnect Pilot Project (FERC Docket No. P-12779) off of the Northern California coast.  The company stated that "several major challenges made the project unviable at its current location and configuation."  However, "PG&E remains committed to [wave energy] technology." 

In fact, PG&E will continue its work to determine the feasibility of its proposed Central Coast project (FERC Docket No. P-13641).  The Central Coast project is proposed in 45 square miles of coastal waters off the coast of Santa Barbara County, California.  PG&E submitted its preliminary permit application in December 2009, and was awarded its preliminary permit on May 14, 2010. 

The hydrokinetic industry has come a long way in the last few years and some bumps in the road should be expected as the industry works toward the commercial deployment of projects in state and federal waters of the United States.  However, the federal government continues to "put its money where its mouth is" when it comes of offshore renewable energy development.  Most recently, the U.S. Department of Energy, the Bureau of Ocean Energy Management, Regulation, and Enforcement, and the National Oceanic and Atmospheric Administration awarded $5 million to eight research projects related to offshore development through a joint solicitation.

WCGA Schedules Marine Spatial Planning Workshops

In response to the National Oceanic and Atmospheric Administration's federal funding opportunity ("FFO") to support Regional Ocean Partnerships ("ROPs"), the West Coast Governors' Agreement on Ocean Health ("WCGA") will hold workshops in California, Oregon, and Washington next month to help develop its proposal for a portion of the funding.  The WCGA is the ROP for the West Coast and as such will be engaging tribal governments, state and federal agencies, scientists and technical experts, and stakeholders to identify regional coastal and marine spatial planning priorities and needs that will support a coordinated response to the FFO.  Prior to the meetings, the WCGA will prepare a scoping document that will provide the foundation for workshop discussions.  The deadline for WCGA's submission is December 10, 2010, so these meetings will be an essential way to engage in the process.

The meetings will take place at the following times and locations:

California Workshop:  Friday November 12, 2010, from 11 a.m. - 5 p.m. at the San Francisco Bay Conservation and Development Commission, 50 California Street, Suite 2600, San Francisco, CA 94111 (lunch will be provided).

Oregon Workshop:  Monday November 15, 2010, from 10 a.m. - 4 p.m. at the Oregon Coast Community College, Central Campus, 400 SE College Way, Room 140, Newport, OR 97366 (lunch will be provided).

Washington Workshop:  Tuesday November 16, 2010, from 10 a.m. - 4 p.m. at the Heritage Room at Capitol Lake, 604 Water Street, Olympia, WA 98501 (lunch will be provided).

Everyone is invited to attend the workshops, but space is limited.  Please RSVP by emailing the WCGA Coordinator, Lisa DeBruckere, at lisad@createstrat.com

REMINDER: Applications for SBIR and STTR Phase I Grants Due November 15th

Don't forget that the deadline for Phase I grant applications under the U.S. Department of Energy's ("DOE") Small Business Innovation Research ("SBIR") and Small Business Technology Transfer ("STTR") programs is 8:00 p.m. Eastern, November 15, 2010.  Qualified small businesses with strong research capabilities in science or engineering in any of the research areas identified in the September 28, 2010 Funding Opportunity Announcement are encouraged to apply.  Phase I grants of up to $150,000 will be awarded in FY 2011 under the SBIR; and grants of up to $100,000 will be awarded under the STTR. 

The Phase I Technical Topics document lists several areas of particular interest for the renewable energy industry.  Note that the following is not an exhaustive list.  The full list and descriptions can be found in the Phase I Technical Topics document.

  • Advanced Cooling and Waste Heat Recovery: Advanced Cooling; Advanced Waste Heat Recovery; Geoexchange heat pump (GHP) component R&D; Innovative GHP System/Loop Designs.
  • Production of Bioenergy and Biofuels from Cellulosic and Non-Food Biomass:  Biomass Feedstock Stabilization and Drying; Biomass Torrefaction; Sugar Catalysis to Advanced Biofuels and Chemical Intermediates; Pyrolytic Thermal Depolymerization.
  • Hydrogen and Fuel Cells:  Reducing the Cost of High Pressure Hydrogen Storage Tanks; Fuel Cell Balance-of-Plant; Demonstration of Alternative-Fuel Fuel CElls as Range Extenders.
  • Innovative Solar Power:  High Efficiency, Low Cost Thin Film Photovoltaics; Low Cost Building Integrated Photovoltaics; Static Module PV Concentrators; Solar-Powered Water Desalination; Distributed Concentrating Solar Power ("CSP").
  • Advanced Water Power Technologies: Pumped Storage Hydropower; Advanced Hydropower Systems; Wave and Current Energy Technologies; Advanced Component Design for Ocean Thermal Energy Conversion Systems.
  • Wind Energy Technologies: Transportation and Assembly of Extremely Large Wind Turbine Components for Land-Based Wind Turbines; Wind Energy Capture in Non-Conventional Wind Resources; Offshore Grid Infrastructure Hardware Development; Offshore Mooring and Anchoring Technology.

Detailed descriptions of each subtopic are included in the Phase I Technical Topics document.

Maine Seeks to Assert Itself as Leader in Offshore Energy

In recent months, the State of Maine has sought the spotlight in the offshore renewable energy space.  This entry summarizes three major events that have marked the state's move toward a leadership role.

 

Maine Signs MOU with Nova Scotia

On July 12, 2010, Governor John E. Baldacci signed a Memorandum of Understanding (“MOU”) with Nova Scotia Premier Darrell Dexter to work cooperatively on renewable ocean energy development. Many similar memoranda have been signed between states and federal agencies in the United States, but this is the first that reaches beyond the Nation’s borders. The MOU states that the two governments will work together to advance tidal and offshore wind development efforts by furthering academic research in the area and establishing a formal council to “work together to shape the region’s leadership position in this important new area of renewable energy development.”  Although largely a “plan to start planning,” the MOU demonstrates the State of Maine’s desire to be on the leading edge of offshore energy policy and development.

 

ORPC Reports Successful Test of Commercial-Sized Underwater Turbine

On August 18, 2010, Ocean Renewable Power Company (“ORPC”) reported that its Beta Power System has successfully generated grid-compatible power from tidal currents. The 60 kW Turbine Generator Unit met or exceeded ORPC’s expectations for testing at a range of current velocities. The company will use the data gathered to complete the design of its 150 kW TidGen Power System, which is scheduled for installation in Eastport, Maine in late 2011, and will interconnect to the New England grid through the Bangor Hydro Electric Company system. The TidGen Power System will generate enough electricity to power 50-75 homes.

The full text of ORPC's press release can be found here.

 

Maine PUC Seeks Proposals for Offshore Wind & Tidal Energy

Following on the heels of ORPC’s announcement, the Maine Public Utilities Commission (“PUC”) announced on September 1, 2010, that it is seeking proposals for long-term (20-year) contracts to supply energy and renewable energy credits from one or more offshore wind energy pilot projects or tidal energy demonstration projects. The PUC is looking for a wind developer with experience relevant to the construction and operation of floating wind turbines and has the potential to construct a deep-water (300 feet or more) offshore wind energy project of at least 100 MW in the future. Any proposed tidal energy demonstration project must have a total installed generating capacity of 5 MW or less.

Proposals will be due on or before May 1, 2011.  The full text of the request for proposals ("RFP") can be found here.

 

DOE Designates New Southeast National Marine Renewable Energy Center

The U.S. Department of Energy ("DOE") continued its support of marine and hydrokinetic ("MHK") technology development on Tuesday, announcing that Florida Atlantic University has been designated as the nation's third national center for ocean energy research and development.  The Southeast National Marine Renewable Energy Center ("SNMREC") joins centers in the Northwest, at the University of Washington and Oregon State University (jointly, the Northwest National Marine Renewable Energy Center) and in Hawai'i, at the University of Hawai'i.

With an additional $250,000 grant from DOE, the SNMREC will continue to focus research efforts on technologies designed to convert ocean currents like the Gulf Stream as well as ocean thermal energy into electricity for the grid.  On a personal note, I had the opportunity to visit FAU's Dania Beach (SeaTech) campus in November 2009 to take part in the USNC TAG/TC-114 "Marine Energy- Wave and Tidal Energy Converters" international standards process.  I was impressed by the students, faculty, and the facilities at the Institute for Ocean and Systems Engineering and I look forward to seeing FAU excel in its new role.

Interagency Ocean Policy Task Force Issues Final Recommendations

On Monday, July 19, 2010, the White House Council on Environmental Quality ("CEQ") issued the Final Recommendations of the Interagency Ocean Policy Task Force.  The Final Recommendations are the culmination of a process that began on June 12, 2009 when President Obama formed the Task Force and tasked it with developing recommendations to enhance national stewardship of the ocean, coasts, and the Great Lakes and promote the long-term conservation of those resources. 

The Final Recommendations will likely be carried over into an Executive Order to be signed by the President, which will establish a National Policy for the Stewardship of the Ocean, Coasts, and Great Lakes and create a National Ocean Council to enhance ocean governance and coordination between federal and state agencies.  The Final Recommendations also express the Task Force's unanimous agreement that the United States should acceed to the Convention on the Law of the Sea and ratify its 1994 Implementing Agreement.

The CEQ's press release is available here.  Attorneys at Stoel Rives are reviewing the Final Recommendations and assessing their impact on, among other things, offshore renewable energy development including offshore wind and marine and hydrokinetic projects.  Stay tuned for more on this important development.

New Tool for Renewable Energy Investors, Entrepreneurs, and Companies

On June 30, 2010, the U.S. Department of Energy ("DOE") launched its Technology Commercialization Portal (the "Portal").  The Portal is an online resource that provides a mechanism for investors, entrepreneurs and companies to identify new technologies coming out of DOE laboratories and other participating research institutions.  Relevant technologies include:

  • Advanced Materials
  • Biomass and Biofuels
  • Building Energy Efficiency
  • Electricity Transmission and Distribution
  • Energy Analysis Models, Tools and Software
  • Energy Storage
  • Geothermal
  • Hydrogen and Fuel Cell
  • Hydropower, Wave and Tidal
  • Industrial Technologies
  • Solar Photovoltaic
  • Solar Thermal
  • Vehicles and Fuels
  • Wind Energy

The Portal contains marketing summaries about the various DOE technologies that are available for licensing.  Each marketing summary describes a technology's applications, advantages, benefits and state of development.  Further, the Portal also provides access to information on patents and patent applications that have been created using DOE funding since 1992.

The Portal is located at http://techportal.eere.energy.gov/

DOI/DOE MOU for Offshore Renewable Energy Projects, Part 2

 

To follow up on my colleague Janet Jacobs' blog on this exciting topic, here's some more detailed information about the MOU, especially as it relates to marine and hydrokinetic ("MHK") technologies:

 

The United States Department of Energy’s Office of Energy Efficiency and Renewable Energy (“EERE”) and the United States Department of the Interior’s newly-renamed Bureau of Ocean Energy Management, Regulation, and Enforcement (“BOEMRE”) (see Note below) signed a Memorandum of Understanding for the Coordinated Deployment of Offshore Wind and Marine and Hydrokinetic Energy Technologies on the United States Outer Continental Shelf (the “MOU”).

 

The purpose of the document is to prioritize and facilitate environmentally-responsible deployment of commercial-scale offshore wind and MHK energy technologies on the Outer Continental Shelf (the “OCS”) through collaborative efforts.  In a recent blog, I mentioned that the DOE has committed $15.36 million to help researchers and developers alike to bring various MHK technologies closer to commercial deployment.  This MOU represents yet another effort to spur the growth of the burgeoning offshore renewable energy industry.

An interagency working group has been tasked with developing an action plan that addresses the deployment of offshore renewable energy projects, including both offshore wind and MHK technologies, within 30 days.  The action plan will outline how the BOEMRE and EERE can work together to streamline leasing and regulatory processes on the OCS for those sites with high energy resource potential.  The MOU also outlines how the agencies will share information and undertake collaborative activities such as stakeholder engagement, technical and environmental research, joint evaluation of standards and timelines for development, and the dissemination of information to decision makers. 

Note:  On June 21, 2010, DOI Secretary Ken Salazar issued Order 3302 renaming the Minerals Management Serivce the BOEMRE.

DOI/DOE MOU for Offshore Renewable Energy Projects

 

Yesterday, the Department of the Interior (“DOI”) and the Department of Energy (“DOE”)  entered into a Memorandum of Understanding (“MOU”) to bring together resources and expertise from both agencies as the US develops commercial-scale offshore wind and water energy projects on the U.S. Outer Continental Shelf.

 

The wind and water resources off the US’ coastline are vast yet largely untapped energy potential. According to DOE's “20% Wind Energy by 2030” report, offshore wind alone has the potential to produce 54,000 megawatts by 2030. The MOU allows for priority leasing and more efficient regulatory processes (including permitting) for sites with high, commercial-scale offshore wind and water power development potential.

Treasury Department Issues Additional Guidance Regarding Cash Grant Begin Construction Requirement

The U.S. Treasury Department today released on its website additional guidance regarding the "begin construction" requirement for qualifying for the 30% ARRA cash grant. To qualify for the grant, a project either must be placed in service in 2009 or 2010 or, if construction begins on or before December 31, 2010, must be placed in service by a specified credit termination date (December 31, 2012 for large wind projects; December 31, 2013 for biomass, certain geothermal and other projects; and December 31, 2016 for solar and other projects).  For the Stoel Rives Energy Tax Alert on the topic, click here

Washington Revising its State Energy Strategy

The Washington State Department of Commerce (formerly the Department of Community, Trade and Economic Development or CTED) has announced that it is attempting to revise Washington’s comprehensive energy plan (the “State Energy Strategy”). 

The State Energy Strategy was last revised in 2003, and it does not serve current energy realities and forecasts. Therefore, the Washington State Legislature has tasked the Department of Commerce with updating the State Energy Strategy while taking account the following three goals and nine principles:

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U.S. DOE Releases Funding Opportunity Announcement for Marine and Hydrokinetic Technology Development

Today, the U.S. Department of Energy (the "DOE") released the long-awaited Financial Assistance Funding Opportunity Announcement ("FOA") titled "Marine and Hydrokinetic Technology Readiness Advancement Initiative."  Federal funding for this initiative for fiscal year 2010 is expected to be up to $15.36 million, with the possibility of continued funding at, or near, that level for up to an additional two years.  (Because all federal funding is subject to annual appropriations, these figures should be treated as estimates.)

The DOE has recognized that marine hydrokinetic ("MHK") technologies can provide renewable, environmentally responsible, and predictable baseload electricity to load centers along the nation's coastlines.  And to help accelerate the development and deployment of these technologies, the DOE intends to advance the technological and operational readiness of MHK systems and components across a range of technology readiness levels ("TRLs") through this Funding Opportunity Announcement.

Although TRLs have been used for years by both NASA and the Department of Defense to develop advanced, mission-critical systems, this is the first time TRLs have been used by the DOE to assess the technological readiness of new renewable energy technologies.  Recognizing that MHK devices and components are still largely in the early stages of research and development, the DOE has adopted a simplified TRL structure for purposes of this Funding Opportunity Announcement.  The DOE is seeking applications in two topic areas: (1) MHK Technologies Concept Development (TRLs 1-3) and (2) MHK Technology Readiness Level Advancement (TRLs 4-9). 

Funding will be made available in each topic area for both "systems" and "components."  The DOE organized and grouped the TRLs into four discrete funding categories:

  1. Discovery / Concept Definition / Early Stage Development, Design and Engineering (TRL 1-3);
  2. Proof of Concept (TRL 4);
  3. System Integration and Technology Laboratory Demonstration (TRL 5/6); and
  4. Open Water System Testing, Demonstration, and Operation (TRL 7/8).

Each category has prescribed funding levels and project performance periods.  A brief summary of the expected number of awards in each topic area and the associated expected federal funding is included below.  For a complete funding breakdown for systems and components, see the Funding Opportunity Announcement.

Topic Area Summary

Topic Area Period of Performance Expected Number of Awards Total  Estimated Federal Funding Estimated FY 2010 Federal Funding

MHK Technologies Concept Development

(TRLs 1-3)

    12 months

           8 

  (4 systems, 4 components)

       $1.6M          $1.6M

MHK Technology Readiness Level Advancement

(TRLs 4-9)

  18-36 months

    (see FOA)

           18 

  (11 systems, 7 components)

      $36.72M        $13.76M

 

Applications are due to DOE by 11:59 PM Eastern Time on June 7, 2010.

REMINDER: Upcoming DOE Funding for Marine Hydrokinetics

On March 11, 2010, I posted a blog about the U.S. Department of Energy's (the "DOE") upcoming Funding Opportunity Announcement ("FOA") for hydrokinetic technology development.  The DOE issued a Notice of Intent announcing the FOA earlier that week.  To access the Notice of Intent, click here, and enter "hydrokinetic" in the search field. 

The DOE was expected to issue the FOA by March 31, 2010.  This blog is intended as a reminder that all interested parties should make sure they have followed the necessary steps to apply or submit questions regarding the FOA.  For official procedures, see the Notice of Intent.

To respond to FOAs, either as an applicant to to submit questions, parties must first be registered with FedConnect.  In order to register for FedConnect, a party must:

  • Have a Duns and Bradstreet Data Universal Numbering System (a "DUNS Number").  If you do not know your company's DUNS Number or if your company does not have one, you can search for it or request one here; and
  • Be registered with the Central Contractor Registry (the "CCR").  If you are not currently registered for the CCR, you can register at the CCR website.

If you are the first person to register in your company for FedConnect, you will need your company's CCR MPIN.  If your company is already registered with the CCR, then you can find out who has your CCR MPIN by going to the CCR website and clicking "Search CCR."  A company's CCR must be updated annually.  To update your company's CCR, visit the CCR renewal website.

NOTE:  CCR and FedConnect registration can take at least 21 days to complete.  Since the DOE is expecting a quick turnaround on the FOA once it is released, interested parties should begin the registration process as soon as possible.

Department of Energy, Department of the Interior, and Army Corps of Engineers Sign Memorandum of Understanding for Hydropower

On March 24, 2010, three federal agencies announced a Memorandum of Understanding for Hydropower (the “MOU”) that impacts developers of traditional hydropower, hydrokinetic, pumped storage, and small-scale hydropower facilities. The Department of Energy (“DOE”), the Department of the Interior (“DOI”), and the Department of the Army, through the U.S. Army Corps of Engineers (“USACE”) (collectively, the “Agencies”), signed the MOU to "meet the Nation’s needs for reliable, affordable, and environmentally sustainable hydropower by building a long-term working relationship, prioritizing similar goals, and aligning ongoing and future renewable energy development efforts" between the agencies. The MOU comes at a time when industry representatives and eleven U.S. Senators are requesting that DOE support a $200 million appropriations request for the advancement of both conventional and advanced waterpower technologies.

 In this “new approach to hydropower,” the Agencies intend to focus their collective efforts on advancing sustainable, low-impact, and small hydropower projects and promoting the goal of energy efficiency through water conservation or improved water management. Operating under the MOU, the Agencies will work together to advance four primary objectives:

  • Support the maintenance and sustainable optimization of existing Federal and non-Federal hydropower projects;
  • Elevate the goal of increased hydropower generation as a priority of each Agency to the extent permitted by their respective statutory authorities;
  •  Promote energy efficiency; and 
  • Ensure that new hydropower generation is implemented in a sustainable manner.

For more information on the MOU, including potential next steps for the Agencies, read the Energy Law Alert by Stoel Rives attorneys Cherise Oram, Michael O'Connell, and Chad Marriott posted here.

If you would like to sign up to receive our Energy Law Alerts when they are released, click here.

Tradable RECs Now Count Toward California's RPS

On Thursday March 11, 2010, the California Public Utility Commission (the "CPUC") created a market for tradable renewable energy credits ("TRECs") in the state.  That's big news.  In its 149-page decision, the CPUC stated that investor-owned utilities ("IOUs"), energy service providers, and community choice aggregators may now use TRECs to comply with California's ambitious renewable portfolio standard ("RPS").  These entities are now permitted to purchase a portion of their RPS compliance from generation sources other than those they own (e.g., distributed solar generation facilities within the state and certain out-of-state facilities).

 

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DOE Announces Upcoming Funding for Marine Hydrokinetics

Good news for marine hydrokinetics!  On Wednesday, the U.S. Department of Energy ( the "DOE") issued a Notice of Intent announcing that its Wind and Hydropower Technologies Program will publish a Funding Opportunity Announcement ("FOA") for hydrokinetic technology development no later than March 31, 2010.  This announcement comes just six months after the DOE awarded $14.6 million to 22 advanced water power projects designed to accelerate the commercial viability, market acceptance, and environmental performance of these technologies.  Stoel Rives would like to congratulate Pacific Energy Ventures and Ocean Power Technologies for receiving two of those awards.

The FOA, called the "Marine and Hydrokinetic Technology Readiness Advancement Initiative," will solicit applications from industry-led partnerships that want to develop marine and hydrokinetic ("MHK") technologies at all levels of industry maturity.  However, unlike past rounds of funding, this time the DOE will be using MHK-specific technology readiness levels ("TRLs") to assess system and component maturity.  Preliminary definitions for the nine different proposed TRLs are included in the Notice of Intent.  The DOE will direct funding in two areas using the new TRLs:

  1. Concept Development- Funding in this area will focus on projects seeking to advance a novel concept from TRL 1-3 ("Discovery/Concept Definition") to TRL 4 ("Proof of Concept").  By funding these projects, the DOE hopes to stimulate technology breaktroughs.
  2. Technology Readiness Level Advancement- Funding in this area will be directed to projects focused on operational readiness.  Recipients will have established a proof of concept already and are moving toward laboratory or test facility validation of scale models, open water tests, operational verification, and commercial application. 

Developers should begin assembling their teams immediately because the DOE anticipates a short application deadline once the FOA is announced.  Remember that each applicant must be registered with FedConnect; each must have a Dun and Bradstreet Data Universal Numbering System number (a "DUNS number"), and each must be registered with the Central Contractor Registry.

 

POSSIBLE RESTRUCTURING OF 1603 GRANTS

Congress is considering a complete rewrite of the 1603 grant program.  Some of the changes being considered are very helpful while others would be extremely troubling.  Please continue reading to get the full story ...

 

 

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Stoel Rives Clients Receive Huge Tax Credit Awards

Stoel Rives would like to congratulate REC Silicon and SolarWorld on their awards of tax credits by the IRS and DOE. These two companies, combined, received over 10 percent of all the tax credits awarded nationwide under section 48C of the tax code.

On Friday, January 8, the Department of Energy awarded to 183 companies $2.3 billion in tax credits for projects designed to expand, re-equip or establish manufacturing facilities for the production of equipment used to produce renewable and other green energy. The $2.3 billion was the full amount authorized by Congress in the stimulus bill as part of new section 48C of the tax code.

Applications for the credit far exceeded the dollar amount of credits available. Stoel Rives is proud to have been directly involved with these companies in preparing the complex applications for the credit. REC Silicon received the largest award of any company -- $154.8 million. SolarWorld received the seventh largest award -- $82.2 million. These credits will provide these companies with a dollar-for-dollar offset against their federal income tax liability.

There is considerable discussion in Congress regarding adding additional funds to the section 48C program, which will permit another round of awards. Please contact your favorite Stoel Rives attorney if you have any questions about these awards or extension of the section 48C credit.

NMFS Proposes Critical Habitat Designation for Endangered Sea Turtles Along the West Coast

On January 5, 2010, the National Marine Fisheries Service ("NMFS") issued a proposed rule designating 70,600 square miles of critical habitat for endangered leatherback sea turtles (Dermochelys coriacea) along the West Coast, covering portions of Washington, Oregon, and California. Section 4 of the Endangered Species Act ("ESA") requires NMFS to designate critical habitat for threatened and endangered species on the basis of the best available scientific data, after taking into consideration economic, national security, and other impacts. The designation of critical habitat does not create a wildlife preserve, but Section 7 of the ESA requires that federal agencies ensure that federally authorized projects, such as wave or tidal energy projects, do not destroy or adversely modify critical habitat.

The leatherback sea turtle is a pelagic species with a range that spans the entire Pacific Ocean. Leatherbacks aggregate in productive coastal areas to forage on jellyfish and, for this reason, they seasonally occupy portions of the California current along the West Coast. The leatherback sea turtle was listed as "endangered" in 1970. In 1978, critical habitat was initially designated for the turtle in and around portions of the island of St. Croix in the U.S. Virgin Islands. In October, 2007, NMFS received a petition from environmental advocacy groups to designate additional critical habitat along the West Coast.

In the proposed rule, NMFS proposes to designate portions of the area petitioned by the environmental groups. The basis for the designation is evidence suggesting that leatherback sea turtles may occupy offshore areas to prey on jellyfish. Areas proposed for designation are areas thought to support jellyfish populations and areas thought to provide migration corridors for turtles to access prey. NMFS declined to designate certain areas along the West Coast on the basis that economic and national security considerations outweigh the benefits of the designation in those particular areas. The proposed rule, along with a map showing the areas proposed for designation, is available at the link above .

The proposed designation may have ramifications for offshore energy developers planning tidal, wave, or LNG projects. Under Section 7 of the ESA, FERC must ensure that any such projects occurring in areas designated as critical habitat do not destroy or adversely modify the habitat. Stoel Rives has a broad depth of experience covering all aspects of the ESA, including advising on critical habitat issues and issues involving leatherback sea turtles.


 

CPUC Proposed Decision on TRECs--Comments Due January 19

The California Public Utilities Commission ("CPUC") issued a proposed decision on December 23, 2009 that would, if adopted, allow California investor-owned utilities, energy service providers, and community choice aggregators to purchase renewable energy credits alone, without the associated energy (sometimes referred to as "unbundled renewable energy credits ("RECs)" or "tradable RECs"), to satisfy their obligations under California's RPS. California's largest investor-owned utilities—Pacific Gas and Electric, Southern California Edison, and San Diego Gas and Electric—would be limited to meeting no more than 40% of their annual procurement targets under the RPS with tradable RECs, and a price cap of $50 would be imposed. The CPUC will revisit both the percentage cap and the cost cap and whether those caps should be revised within 24 months of the decision.

Out-of-state renewable energy projects could be adversely impacted if the proposed order were adopted. The proposed decision would define all renewable generation purchased from out-of-state facilities1 as the purchase of unbundled or tradable RECs, making any out-of-state renewable energy sale subject to the cap that bars the large investor-owned utilities from using such sales to meet more than 40% of their overall RPS obligation. Although the proposed decision states that this classification would apply only to contracts signed on or after the effective date of the decision, contracts signed prior to the effective date would be considered REC-only contracts from the effective date forward, and would be "subject to the limits and rules applying to REC-only contracts" according to the proposed decision. Furthermore, although the purchase of tradable RECs from out-of-state facilities would be permitted, the delivery requirement in the RPS legislation would still have to be met, so a comparable amount of power would have to be imported into the state, along with the RECs. The jurisdiction to determine whether and how this delivery requirement is met, however, still remains with the California Energy Commission.

Comments on the proposed decision are due on January 19, 2010, and reply comments are due January 25, 2010.

For additional information about the history and effect of the proposed decision, see our Stoel Rives alert on the topic.

Zino Green Investment Forum

The ZINO Society, a Seattle-based angel investment group, announced last week that its annual “ZINO Green Investment Forum” would be held on March 4, 2010, at the McKinstry Innovation Center in Seattle.   Up to fifteen early-stage companies in “green tech, clean tech, and sustainable products or services” will be selected by the ZINO Green screening board to present their businesses to angel investors and business leaders attending the investment forum. Finalists will be selected to compete for a $50,000 award from ZINO’s investment fund.

Last year’s winner of ZINO Society’s $50,000 GreenFund award was Hydrovolts, the developer of a hydrokinetic turbine.  After winning the award last year, Burt Hamner, CEO of Hydrovolts, stated that “Our new technology makes it possible to generate renewable energy from fast water currents that could not be tapped before, using a really novel turbine design.  It’s a challenge to explain [our technology] quickly and the presentation, coaching and business model feedback we received from ZINO Society members was incredibly helpful.” Hydrovolts went on to win the  2009 Clean Tech Open National Sustainability Award.

Stoel Rives has been a proud sponsor of The Zino Society since its inception.

The application to apply to present at ZINO Green may be found at https://angelsoft.net/angel-group/zino-society. More information about the event is available at ZINO’s website http://www.zinosociety.com/calendar/1143/ or by contacting Rob Brown at r.brown@zinosociety.com or 206-621-0466.

Come Visit Us at E3, The Midwest's Premier Energy, Economic and Environmental Conference, on Nov. 17, 2009

As a proud Exhibit Hall sponsor of E3, the Midwest’s premier energy, economic and environmental conference, Stoel Rives LLP would like to encourage you to attend this annual event. Hosted by the University of Minnesota’s Initiative for Renewable Energy and the Environment, E3 will focus this year on the intersection of innovative technologies and policies, environmental benefits and emerging market opportunities across the renewable energy spectrum.

Stoel Rives attorneys Mark Hanson, Bill Holmes and Greg Jenner are part of the event faculty. Mark will moderate a panel presentation on the challenges and opportunities of converting carbon dioxide to fuels. Bill will moderate a panel discussing exactly how sophisticated smart power grids need to be in order to scale up renewables as a major U.S. energy contributor. Greg, meanwhile, will participate in a panel discussion on the most efficient and effective strategies for financing renewable energy projects.

 

For more information and to register, please visit the following link: http://bit.ly/XUUjJ. We hope to see you there, and encourage you to visit our booth (#24). In addition to our presenters, Debra Frimerman, Kevin Johnson, Kevin Prohaska, Katie Roek, Mary Sennes, Joe Thompson and Vicki Twogood will be available to discuss any questions you may have. Don’t forget to pick up complimentary copies of our Law of Series handbooks, including The Law of Solar, The Law of Wind, The Law of Biofuels, The Law of Building Green, Lava Law,and our most recent additions The Law of Algae and Show Me the Money: The Law of the Stimulus (2d ed).

Avista Seeks Additional Renewable Energy

Avista announced earlier this week that it is seeking proposals from suppliers of renewable energy.  Avista wants to acquire roughly 35 average megawatts (aMW) of long-term qualified renewable energy, to be supplied by the end of 2012 . The company is looking for proposals from wind, solar, geothermal, biomass, qualified hydroelectric and other renewable resources that meet Washington's RPS standard.

Avista plans to host a conference call for potential bidders on September 30. Responses to the  request for proposals are due by October 23, 2009. The full RFP and instructions for bidders can be found here

Obama Administration Officials Release Report on Ocean Policy

Last week, Obama Administration officials released the Interagency Ocean Policy Task Force Interim Report (the “Interim Report”), which lays out a comprehensive national policy for protecting and managing the use of our oceans, coasts, and the Great Lakes. Created by President Obama via a June 12, 2009 Presidential Memorandum, the Interagency Ocean Policy Task Force (the “Task Force”), is led by the Council on Environmental Quality’s Chair, Nancy Sutley and is composed of twenty-four senior-level officials from government agencies, departments, and offices. In preparing the Interim Report, the Task Force sought input from within the federal government, and from local officials, tribal representatives, scientists, legal and policy experts, and other stakeholders. The Task Force also solicited public input via a 90-day public engagement process. 

The Interim Report identifies three key components to its comprehensive ocean and coastal strategy: (1) a national policy, (2) a robust governance structure, and (3) categories for action. The Interim Report’s national policy proposal is premised on the stewardship of the ocean, coasts, and Great Lakes as being “intrinsically and intimately linked” to human health, environmental sustainability, economic prosperity, security, foreign policy, social justice, and adaptation to climate change. With respect to the robust governance structure, the Interim Report calls for increased coordination among government agencies. To this end, the Interim Report proposes an interagency National Ocean Council to facilitate interagency coordination on ocean-related issues and implement the National Ocean Policy. The Interim Report also prioritizes nine categories for action in order to address the main challenges currently confronting our oceans, coasts and Great Lakes, including ecosystem-based management, improved observing systems and data collection, coastal and marine spatial planning, and regional ecosystem protection and restoration.

There is a 30-day window for submitting written comments on the Interim Report. The Task Force is also holding several regional public meetings to brief the public and accept comments on the Interim Report, and to obtain input on developing a framework for coastal and marine spatial planning. The Task Force has until December 9, 2009 to submit its proposed coastal and marine spatial planning framework to President Obama. The final Task Force report will also be issued later this year.

Free Webinar on Loan Guarantee Program Hosted by DOE

The U.S. Department of Energy is hosting a free webinar on "How to Build a Strong Application" for the DOE Loan Guarantee Program on Tuesday, September 8, 2009 from 1:00 PM - 2:00 PM EST.  The webinar is intended to explain the loan guarantee program and help lenders and applicants navigate the application process.  DOE will also be providing suggestions on how to create a strong loan guarantee application

DOE recently released two solicitations under the program for innovative energy efficiency, renewable energy and advanced transmission and distribution technologies and transmission infrastructure investment projects.  DOE is particularly interested in wind, closed-loop biomass, open-loop biomass, geothermal, landfill gas, trash-to-energy, hydropower and solar projects that are able to commence construction before September 30, 2011. 

DOE will be hosting a series of free webinars on the application process over the next few months. 

First Treasury Grants in Lieu of ITC Awarded

Treasury Secretary Tim Geithner and Energy Secretary Steven Chu announced the first awards of cash grants in lieu of the investment tax credit (ITC) today.  The total award value was over $502 million.  Recipients include projects in Colorado, Connecticut, Maine, Minnesota, New York, Oregon, Pennsylvania and Texas.  Click here for a detailed list of the awards announced today.  Additional awards will be announced in the coming weeks. 

For more information on this program and the application process, please see the Stoel Rives Energy Law Alert:  Treasury Issues Guidance on Applications for Grants in Lieu of the ITC and PTC.

Australia passes 20% renewable energy target by 2020

From my colleague Adam Walters:

On August 20 the Australian government announced the passage of a bill quadrupling its Renewable Energy Target (RET) to ensure that 20% (approximately 45,000 GWh) of Australia’s electricity is generated from renewable energy sources by 2020.

 

How does Australia’s RET Scheme Work?

 

The RET scheme is an expansion of Australia’s Mandatory RET scheme introduced in 2001, the first of its kind in the world. It works through the creation and sale of Renewable Energy Certificates (RECs) by renewable power generators to “liable parties” (mainly large-scale electricity utilities and consumers), who must provide a designated quantity of REC’s to Australia’s renewable energy regulator to demonstrate compliance and avoid having to pay charges for any shortfall. One of the changes brought about the new legislation is to increase from $40/MWh to $65/MWh.

Renewable energy sources eligible for accreditation under the RET scheme include: solar, wind, hydro, tidal, wave, biomass and geothermal, as well as solar water heaters and other smaller generation units. Hydro has historically dominated Australia’s renewable energy landscape, but recent project announcements and funding opportunities for wind and solar projects signal greater diversification of the industry, particularly for proven technologies.        

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DOE Unveils Hydrodynamic Testing Facilities Database

The U.S. Department of Energy's (DOE) Wind and Hydropower Technologies program recently unveiled a new database containing information on the test capabilities and services of a variety of U.S. hydrodynamic test facilities.

The first-of-its-kind database encompasses 81 commercial, academic, and government facilities and offshore berths in 18 states, and will directly facilitate the testing of technologies designed to extract energy from waves and the currents of oceans, tides, and rivers.  The database will serve as a platform for marine and hydrokinetic technology developers to identify a U.S. facility where they can test and validate their prototype devices. Users can find out more information on dimensions, costs, and available personnel, as well as available sensors and applicable software used to gather and present data gathered during in-water testing.

For more information, please contact Cherise Oram.

Show me the Money: DOE Proposes Amendments to its Loan Guarantee Program

Today, the Department of Energy (DOE) issued a notice of proposed rulemaking to amend 10 CFR Part 609, the rule regulating the loan guarantee program authorized by section 1703 of Title XVII of the Energy Policy Act of 2005.  The two principal goals of section 1703 of Title XVII are to encourage commercial use of new or significantly improved energy-related technologies and to achieve substantial environmental benefits.  (See these recent alerts regarding the DOE loan guarantee program and the related application process)

After reexamining Title XVII, the DOE has concluded that the statute does not require a first lien on all project assets.  DOE has discovered that its current requirement that it be in lien position is in conflict with the financing structure of many energy projects.  For example, many utility scale power plants are jointly owned by public power agencies, cooperative power systems and investor-owned utilities.  In these cases, it may not be commercially feasible to obtain a lien on all project assets or the credit of a sponsor may be sufficient to support a more modest pledge of assets.

Furthermore, DOE has found that other parties are interested in participating as co-lenders, co-guarantors, or insurers of Title XVII loans.  However, these other parties expect to share, on a pari passu basis, in any collateral securing such loans.

Consequently, DOE proposes two amendments to the current rules:

  1. Delete the requirement of a first priority lien on all project assets and leave to the Secretary (of DOE) the determination of an appropriate collateral package, as well as intercreditor arrangements; and
  2. Allow the Secretary (of DOE) to determine if pari passu lending is in the best interests of the United States

 

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$22 Million for Community Renewable Energy

The Department of Energy (DOE) announced this week that up to $22 million from the Recovery Act would be allotted to up to 4 eligible communities nationwide in order to encourage utility-scale renewable energy systems that provide clean, reliable, and affordable energy supplies for their communities, while creating jobs and new economic development opportunities. The projects will demonstrate how multiple renewable energy technologies, including solar, wind, biomass, and geothermal systems, can be deployed at scale to supply clean energy to communities.  Eligible applicants are local and state governments, Indian Tribes and Tribal Energy Resource Development Organizations or Groups.

Successful applicants will be awarded financial assistance to support the implementation of an integrated renewable energy deployment plan for a community, and the construction of renewable energy systems.  DOE expects each project to also have substantial private sector investment in addition to the funds from DOE.  Completed applications are due September 3, 2009 and the DOE will select awardees by the end of November 2009.

Show me the Money: Applications Available for the Washington State Energy Program

Washington previously received $60.9 million in Recovery Act funding for its State Energy Program (“SEP”). The Washington Legislature later provided $38.5 million to the Washington State Community, Trade and Economic Development (“CTED”) agency to administer a loan and grant program for eligible projects in the areas of energy efficiency, renewable energy and clean energy innovation (see our earlier blog entry here for more details). The deadline for submitting a notice of intent to apply is July 27, 2009 at 5:00 p.m. Pacific time, and the application is due August 17, 2009 at 5:00 p.m. Pacific time.

I attended an informational meeting held by CTED on July 13, 2009. The meeting provided an overview of the loan and grant program, as well as funding details, eligibility guidelines and evaluation criteria. Eligible projects can receive between $500,000 to $2 million in loans and grants in the first round, with the requirement that applicants provide other sources of funding at least equal to the amount of the loan or grant request. The non-SEP funding may include amounts spent or committed to the project since January 1, 2009. Projects will be evaluated based on the feasibility and quality of the project plan, the experience and qualifications of the project team, the ratio of matching funds to SEP funds, job creation, and energy savings/production. CTED intends to announce award decisions in September 2009.

Treasury Issues Guidance on Applications for Grants in Lieu of the ITC and the PTC

 

The American Recovery and Reinvestment Act of 2009 (ARRA), which was enacted in February, permits an applicant to receive a grant from Treasury in lieu of claiming investment tax credits (ITCs) or production tax credits (PTCs).

Today the U.S. Treasury Department issued much-anticipated guidance concerning applications to receive cash grants in lieu of claiming income tax credits for certain renewable energy projects. Although the guidance includes a sample application form, the U.S. Treasury has stated that it will not accept applications until August 1.

Read the full analysis on this guidance including grant details, eligibility and the application process at www.stoel.com

If you have questions about today's Treasury Department guidance and grants in lieu of ITCs or PTCs, contact:

Chris Heuer at ckheuer@stoel.com
Greg Jenner at gfjenner@stoel.com
Carl Lewis at cslewis@stoel.com
Kevin Pearson at ktpearson@stoel.com
Adam Kobos at  ackobos@stoel.com

Show me the Money: Applications Available now for Washington's State Energy Program

On July 1, 2009, Washington State’s Department of Community, Trade and Economic Development (“CTED”) issued application guidelines and forms for its State Energy Program (“SEP”) (available by clicking here). The American Recovery and Reinvestment Act of 2009 (the “Recovery Act”) provided $60.9 million in new funding for Washington’s SEP. Subsequently, the Washington Legislature allocated $38.5 million to CTED to administer a loan and grant program for energy efficiency and renewable energy program (see our client alert, available here, regarding the legislative action). 

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Stoel Rives Expands Its San Diego Office

 

We welcome energy attorneys Morten Lund and David Quinby to the firm’s San Diego office as members of the Energy and Telecommunications group. They join attorneys Howard Susman and Brian Nese. The San Diego office has relocated to a larger space at 12265 El Camino Real, Suite 303, to accommodate further expansion (new contact information below).

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Morten Lund, formerly a partner with Foley & Lardner LLP in Milwaukee, has experience in a broad variety of financing transactions, with particular focus on the development and financing of wind and solar energy projects. Morten is a frequent presenter and author on renewable energy topics. He earned his law degree from Yale University in 1995 and obtained his A.B. at Augustana College in 1992. He is admitted to practice law in the state of Wisconsin and is pending bar admission to the state of California.

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David Quinby is the current office managing partner of the firm’s Minneapolis office, and will now split his practice between California and Minneapolis. He concentrates his practice on corporate, securities, finance, and merger and acquisition matters, with a particular focus on renewable energy clients and their project development efforts. David is admitted to practice law in the state of Minnesota and is pending bar admission to the state of California.

The California energy team's capabilities also include real estate, land use and permitting, equipment procurement and construction, state and federal regulation, environmental matters, and dispute resolution.

Stoel Rives has received a national ranking for its Renewables and Alternative Energy practice from Chambers USA: America's Leading Lawyers for Business (2009), rating among the top law firms in this category. The firm has been at the forefront of growth in renewables in recent years and represents many of the industry leaders in solar, wind energy, geothermal, biomass, hydroelectric, ocean, combined-cycle natural gas, carbon sequestration and biofuels project development in California, the United States, Canada and abroad.

For more information about the Stoel Rives Renewable Energy Group, visit www.stoel.com/renewableenergy or contact:

Howard Susman at  (8... or hesusman@stoel.com
David Quinby at  (8... or dtquinby@stoel.com
Morten Lund at  (8... or malund@stoel.com
Brian Nese at  (8... or bjnese@stoel.com

 

Show me the Money: Florida, Idaho, and Kansas State Energy Programs Received $77.1 Million from the Recovery Act

On June 24, 2009, the Department of Energy (“DOE”) announced more than $204 million in Recovery Act funding to ten states for their State Energy Programs ("SEPs"). 

Here is a summary of how the monies will be used in Florida, Idaho, and Kansas:

Florida's SEP will fund energy efficiency, renewable energy, and alternative fuels projects in the state.  Florida will deploy these funds through several loan and grant programs to promote the commercialization of new clean technologies.  Florida was awarded $50.4 million, and will receive an additional $63 million after demonstrating successful implementation of its SEP.

Idaho's SEP will launch a set up new programs, including the Renewable Energy Business Development Program, to further renewable energy development in the state while creating new jobs and stimulating the economy.  Further, new zoning regulations will be created to attract renewable energy developers and projects.  Idaho received $11.4 million and will receive more than $14 million in additional funding after demonstrating successful implementation of its SEP.

Kansas's SEP will launch several initiatives to boost energy efficiency in commercial buildings, increase financial options for renewable energy, and increase cost savings for individual homeowners in its state.  A portion of the money will also be deployed to create a new utility rate price plan and to fund an energy audit rebate plan.  Kansas received $15.3 million and expects to receive an additional $19 million after demonstrating successful implementation of its SEP.

 My colleagues are blogging on the other states that received funds. 

Labor Unions Target Renewable Energy Development

My partner Dennis Westlind recently posted this article to our sister blog, the Labor & Employment Group's  World of Work:

Labor unions are seeing a rare growth opportunity in green power.  Despite the recession, there has been a building boom in green energy, in particular solar and wind projects.  As reported recently in the New York Times, labor unions see something in green energy for them as well, and they're using intense political pressure to get it.

When a new solar or wind project is being built, a union will approach the builder and demand that it use only union labor on the project.  If the builder agrees, the union then urges local regulators to quickly approve the project; if the builder refuses, however, the union then raises myriad environmental concerns with regulators in an attempt to stall or even completely derail the project.  Apparently, a union-built solar installation won't have the same impact on the habitat of the short-nosed kangaroo rat or the ferruginous hawk as a non-union one.  Right. 

These tactics aren't new; labor unions have made aggressive use of the environmental laws for years to put pressure on traditional energy producers to use union labor.  But, with union membership in an overall decline, unions are desperate to maintain relevance in the growing green economy. 

Show me the Money: Conneticut and Utah State Energy Programs

Today, the Department of Energy (“DOE”) announced more than $204 million in Recovery Act funding to ten states for their State Energy Programs ("SEPs"). 

Here is a summary of how the monies will be used in Connecticut and Utah:

Connecticut will use its SEP funding to further a variety of programs. Examples include the deployment of alternative-fuel vehicles and in-home energy audits. In-home energy audits involve a specialist performing an energy assessment, weatherizing the home, and installing energy conservation devices. After demonstrating successful implementation of its plan, the state will receive an additional $19 million, for a total of $38 million.

Utah will use its SEP funding to collect data about potential renewable energy resources in the state and to improve energy efficiency. The energy efficiency program will provide financial incentives to upgrade residential, commercial, public education, and government buildings. New construction developments will also qualify for rebates if they meet specific energy efficiency goals. After demonstrating successful implementation of its plan, the state will receive an additional $17 million, for a total of $35 million.

My colleagues are blogging on the other 8 states that received funds today. 

 

President Creates Interagency Task Force to Develop Marine Policy and Spatial Planning Framework

President Obama has issued a memorandum calling for the creation of a temporary Interagency Ocean Policy Task Force led by the Chair of the Council on Environmental Quality (CEQ) to develop a unifying framework for responsible development and ecosystem management for the nation’s oceans, coasts and the Great Lakes. Specifically, within 90 days the Task Force must develop recommendations for a national ocean, coastal and Great Lakes policy that addresses coastal economies, climate change and adaptive management while prioritizing resource stewardship, as well as a framework for policy coordination and an implementation strategy that identifies and prioritizes policy objectives. Within 180 days, the Task Force must develop a recommended framework for comprehensive, ecosystem-based coastal and marine spatial planning that addresses “conservation, economic activity, user conflict, and sustainable use of ocean, coastal and Great Lakes resources....”

 

In addition to the Chair of CEQ, the Task Force will be composed of senior officials from the Departments of State, Defense, the Interior, Agriculture, Health and Human Services, Commerce, Labor, Transportation, Energy, and Homeland Security and Justice, the Environmental Protection Agency, Office of Management and Budget, National Aeronautics and Space Administration, National Intelligence, Office of Science and Technology Policy, National Science Foundation, and Joint Chiefs of Staff, as well as several Presidential assistants and an employee designated by the Vice President.
 

For additional information, please contact my colleague Cherise Oram.

Show me the Money: Seminar for Identifying Funding for Renewable Energy Projects

The American Recovery and Reinvestment Act provides almost $94 billion dollars in direct and indirect spending to clean energy company and projects. See Show me the Money: A Guide to Sources of Funding through the American Recovery and Reinvestment Act

On June 17, 2009, I will be speaking in Cle Elum, Washington about how to get your project "shovel ready" for Stimulus Funding.  The seminar will also include sessions on identifying sources of funding and application mechanics.

Please click here for event information

FERC and Washington Sign MOU on Hydrokinetic Projects

Late last week, the Federal Energy Regulatory Commission (“FERC”) and the State of Washington signed a Memorandum of Understanding (“MOU”) to coordinate their review of hydrokinetic energy projects in Washington state waters.  The MOU is intended to  reduce some of the regulatory barriers associated with siting and permitting such projects, while also ensuring that projects are undertaken in an environmentally and culturally sensitive manner. 

As described in the MOU, FERC and Washington have pledged to collaborate in the following ways:  (1) notifying each other of potential applicants for a preliminary permit, pilot project license, or license; (2) agreeing upon a schedule for processing license applications that will include milestones and encourage collaboration among various stakeholders; (3) coordinating the environmental reviews of projects proposed in Washington state waters and consulting with stakeholders on the design of applicable studies; and (4) agreeing that if Washington prepares a comprehensive plan with respect to the siting of hydrokinetic projects, in determining whether to approve a project license, FERC will consider whether the project is consistent with the state plan.  Notably, the MOU recognizes that Washington may submit an amendment to its coastal zone management plan to the National Oceanic and Atmospheric Administration (“NOAA”) for approval, and that such a plan may identify a limited number of areas within Washington state waters where hydrokinetic projects may be initially located.  Whether NOAA would approve such a plan is unclear. 

LLC Law Monitor

Renewable energy developers often use limited liability companies (LLCs) as project companies and to form entities for other purposes.  My partner Doug Batey has started a new law blog that will likely be helpful to those charged with setting up, understand and maintaining these LLCs.  Here's today's announcement: 

Stoel Rives LLP is pleased to introduce its new LLC law blog, LLC Law Monitor, at www.llclawmonitor.com

The LLC Law Monitor focuses on the rapidly developing laws affecting limited liability companies. LLCs are a popular form of business entity and are a relatively new development in the law. LLC statutes vary from state to state, and cases of first impression are being decided by state courts every month.

In light of this new and evolving legal environment, Stoel Rives has launched LLC Law Monitor to provide business executives, attorneys, accountants and other professionals engaged in or working with LLCs with timely updates and insights on the new and developing laws shaping this burgeoning business sector.

LLC Law Monitorauthor Douglas L. Batey has nearly 30 years of experience advising executives on corporate and business legal matters. His experience includes counseling clients in a wide range of industries on company formation, mergers and acquisitions, and general corporate governance matters.

We hope that you will find the LLC Law Monitor helpful.

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Douglas L. Batey
Stoel Rives Corporate Attorney

Apply Now for REAP Grants and Loan Guarantees

The USDA announced today that it is accepting applications under the Rural Energy for America Program (“REAP”).  REAP provides grants and loan guarantees to agricultural producers and rural small businesses to purchase renewable energy systems, make energy efficiency improvements and conduct feasibility studies for renewable energy systems.

REAP funds are available in the following amounts:

  • Grants for energy efficiency projects are available for up to the lesser of $250,000 or 25% of the project costs.
  • Grants for renewable energy systems are available for up to the lesser of $500,000 or 25% of the project costs.
  • Grants for feasibility studies for renewable energy systems are available for up to the lesser of $50,000 or 50% of the costs of the study.
  • Loan guarantees are available for up to the lesser of $25 million or 75% of the project costs. 

Applicants must be agricultural producers or rural small businesses.  Agricultural producers are farmers or ranchers that obtain more than half of their gross income from agricultural operations.  Small rural businesses are small businesses, as determined in accordance with the Small Business Administration's small business size standards, located in rural areas.  Applications are due July 31, 2009.

Doing Business with Indian Tribes

My colleagues Michael O'Connell and Stephen Kelly, both of whom have a great deal of experience representing clients engaged in energy and natural resources transactions with Indian tribes, are putting on a webinar entitled "Doing Business with Indian Tribes." Since the best private lands are often already spoken for, renewable energy developers are looking more and more at developing projects on public lands and Tribal lands. The Webinar that Mike and Steve are presenting will discuss doing business with tribes generally, but their presentation will be relevant to those seeking to develop renewable energy projects in partnership with Indian tribes or on tribal lands.

Details are as follows: 

Please join Stoel Rives attorneys Michael O’Connell and Stephen Kelly for a webinar on Doing Business with Indian Tribes on Wednesday, June 10, 2009. They will conduct a lively, interactive program that will cover:

There are over 550 federally recognized Indian tribes. Indian tribes engage in a broad range of business transactions governed by a complex array of federal, tribal and state laws. Stoel Rives is pleased to offer a webinar that will offer you tools to recognize the unique legal status of Indian tribes and how it affects business transactions with Indian tribes.

  • Tribes and tribal business structures
  • Contracting, sovereign immunity, and dispute resolution
  • Leases, easements, and other agreements for use of tribal land
  • Tribal and federal environmental reviews and approvals
  • Taxation issues

When:

Wednesday, June 10, 2009
11:30 - 11:45 a.m. PST - Registration and Lunch
11:45 a.m. - 1:30 p.m. PST - Presentation


Cost:

Complimentary (lunch included)


Where:


Stoel Rives LLP
900 SW Fifth Avenue, Suite 2600
Portland, OR 97204

Or at your computer. Information on how to access the webinar will be provide to those who register.

Parking:

We will validate parking for most nearby parking garages.

RSVP:

Space is limited! Register online by Monday, June 8.

 

Client Alert: Summary of Final MMS Regulations on OCS Leasing

As promised in a recent blog entry, we've issued a client alert providing a detailed analysis of the final Minerals Management Service (MMS) regulations governing leases for energy production on the Outer Continental Shelf (OCS), including wind and ocean energy. Please contact us with any questions!

"Show Me The Money"

 

We announce the publication of a guide to federal clean energy funding opportunities under the $787 billion American Recovery and Reinvestment Act (“ARRA”). Titled “Show Me The Money,” the guide reviews the various programs and potential sources of federal funding for clean energy companies and projects. The guide addresses funding opportunities under the ARRA for each of the following energy industry areas: wind, solar, biofuels, biomass, smart grid, transmission, geothermal, marine and hydrokinetic, green building, energy efficiency, advanced battery and fuel cell technology, clean energy equipment manufacturing, green vehicles and clean coal. The guide also contains information about some of the funding opportunities and updates at the federal and state level which we will continue to track closely.

MMS Finalizes Regulations for Renewable Energy Projects on the OCS

The Minerals Management Service (MMS) has issued its final regulations for renewable energy projects on the Outer Continental Shelf (OCS). Stoel Rives attorneys are reviewing the 579-page rule now and will provide further updates soon!

Client Alert - FERC and MMS Memorandum of Understanding on OCS Energy Development

As promised in a previous blog entry discussing the recently signed MOU between FERC and MMS regarding energy development on the Outer Continental Shelf, I'm attaching a link to the client alert prepared by my colleague, Cherise Oram, on the subject.  Please contact us with any questions!

FERC and MMS Reach Agreement on Offshore Renewable Energy

Today, Department of Interior Secretary Salazar and FERC Chairman Wellinghoff signed a Memorandum of Agreement (MOA) clarifying each agency’s jurisdictional responsibilities for siting renewable energy on the Outer Continental Shelf (OCS). The MOA should clear the way for wind, wave, tidal, ocean current, and solar energy projects on the OCS. My colleagues, including Cherise Oram, are reviewing the MOA now, and will provide more details and analysis shortly!

President Obama Clamps Down on Lobbyists and First Amendment

On March 20th, President Obama issued a directive to the heads of executive branch departments and agencies.  The directive is aimed at achieving the laudable goal of ensuring merit based decision-making for grants and other forms of stimulus funds provided by the American Recovery and Reinvestment Act of 2009 (usually referred to as the Stimulus Bill).  It seems that while candidate Obama promised repeatedly during his campaign to limit the influence of lobbyists in Washington DC, the passage of the Stimulus Bill has sent record numbers of lobbyists to D.C. to scramble for federal dollars.

In apparent response to this, President Obama has singled out registered lobbyists and regulated their contacts with the executive branch.  His directive provides that “executive department or agency officials shall not consider the view of a lobbyist registered under the Lobbying Disclosure Act of 1995, concerning particular projects, applications, or applicants for funding under the Recovery Act unless such views are in writing.”  Officials are directed to inquire regarding the possible presence of registered lobbyists both upon the scheduling and commencement of phone calls and in-person conversations “with any person or entity concerning particular projects, applications, or applicants for funding under the Recovery Act.”  If any registered lobbyists are detected, the directive forbids them from attending the meeting or participating in the phone call.

Not surprisingly, the American League of Lobbyists (ALL) has objected to the Obama Administrations restrictions.  In a demonstration that politics does indeed sometimes make strange bedfellow, ALL has been joined by the ACLU and the Citizens for Responsibility and Ethics in Washington (CREW).  In a letter to the President released Tuesday, these three groups requested that President Obama rescind the constitutionally offensive provisions of the directive immediately.   

As tempting a political target as they may be, registered lobbyists have a place in our political system and rights under our Constitution.  The President should heed the groups’ advice and tailor his directive to enable transparency while not muzzling any voices--including those paid to advocate.

Stoel Teams with EUCI to Present Law of Renewable Energy Webinars

Stoel Rives LLP is teaming up with EUCI to present a series of webinar’s based on our series of “Law of” books about renewable energy. The Law of Renewable Energy web conferences will address the major legal issues associated with the development of renewable energy projects.  The web conferences will include the following topics:

Tax and Project Finance Structuring Issues for Renewable Energy Projects
April 27, 2009

Real Estate and Site Rights for Renewable Energy Projects
May 11, 2009

PPAs for Renewable Energy Projects
May 18, 2009

Siting and Permitting for Renewable Energy Projects
June 1, 2009

EPC, Major Component, Construction and Balance of Plant Contracts for Renewable Energy Projects
June 8, 2009

Regulatory and Transmission Issues for Renewable Energy Projects
June 15, 2009


Please sign up here if you’d like to get your own copy of any book in our “Law of” series. We update the “Law of” books regularly, and we'll have copies of the Law of Wind (5th edition) at Booth No. 3148 at the AWEA conference in Chicago on May 4-7, 2009. In addition, please sign up here if you’d like to receive our Stoel Rives Energy Law Alerts and other periodic updates.
 

New tax credit for "qualifying advanced energy project"

Although this blog is focused on renewable energy, manufacturers in the renewable space should be aware of a new tax credit included in the stimulus bill.  The provisions is complicated and unlike most tax credits.  Nevertheless, its benefits, especially for manufacturers on the cutting edge, may be too great to ignore. 

Taxpayers who qualify are entitled to a 30 percent tax credit for investment in a “qualifying advanced energy project."  A "QAEP" is defined as one that reequips, expands or establishes a manufacturing facility that produces:

1.  property designed to produce energy from the sun, wind, geothermal, and other renewable resources,

2.  fuel cells, microturbines, or an energy storage system for use with electric or hybrid-electric motor vehicles

3.  electric grids to support the transmission of intermittent sources of renewable energy, including storage of such energy,

4.  property designed to capture and sequester carbon dioxide emissions,

5.  property designed to refine or blend renewable fuels or to produce energy conservation technologies, and

6.  new qualified plug-in electric drive motor vehicles (and components),

The program is to be established by IRS, in consultation with Energy Department, on or before August 26, 2009. 

Once the program is established, the Secretary of Treasury is to award certifications for tax credit.  Applications must be submitted within 2 years, and applicants will have one year from the date their application is accepted to provide evidence that requirements for certification have been met.  After certification awarded, an applicant has 3 years to place project in service.

The following are the criteria for certification:

    -- Reasonable expectation of commercial viability

    -- Greatest domestic job creation (both direct and indirect)

    -- Greatest net impact in reducing air pollutants, greenhouse gases, etc. 

    -- Greatest potential for technical innovation and commercial deployment

    -- Lowest levelized cost of energy generated or stored or of measured reduction in energy consumption or greenhouse gas emissions

   -- Shortest project time from certification to completion.

The credit generally applies only to construction, etc. after February 17, 2009. 

The credit is new and unlike anything IRS has ever administered before.  Therefore, it is reasonable to expect that IRS will take some time to get the program fully functional.  Nevertheless, it makes considerable sense to begin assembling materials that explain the company’s project and address the criteria for selection.  In addition, it would be advisable to submit any applications as soon as possible after the program is established.

Stoel Rives would be pleased to assist in planning for and submitting applications for the credit.
   
 

Interior and FERC reach agreement on Outer Continental Shelf hydrokinetic projects; Secretary Salazar announces regional meeting details

From our colleague Cherise Oram:

Secretary of Interior (DOI) Ken Salazar and Acting Chairman of the Federal Energy Regulatory Commission (FERC) Jon Wellinghoff have announced an agreement describing how the two agencies will work together to facilitate permitting renewable energy – particularly ocean wave and current projects – on the outer continental shelf (OCS). The announcement indicates that DOI’s Minerals Management Service (MMS) will retain leasing authority for ocean wave and current projects on the OCS, but that FERC will have the “primary responsibility to manage the licensing of such projects” pursuant to the Federal Power Act (FPA) hydropower licensing provisions. FERC has long asserted that the FPA gives it concurrent jurisdiction with MMS’s leasing authority. The announcement indicates that the agencies will sign a more detailed Memorandum of Understanding describing how the agencies will coordinating their licensing and leasing processes for offshore projects.

This announcement comes just as Secretary Salazar, FERC Commissioner Philip Moeller and others were to testify before the Senate Committee on Energy and Natural Resources on offshore renewable energy, including the jurisdictional debate between MMS and FERC.

Finally, Secretary Salazar has announced more detailed information on the four regional offshore renewable energy meetings he plans to hold April 6-16 in Atlantic City, New Orleans, Anchorage and San Francisco. For detailed information, see Secretary Salazar’s Invitation to Regional Meetings on Offshore Energy Development.
 

DOE Issues Draft Report on Environmental Effects of Marine and Hydrokinetic Energy Projects

The Department of Energy’s Draft Report to Congress on the Environmental Effects of Marine and Hydrokinetic Energy Projects is now available for public comment. The report, prepared pursuant to the Energy Independence and Security Act of 2007 (“EISA”), describes (1) the potential environmental impacts of marine and hydrokinetic energy technologies; (2) options to mitigate and prevent adverse environmental impacts; (3) the role of monitoring and adaptive management; and (4) the key elements of an adaptive management program. Comments are due on December 9, 2008.   

The EISA report describes the various conceptual designs for generating electricity from ocean waves, river and tidal currents, and ocean thermal energy conversion, and identifies several “common elements” among the technologies that it asserts could yield adverse environmental effects. The report’s analyses are based largely on predictive studies or environmental assessments that have not yet been verified. As a result, the EISA report is not a definitive assessment of known environmental impacts, but rather an effort to highlight potential areas of concern for further monitoring and testing. 

 

The EISA report also lists several strategies for mitigating and preventing risks of potential environmental impacts associated with marine and hydrokinetic energy projects. Advocating that more research and testing is needed, it stresses the importance of using post-installation environmental monitoring and adaptive management to confirm the extent of anticipated impacts and determine appropriate methods to avoid, minimize, or mitigate for any unacceptable adverse effects.

Dingell Unseated; Waxman to Head House Energy and Commerce Committee

In a move that could have a significant impact on the energy sector (and create a buzz among political science departments) nationwide, Representative Henry Waxman (D-CA) has dethroned Representative John Dingell (D-MI) in his nearly 28-year post as chairman of the influential Committee on Energy and Commerce. The 137-122 secret vote has shaken up the seniority system that has driven the caucus for decades. It also replaces a long-time friend of the auto industry with someone who has been championed by environmentalists for his positions on clean air and global warming. 

Waxman’s ascension to the Energy and Commerce Committee chairmanship is particularly significant because the committee shepherds legislation on climate change, energy, and health care—all of which are key priorities of the Obama Administration. Waxman (who also has a strong leadership record on health care issues) has pushed for aggressive targets for carbon emissions reductions, more stringent auto emissions standards, and a national cap-and-trade program. Although Dingell recently proposed legislation that would impose gradual reductions in greenhouse gas emissions, Waxman has put forth much more ambitious climate change legislation. 

 

Also of note is Obama’s recent appointment of Philip Schiliro, a longtime aide to Waxman, as the new White House director of Congressional relations. This appointment is considered to be significant in that it provides Waxman with a direct channel to the White House. Congressional insiders have also noted that House Speaker Nancy Pelosi is a close ally of Waxman’s. This web of connections underscores the potential for the Obama Administration and Congress to work closely together to usher in major changes to U.S. climate change policy.  

           

The Shape of Waves to Come: Forecasting the Future of Ocean Power Conference (Portland, OR, February 10-11, 2009)

Those who follow the ocean energy industry are confronted with a fascinating array of technologies, ranging from articulated "sea snakes" to anchored buoys that exploit oscillating water columns to underwater turbines and other cutting edge technologies.  Ocean energy offers enormous possibilities, with the World Energy Council estimating that waves alone (to say nothing of tides, currents or ocean thermal energy) could provide anywhere from 1,000 to 10,000 gigawatts of capacity.  The Bay of Fundy in eastern Canada has tides so dramatic that it could in theory generate 17,000 GWh per year; some estimates suggests that tidal energy could produce as much as 1 million GWh per year, about 5 percent of today's worldwide electricity generation.  (For an excellent overview of the potential of various renewable energy sources, see NewScientist's October 11-17, 2008 special issue on renewable energy.)  The Obama Administration will make renewable energy a high priority, and ocean energy will benefit from that policy emphasis.

Along with the promise, ocean energy faces some unique challenges.  For example, wave height and frequency vary significantly depending on geography and weather, and deployed technologies need to be tailored to the environment in which they will operate.   Ocean technology must also cope with the power of the sea itself, including storms and freak waves.  On top of the technical challenges, ocean energy faces legal hurdles.  The California Public Utility Commission (CPUC) recently disapproved of a proposed 2MW wave energy power purchase agreement between Finavera and Pacific Gas & Electric, ruling that that the technology involved was not sufficiently reliable and that the cost of energy was too high.  (For details of the CPUC's decision and a link to the decision itself, see our Energy Law Alert entitled "California Public Utilities Commission Rejects Finavera-PG&E Wave Energy Contract ." ) The process of permitting and interconnecting an ocean energy facility will require the development of a  strategy that threads the needle among stakeholders and conflicting state and federal regulations and claims of jurisdiction.

For those interested in learning more about ocean energy and how to make it a reality, Greentech Media will be holding a Forecasting the Future of Ocean Power conference in Portland, Oregon, on February 10-11, 2009.  The conference will bring together analysts, investors, technology developers and suppliers, policy makers, and legal experts for a comprehensive look at the emerging ocean power industry. Stoel Rives is a sponsor for the event, which will also draw on research from Greentech Media's leading ocean power market analysis.

California PUC Moves to Allow Unbundled RECs

 

The California Public Utility Commission issued a draft decision on October 29th authorizing the use of unbundled and tradable renewable energy certificates (“RECs” or “TRECs”) for compliance with California’s RPS. 

Continue Reading...

Congress Extends PTC and ITC--More Analysis to Follow

In an email alert that we just sent out, my colleagues in the Stoel Rives Tax Section report:

Today the House passed, and President Bush signed into law, H.R. 1424, which includes the Energy Improvement and Extension Act of 2008 (the Act). The Act contains the much-anticipated extension of the production tax credit (PTC) and investment tax credit (ITC) sunset dates.

The Act extends the PTC placed-in-service sunset date for certain wind and refined coal facilities until December 31, 2009, and extends the PTC placed-in-service sunset date for certain other qualifying facilities until December 31, 2010. The Act also expands the PTC to include certain marine and hydrokinetic renewable energy facilities placed in service on or before December 31, 2011.

The Act extends the ITC placed-in-service sunset date for solar, fuel cell and microturbine property until December 31, 2016 and expands the ITC to include combined heat and power system property, qualified small wind energy property, and geothermal heat pump system property.

In addition, H.R. 1424 contains a variety of other renewable energy tax provisions, including provisions allowing the energy credit to offset alternative minimum tax liability; increasing the amount of the biodiesel and renewable diesel fuel credits and extending the sunset dates until December 31, 2009; authorizing new clean renewable energy bonds and qualified energy conservation bonds; and extending the energy efficient commercial buildings deduction and the new energy efficient home credit.

Our Tax Section is working on preparing a more detailed analysis of the tax aspects of HR 1424.  If you'd like to receive updates concerning H.R. 1424 and other renewable energy and clean tech issues, please subscribe to our Renewable Energy Mailing List.

 

Ocean Energy Makes Waves Again

For those who are following the development of ocean and wave energy on the West Coast of the United States and Canada, The Oregonian published an interesting article by Gail Kinsey-Hill entitled Off Oregon's Coast, Wave Energy Makes a SplashThe article provides a good overview of the latest Oregon developments in ocean and wave energy, describing the big payoffs, the challenges, the concerns of crabbers and fishermen, and the competing technologies (including Ocean Power Technologies' buoy-like "point absorbers" and Pelamis' sausage-like sea snake).

As The Oregonian's article suggests, those interested in learning more about cutting edge ocean technology should consider attending Oregon's Third Annual Ocean Renewable Energy Conference at the Mill Convention Center in Coos Bay.  The two day conference will be held this Thursday and Friday (September 25-26).  The event is hosted by Oregon Wave Energy Trust, and you can learn more about the conference and register for it at oregonwave.org

My partner Cherise Oram, one of the nation's leading legal experts on ocean, tidal and other forms of hydrokinetic energy, will be speaking on a panel discussing how wave projects are developed from concept to commercialization.  She'll have on hand plenty of complimentary copies of the new second edition of Stoel Rives' Law of Ocean and Tidal Energy , or you can download your own today.

Portland General Electric's RFP Garners offers of 3,000 MW

The Portland Business Journal is reporting that Portland General Electric Company received 38 offers in its April 2008 RFP totaling up to 3000 MW in renewable energy. 

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Comments on 500+ Page MMS Rule Due September 8

On July 9, 2008, the Department of the Interior's Minerals Management Service (MMS) issued proposed regulations for granting leases, easements and rights of way for alternative energy project activities and for alternative uses of existing facilities located on the Outer Continental Shelf (OCS). For those who are less than excited at the prospect of wading through the 500+ page text of the proposed rules, my partner Cherise Oram and summer associate Chad Marriott (University of Oregon) have written an executive summary of the MMS's Proposed Regulations Governing Development of Wind, Wave, Current, Solar and Other Alternative Energy Sources on the Outer Continental Shelf. Comments on the proposed rules must be submitted to MMS no later than Monday, Spetember 8, 2008.