Converting a qualifying facility's legacy PURPA interconnection agreement to a FERC-jurisdictional agreement can be an effective way to bypass the numbing headache that often accompanies taking a new power generation project through the interconnection queue. One may even be able to throw in a repower and, voila!, you have a refreshed facility that can operate for decades more in broader bilateral power markets without having years of interconnection delay.
But there are ins-and-outs to these conversions, and today FERC addressed the question of whether a qualifying facility owner may necessarily convert the capacity that's stated in its PURPA interconnection agreement. For qualifying facility owners--it isn't the answer you wanted.
See FERC's order by following this link: CalWind Order.
For those companies owning generation on the Bonneville Power Administration system, mark your calendars for March 15, 2014. That's the day by which you must submit your facility displacement costs for Bonneville's implementation of its Oversupply Management Protocol (aka Environmental Redispatch) that provides compensation for certain generator curtailments. The failure to submit facility displacement costs will result in a displacement cost of $0.00 per MWh.
So begin registering your facility with Bonneville now at https://oversupply.accionpower.com so that you are prepared for when Bonneville begins accepting displacement cost information on February 28.
Like other Independent System Operators have done before it, the Southwest Power Pool (SPP) is back at the drawing board in an effort to further refine its generator interconnection procedures and improve on queue reforms initially put in place in 2009. And also like other ISOs that have continued to tinker with queue reform, SPP is looking to make the interconnection process more demanding so that only the "viable" projects get through.
Among the various proposed changes, there are a few that generation developers should key in on.
- SPP proposes to allow later-queued customers pass by higher-queued customers in terms of queue priority, provided that the later-queued customer is the first to reach the Facilities Study phase. Previously, customers who reached the DISIS queue could not lose their queue priority and be passed by. But now priority goes to customers who reach the Facilities Study first. This change, of course, will impact customers' cost responsibilities, as priority to unused transmission capacity will be subject to the race to the top.
- To enter the Facilities Study phase (and lock in queue priority), customers must complete a financial milestone by providing security equal to $3,000 per megawatt of the generator size. SPP has proposed removing other choices that customers previously used for entering this phase of the study process. But watch out--customers who later withdraw from the queue may forfeit this deposit.
- Prior to signing an interconnection agreement, an interconnection customer may extend its commercial operation date by no more than three years. Anything longer will be considered a material modification and will result in a loss of queue position.
- Under proposed revisions to the interconnection agreement, a customer would have three years following its designated Commercial Operation Date to complete its generating facility. A customer who fails to do so will have its interconnection agreement terminated. In addition, customers who fail to bring their full generation capacity online within that timeframe will lose rights to any capacity that remains unused at the three-year mark.
- Lastly, customers who sign an interconnection agreement must post 20% of the costs of their network upgrades within 30 days of execution. This deposit may be non-refundable under certain circumstances.
Given the queue reforms that FERC has accepted in other regions, it's likely that much of what SPP has proposed will make it into the tariff.
SPP has asked that these latest reforms be made effective March 1, 2014, and applicable to any customer who does not have an interconnection agreement with an earlier effective date. For those customers currently negotiating an interconnection agreement: the race is on.
With the holidays behind us and the cheer and reverie of the New Year trailing off, wind developers in Idaho may be realizing that the Federal Energy Regulatory Commission (FERC) left a lump of coal in their stockings on Christmas Eve. On December 24, FERC agreed to dismiss an historic legal action that it had taken to enforce the Public Utility Regulatory Policies Act of 1978 (PURPA) against the Idaho Public Utilities Commission (IPUC) on behalf of Qualifying Facility (QF) wind developers who have been beaten up by numerous decisions coming out of the state agency over the past several years. FERC had never before sought to enforce PURPA against a state agency, but the IPUC apparently found FERC’s tipping point.
In exchange for its agreement to dismiss this first-of-its-kind action, FERC extracted a simple acknowledgement of questionable value from the IPUC: “The Idaho PUC acknowledges that a legally enforceable obligation may be incurred prior to the formal memorialization of a contract to writing.” And that is as far as their substantive agreement goes. In other words, the IPUC acknowledges that a hypothetical situation may occur, without agreeing to the all-important question of when that situation does occur. The agreement signals an apparent policy change at FERC, and it also leaves QF wind developers on their own, once again, to enforce PURPA in protracted litigation in federal court, i.e., without a viable option.
For those keeping score, there was none in this dispute: FERC threw in the towel before the first bell.
Interconnection customers: be on notice. Your interconnection agreement may not be just a transmission provider service agreement that allows your project to interconnect with the transmission system. It may also be a rate schedule--your rate schedule--that you must file with FERC or suffer the consequences for violating the Federal Power Act.
At last week's open meeting, FERC issued a decision in Chehalis Power Generating, LP where FERC recapped the longstanding requirement that public utilities must file the rates, terms, and conditions for the jurisdictional services they provide. So far, so good. But the Chehalis decision focuses on an interconnection customer who, for some time, provided uncompensated reactive power service under its interconnection agreement--a service that is provided by all interconnection customers who are required to operate their projects within a specified power factor range. (If you're keeping track, that's everyone but wind projects.) In fact, FERC's pro forma interconnection agreement even requires interconnection customers to operate their projects in this way in order to maintain reliability.
In Chehalis, FERC said the following: "In order to clarify the Commission's policy related to reactive power service provided without compensation, the Commission finds that, on a prospective basis, for any jurisdictional reactive power service (including within dead-the-deadband reactive power service [i.e., the service that nearly all interconnection customers supply]) provided by both existing and new generators, the rates, terms, and conditions for such service must be pursuant to a rate schedule on file with the Commission, even though the rate schedule would provide no compensation for such service." (brackets added)
In other words, interconnection customers who have not offered to provide any service but who instead operate their projects pursuant to the requirements that have been imposed by FERC, and who do so without compensation, must file their interconnection agreements as a rate schedule. But what regulatory purpose does this serve?
As a result of the Chehalis decision, FERC will be holding a workshop to explore the mechanics of filing reactive power rate schedules for which there is no compensation. At a minimum, I hope that FERC exempts all interconnection customers who provide uncompensated reactive power services from any filing requirement. If not, FERC Staff will be very busy.
At today's open meeting, the Federal Energy Regulatory Commission (FERC) adopted a new rule that may be particularly helpful for variable energy resources (wind and solar) that, in the past, have been hit with pricey imbalance penalties, and for the transmission providers who have struggled to integrate those resources. The new rule adopted today requires transmission providers to provide generators with the option of scheduling transmission service on 15-minute intervals, rather than the typical 60-minute interval. With the shorter scheduling interval, generators will be able to better mitigate imbalance penalties, and transmission providers should be able to maintain reserves that more closely match the variable generation that is expected to be online. The bottom line--cost savings!
FERC also issued a Notice of Proposed Rulemaking (NOPR) in which FERC proposes to revise its policies governing the sale of ancillary services at market-based rates. FERC also proposes to require transmission providers outside of organized markets (e.g. WECC) to take into account resource speed and accuracy in determining regulation and frequency response reserve requirements. That consideration may help to establish a stated need for fast-acting resources, such as certain energy storage technologies. The NOPR also suggests other regulatory changes that, in part, aim to provide energy storage technologies with better access to providing ancillary services.
We will soon issue full clients alerts on the results of today's open meeting at FERC. If you would like to receive an electronic copy of our Energy Law Alerts, please follow this link: Sign Up - Stoel Rives Energy Law Alerts
The Montana Supreme Court has reversed a December 2010 district court decision that found that the developers of the Montana-Alberta Tie Line merchant transmission project do not possess eminent domain authority under Montana law and therefore could not take private land from a nonconsenting landowner. In its reversal, the state Supreme Court cited House Bill 198 that passed during the 2011 Montana legislative session, which bill grants eminent domain authority to any person issued a certificate under the state's Major Facility Siting Act. The Supreme Court noted that because the legislation applies retroactively to persons issued a certificate after September 30, 2008, and the MATL developers received their certificate on October 22, 2008, HB 198 now expressly provides eminent authority to MATL's developers. The district court must now reconsider its earlier decision in light of HB 198.
On a related note, Concerned Citizens Montana is driving a citizens' referendum to repeal HB 198. If the petition receives enough signatures, Montana voters will decide HB 198's fate in 2012.
FERC Clarifies Qualifying Facility Restrictions in Sale/Resale Transactions
On May 19, the Federal Energy Regulatory Commission ("FERC") issued an order in Idaho Wind Partners I, LLC, a docket in which wind farm owners in Idaho petitioned FERC for approval of a unique transaction that would both provide eligible Renewable Energy Credits ("RECs") to a utility in California and leave the wind farm owners in a position to make a Qualifying Facility ("QF") "put" sale at avoided cost rates on the interconnecting utility.
FERC confirmed that so long as the third party is a QF, the size, affiliation, or relative physical location of the third party has no effect on the QF status of the power being sold and repurchased. Consequently, any power that the Idaho wind farms sell to a QF and then buy back may subsequently be sold to an electric utility at avoided cost rates.
SunZia Transmission Obtains Approval of Ownership Structure, Anchor Tenant Proposal
On May 20, FERC granted SunZia Transmission's ("SunZia") petition for FERC's approval of the ownership structure and transmission service plans for the SunZia Southwest Transmission Project (the "Project"). SunZia had requested that each of its investor-owners be allocated ownership rights representing 100 percent of its respective pro rata investment in the Project, and that certain of the investor-owners be able to allocate up to 50 percent of their pro rata shares of transmission capacity to anchor tenants through long-term negotiated transmission contracts. In May 2010, FERC rejected SunZia's request to allocate 100 percent of the Project's transmission capacity (as opposed to ownership rights) among the owners according to their pro rata investment in the Project's capacity and ruled that the owners do not have exclusive rights to the Project's capacity equal to their share of investment in the Project.
Midwest ISO Releases Group 5 Re-Study System Impact Study
On May 19, the Midwest ISO released the long-anticipated Minnesota Group 5 Re-Study Generator Interconnection System Impact Study, which Re-Study was ordered by FERC as the result of a cost allocation dispute between a wind developer (Community Wind) and the Midwest ISO with respect to the Brookings County-Twin Cities transmission line.
A Big Day for Transmission Rate Incentives: Multiple Applications Approved, and FERC Seeks Comments on Its Policies
FERC's May 19 open meeting turned out to be positive for transmission developers, as FERC approved transmission rate incentives (or related settlements) for five transmission projects located from the Atlantic coast to the desert Southwest. FERC also issued a Notice of Inquiry on its implementation of Section 219 of the Federal Power Act, and is seeking comments on how it should modify its policies and regulations to promote increased transmission investment.
FERC Seeks Comments on Regulatory Reforms for Merchant Transmission and Generator Interconnection Capacity
The Federal Energy Regulatory Commission ("FERC") is seeking comments from energy industry participants on regulatory reforms that address how FERC should regulate merchant transmission development and generator interconnection (or lead) lines. Specifically, FERC desires comments on how it should balance the requirements of open access transmission and the needs of project developers.
Merchant transmission and generator interconnection issues have caused a surge of contested FERC proceedings in recent years. In 2009, merchant transmission developers, for instance, were granted the ability to place transmission capacity with anchor tenants prior to making capacity available through an open season. The anchor tenant model was a significant shift in merchant transmission regulation, but, to date, merchant transmission developers have struggled to maintain meaningful anchor tenant arrangements. As a result, more recent filings at FERC have pushed the boundaries of the anchor tenant model, and FERC now seeks to determine through public comment how its open access policies could be further changed to incentivize merchant transmission development.
Generator interconnection lines have also been a popular subject at FERC of late—specifically whether and how interconnection line owners should be granted priority rights to interconnection capacity. This issue is particularly relevant for renewable energy developers who are planning to build generation projects in phases and will rely on having interconnection capacity available to serve later phases when they come online. To maintain priority over competing interconnection requests, FERC has asked generation developers to show they have established milestones for developing the generation phases that seek priority (and to demonstrate progress toward meeting those milestones). Such filings are generally confidential, and thus interconnection line owners from the outside looking in have not been given much insight into what is required to establish priority. FERC's precedent on the issue has also created dissimilar treatment of interconnection owners who are affiliated with open access transmission providers.
On March 15, 2011, FERC staff held a technical conference where the invited speakers shared a wide range of opinions on these issues. With respect to merchant transmission, speakers supported (i) creating a new section to the Open Access Transmission Tariff ("OATT") that would specify the rules for developing merchant transmission and the ancillary services obligations of those developers, (ii) placing AC merchant lines under existing incumbent transmission provider OATTs, (iii) allowing more incentives for anchor tenants, and (iv) having FERC back away from regulating these projects in their early stages. Those who spoke about priority to interconnection capacity shared opinions that included (x) requiring interconnection developers to give public notice of their development intentions and allow others to bid on capacity (a "speak now or forever hold your peace" approach), (y) requiring all interconnection owners to develop and maintain an "OATT light"—a pared down version of the full OATT, and (z) advocating for less regulation of interconnection lines altogether. FERC staff also questioned whether and how FERC should regulate transmission service over interconnection facilities that are shared or jointly owned (e.g., through a Joint Ownership Agreement, Shared Facilities Agreement, or Common Facilities Agreement) directly by generation developers, or indirectly through an affiliate that owns and operates an interconnection line.
Written comments on these issues are due to FERC no later than April 21, 2011.
Congress’ experiment with establishing federal siting authority for transmission lines suffered another setback after a Ninth Circuit Court of Appeals decision issued yesterday, February 1, 2011, vacated the Department of Energy’s (“DOE”) 2007 Transmission Congestion Study that had designated national interest electric transmission corridors in mid-Atlantic and Southwestern states. This ruling is the latest of three court and agency decisions that have limited or undermined the federal siting authority established at Federal Power Act section 216 by the Energy Policy Act of 2005.
Congress created section 216 to confront concerns that states were acting too slowly in siting new transmission lines needed to address growing reliability and congestion problems. In part, section 216 directs the DOE to study transmission congestion in consultation with the states, and designate certain transmission-constrained areas as national interest electric transmission corridors (“NIETCs”). Section 216 also grants the Federal Energy Regulatory Commission authority to issue permits to construct transmission facilities in these NIETCs under certain circumstances. Congress also provided that an applicant who receives a permit to construct transmission in a NIETC would be granted with the authority to acquire rights-of-way by eminent domain. In sum, section 216 had the potential to uncork the transmission bottleneck, but that potential has not materialized.