A proposed hydroelectric project in Colorado has received a federal determination that it qualifies as a "qualifying conduit hydroelectric facility" and thus is not required to be licensed under Part I of the Federal Power Act. The Park Farm Hydro Project illustrates the rapid pace with which the Federal Energy Regulatory Commission can act on conduit hydropower projects under a 2013 amendment to its law.
The Federal Power Act requires most hydropower projects to be licensed by the Federal Energy Regulatory Commission. But Section 4 of the Hydropower Regulatory Efficiency Act of 2013
amended the Federal Power Act to facilitate "conduit hydropower" projects -- those generating
electricity using only the hydroelectric potential of a non-federally
owned conduit, such as a tunnel, canal, pipeline, aqueduct, flume,
ditch, or similar manmade water conveyance that is operated for the
distribution of water for agricultural, municipal, or industrial
consumption, and is not primarily for the generation of electricity. Reforms in 2013 exempted qualifying conduit hydropower facilities
from needing a license, and established a fast process for to solicit public comment and confirm whether the new exemption applies. In the ensuing years, a number of projects have qualified for this treatment.
On January 27, 2016, an applicant filed a notice of intent, pursuant to section 30(a) of the Federal Power Act, as amended by Section 4 of the Hydropower Regulatory Efficiency Act of 2013, to construct a qualifying conduit hydropower facility, the Park Farm Hydro Project, to be located near the Town of Kersey, in Weld County, Colorado. The notice described a proposal to add ten 1-kilowatt Crossflow turbines alongside an existing "ditch drop" or conduit in the Lower Latham Ditch.
On February 2, 2016, the Commission issued its notice of preliminary determination that the proposal satisfies the requirements for a qualifying conduit hydropower facility, which is not required to be licensed or exempted from licensing. The notice set a 30-day deadline for filing motions to intervene, and a 45-day deadline for filing comments contesting whether the facility meets the qualifying criteria. No such comments or motions were received.
On March 22, 2016 -- less than 2 months after the applicant first filed its notice of intent -- the Commission issued a letter constituting its written determination that the Park Farm Hydro Project meets the qualifying criteria under Federal Power Act section 30(a), and is not required to be licensed under Part I of the FPA, although other federal, state, and local laws do apply.
This quick timing on the Park Farm project is consistent with other recent FERC action on proposed conduit hydropower projects.
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Showing posts with label exempt. Show all posts
Showing posts with label exempt. Show all posts
FERC rules tribes exempt from some energy regulation
Tuesday, December 16, 2014
When a Native American tribe acquires a hydroelectric power plant licensed by the Federal Energy Regulatory Commission, does the project become exempt from some federal regulations?
Yes, according to a FERC order recently issued to the Confederated Salish and Kootenai Tribes of the Flathead Reservation.
The tribes are poised to become the first American Indian tribe to own and operate a Commission-licensed hydroelectric power plant, the Kerr Hydroelectric Project. Docketed by FERC as Project No. 5, the Kerr Project consists of a reservoir, dam, penstocks, 196-megawatt power plant, and related assets located on Flathead Lake and Flathead River, mostly within the Tribes’ treaty-reserved Flathead Reservation.
The Commission issued the Kerr Project's current license on July 17, 1985, with a 50-year term. Under the terms of a settlement between Montana Power Company and the Tribes as competing applicants for the license, the utility and the Tribes were joint licensees, and after a term of thirty years, the license allows the project to be transferred to full ownership by the Tribes. While Montana Power Company's interests were sold to PPL Montana, LLC and ultimately transferred to Northwestern Corporation, the Tribes are slated to take over the project on September 5, 2015. On this date of conveyance, the Tribes will be the sole owner and operator of the Kerr Project, through and until the license expires on September 4, 2035.
In anticipation of that conveyance, the Tribes and their wholly owned operating company known as Energy Keepers, Inc. or EKI petitioned the Commission for a declaratory order finding that they are exempt public utilities under section 201(f) of the Federal Power Act and that they are not required to maintain or make available their books and records to the Commission under the Public Utility Holding Company Act of 2005 and related regulations.
Section 201(f) of the FPA provides exemptions from the Commission’s authority under most provisions of Part II of the FPA for “the United States, a State or any political subdivision of a state, or any agency, authority or instrumentality of any one or more of the foregoing, or any corporation which is wholly owned, directly or indirectly, by any one or more of the foregoing.” This exemption is generally viewed as applicable to "governmental entities." The Public Utility Holding Company Act of 2005, or PUHCA 2005, requires holding companies to provide the Commission access to their books and records.
Based on the facts as presented in the Petition, the Commission determined that the Tribes and EKI are exempt public utilities as defined in section 201(f) of the Federal Power Act. The Commission found that the Tribes are an “agency, authority or instrumentality” of the “United States, a State or any political subdivision of a state,” and that their wholly owned subsidiary EKI assists the Tribes in performing their inherent government functions.
The Commission also concludes that PUHCA 2005 and relevant Commission regulations do not apply to the Tribes and EKI. The Commission found that EKI will operate the Kerr Project for the generation, transmission, or distribution of electric energy for sale and is thus an electric utility company, and thus a public utility company under PUHCA 2005 -- and therefore the Tribes are a holding company under PUHCA 2005. However, because the Tribes are an exempt governmental entity, they are exempt from its books and records requirement.
The Commission thus determined that the Confederated Salish and Kootenai Tribes will be exempt from many parts of Part II of the Federal Power Act and the books and records requirement of PUHCA 2005. While the Tribes are not scheduled to take over the Kerr Project until September 2015, they want to be able to secure contracts to sell the project's power well in advance. The Commission's declaratory order reduces regulatory uncertainty, facilitating the Tribes' efforts to sell the project's future power into the Pacific Northwest electricity market.
Yes, according to a FERC order recently issued to the Confederated Salish and Kootenai Tribes of the Flathead Reservation.
The tribes are poised to become the first American Indian tribe to own and operate a Commission-licensed hydroelectric power plant, the Kerr Hydroelectric Project. Docketed by FERC as Project No. 5, the Kerr Project consists of a reservoir, dam, penstocks, 196-megawatt power plant, and related assets located on Flathead Lake and Flathead River, mostly within the Tribes’ treaty-reserved Flathead Reservation.
The Commission issued the Kerr Project's current license on July 17, 1985, with a 50-year term. Under the terms of a settlement between Montana Power Company and the Tribes as competing applicants for the license, the utility and the Tribes were joint licensees, and after a term of thirty years, the license allows the project to be transferred to full ownership by the Tribes. While Montana Power Company's interests were sold to PPL Montana, LLC and ultimately transferred to Northwestern Corporation, the Tribes are slated to take over the project on September 5, 2015. On this date of conveyance, the Tribes will be the sole owner and operator of the Kerr Project, through and until the license expires on September 4, 2035.
In anticipation of that conveyance, the Tribes and their wholly owned operating company known as Energy Keepers, Inc. or EKI petitioned the Commission for a declaratory order finding that they are exempt public utilities under section 201(f) of the Federal Power Act and that they are not required to maintain or make available their books and records to the Commission under the Public Utility Holding Company Act of 2005 and related regulations.
Section 201(f) of the FPA provides exemptions from the Commission’s authority under most provisions of Part II of the FPA for “the United States, a State or any political subdivision of a state, or any agency, authority or instrumentality of any one or more of the foregoing, or any corporation which is wholly owned, directly or indirectly, by any one or more of the foregoing.” This exemption is generally viewed as applicable to "governmental entities." The Public Utility Holding Company Act of 2005, or PUHCA 2005, requires holding companies to provide the Commission access to their books and records.
Based on the facts as presented in the Petition, the Commission determined that the Tribes and EKI are exempt public utilities as defined in section 201(f) of the Federal Power Act. The Commission found that the Tribes are an “agency, authority or instrumentality” of the “United States, a State or any political subdivision of a state,” and that their wholly owned subsidiary EKI assists the Tribes in performing their inherent government functions.
The Commission also concludes that PUHCA 2005 and relevant Commission regulations do not apply to the Tribes and EKI. The Commission found that EKI will operate the Kerr Project for the generation, transmission, or distribution of electric energy for sale and is thus an electric utility company, and thus a public utility company under PUHCA 2005 -- and therefore the Tribes are a holding company under PUHCA 2005. However, because the Tribes are an exempt governmental entity, they are exempt from its books and records requirement.
The Commission thus determined that the Confederated Salish and Kootenai Tribes will be exempt from many parts of Part II of the Federal Power Act and the books and records requirement of PUHCA 2005. While the Tribes are not scheduled to take over the Kerr Project until September 2015, they want to be able to secure contracts to sell the project's power well in advance. The Commission's declaratory order reduces regulatory uncertainty, facilitating the Tribes' efforts to sell the project's future power into the Pacific Northwest electricity market.
September 9, 2010 - Lightship Nantucket; FERC signs Colorado MOU on small hydro
Thursday, September 9, 2010
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| The Lightship Nantucket WLV61, in port on Martha's Vineyard in summer 2010. Until 1983, lightships such as this were used to mark shoals; they have since been functionally replaced (if not aesthetically so) by automated buoys. |
The MOU focuses on the development by Colorado of a pilot program to test procedural options for simplifying the processes for developers to obtain conduit exemptions and small (5MW or less) project exemptions.
The MOU opens the door for developers of small projects in Colorado to participate in the pilot program. Colorado and FERC are both expected to take input from project developers about the kind of obstacles they face in permitting and exempting small projects - and about what can be done to help more projects be developed.
As we've seen in Maine, developing or redeveloping small hydro projects can run into siting and permitting challenges at the federal, state, and local levels. For example, the Scribner's Mill dam reconstruction and repowering project on the Crooked River in Maine faces opposition on water quality, environmental and fisheries concerns. While an MOU like that between FERC and Colorado might not eliminate these challenges, stakeholders are hopeful that a resolution will be reached that allows environmentally responsible projects to move forward.
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