16 U.S.C. § 839d — Conservation and resource acquisition

Page 1532 TITLE 16—CONSERVATION § 839d ferred to in clause (i) whenever the Adminis- trator determines that such customer is receiv- ing electric power pursuant to a contract re- ferred to in such clause (ii). (e) Contractual entitlements to firm power (1) The contractual entitlement to firm power of any customer from whom, or on whose behalf, the Administrator has acquired electric power pursuant to section 839d of this title may not be restricted below the amount of electric power so acquired from, or on behalf of, such customer. If in any year such customer’s requirements are less than such entitlement, any excess of such entitlement shall be first made available to in- crease the entitlement of other customers of the same class before being available for the entitle- ment of other customers. For purposes of this paragraph, the following entities shall each con- stitute a class: (A) public bodies and cooperatives; (B) Federal agencies; (C) direct service industrial; and (D) investor owned utilities. (2) Any contractual entitlement to firm power which is based on electric power acquired from, or on behalf of, a customer pursuant to section 839d of this title shall be in addition to any other contractual entitlement to firm power not subject to restriction that such customer may have under this section. For the purposes of this subsection, references to amounts of power ac- quired by the Administrator pursuant to section 839d of this title shall be deemed to mean the amounts specified in the resource acquisition contracts exclusive of any amounts recognized in such contracts as replacement for Federal base system resources. (3) The Administrator shall, consistent with the provisions of this chapter, insure that any restrictions upon any particular customer class made pursuant to this subsection and subsection (b) of this section are distributed equitably throughout the region. (f) Surplus power The Administrator is authorized to sell, or otherwise dispose of, electric power, including power acquired pursuant to this and other Acts, that is surplus to his obligations incurred pursu- ant to subsections (b), (c), and (d) of this section in accordance with this and other Acts applica- ble to the Administrator, including the Bonne- ville Project Act of 1937 (16 U.S.C. 832 and fol- lowing), the Federal Columbia River Trans- mission System Act (16 U.S.C. 838 and fol- lowing), and the Act of August 31, 1964 (16 U.S.C. 837–837h). (g) Long-term contracts (1) As soon as practicable within nine months after December 5, 1980, the Administrator shall commence necessary negotiations for, and offer, initial long-term contracts (within the limita- tions of the third sentence of section 5(a) of the Bonneville Project Act [16 U.S.C. 832d(a)]) simul- taneously to— (A) existing public body and cooperative cus- tomers and investor-owned utility customers under subsection (b) of this section; (B) Federal agency customers under sub- section (b) of this section; (C) electric utility customers under sub- section (c) of this section; and (D) direct service industrial customers under subsection (d)(1). (2) Each customer offered a contract pursuant to this subsection shall have one year from the date of such offer to accept such contract. Such contract shall be effective as provided in this subsection. (3) An initial contract with a public body, co- operative or investor-owned electric utility cus- tomer or a Federal agency customer pursuant to subsection (b) of this section shall be effective on the date executed by such customer, unless another effective date is otherwise agreed to by the Administrator and the customer. (4) An initial contract with an electric utility customer pursuant to subsection (c) of this sec- tion shall be effective on the date executed by such customer, but no earlier than the first day of the tenth month after December 5, 1980. (5) An initial contract with a direct service in- dustrial customer pursuant to subsection (d)(1), shall be effective on the date agreed upon by the Administrator and such customer, but no later than the first day of the tenth month after De- cember 5, 1980. When such contract is executed, it may for rate purposes be given retroactive ef- fect to such first day. (6) Initial contracts offered public body, coop- erative and Federal agency customers in accord- ance with this subsection shall provide that dur- ing a period of insufficiency declared in accord- ance with subsection (b) of this section each cus- tomer’s contractual entitlement shall, to the ex- tent of its requirements on the Administrator, be no less than the amount of firm power re- ceived from the Administrator in the year im- mediately preceding the period of insufficiency. (7) The Administrator shall be deemed to have sufficient resources for the purpose of entering into the initial contracts specified in paragraph (1)(A) through (D). (Pub. L. 96–501, § 5, Dec. 5, 1980, 94 Stat. 2712; Pub. L. 106–273, § 1, Sept. 22, 2000, 114 Stat. 802.) Editorial Notes REFERENCES IN TEXT The Bonneville Project Act of 1937, referred to in sub- secs. (a), (b)(1), and (f), is act Aug. 20, 1937, ch. 720, 50 Stat. 731, which is classified generally to chapter 12B (§ 832 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 832 of this title and Tables. The Federal Columbia River Transmission System Act, referred to in subsec. (f), is Pub. L. 93–454, Oct. 18, 1974, 88 Stat. 1376, which is classified generally to chap- ter 12G (§ 838 et seq.) of this title. For complete classi- fication of this Act to the Code, see Short Title note set out under section 838 of this title and Tables. Act of August 31, 1964, referred to in subsec. (f), is Pub. L. 88–552, Aug. 31, 1964, 78 Stat. 756, which is classi- fied generally to chapter 12F (§ 837 et seq.) of this title. For complete classification of this Act to the Code, see Tables. AMENDMENTS 2000—Subsec. (b)(7). Pub. L. 106–273 added par. (7). § 839d. Conservation and resource acquisition (a) Conservation measures; resources (1) The Administrator shall acquire such re- sources through conservation, implement all Page 1533 TITLE 16—CONSERVATION § 839d such conservation measures, and acquire such renewable resources which are installed by a residential or small commercial consumer to re- duce load, as the Administrator determines are consistent with the plan, or if no plan is in ef- fect with the criteria of section 839b(e)(1) of this title and the considerations of section 839b(e)(2) of this title and, in the case of major resources, in accordance with subsection (c) of this section. Such conservation measures and such resources may include, but are not limited to— (A) loans and grants to consumers for insula- tion or weatherization, increased system effi- ciency, and waste energy recovery by direct application, (B) technical and financial assistance to, and other cooperation with, the Administrator’s customers and governmental authorities to encourage maximum cost-effective voluntary conservation and the attainment of any cost- effective conservation objectives adopted by individual States or subdivisions thereof, (C) aiding the Administrator’s customers and governmental authorities in imple- menting model conservation standards adopt- ed pursuant to section 839b(f) of this title, and (D) conducting demonstration projects to de- termine the cost effectiveness of conservation measures and direct application of renewable energy resources. (2) In addition to acquiring electric power pur- suant to section 839c(c) of this title, or on a short-term basis pursuant to section 11(b)(6)(i) of the Federal Columbia River Transmission System Act [16 U.S.C. 838i(b)(6)(i)], the Adminis- trator shall acquire, in accordance with this sec- tion, sufficient resources— (A) to meet his contractual obligations that remain after taking into account planned sav- ings from measures provided for in paragraph (1) of this subsection, and (B) to assist in meeting the requirements of section 839b(h) of this title. The Administrator shall acquire such resources without considering restrictions which may apply pursuant to section 839c(b) of this title. (b) Acquisition of resources (1) Except as specifically provided in this sec- tion, acquisition of resources under this chapter shall be consistent with the plan, as determined by the Administrator. (2) The Administrator may acquire resources (other than major resources) under this chapter which are not consistent with the plan, but which are determined by the Administrator to be consistent with the criteria of section 839b(e)(1) of this title and the considerations of section 839b(e)(2) of this title. (3) If no plan is in effect, the Administrator may acquire resources under this chapter which are determined by the Administrator to be con- sistent with the criteria of section 839b(e)(1) of this title and the considerations of section 839b(e)(2) of this title. (4) The Administrator shall acquire any non- Federal resources to replace Federal base sys- tem resources only in accordance with the pro- visions of this section. The Administrator shall include in the contracts for the acquisition of any such non-Federal replacement resources provisions which will enable him to ensure that such non-Federal replacement resources are de- veloped and operated in a manner consistent with the considerations specified in section 839b(e)(2) of this title. (5) Notwithstanding any acquisition of re- sources pursuant to this section, the Adminis- trator shall not reduce his efforts to achieve conservation and to acquire renewable resources installed by a residential or small commercial consumer to reduce load, pursuant to subsection (a)(1) of this section. (c) Procedure for acquiring major resources, im- plementing conservation measures, paying or reimbursing investigation and preconstruction expenses, or granting billing credits (1) For each proposal under subsection (a), (b), (f), (h), or (l) of this section to acquire a major resource, to implement a conservation measure which will conserve an amount of electric power equivalent to that of a major resource, to pay or reimburse investigation and preconstruction ex- penses of the sponsors of a major resource, or to grant billing credits or services involving a major resource, the Administrator shall— (A) publish notice of the proposed action in the Federal Register and provide a copy of such notice to the Council, the Governor of each State in which facilities would be con- structed or a conservation measure imple- mented, and the Administrator’s customers; (B) not less than sixty days following publi- cation of such notice, conduct one or more public hearings, presided over by a hearing of- ficer, at which testimony and evidence shall be received, with opportunity for such rebut- tal and cross-examination as the hearing offi- cer deems appropriate in the development of an adequate hearing record; (C) develop a record to assist in evaluating the proposal which shall include the transcript of the public hearings, together with exhibits, and such other materials and information as may have been submitted to, or developed by, the Administrator; and (D) following completion of such hearings, promptly provide to the Council and make public a written decision that includes, in ad- dition to a determination respecting the re- quirements of subsection (a), (b), (f), (h), (l), or (m) of this section, as appropriate— (i) if a plan is in effect, a finding that the proposal is either consistent or inconsistent with the plan or, notwithstanding its incon- sistency with the plan, a finding that it is needed to meet the Administrator’s obliga- tions under this chapter, or (ii) if no plan is in effect, a finding that the proposal is either consistent or incon- sistent with the criteria of section 839b(e)(1) of this title and the considerations of sec- tion 839b(e)(2) of this title or notwith- standing its inconsistency, a finding that it is needed to meet the Administrator’s obli- gations under this chapter. In the case of subsection (f) of this section, such decision shall be treated as satisfying the applicable requirements of this subsection and Page 1534 TITLE 16—CONSERVATION § 839d of subsection (f) of this section, if it includes a finding of probable consistency, based upon the Administrator’s evaluation of information available at the time of completion of the hearing under this paragraph. Such decision shall include the reasons for such finding. (2) Within sixty days of the receipt of the Ad- ministrator’s decision pursuant to paragraph (1)(D) of this subsection, the Council may deter- mine by a majority vote of all members of the Council, and notify the Administrator— (A) that the proposal is either consistent or inconsistent with the plan, or (B) if no plan is in effect, that the proposal is either consistent or inconsistent with the criteria of section 839b(e)(1) of this title and the considerations of section 839b(e)(2) of this title. (3) The Administrator may not implement any proposal referred to in paragraph (1) that is de- termined pursuant to paragraph (1) or (2) by ei- ther the Administrator or the Council to be in- consistent with the plan or, if no plan is in ef- fect, with the criteria of section 839b(e)(1) of this title and the considerations of section 839b(e)(2) of this title— (A) unless the Administrator finds that, not- withstanding such inconsistency, such re- source is needed to meet the Administrator’s obligations under this chapter, and (B) until the expenditure of funds for that purpose has been specifically authorized by Act of Congress enacted after December 5, 1980. (4) Before the Administrator implements any proposal referred to in paragraph (1) of this sub- section, the Administrator shall— (A) submit to the appropriate committees of the Congress the administrative record of the decision (including any determination by the Council under paragraph (2)) and a statement of the procedures followed or to be followed for compliance with the National Environmental Policy Act of 1969 [42 U.S.C. 4321 et seq.], (B) publish notice of the decision in the Fed- eral Register, and (C) note the proposal in the Administrator’s annual or supplementary budget submittal made pursuant to the Federal Columbia River Transmission System Act (16 U.S.C. 838 and following). The Administrator may not implement any such proposal until ninety days after the date on which such proposal has been noted in such budget or after the date on which such decision has been published in the Federal Register, whichever is later. (5) The authority of the Council to make a de- termination under paragraph (2)(B) if no plan is in effect shall expire on the date two years after the establishment of the Council. (d) Acquisition of resources other than major re- sources The Administrator is authorized to acquire a resource, other than a major resource, whether or not such resource meets the criteria of sec- tion 839b(e)(1) of this title and the consider- ations of section 839b(e)(2) of this title but which he determines is an experimental, develop- mental, demonstration, or pilot project of a type with a potential for providing cost-effective service to the region. The Administrator shall make no obligation for the acquisition of such resource until it is included in the annual budg- ets submitted to the Congress pursuant to the Federal Columbia River Transmission System Act [16 U.S.C. 838 et seq.]. (e) Effectuation of priorities; use of customers and local entities (1) In order to effectuate the priority given to conservation measures and renewable resources under this chapter, the Administrator shall, to the maximum extent practicable, make use of his authorities under this chapter to acquire conservation measures and renewable resources, to implement conservation measures, and to provide credits and technical and financial as- sistance for the development and implementa- tion of such resources and measures (including the funding of, and the securing of debt for, ex- penses incurred during the investigation and preconstruction of resources, as authorized in subsection (f) of this section). (2) To the extent conservation measures or ac- quisition of resources require direct arrange- ments with consumers, the Administrator shall make maximum practicable use of customers and local entities capable of administering and carrying out such arrangements. (f) Agreements; investigation and initial develop- ment of renewable resources other than major resources; reimbursement of investiga- tion and preconstruction expenses (1) For resources which the Administrator de- termines may be eligible for acquisition under this section and satisfy the criteria of section 839b(e)(1) of this title and the considerations of section 839b(e)(2) of this title or, if a plan is in effect, to be consistent with the plan, the Ad- ministrator is authorized to enter into agree- ments with sponsors of— (A) a renewable resource, other than a major resource, to fund or secure debt incurred in the investigation and initial development of such resource, or (B) any other resource to provide for the re- imbursement of the sponsor’s investigation and preconstruction expenses concerning such resource (which expenses shall not include procurement of capital equipment or construc- tion material for such resource). In the case of any resource referred to in sub- paragraph (B) of this paragraph, such reimburse- ment is authorized only if— (i) such resource is subsequently denied State siting approval or other necessary Fed- eral or State permits, or approvals, (ii) such investigation subsequently dem- onstrates, as determined by the Adminis- trator, that such resource does not meet the criteria of section 839b(e)(1) of this title and the considerations of section 839b(e)(2) of this title or is not acceptable because of environ- mental impacts, or (iii) after such investigation the Adminis- trator determines not to acquire the resource and the sponsor determines not to construct the resource. Page 1535 TITLE 16—CONSERVATION § 839d (2) The Administrator may exercise the au- thority of this subsection only after he deter- mines that the failure to do so would result in inequitable hardship to the consumers of such sponsors. The Administrator may provide reim- bursement under this subsection only for ex- penses incurred after December 5, 1980. (3) Any agreement under paragraph (1) of this subsection shall provide the Administrator an option to acquire any such resource, including a renewable resource, and shall include such other provisions, as the Administrator deems appro- priate, for the Administrator’s recovery from such sponsors or any assignee of the sponsors, if such sponsor or assignee continues development of the resource, of any advances made by the Administrator pursuant to such agreement. (4) The Administrator shall not reimburse any expense incurred by the sponsors (except nec- essary expenses involved in the liquidation of the resource) after the date of a final denial of application for State siting approval or after the date the Administrator determines that the re- source to be inconsistent with the plan or the criteria of section 839b(e)(1) of this title and the considerations of section 839b(e)(2) of this title. (g) Environmental impact statements At the request of the appropriate State, any environmental impact statement which may be required with respect to a resource, to the ex- tent determined possible by the Administrator in accordance with applicable law and regula- tions, may be prepared jointly and in coordina- tion with any required environmental impact statement of the State or any other statement which serves the purpose of an environmental impact statement which is required by State law. (h) Billing credits (1) If a customer so requests, the Adminis- trator shall grant billing credits to such cus- tomer, and provide services to such customer at rates established for such services, for— (A) conservation activities independently undertaken or continued after December 5, 1980, by such customer or political subdivision served by such customer which reduce the ob- ligation of the Administrator that would oth- erwise have existed to acquire other resources under this chapter, or (B) resources constructed, completed, or ac- quired after December 5, 1980, by a customer, an entity acting on behalf of such customer, or political subdivision served by the customer which reduce the obligation of the Adminis- trator to acquire resources under this chapter. Such resources shall be renewable resources or multipurpose projects or other resources which are not inconsistent with the plan or, in the absence of a plan, not inconsistent with the criteria of section 839b(e)(1) of this title and the considerations of section 839b(e)(2) of this title. (2) The energy and capacity on which a credit under this subsection to a customer is based shall be the amount by which a conservation ac- tivity or resource actually changes the cus- tomer’s net requirement for supply of electric power or reserves from the Administrator. (3) The amount of credits for conservation under this subsection shall be set to credit the customer implementing or continuing the con- servation activity for which the credit is grant- ed for the savings resulting from such activity. The rate impact on the Administrator’s other customers of granting the credit shall be equal to the rate impact such customers would have experienced had the Administrator been obli- gated to acquire resources in an amount equal to that actually saved by the activity for which the credit is granted. (4) For resources other than conservation, the customer shall be credited for net costs actually incurred by such customer, an entity acting on behalf of such customer, or political subdivision served by such customer, in acquiring, con- structing, or operating the resource for which the credit is granted. The rate impact to the Ad- ministrator’s other customers of granting the credit shall be no greater than the rate impact such customers would have experienced had the Administrator been obligated to acquire re- sources in an amount equal to that actually pro- duced by the resource for which the credit is granted. (5) Retail rate structures which are volun- tarily implemented by the Administrator’s cus- tomers and which induce conservation or instal- lation of consumer-owned renewable resources shall be considered, for purposes of this sub- section, to be (A) conservation activities inde- pendently undertaken or carried on by such cus- tomers, or (B) customer-owned renewable re- sources, and shall qualify for billing credits upon the same showing as that required for other conservation or renewable resource activi- ties. (6) Prior to granting any credit or providing services pursuant to this subsection, the Admin- istrator shall— (A) comply with the notice provisions of sub- section (c) of this section, and include in such notice the methodology the Administrator proposes to use in determining the amount of any such credit; (B) include the cost of such credit in the Ad- ministrator’s annual or amended budget sub- mittal to the Congress made pursuant to the Federal Columbia River Transmission System Act (16 U.S.C. 838(j)) [16 U.S.C. 838 et seq.]; (C) require that resources in excess of cus- tomer’s reasonable load growth shall have been offered to others for ownership, partici- pation or other sponsorship pursuant to sub- section (m) of this section, except in the case of conservation, multi-purpose projects uniquely suitable for development by the cus- tomer, or renewable resources; and (D) require that the operators of any gener- ating resource for which a billing credit is to be granted agree to operate such resource in a manner compatible with the planning and op- eration of the region’s power system. (i) Contracts Contracts for the acquisition of resources and for billing credits for major resources, including conservation activities, entered into pursuant to this section shall contain such terms and condi- tions, applicable after the contract is entered into, as will— Page 1536 TITLE 16—CONSERVATION § 839d–1 (1) insure timely construction, scheduling, completion, and operation of resources, (2) insure that the costs of any acquisition are as low as reasonably possible, consistent (A) with sound engineering, operating, and safety practices, and (B) the protection, miti- gation, and enhancement of fish and wildlife, including related spawning grounds and habi- tat affected by the development of such re- sources, and (3) insure that the Administrator exercises effective oversight, inspection, audit, and re- view of all aspects of such construction and operation. Such contracts shall contain provisions assuring that the Administrator has the authority to ap- prove all costs of, and proposals for, major modi- fications in construction, scheduling or oper- ations and to assure that the Administrator is provided with such current information as he deems necessary to evaluate such construction and operation. (j) Obligations not to be considered general obli- gations of United States or secured by full faith and credit of United States (1) All contractual and other obligations re- quired to be carried out by the Administrator pursuant to this chapter shall be secured solely by the Administrator’s revenues received from the sale of electric power and other services. Such obligations are not, nor shall they be con- strued to be, general obligations of the United States, nor are such obligations intended to be or are they secured by the full faith and credit of the United States. (2) All contracts entered into by the Adminis- trator for the acquisition of resources pursuant to this chapter shall require that, in the sale of any obligations, all offerings and promotional material for the sale of such obligations shall include the language contained in the second sentence of paragraph (1) of this subsection. The Administrator shall monitor and enforce such requirement. (k) Equitable distribution of benefits In the exercise of his authorities pursuant to this section, the Administrator shall, consistent with the provisions of this chapter and the Ad- ministrator’s obligations to particular customer classes, insure that benefits under this section, including financial and technical assistance, conduct of conservation demonstrations, and ex- perimental projects, services, and billing cred- its, are distributed equitably throughout the re- gion. (l) Investigations (1) The Administrator is authorized and di- rected to investigate opportunities for adding to the region’s resources or reducing the region’s power costs through the accelerated or coopera- tive development of resources located outside the States of Idaho, Montana, Oregon, and Washington if such resources are renewable re- sources, and are now or in the future planned or considered for eventual development by non- regional agencies or authorities that will or would own, sponsor, or otherwise develop them. The Administrator shall keep the Council fully and currently informed of such investigations, and seek the Council’s advice as to the desir- ability of pursuing such investigations. (2) The Administrator is authorized and di- rected to investigate periodically opportunities for mutually beneficial interregional exchanges of electric power that reduce the need for addi- tional generation or generating capacity in the Pacific Northwest and the regions with which such exchanges may occur. The Council shall take into consideration in formulating a plan such investigations. (3) After the Administrator submits a report to Congress pursuant to paragraph (5) of this subsection, the Administrator is authorized to acquire resources consistent with such inves- tigations and consistent with the plan or, if no plan is in effect, with the priorities of section 839b(e)(1) of this title and the considerations of section 839b(e)(2) of this title. Such acquisitions shall be in accordance with the provisions of this subsection. (4) The Administrator shall conduct the inves- tigations and the acquisitions, if any, author- ized under this subsection with the assistance of other Federal agencies as may be appropriate. (5) No later than July 1, 1981, the Adminis- trator shall submit to the Congress a report of the results of the investigations undertaken pursuant to this subsection, together with the prospects for obtaining additional resources under the authority granted by this subsection and for reductions in generation or generating capacity through exchanges. (m) Offering of reasonable shares to each Pacific Northwest electric utility Except as to resources under construction on December 5, 1980, the Administrator shall deter- mine in each case of a major resource acquisi- tion that a reasonable share of the particular re- source, or a reasonable equivalent, has been of- fered to each Pacific Northwest electric utility for ownership, participation, or other sponsor- ship, but not in excess of the amounts needed to meet such utility’s Regional load. (Pub. L. 96–501, § 6, Dec. 5, 1980, 94 Stat. 2717.) Editorial Notes REFERENCES IN TEXT The National Environmental Policy Act of 1969, re- ferred to in subsec. (c)(4)(A), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chap- ter 55 (§ 4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables. The Federal Columbia River Transmission System Act, referred to in subsecs. (c)(4)(C), (d), and (h)(6)(B), is Pub. L. 93–454, Oct. 18, 1974, 88 Stat. 1376, which is classified generally to chapter 12G (§ 838 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 838 of this title and Tables. § 839d–1. Federal projects in Pacific Northwest Without further appropriation and without fis- cal year limitation, the Secretaries of the Inte- rior and Army are authorized to plan, design, construct, operate and maintain generation ad- ditions, improvements and replacements, at their respective Federal projects in the Pacific