FERC again rejects Winding Creek Solar complaint over California QF program

The members of the Federal Energy Regulatory Commission on Oct. 15 rejecting a reconsideration request from Winding Creek Solar LLC related to an effective cap on solar generation within a program administered by the California Public Utilities Commission.

On March 9 of this year, Winding Creek filed a petition for enforcement against the California Public Utilities Commission, arguing that a California Commission feed-in tariff program, called the Renewable Market Adjusting Tariff (Re-MAT) program, is inconsistent with PURPA and FERC’s regulations because it limited effectively participation in the program to 750 MW statewide. The Re-MAT feed-in tariff program is part of California’s Renewables Portfolio Standard Program that requires 33% of utility procurement be from eligible renewable energy resources with a generation capacity of 3 MW or less by Dec. 31, 2020.

FERC issued a notice of intent not to act and declaratory order on May 8, declining to initiate an enforcement action against the California Commission and finding that Winding Creek had not demonstrated that the California Commission’s implementation of PURPA and the 750 MW statewide cap on the obligation of electric utilities to make purchases under the Re-MAT program was inconsistent with PURPA and the federal commission’s PURPA regulations because the Re-MAT program was an alternative PURPA program and the primary program, the Standard Contract for QFs 20 MW or Under, provided QFs the opportunity to sell their power consistent with the requirements of PURPA.

FERC has held that, as long as a state provides QFs the opportunity to enter into long-term legally enforceable obligations at avoided cost rates, a state may also have alternative programs that QFs and electric utilities may agree to participate in. FERC also noted that, by issuing a “Notice of Intent Not to Act,” Winding Creek may itself bring an enforcement action against the California Commission in the appropriate court.

On June 8, Winding Creek filed a pleading styled as a request for reconsideration and rehearing of the May 8 notice. Winding Creek argued that FERC erroneously concluded that California’s Standard Contract for QFs 20 MW or Under provides for an avoided cost rate that is consistent with FERC regulations. Winding Creek asserted that California’s Standard Contract for QFs 20 MW and Under does not provide for a long-term forecasted fixed rate.

Said FERC in its Oct. 15 rejection: “In the May 8 Notice, the Commission declined to initiate an enforcement proceeding. The Commission noted that that decision means that Winding Creek may itself bring an enforcement action against the California Commission in the appropriate court. We see no reason to change that decision, and exercise our discretion to bring an enforcement action. In addition, Winding Creek asks the Commission to reverse its finding that the Re-MAT program is permissible under PURPA. We found that the Re-MAT program is consistent with PURPA, because it is an alternative to a primary PURPA program, the Standard Contract for QFs 20 MW or Under, which is consistent with PURPA. Nothing Winding Creek argues in its request for reconsideration warrants our changing our decision.”

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.