§ 839d. — Conservation and resource acquisition.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC839d]
TITLE 16--CONSERVATION
CHAPTER 12H--PACIFIC NORTHWEST ELECTRIC POWER PLANNING AND CONSERVATION
Sec. 839d. Conservation and resource acquisition
(a) Conservation measures; resources
(1) The Administrator shall acquire such resources through
conservation, implement all such conservation measures, and acquire such
renewable resources which are installed by a residential or small
commercial consumer to reduce load, as the Administrator determines are
consistent with the plan, or if no plan is in effect 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 insulation or
weatherization, increased system efficiency, 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 implementing model conservation standards adopted
pursuant to section 839b(f) of this title, and
(D) conducting demonstration projects to determine the cost
effectiveness of conservation measures and direct application of
renewable energy resources.
(2) In addition to acquiring electric power pursuant 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 Administrator shall acquire, in accordance
with this section, sufficient resources--
(A) to meet his contractual obligations that remain after taking
into account planned savings 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 section, 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
consistent 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 system resources only in accordance with the
provisions 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 developed and operated in a manner
consistent with the considerations specified in section 839b(e)(2) of
this title.
(5) Notwithstanding any acquisition of resources pursuant to this
section, the Administrator 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, implementing 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 expenses 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 constructed or a
conservation measure implemented, and the Administrator's customers;
(B) not less than sixty days following publication of such
notice, conduct one or more public hearings, presided over by a
hearing officer, at which testimony and evidence shall be received,
with opportunity for such rebuttal and cross-examination as the
hearing officer 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
addition to a determination respecting the requirements 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 inconsistency with the plan, a finding that
it is needed to meet the Administrator's obligations under this
chapter, or
(ii) if no plan is in effect, a finding 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 or notwithstanding its inconsistency, a
finding that it is needed to meet the Administrator's
obligations 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 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 Administrator's decision
pursuant to paragraph (1)(D) of this subsection, the Council may
determine 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 determined pursuant to paragraph (1) or (2) by
either the Administrator or the Council to be inconsistent with the plan
or, if no plan is in effect, 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, notwithstanding such
inconsistency, such resource 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 subsection, 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 Federal 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 determination 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 resources
The Administrator is authorized to acquire a resource, other than a
major resource, whether or not such resource meets the criteria of
section 839b(e)(1) of this title and the considerations of section
839b(e)(2) of this title but which he determines is an experimental,
developmental, 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 budgets 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 assistance for the development and
implementation of such resources and measures (including the funding of,
and the securing of debt for, expenses incurred during the investigation
and preconstruction of resources, as authorized in subsection (f) of
this section).
(2) To the extent conservation measures or acquisition of resources
require direct arrangements 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 development of renewable
resources other than major resources; reimbursement of
investigation and preconstruction expenses
(1) For resources which the Administrator determines 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 Administrator is authorized to enter into agreements 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 reimbursement of the
sponsor's investigation and preconstruction expenses concerning such
resource (which expenses shall not include procurement of capital
equipment or construction material for such resource).
In the case of any resource referred to in subparagraph (B) of this
paragraph, such reimbursement is authorized only if--
(i) such resource is subsequently denied State siting approval
or other necessary Federal or State permits, or approvals,
(ii) such investigation subsequently demonstrates, as determined
by the Administrator, 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
environmental impacts, or
(iii) after such investigation the Administrator determines not
to acquire the resource and the sponsor determines not to construct
the resource.
(2) The Administrator may exercise the authority of this subsection
only after he determines that the failure to do so would result in
inequitable hardship to the consumers of such sponsors. The
Administrator may provide reimbursement under this subsection only for
expenses 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 appropriate, 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 necessary 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
resource 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
extent determined possible by the Administrator in accordance with
applicable law and regulations, may be prepared jointly and in
coordination 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 Administrator shall grant billing
credits to such customer, 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 obligation of
the Administrator that would otherwise have existed to acquire other
resources under this chapter, or
(B) resources constructed, completed, or acquired 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 Administrator 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
activity or resource actually changes the customer'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
conservation activity for which the credit is granted 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
obligated 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, constructing, or operating the resource for
which the credit is granted. The rate impact to the Administrator'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 resources in an amount equal to that actually
produced by the resource for which the credit is granted.
(5) Retail rate structures which are voluntarily implemented by the
Administrator's customers and which induce conservation or installation
of consumer-owned renewable resources shall be considered, for purposes
of this subsection, to be (A) conservation activities independently
undertaken or carried on by such customers, or (B) customer-owned
renewable resources, and shall qualify for billing credits upon the same
showing as that required for other conservation or renewable resource
activities.
(6) Prior to granting any credit or providing services pursuant to
this subsection, the Administrator shall--
(A) comply with the notice provisions of subsection (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 Administrator's
annual or amended budget submittal 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 customer's reasonable
load growth shall have been offered to others for ownership
participation or other sponsorship pursuant to subsection (m) of
this section, except in the case of conservation, multi-purpose
projects uniquely suitable for development by the customer, or
renewable resources; and
(D) require that the operators of any generating resource for
which a billing credit is to be granted agree to operate such
resource in a manner compatible with the planning and operation of
the region's process 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 conditions,
applicable after the contract is entered into, as will--
(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, mitigation,
and enhancement of fish and wildlife, including related spawning
grounds and habitat affected by the development of such resources,
and
(3) insure that the Administrator exercises effective oversight,
inspection, audit, and review of all aspects of such construction
and operation.
Such contracts shall contain provisions assuring that the Administrator
has the authority to approve all costs of, and proposals for, major
modifications in construction, scheduling or operations 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 obligations of United
States or secured by full faith and credit of United States
(1) All contractual and other obligations required 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
construed 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 Administrator 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 Administrator's obligations to particular customer classes, insure
that benefits under this section, including financial and technical
assistance, conduct of conservation demonstrations, and experimental
projects, services, and billing credits, are distributed equitably
throughout the region.
(l) Investigations
(1) The Administrator is authorized and directed to investigate
opportunities for adding to the region's resources or reducing the
region's power costs through the accelerated or cooperative development
of resources located outside the States of Idaho, Montana, Oregon, and
Washington if such resources are renewable resources, and are now or in
the future planned or considered for eventual development by nonregional
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 desirability of pursuing such investigations.
(2) The Administrator is authorized and directed to investigate
periodically opportunities for mutually beneficial interregional
exchanges of electric power that reduce the need for additional
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 investigations 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 investigations and the
acquisitions, if any, authorized under this subsection with the
assistance of other Federal agencies as may be appropriate.
(5) No later than July 1, 1981, the Administrator 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 determine in each case of a major resource
acquisition that a reasonable share of the particular resource, or a
reasonable equivalent, has been offered to each Pacific Northwest
electric utility for ownership, participation, or other sponsorship, but
not in excess of the amounts needed to meet such utility's Regional
load.
(Pub. L. 96-501, Sec. 6, Dec. 5, 1980, 94 Stat. 2717.)
References in Text
The National Environmental Policy Act of 1969, referred to in
subsec. (c)(4)(A), is Pub. L. 91-190, Jan. 1, 1970, 83 Stat. 852, as
amended, which is classified generally to chapter 55 (Sec. 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, as amended, which is classified generally to
chapter 12G (Sec. 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.
Section Referred to in Other Sections
This section is referred to in sections 838k, 839b, 839c, 839e,
839f, 839g of this title; title 26 section 149.
