On June 18, 2009, the Federal Energy Regulatory Commission (FERC) issued an order revising its regulations to require all entities with authorization to sell electric power at market-based rates to submit notices of change in status reports identifying land or sites acquired or controlled by the seller for the purpose of developing new generating capacity.1
The first notice must identify any acquisition of control of a site by a seller to develop new generating capacity where (i) “site control has been demonstrated in the interconnection process” and (ii) “the potential number of megawatts that are reasonably commercially feasible on the site or sites for new generation capacity development is equal to 100 megawatts or more.” A demonstration of site control will be determined consistent with the FERC’s Standard Large Generator Interconnection Procedures (LGIP).2 If a seller elects to provide a monetary deposit as provided in the LGIP and thus provide a demonstration of site control at a later date, the submission of the deposit will trigger the reporting requirement. The notice report must include:
- The number of sites acquired;
- The relevant geographic market in which the sites are located; and
- A justification for “the maximum potential number of MW that are reasonably commercially feasible on the sites reported.”
The report must be submitted to the FERC within 30 days after the end of the quarter when the conditions above have been met, i.e., by April 30 for the first quarter.
The second notice report must include any land the seller “has acquired, taken a leasehold interest in, obtained an option to purchase or lease, or entered into ansexclusivity or other arrangement to acquire for the purpose of developing a generation site” where (i) “site control” has not yet been demonstrated during the prior three years and (ii) “the potential number of megawatts that are reasonably commercially feasible on the land for new generation capacity development is equal to 100 megawatts or more.” The report must be submitted to the FERC by January 1 of the year following the calendar year in which the three-year time period occurred. The FERC explained: if a seller acquired land for the development of new generation capacity in January 2009, and it had not demonstrated site control through the interconnection process by January 2012, the notice report must be submitted to the FERC by January 1, 2013. If the seller acquired additional land in March 2009 for which site control had not been demonstrated by March 2012, the notice report due on January 1, 2013, also must include this additional acquisition. The information that must be provided in the notice report is the same as must be provided in the quarterly notice report discussed above.
Finally, if a seller has acquired, leased or taken an option on land that it has held for three or more years, and has not yet demonstrated site control and not otherwise already reported control of the land to the FERC, the seller must submit a report to the FERC by January 1, 2010 identifying the land at issue.
The FERC adopted these new reporting requirements as means to ensure that market-based rate sellers are not erecting barriers to entry in competitive energy markets.