For those interested in qualifying energy projects as “eligible renewable resources” under the Washington Energy Independence Act (EIA), the Washington Utilities and Transportation Commission (WUTC) issued on June 7, 2011 an important new policy statement that provides processes by which utilities and developers may obtain either a non-binding or binding opinion regarding the eligibility of those resources.  Most importantly, these determinations may be obtained while projects are still in development, thereby easing the way for financing, formation of partnerships, and investments in research and development.

First, the Commission Staff has joined with staff of the Department of Commerce to establish an informal technical working group to provide non-binding technical analysis for guidance as to whether their proposed technology or resource is an “eligible renewable resource” under the EIA.  Because the opinions of the Commission Staff are not binding on the Commission, and the Auditor, not Commerce, determines compliance for COUs, the technical working group will only provide technical analysis, not a binding legal opinion.

Second, for those entities that seek a more formal, binding opinion on the eligibility of their proposed project, there is an option under the Washington Administrative Procedure Act.  Under the Act, any person may petition the Commission for a declaratory order with respect to the applicability to specified circumstances of a statute or rule enforceable by the Commission, such as RCW 19.285 or WAC 480-109-007.  Persons with standing to file such petitions may include investor-owned utilities and entities that propose to sell projects, project output, or RECs from projects to investor-owned utilities.