16 U.S.C. § 839d

Conservation and resource acquisition

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(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 power system.(i) ContractsContracts 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, § 6, Dec. 5, 1980, 94 Stat. 2717.)Editorial NotesReferences 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, which is classified generally to chapter 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.

Notes of Decisions

Cited in 15 cases, 1984–2013 · leading case: Bonneville Power Admin. v. Mirant Corp., 440 F.3d 238 (5th Cir. 2006).

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Bonneville Power Admin. v. Mirant Corp., 440 F.3d 238 (5th Cir. 2006). “The WSPPA is an umbrella agreement governing electric power transactions.”

Energy Nw. v. United States, 91 Fed. Cl. 531 (Fed. Cl. 2010). “16 U.S.C. § 839d(j). Plaintiff did not reduce its claim to account for costs “already reimbursed” by BPA and the failure *554 to account for reimbursement by another entity constitutes “a failure of proof.”

Avista Corp. v. Bonneville Power Admin., 380 F. App'x 652 (9th Cir. 2010). · cites it 3× “” 16 U.S.C. § 839d(e)(l). Here the BPA has reasonably concluded, supported by a lengthy administrative record, that seeking waivers of requests for billing credits from its customers is consistent with its tiered-rate approach to maximizing conservation efforts.”

Puget Sound Power & Light Co. v. United States, 23 Cl. Ct. 46 (Ct. Cl. 1991). “This Act granted BPA authority to acquire additional power resources, 16 U.S.C. § 839d, and to initiate measures designed to conserve electricity in the Pacific Northwest.”

Nw. Resource Info. Ctr., Inc. v. Nw. Power & Conservation Council, 730 F.3d 1008 (9th Cir. 2013). “1989) (describing the BPA); 16 U.S.C. § 839d(a) (setting forth the BPA’s role in implementing the Council’s power plan).”

Util. Reform Proj. v. Bonneville Power Admin., 869 F.2d 437 (9th Cir. 1989). · cites it 5× “16 U.S.C. § 839d(c). If BPA decides to restart construction of WNP-3, it will acquire the IOUs’ shares of project capability and reimburse them for their costs to complete the project.”

California Energy Resources Conservation & Dev. Comm'n v. Johnson, 807 F.2d 1456 (9th Cir. 1986). · cites it 2× “§ 839e(i), by establishing a rate without conforming to the prescribed rate-making procedures; (3) that power sales contract general provision 8(f) violates section 7(i) by establishing a method of cost allocation without conforming to the prescribed procedures; and (4) that…”

Cent. Lincoln Peoples' Util. Dist. v. Johnson, 735 F.2d 1101 (9th Cir. 1984). “To assure the region an adequate supply of electricity, the Act grants the BPA Administrator authority to acquire additional power sources, 16 U.S.C. § 839d, and to initiate conservation measures.”

Blachly-Lane Elec. Coop. Ass'n v. U.S. Dept. of Energy, 79 F. App'x 975 (9th Cir. 2003). “Additionally, the Tribal Intervenors’ claim under 16 U.S.C. § 839d(a)(2) is DISMISSED as outside the scope of the original petition.”

Kaiser Aluminum & Chem. Corp. v. Bonneville Power Admin., 261 F.3d 843 (9th Cir. 2001). · cites it 2× “§ 839e(c), for sales to DSIs only apply to long term sales contracts entered into under Section 5(d), 16 U.S.C. § 839d(e). Petitioners assert that BPA’s interpretation is inconsistent with BPA’s prior position in the 1996 Rate ROD, which was used in adopting both the FPS-96 rate…”

Bell v. Bonneville Power Admin., 340 F.3d 945 (9th Cir. 2003). · cites it 2× “§ 839e(i), (4) BPA violated the resource acquisition provisions of 16 U.S.C. § 839d(c)(l), and (5) BPA violated the National Environmental Policy Act (NEPA) by not complementing the curtailment amendments .”

Pub. Util. Dist. No. 1 v. Johnson, 855 F.2d 647 (9th Cir. 1988). “The solicitation set forth criteria used to select proposals and stated that the BPA was not committed to the purchase of any resources. At that time, PUD was apparently considering acquiring power from a facility known as Great Western Malting (GWM).”

Show all 15 citing cases →

— 16 U.S.C. § 839d(a) — 2 cases

Nric v. Npcc (9th Cir. 2013).

— 16 U.S.C. § 839d(a)(2) — 2 cases

Bonneville Power Admin. v. Mirant Corp., 440 F.3d 238 (5th Cir. 2006). “The WSPPA is an umbrella agreement governing electric power transactions.”

— 16 U.S.C. § 839d(b)(l) — 2 cases

California Energy Resources Conservation & Dev. Comm'n v. Johnson, 807 F.2d 1456 (9th Cir. 1986). “§ 839e(i), by establishing a rate without conforming to the prescribed rate-making procedures; (3) that power sales contract general provision 8(f) violates section 7(i) by establishing a method of cost allocation without conforming to the prescribed procedures; and (4) that…”

Conservation v. Johnson, 783 F.2d 858 (9th Cir. 1986).

— 16 U.S.C. § 839d(c) — 1 case

Util. Reform Proj. v. Bonneville Power Admin., 869 F.2d 437 (9th Cir. 1989). “16 U.S.C. § 839d(c). If BPA decides to restart construction of WNP-3, it will acquire the IOUs’ shares of project capability and reimburse them for their costs to complete the project.”

— 16 U.S.C. § 839d(c)(l) — 2 cases

Bell v. Bonneville Power Admin., 340 F.3d 945 (9th Cir. 2003). “§ 839e(i), (4) BPA violated the resource acquisition provisions of 16 U.S.C. § 839d(c)(l), and (5) BPA violated the National Environmental Policy Act (NEPA) by not complementing the curtailment amendments .”

— 16 U.S.C. § 839d(d) — 1 case

Vulcan Power Co. v. Bonneville Power Admin., 89 F.3d 549 (9th Cir. 1996).

— 16 U.S.C. § 839d(e) — 1 case

Kaiser Aluminum & Chem. Corp. v. Bonneville Power Admin., 261 F.3d 843 (9th Cir. 2001). “§ 839e(c), for sales to DSIs only apply to long term sales contracts entered into under Section 5(d), 16 U.S.C. § 839d(e). Petitioners assert that BPA’s interpretation is inconsistent with BPA’s prior position in the 1996 Rate ROD, which was used in adopting both the FPS-96 rate…”

— 16 U.S.C. § 839d(e)(l) — 1 case

Avista Corp. v. Bonneville Power Admin., 380 F. App'x 652 (9th Cir. 2010). “” 16 U.S.C. § 839d(e)(l). Here the BPA has reasonably concluded, supported by a lengthy administrative record, that seeking waivers of requests for billing credits from its customers is consistent with its tiered-rate approach to maximizing conservation efforts.”

— 16 U.S.C. § 839d(h)(l) — 1 case

— 16 U.S.C. § 839d(i) — 1 case

Vulcan Power Co. v. Bonneville Power Admin., 89 F.3d 549 (9th Cir. 1996).

— 16 U.S.C. § 839d(j) — 1 case

— 16 U.S.C. § 839d(k) — 2 cases

— 16 U.S.C. § 839d(l)(B) — 1 case

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.