Renewable + Law

Michigan Announces $1.3M in Grants for Offshore Wind Research

Katherine A. Roek — Mon, 08 Feb 2010 09:56:27 -0800

On February 8, 2010, the Michigan Public Service Commission issued an order approving $1.6 million in Michigan Energy Efficiency grants, $1.3 million of which will go to Grand Valley State University, Michigan Alternative and Renewable Energy Center, in partnership with the University of Michigan Memorial Phoenix Energy Institute to conduct and/or perform studies to explore the feasibility of deployment of offshore wind technologies in Michigan.

The grants are part of the Low‑Income and Energy Efficiency Fund, which provides energy bill assistance for low‑income customers and promotes the efficient use of energy by all customer classes.

APS Announces Wind and Solar RFPs

William H. Holmes — Sun, 07 Feb 2010 19:01:16 -0800

On January 27, Arizona Public Service (APS) announced two requests for proposals (RFPs), one for new sources of photovoltaic (PV) solar energy and the other for Arizona-based wind.

The RFP for solar PV seeks proposals for projects that are between 15 and 50 megawatts and that employ commercially proven technology. APS's goal is to procure approximately 220,000 megawatt hours per year from this PV solicitation. Respondents are required to provide proposals for long-term power purchase agreements and/or "turn-key" agreements. The latter are sometimes called BTAs (Build-Transfer Agreements) or DBS (Design-Build-Sell) agreements--however named, APS anticipates that the agreement would require the developer to build the project and transfer it to APS when the project is completed. (As an aside, turn-key agreements that do not transfer the asset until commercial operation require very careful attention to "notice to proceed" clauses and conditions, lest defects in title, permits or some other matter thwart the closing and leave the developer's asset unsold or, worse, stranded.)

In its press release, APS encouraged parties to participate in the photovoltaic RFP bidder's conference on March 12, 2010. Additional information about the conference and the RFP is available online at www.aps.com/rfp. RFP submissions are due April 7, 2010.

On the wind side, APS is looking for wind projects between 15 and 100 megawatts located entirely within Arizona. Respondents are required to provide proposals for long-term power purchase and/or "turn-key" agreements. Interested parties are encouraged to participate in the Arizona-based wind RFP bidder's teleconference on March 17, 2010. Additional information about the conference and the RFP is available online at www.aps.com/rfp. RFP submissions are due April 14, 2010.

FERC Determines That Battery Storage Devices Qualify as Transmission Facilities. Is the Door Open for Other Energy Storage Devices?

Jason A. Johns — Fri, 05 Feb 2010 10:10:19 -0800

In late January, FERC issued an order in response to a filing by Western Grid Development LLC that asked FERC to declare that Western Grid's proposed battery storage devices are transmission facilities eligible for certain rate incentives. Western Grid described its battery technology as 10 to 50 MW sodium sulfur batteries that would be installed at strategic places on the California ISO transmission grid in order to provide voltage support and protect against transmission overloads. In a description that seemed significant to FERC, Western Grid stated that its batteries would only enhance transmission reliability at the California ISO's direction, and that the batteries would not operate or participate in energy markets or provide electricity for commercial sale.

FERC examines energy storage devices on a case-by-case basis because storage devices don't fit squarely within the traditional transmission, distribution, or generation categories of assets. In this case, FERC gravitated to the notion that the battery devices would not provide capacity or energy to be sold in the energy market, and that Western Grid would not retain any revenues outside of the transmission access charge (unlike generators). For these and other reasons, FERC distinguished Western Grid from similar filings (see Nevada Hydro II--pumped storage), and determined that Western Grid's technology will act enough like transmission assets to warrant eligibility for transmission rate incentives. FERC's approval of rate incentives, however, was conditional upon the California ISO approving Western Grid's projects in the transmission planning process.

Although FERC repeated numerous times that its decision was based on the "specific circumstances and characteristics" of Western Grid's projects, the order shows potential for energy storage devices. If such devices can show that they act sufficiently like traditional transmission assets (like capacitors), they may be able to obtain very valuable transmission rate incentives. Whether this opens the door for compressed air energy storage and pumped hydro (but see Nevada Hydro II) is still up in the air, but rest assured that these questions will be at FERC before too long.

SEC Posts Climate Change Interpretive Release

William H. Holmes — Thu, 04 Feb 2010 16:43:49 -0800

Earlier today, the Securities Exchange Commission (SEC) posted its climate change interpretive release, which can be found at http://www.sec.gov/rules/interp/2010/33-9106.pdf. Our prior Blog on the subject is here, and our alert on the topic can be found here. Stoel Rives corporate securities partners Ron McFall and CJ Voss will be posting a follow up alert shortly.

If you'd like to sign up for our Energy Law Alerts, click here.

Stoel Rives LLP assists with first juwi-developed U.S. wind farm

William H. Holmes — Thu, 04 Feb 2010 10:30:20 -0800

The first wind farm developed by juwi in the U.S. will soon generate clean and safe electricity. Construction works at the Flat Water Wind Farm in Richardson County, Neb., have already started. By the beginning of 2011, 40 turbines will be up and running, thereby producing roughly 220 million kilowatt hours of carbon-dioxide-free power per year. The project will be constructed by Gallop Power LLC, a U.S.- based company established to develop, own, and operate clean energy projects. Gallop has acquired Flat Water Wind Farm from juwi's J.W. Prairie Wind Power LLC. Stoel Rives LLP represented juwi in the transaction.

"We were very pleased to have assisted juwi in accomplishing the transaction that will result in the construction and operation of their first wind farm in the United States. juwi, as an international player in the wind and solar energy with operating generation facilities in Europe and elsewhere, is the kind of company that we need active in the U.S. markets to help move our renewable energy sector forward," said Ed Einowski, Stoel Rives LLP partner who represented juwi in the transaction.

The project was developed by the juwi group, a leading renewable energy developer based in Germany, through its J.W. Prairie Wind Power LLC, located in Lawrence, Kan. A Power Purchase Agreement (PPA) was concluded with Omaha Public Power District (OPPD), a public power utility serving Eastern Nebraska. The PPA is a 20-year contract and is renewable at OPPD's option.

Under the terms of the relationship between Gallop and juwi, juwi will participate in the construction of the wind farm. It is planned that juwi will also perform the technical and commercial management (TCM) of the Flat Water Wind Farm for Gallop. juwi has great experience in TCM while the renewable energy specialist is already responsible for the management of more than 260 wind turbines in Europe. The juwi group's management team is in the process of building a TCM unit in the U.S. "The Flat Water Wind Farm is not only a milestone for juwi but also for OPPD and renewable energies in Nebraska. juwi is proud to have set the course for OPPD's first commercial wind farm, and we are delighted to be working with them," says Richard Zachariason, COO of juwi wind in the U.S. By the beginning of 2011, 40 General Electric (GE) wind turbines with a capacity of 1.5 megawatts each will generate around 220 million kilowatt hours of clean electricity, thereby covering the annual energy needs of about 19,000 households within OPPD's service territory.

"This is a very important project for OPPD as we go about meeting our commitment to increase the amount of renewable energy in our portfolio," said W. Gary Gates, OPPD President/CEO. "In fact, we have already started construction of a new substation in connection with this wind farm. We look forward to working closely with Flat Water Wind Farm, LLC to deliver this additional wind energy and make this long-term agreement happen."

Although Flat Water Wind Farm is juwi's first wind power project in the U.S., the company is not a newcomer on the American market: in the solar business, juwi has already claimed a leading role in the U.S. for free-field installations, and more PV-projects are in development. In 2009 juwi solar Inc., an U.S. subsidiary of the juwi group, completed the construction of a 2.2 MW project in Hackettstown, New Jersey and commenced the construction of a 12 MW project in Upper Sandusky, Ohio and a 15 MW project in Jacksonville, Florida. juwi solar Inc. expects to begin construction of its 16 MW Blue Wing project in San Antonio, Texas in the first quarter of 2010.

In the coming years, juwi plans to connect wind and solar installations with a total capacity of more than 1,000 megawatts to the U.S. grid, ultimately making the US one of juwi's most important markets. In addition to Nebraska, juwi is developing wind projects among others in Kansas, Iowa, Ohio, Indiana, Minnesota, and Michigan.

About Stoel Rives LLP
Stoel Rives is a business law firm providing corporate and litigation services to a wide range of clients throughout the United States. The firm has nearly 400 attorneys operating out of 11 offices in seven states. Selected as a BTI Top 30 Client Service provider, Stoel Rives is regarded as a leader in corporate, energy, environmental, intellectual property, labor and employment, land use and construction, litigation, natural resources, project development and real estate law. The firm has offices in Anchorage, Alaska; Boise, Idaho; Lake Tahoe, Calif.; Minneapolis, Minn.; Portland, Ore.; Sacramento, Calif.; Salt Lake City, Utah; San Diego, Calif.; San Francisco, Calif.; Seattle, Wash.; and Vancouver, Wash. For more information, visit www.stoel.com.

About the juwi group
juwi is one of the leading companies in the field of renewable energies. Since 1996 the project development company has been designing, building, financing, and operating plants that harness renewable energies. The CEOs Matthias Willenbacher and Fred Jung together transformed the company from a two-person operation focusing on wind farm project development into an internationally active group with about 750 employees and an annual revenue of approximately 600 million euros. In addition to wind, solar and bioenergy, juwi also specializes in hydro power as well as geothermal energy. To date, juwi has installed more than 400 wind turbines producing a total output of about 600 megawatts, while in the solar sector, juwi has built around 1,200 PV systems with a total capacity of over 400 megawatts, among them one of the world's biggest solar power plants in Eastern Germany. The company operates internationally and has subsidiaries in Germany, the United States, France, Italy, Spain, the Czech Republic, Greece, Poland, and Costa Rica. In July 2008, juwi commissioned the construction of the world s most energy-efficient building in Wörrstadt.

About OPPD
The Omaha Public Power District (OPPD) is one of the largest publicly owned and business-managed electric utilities in the United States. OPPD serves more retail customers than any other electricity utility in the state of Nebraska servicing a population base of more than 754,000 people in a service area of 5,000 square miles. Founded in 1946, OPPD is governed by an elected eight-member board of directors. The utility's corporate headquarters is located in Omaha, Nebraska.

For inquiries please contact:

Victoria Twogood, Business Development Manager
Phone 612 343 8842 / mobile 612 720 9734 / vatwogood@stoel.com

Mike Schiller, Senior Vice President Business Development
Phone +1 216 344 9305 / mobile +1 216 272 6813 / m.schiller@juwi.com

Growing America's Fuel - President Obama Announces Strategies to Achieve U.S. Biofuels Goals

Mary Sennes — Wed, 03 Feb 2010 15:44:36 -0800

President Obama met today with a bipartisan group of governors from around the country and announced a series of steps the administration is taking to boost biofuels production in the United States. The President’s Biofuels Interagency Working Group released a report spelling out ways to promote the development of the biofuels industry in the United States in connection with the long-term renewable fuels standard of 36 billion gallons per year by 2022. The report, Growing America’s Fuel, focuses on government strategies to achieve the renewable fuels standard and the target for 100 million gallons of cellulosic biofuels in 2010. The strategies include supporting the development of first and second generation biofuels with the additional focus on accelerating third generation biofuels development and supporting feedstock research and demonstration. The report addresses the use of regional supply chain systems to ensure all fuels produced are compatible with the U.S. transportation fuel infrastructure.

President Obama also announced the creation of an Interagency Task Force on Carbon Capture and Storage. Representatives from the DOE and the EPA will co-chair the task force which will develop a plan for affordable carbon capture and storage technology in the next ten years, with a goal of bringing five to ten commercial demonstration projects on line by 2016.

Join us for a RETECH Side Event - February 4, 2010

William H. Holmes — Thu, 28 Jan 2010 16:04:05 -0800

2010 may be a cataclysmic year for the tax system. Virtually all the important tax cuts enacted in the Bush Administration expire at the end of this year. In addition, the pending health care reform legislation contains several significant revenue provisions. How will Congress deal with this fundamental shift? Further, the 1603 grant program will expire at the end of the year, except for projects for which construction began in 2009 or 2010. How will Treasury implement the standard for when construction begins, including the 5 percent safe harbor contained in the Treasury Guidance? Will Congress extend the grant program beyond 2010?

Stoel Rives LLP, a full-service U.S. law firm and recognized leader in the renewable energy industry, will host a panel discussion at RETECH 2010 with two key policymakers discussing changes coming for the tax system. Please plan to join Stoel Rives Partner Gregory F. Jenner, former Assistant Secretary of the Treasury for Tax Policy, as he moderates a discussion on these important upcoming developments. Greg will be joined by:

Mark Prater, Chief Tax Counsel (R) of the Senate Finance Committee
Victoria McDowell, Deputy Administrator of Treasury’s Tax and Trade Bureau

Mark has been involved in tax legislation for 20 years and Victoria has been assigned since early 2009 to head the Treasury 1603 grant program.

When:	Thursday, February 4, 2010 12:30 to 1 p.m. – Networking 1 to 2 p.m. – Panel Discussion
Where:	Washington D.C. Convention Center Room 154AB
Cost:	Complimentary You are invited to bring your lunch from the exhibit trade floor.

RSVP:

Please register by February 1, 2010. Register Here.

As a proud sponsor of RETECH 2010, Stoel Rives will be providing complimentary copies of our “Law of ...” books at booth #811. Please stop by and visit us. Books will be available while supplies last. Click here to find our booth location.

To save $50 on an exhibit pass to RETECH 2010, enter VIP Promotional Code “ExpoPass” in the secure online form at http://www.retech2010.com/make-plans/register.

We look forward to seeing you!

SEC Issues Interpretive Guidance on Greenhouse Gases

William H. Holmes — Wed, 27 Jan 2010 20:08:49 -0800

My partner Tom Wood circulated this preliminary alert this afternoon:

"Earlier today the U.S. Securities & Exchange Commission (SEC) approved interpretive guidance intended to inform public companies how climate change must be taken into account when applying existing disclosure requirements. Specifically, the SEC's interpretative guidance highlights the following areas as examples of where climate change must be considered in crafting disclosures:

· The direct effects of existing and pending environmental regulation, legislation and international accords and treaties on the company’s business, its operations, risk factors and in Management’s Discussion and Analysis of Financial Condition and Results of Operations (MD&A);

· The indirect effects of climate change legislation and regulation on a company’s business—this could include new opportunities or risks posed by legal, technological, political and scientific developments related to climate change; and

· The actual and potential effect on a company’s business and operations resulting from physical changes to the planet resulting from climate change.

"The interpretive guidance specifies that public companies must have adequate knowledge of their greenhouse gas emissions—a requirement that is consistent with recent EPA regulations requiring many (but not all) significant greenhouse gas emitters report their direct emissions starting in calendar year 2010. The SEC stated “management should ensure that it has sufficient information regarding the registrant’s greenhouse gas emissions and other operational matters to evaluate the likelihood of a material effect arising from the subject legislation or regulation.”

Unsurprisingly, the SEC said that registrants must weigh whether climate change related information is material or not. In doing so, they said that if it was a close question, the company should decide in favor of disclosure."

The complete language of the interpretive guidance has not yet been released. Corporate securities partners C. J. Voss and Ron McFall are reviewing the issue and will be issuing an Energy Law Alert on the topic. If you'd like to sign up for our Energy Law Alerts, click here.

Cuyahoga County Issues RFP for Studies on Lake Erie

Katherine A. Roek — Wed, 27 Jan 2010 08:30:38 -0800

On January 21, 2010, the Great Lakes Energy Development Task Force, under the authority of Cuyahoga County, issued a Request for Proposals to agencies and organizations interested in providing Avian and Bat ecological studies. The studies supplement the Task Force's Feasibility Study for an early stage commercial deployment project consisting of up to eight (8) turbines with total rated capacity at 20 MW for a Lake Erie Wind Power Project near the water intake crib of the City of Cleveland, Ohio.

Completed proposals must be submitted to the Cuyahoga County Office of Procurement and Diversity, no later than 11:00 a.m. on February 22, 2010.

Stoel Rives Clients Receive Huge Tax Credit Awards

Greg Jenner — Mon, 25 Jan 2010 15:43:12 -0800

Stoel Rives would like to congratulate REC Silicon and SolarWorld on their awards of tax credits by the IRS and DOE. These two companies, combined, received over 10 percent of all the tax credits awarded nationwide under section 48C of the tax code.

On Friday, January 8, the Department of Energy awarded to 183 companies $2.3 billion in tax credits for projects designed to expand, re-equip or establish manufacturing facilities for the production of equipment used to produce renewable and other green energy. The $2.3 billion was the full amount authorized by Congress in the stimulus bill as part of new section 48C of the tax code.

Applications for the credit far exceeded the dollar amount of credits available. Stoel Rives is proud to have been directly involved with these companies in preparing the complex applications for the credit. REC Silicon received the largest award of any company -- $154.8 million. SolarWorld received the seventh largest award -- $82.2 million. These credits will provide these companies with a dollar-for-dollar offset against their federal income tax liability.

There is considerable discussion in Congress regarding adding additional funds to the section 48C program, which will permit another round of awards. Please contact your favorite Stoel Rives attorney if you have any questions about these awards or extension of the section 48C credit.

Upcoming Webinar: Impact of State RPS's and the Prospect of a Federal RPS on What Utilities are Doing in Terms of Purchasing the Output of Wind Farms - January 27, 2010

William H. Holmes — Thu, 21 Jan 2010 15:45:45 -0800

With 3/5 of the States having Renewable Portfolio Standard in place and the prospect of a Federal RPS, many utilities are seeking to become first time purchasers of the output from wind projects. And utilities with a history of purchasing wind are seeking additional resources. In 2009, the presenters collectively worked on over 40 wind power purchase agreements for projects located throughout the United States, enabling them to present a comprehensive overview of the impact of these developments. A number of first time purchasers have been using the RFP process as a vehicle for educating themselves about wind, and often experience difficulty in translating PPA terms that are appropriate for base load resources into PPA terms that work for intermittent resources like wind. Through various PPA terms, utilities are increasingly seeking to place the risk of non-compliance with the RPS on the wind project developer. These developments can result in PPA terms that are very problematic for the financing of the project. This webinar will explore these recent developments, including issues related to output and availability guarantees, allocation of curtailment risk for long-distance transmission to load, wind integration charges, delay damages, conditions precedent, termination rights and the measure of damages.

Moderator:
Edward D. Einowski, Partner, STOEL RIVES LLP

Panelists:
Teresa Hill, Partner, STOEL RIVES LLP
William H. Holmes, Partner, STOEL RIVES LLP
Jennifer H. Martin, Partner, STOEL RIVES LLP
Marcus Wood, Partner, STOEL RIVES LLP

To register: http://infocastinc.com/index.php/conference/255

Show Me the Money: $12 million for Early Stage Solar Technologies

Janet Jacobs — Wed, 20 Jan 2010 14:24:32 -0800

The Department of Energy (“DOE”) announced today that the National Renewable Energy Laboratory (“NREL”) will invest up to $12 million in total funding ($10 million from funds allocated to NREL under the American Recovery and Reinvestment Act (“ARRA”)) in four companies - three California and one North Carolina - to take early stage PV and CSP technologies to commercialization.

Each company will receive up to $3 million (and the benefit of NREL’s support and expertise) to take prototype and pre-commercial PV technologies and develop pilot/demo projects or full-scale manufacturing projects. Payment of the awarded $3 million will be made over time as each company completes specified project milestones.

DOE is investing more than $117 million in solar energy through ARRA.

Show Me the Money (and the Light): $37 Million for Solid State Lighting

Janet Jacobs — Fri, 15 Jan 2010 12:18:34 -0800

The Department of Energy today announced the award of more than $37 million in American Recovery and Reinvestment Act funds to 17 projects supporting solid-state lighting core research, product development, and domestic manufacturing.

Solid-state lighting, which uses light-emitting diodes (“LEDs”) and organic light-emitting diodes (“OLEDs”) instead of incandescent bulbs, has the potential to be ten times more energy-efficient than traditional incandescent lighting.

Lighting needs account for almost one-quarter of the total electricity used in the United States today. Those needs could be reduced by as much as one-third by 2030 if cost-effective solid-state lighting is adopted on a national basis.

Link to the full story and the list of selected projects: http://apps1.eere.energy.gov/news/progress_alerts.cfm/pa_id=287

GEA's Geothermal Energy Finance Forum hits New York

Allison D. Cook — Wed, 13 Jan 2010 23:03:38 -0800

On January 14, the Geothermal Energy Association will host a one-day Geothermal Energy Finance Forum in New York. Almost 30 speakers are confirmed for the Forum, including heavy hitters from investment groups and banks, geothermal energy developers, and the DOE and Treasury. Senate Majority Leader Harry Reid (D-NV) will deliver the keynote address. My colleague, John McKinsey, will speak on federal and state legal and regulatory issues associated with the development of geothermal resources. The agenda for the Forum is jam-packed with panels and presentations on cost and financial modeling for geothermal projects; government finance and incentives, including under the American Recovery and Reinvestment Act; project development and design; and risk mitigation, along with myriad case studies from the likes of US Geothermal, Ormat, Ram Power, Raser Technologies, TAS, Vulcan Power, Nevada Geothermal Power, and Enel. Mayor Bloomberg has even proclaimed January 14, 2010 as "New York City Geothermal Energy Day."

U.S. Supreme Court Rules that Third-Parties Challenging Energy Contract Rates Must Clear the Mobile-Sierra Hurdle

Jason A. Johns — Wed, 13 Jan 2010 18:13:42 -0800

Today, the U.S. Supreme Court issued an important ruling clarifying how the Federal Energy Regulatory Commission (FERC) must apply the Mobile-Sierra doctrine. The Mobile-Sierra doctrine informs how FERC should evaluate whether a contract rate for energy is just and reasonable, and the doctrine provides that FERC's sole concern should be whether the contract rates being challenged adversely affect the public interest--a high hurdle. Until today, some people questioned whether the Mobile-Sierra doctrine was limited to parties to a contract, and whether non-contracting parties bringing a challenge would be held to a lower standard. The Court, however, made clear that the Mobile-Sierra doctrine should apply to any party (including FERC) challenging whether energy rates are just and reasonable, stating that a presumption that applies to contracting parties only, but not anybody else, fails to establish the contractual stability that Mobile-Sierra aimed to secure.

To read more about today's U.S. Supreme Court decision, click here.

February 9 Breakfast Seminar on Developing, Permitting and Financing Biomass Facilities

William H. Holmes — Wed, 13 Jan 2010 17:12:19 -0800

During the WORLD AG EXPO in Tulare, CA on February 9, Stoel Rives will be hosting a Breakfast Seminar on Developing, Permiting and Financing Biomass Facilities. The seminar will take place in the Sequoia Room of the Hampton Inn and Suites, 1100 N. Cherry Street, which is near the Expo Site. The Seminar will be complimentary (breakfast included), and attendees will receive a copy of The Law of Biomass - the newest and 10th book in the Stoel Rives "Law of" series.

Please join attorneys John M. Eustermann, Michael N. Mills, Rebecca B. Sandberg, Lee N. Smith and Joe R. Thompson as they address the following agenda items:

California Environmental Regulatory Update
Successfully Bringing a Project to Commercial Operations
Financing Your Biomass Project

The first portion of our seminar will explore new legislation and regulations affecting initial decision-making and the permitting process for biomass facilities. The second portion will discuss those issues the project developer will need to deal with in order to successfully develop a financeable project. The final hour will be dedicated to the financing aspect of biomass projects.

Click here for more details and to register for The Resurgence in Biomass Facilities: What You Need to Know to Develop, Permit and Finance Your Project .

ARRA SGIG Grants Taxable?

Janet Jacobs — Wed, 13 Jan 2010 16:54:35 -0800

Concern is mounting over whether the smart grid awards and project grants to be distributed by the Department of Energy (“DOE”) will be taxable in the hands of the recipients. Certain grants administered by federal, state, or local programs for renewable energy projects located in the US may be reportable by the recipient. The 100 smart grid award recipients, who are waiting for their share of the promised $3.4 billion from the DOE, are anxious to resolve this issue as many of them prepared their budgets (and the DOE may have made the awards) on the assumption that the awards were going to be tax-exempt.

The DOE is working closely with the awardees and the Treasury Department to reach resolution and hopes to provide guidance shortly. We’ll be following this story closely – stay tuned for developments.

Secretary Chu Announces $80M for Biofuels

Graham Noyes — Wed, 13 Jan 2010 13:00:00 -0800

DOE Secretary Chu's announcement today regarding $80 million of ARRA funding for biofuels is potentially a positive development for the long-term development of the biofuels industry. What is worrisome from a practical perspective is the division of funding. The National Alliance for Advanced Biofuels and Bioproducts, centered in St. Louis, received $44 million to develop a systems approach for the sustainable commercialization of algal biofuel and bioproducts. The National Advanced Biofuels Consortium, based here in the Pacific Northwest, received up to $34 million to develop infrastructure compatible biomass-based fuels. Meanwhile eight infrastructure projects received up to $1.6 million to support expanded fueling infrastructure for ethanol blends. While the Administration is ahead of the curve in recognizing the importance of long-term support for the development of advanced biofuels, it is overlooking the increasingly challenging environment in first generation biofuels. Simply put- and purely in my opinion- there will be no second generation of biofuels if the first generation does not again thrive. The ethanol industry has hit a blend wall that the EPA has not been willing to help them overcome in the short term. Adding $1.6 million in E-85 infrastructure is but a chip in that wall when one considers the massive costs involved in building a national infrastructure. On the biodiesel side, the current industry has not yet received an extension of its tax credit and was already facing severe challenges. The investors who supported the expansion of the first generation biofuels industry are still tracking their investments and the policy support for the industry. While government funding will further the development of the science of advanced biofuels, private sector involvement will be essential to the ultimate commercialization of these fuels. To accomplish its ultimate goals, the Administration will need to begin to address these issues in a systematic manner.

NMFS Proposes Critical Habitat Designation for Endangered Sea Turtles Along the West Coast

Ryan Steen — Wed, 13 Jan 2010 08:31:30 -0800

On January 5, 2010, the National Marine Fisheries Service ("NMFS") issued a proposed rule designating 70,600 square miles of critical habitat for endangered leatherback sea turtles (Dermochelys coriacea) along the West Coast, covering portions of Washington, Oregon, and California. Section 4 of the Endangered Species Act ("ESA") requires NMFS to designate critical habitat for threatened and endangered species on the basis of the best available scientific data, after taking into consideration economic, national security, and other impacts. The designation of critical habitat does not create a wildlife preserve, but Section 7 of the ESA requires that federal agencies ensure that federally authorized projects, such as wave or tidal energy projects, do not destroy or adversely modify critical habitat.

The leatherback sea turtle is a pelagic species with a range that spans the entire Pacific Ocean. Leatherbacks aggregate in productive coastal areas to forage on jellyfish and, for this reason, they seasonally occupy portions of the California current along the West Coast. The leatherback sea turtle was listed as "endangered" in 1970. In 1978, critical habitat was initially designated for the turtle in and around portions of the island of St. Croix in the U.S. Virgin Islands. In October, 2007, NMFS received a petition from environmental advocacy groups to designate additional critical habitat along the West Coast.

In the proposed rule, NMFS proposes to designate portions of the area petitioned by the environmental groups. The basis for the designation is evidence suggesting that leatherback sea turtles may occupy offshore areas to prey on jellyfish. Areas proposed for designation are areas thought to support jellyfish populations and areas thought to provide migration corridors for turtles to access prey. NMFS declined to designate certain areas along the West Coast on the basis that economic and national security considerations outweigh the benefits of the designation in those particular areas. The proposed rule, along with a map showing the areas proposed for designation, is available at the link above .

The proposed designation may have ramifications for offshore energy developers planning tidal, wave, or LNG projects. Under Section 7 of the ESA, FERC must ensure that any such projects occurring in areas designated as critical habitat do not destroy or adversely modify the habitat. Stoel Rives has a broad depth of experience covering all aspects of the ESA, including advising on critical habitat issues and issues involving leatherback sea turtles.

XCEL Plans New Wind Solicitation In Connection With Anson Plant

William H. Holmes — Mon, 11 Jan 2010 19:25:41 -0800

In a January 8 letter to the Minnesota Public Service Commission, Xcel Energy informed the Commission that it intends to conduct competitive negotiations with wind projects that are able to interconnect at Xcel's Angus Anson generating station in Sioux Falls.

The Angus Anson plant is a gas-fired peaking facility that has firm transmission to deliver its output. Xcel wants to make better use of this transmission by looking at ways to locate wind generating capacity nearby and connect it to the transmission system at Anson. Over the next several months, Xcel plans to accept proposals and conduct competitive negotiations for wind projects that can interconnect at the Anson site. Xcel does not believe that transmission upgrades will be needed for the proposed interconnection.