# Open Access and Priority Rights on Interconnection Customer's Interconnection Facilities > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2015-06953 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** April 1, 2015 - **Citation:** 80 FR 17654 ## Text DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 35 [RM14-11-000; Order No. 807] Open Access and Priority Rights on Interconnection Customer's Interconnection Facilities AGENCY: Federal Energy Regulatory Commission. ACTION: Final rule. SUMMARY: In this Final Rule, the Federal Energy Regulatory Commission is amending its regulations to waive the Open Access Transmission Tariff requirements, the Open Access Same-Time Information System requirements, and the Standards of Conduct requirements, under certain conditions, for the ownership, control, or operation of Interconnection Customer's Interconnection Facilities (ICIF). This Final Rule finds that those seeking interconnection and transmission service over ICIF that are subject to the blanket waiver adopted herein may follow procedures applicable to requests for interconnection and transmission service under sections 210, 211, and 212 of the FPA, which also allows the contractual flexibility for entities to reach mutually agreeable access solutions. This Final Rule establishes a modified rebuttable presumption for a five-year safe harbor period to reduce risks to ICIF owners eligible for the blanket waiver during the critical early years of their projects. Finally, this Final Rule modifies, as described in detail below, several elements of the Notice of Proposed Rulemaking, including the entities eligible for the OATT waiver, the date on which the safe harbor begins, the rebuttable presumption that the ICIF owner should not be required to expand its facilities during the safe harbor, and the facilities covered by the Final Rule. DATES: This rule will become effective June 30, 2015. FOR FURTHER INFORMATION CONTACT: Becky Robinson (Technical Information), Office of Energy Policy and Innovation, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502-8868, Becky.Robinson@ferc.gov . Brian Gish (Legal Information), Office of the General Counsel—Energy Markets, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502-8998, Brian.Gish@ferc.gov . SUPPLEMENTARY INFORMATION: Order No. 807 Final Rule Paragraph Nos. I. Introduction 1 II. Background 6 A. Development of ICIF Policies 6 III. Need for Reform 18 A. Commission Proposal 18 B. Comments 19 C. Commission Determination 33 IV. Proposed Reforms 41 A. Eligible ICIF 41 1. Commission Proposal 41 2. Comments 42 3. Commission Determination 43 B. Grant Blanket Waivers to Eligible ICIF Owners 44 1. Blanket Waivers 44 2. Requirement That ICIF Owners Must Sell Electricity To Qualify for the Waiver 59 3. Status of the Third-Party Requester 76 4. Non-Public Utilities 79 5. Applicability to Industrial Power Systems' Tie Lines 83 6. Applicability of the Blanket Waiver to Additional Regulations 85 7. Existing Agreements and Waivers 88 8. Existing OATTs 90 9. Revoking the Blanket Waiver 94 C. Interconnection and Transmission Under Sections 210 and 211 of the Federal Power Act 104 1. Sections 210 and 211 104 2. Voluntary Arrangements 115 3. Interaction With the Transmission System 119 4. Scope of Regulations To Be Modified 128 5. Reliability Standards 131 D. Safe Harbor 133 1. Whether and To What Extent There Should Be a Safe Harbor Period 133 2. Starting Point for the Safe Harbor Period 141 3. Length of the Safe Harbor Period 147 E. Affiliate Concerns 153 1. Commission Proposal 153 2. Comments 154 3. Commission Determination 165 F. Miscellaneous 170 1. Treatment of Line Losses on ICIF 170 2. Applicability of the Commission's “Prior Notice” Policy 172 3. Technical Aspects of Interconnection 174 4. Implementation 176 V. Information Collection Statement 177 VI.8 Regulatory Flexibility Act Analysis 184 VII. Document Availability 185 VIII. Effective Date and Congressional Notification 188 Regulatory Text Appendix A: List of Short Names of Commenters on the Notice of Proposed Rulemaking I. Introduction 1. In this Final Rule, the Federal Energy Regulatory Commission (FERC or Commission) is amending its regulations to waive the Open Access Transmission Tariff (OATT) requirements of 18 CFR 35.28, the Open Access Same-Time Information System (OASIS) requirements of 18 CFR 37, and the Standards of Conduct requirements 18 CFR 358, under certain conditions, for the ownership, control, or operation of Interconnection Customer's Interconnection Facilities (ICIF). 1 This Final Rule finds that those seeking interconnection and transmission service over ICIF that are subject to the blanket waiver adopted herein may follow procedures applicable to requests for interconnection and transmission service under sections 210, 211, and 212 of the Federal Power Act (FPA), which also allows the contractual flexibility for entities to reach mutually agreeable access solutions. 2 This Final Rule establishes a modified rebuttable presumption for a five-year safe harbor period to reduce risks to ICIF owners 3 eligible for the blanket waiver during the critical early years of their projects. Finally, this Final Rule modifies, as described in detail below, several elements of the Notice of Proposed Rulemaking (NOPR), including the entities eligible for the OATT waiver, the date on which the safe harbor begins, the rebuttable presumption that the ICIF owner should not be required to expand its facilities during the safe harbor, and the facilities covered by the Final Rule. 4 1 The jurisdictional interconnection facilities for which this Final Rule grants a waiver have sometimes in the past been referred to informally as “generator tie lines,” but, in the Notice of Proposed Rulemaking, the Commission used the term ICIF as defined in the pro forma documents issued with Order No. 2003. As discussed below, infra section IV.A Eligible ICIF, we continue to use the term “ICIF” throughout this Final Rule but clarify there that we intend the term to encompass a broader scope. Standardization of Generator Interconnection Agreements and Procedures, Order No. 2003, 68 FR 49845 (Aug. 19, 2003), FERC Stats. & Regs. ¶31,146, at Appendix C, Appendix 6, Article 1 (2003), order on reh'g, Order No. 2003-A, 69 FR 15932 (Mar. 26, 2004), FERC Stats. & Regs. ¶ 31,160, order on reh'g, Order No. 2003-B, 70 FR 265 (Jan. 4, 2005), FERC Stats. & Regs. ¶ 31,171 (2004), order on reh'g, Order No. 2003-C, 70 FR 37661 (Jun. 30, 2005), FERC Stats. & Regs. ¶ 31,190 (2005), aff'd sub nom. Nat'l Ass'n of Regulatory Util. Comm'rs v. FERC, 475 F.3d 1277 (D.C. Cir. 2007), cert denied, 552 U.S. 1230 (2008). 2 16 U.S.C. 824i, 824j, and 824k. 3 In this Final Rule, the term “ICIF owners” includes those who operate or control ICIF. 4 Open Access and Priority Rights on Interconnection Customer's Interconnection Facilities, Notice of Proposed Rulemaking, 79 FR 31061 (May 30, 2014), FERC Stats. & Regs. ¶ 32,701 (2014), corrected, 79 FR 35501 (June 23, 2014). 2. We find that requiring the filing of an OATT is not necessary to prevent unjust or unreasonable rates or unduly discriminatory behavior with respect to ICIF, over which interconnection and transmission services can be ordered pursuant to sections 210, 211, and 212 of the FPA. 5 Further, we conclude that the Commission's policies requiring the ICIF owner to make excess capacity available to third parties unless it can justify its planned use of the line impose risks and burdens on ICIF owners and create regulatory inefficiencies that are not necessary given the goals that the Commission seeks to achieve through such policies. Based on comments received as part of our consideration of the treatment of ICIF, we understand that generation developers may develop new projects in phases and build interconnection facilities large enough to accommodate the development of all planned phases. The Commission's existing policy has led ICIF owners to file petitions for declaratory orders demonstrating plans and milestones for future generation development to reserve for themselves currently excess ICIF capacity that they built for such purposes. In the vast majority of cases, the Commission has granted the petition, based on confidential documentation filed by the ICIF owner, with a limited description of the plans and milestones the Commission deemed dispositive. Further, the Commission's existing policy of treating ICIF the same as other transmission facilities for OATT purposes, including the requirement to file an OATT following a third-party request, creates undue burden for ICIF owners without a corresponding enhancement of access given the ICIF owner's typical ability to establish priority rights. 5 As discussed infra, the blanket waiver will apply only to entities that are either directly subject to section 210 or have voluntarily committed to comply with section 210. 3. Granting an OATT waiver to ICIF owners and providing that third-party access be governed by sections 210, 211, and 212 will enable ICIF owners and third parties, where possible, to reach mutually agreeable and voluntary arrangements that provide ICIF access to third parties, while protecting a third party's right to request that the Commission order interconnection and transmission service over ICIF. We find that providing this contractual flexibility may remove barriers to an ICIF owner's willingness to enter into such an agreement with a third party. 4. We recognize that ICIF owners often construct ICIF to accommodate multiple generation project phases and intend for their subsequent generation projects to use what is initially excess capacity on the ICIF. We believe that the safe harbor period established by this Final Rule will enable these ICIF owners to focus in the early stages of development on building generation. 5. We find that the reforms adopted herein re-balance the burden on ICIF owners and encourage efficient generation and interconnection facility development, while maintaining access to available capacity for third parties where appropriate. II. Background A. Development of ICIF Policies 6. Under section 201(b) of the FPA, the Commission has jurisdiction over all facilities used for the transmission of electric energy in interstate commerce. 6 Under section 201(e) of the FPA, any person who owns or operates facilities subject to the jurisdiction of the Commission is a public utility. 7 The Commission is charged with the responsibility under sections 205 and 206 of the FPA to ensure that a public utility's rates, charges, and classifications of service are just and reasonable and not unduly discriminatory or preferential. 8 6 16 U.S.C. 824(b). 7 16 U.S.C. 824(e). Section 201(f) of the FPA exempts certain governmental entities and electric cooperatives from being a public utility. 8 16 U.S.C. 824d and 824e. 7. In Order No. 888, the Commission, relying upon its authority under sections 205 and 206 of the FPA, established non-discriminatory open access to electric transmission service as the foundation necessary to develop competitive bulk power markets in the United States. 9 Order No. 888, codified in section 35.28 of the Commission's regulations, requires that any public utility that owns, controls, or operates facilities used for the transmission of electric energy in interstate commerce must file an OATT and comply with other related requirements. The Commission in Order No. 888 did not specifically address transmission facilities associated with the interconnection of electric generating units to the transmission grid. 9 Promoting Wholesale Competition Through Open Access Non-Discriminatory Transmission Services by Public Utilities; Recovery of Stranded Costs by Public Utilities and Transmitting Utilities, Order No. 888, 61 FR 21540 (May 10, 1996), FERC Stats. & Regs. ¶ 31,036 (1996), order on reh'g, Order No. 888-A, 62 FR 12274 (Mar. 14, 1997), FERC Stats. & Regs. ¶ 31,048, order on reh'g, Order No. 888-B, 81 FERC ¶ 61,248 (1997), order on reh'g, Order No. 888-C, 82 FERC ¶ 61,046 (1998), aff'd in relevant part sub nom. Transmission Access Policy Study Group v. FERC, 225 F.3d 667 (D.C. Cir. 2000), aff'd sub nom. New York v. FERC, 535 U.S. 1 (2002). 8. At the same time, the Commission issued Order No. 889, 10 which promulgated the Open Access Same-Time Information System (OASIS) and Standards of Conduct requirements in Part 37 of the Commission's regulations to ensure the contemporaneous disclosure of certain information and prevent transmission providers from engaging in non-discriminatory behavior in favor of their marketing affiliates. 11 10 Open Access Same-Time Information System and Standards of Conduct, Order No. 889, 61 FR 21737 (May 10, 1996), FERC Stats. & Regs. ¶ 31,035 (1996), order on reh'g, Order No. 889-A, FERC Stats. & Regs. ¶ 31,049 (1997), reh'g denied, Order No. 889-B, 81 FERC ¶ 61,253 (1997). 11 Although originally promulgated by Order No. 889, the Commission has since relocated the Standards of Conduct to Part 358 and adopted a number of changes, most recently revised by Order No. 717. Standards of Conduct for Transmission Providers, Order No. 717, FERC Stats. & Regs. ¶ 31,280 (2008). 9. In Order No. 2003, the Commission found that interconnection service plays a crucial role in bringing generation into the market to meet the growing needs of electricity customers and competitive electricity markets. 12 The Commission reiterated that “[i]nterconnection is a critical component of open access transmission service,” and that “the Commission may order generic interconnection terms and procedures pursuant to its authority to remedy undue discrimination and preferences under sections 205 and 206 of the Federal Power Act.” 13 The Commission concluded that there was a pressing need for a uniformly applicable set of procedures and a pro forma agreement to form the basis of interconnection service for large generators, and thus promulgated the pro forma Large Generator Interconnection Procedures (LGIP) and the pro forma Large Generator Interconnection Agreement (LGIA) 14 to be included in every public utility's OATT. 15 12 Order No. 2003, FERC Stats. & Regs. ¶ 31,146 at P 11. 13 Id. PP 12, 20. 14 As discussed above, throughout this Final Rule, the terms LGIP and LGIA refer to the pro forma versions of those documents. 15 Order No. 2003 established rules for a Large Generating Facility, defined as a generating facility with a capacity of more than 20 MW. Similarly, in Order No. 2006, the Commission established the pro forma Small Generator Interconnection Procedures and the pro forma Small Generator Interconnection Agreement for interconnecting small generators (no larger than 20 MW). Standardization of Small Generator Interconnection Agreements and Procedures, Order No. 2006, FERC Stats. & Regs. ¶ 31,180, order on reh'g, Order No. 2006-A, FERC Stats. & Regs. ¶ 31,196 (2005), order granting clarification, Order No. 2006-B, FERC Stats. & Regs. ¶ 31,221 (2006). 10. Article 11.1 of the LGIA provides that the “Interconnection Customer shall design, procure, construct, install, own and/or control Interconnection Customer Interconnection Facilities . . . at its sole expense.” The LGIA defines ICIF as “all facilities and equipment, as identified in Appendix A of the Standard Large Generator Interconnection Agreement, that are located between the Generating Facility and the Point of Change of Ownership, including any modification, addition, or upgrades to such facilities and equipment necessary to physically and electrically interconnect the Generating Facility to the Transmission Provider's Transmission System. Interconnection Customer's Interconnection Facilities are sole use facilities.” 16 The LGIA defines “Interconnection Facilities” 17 as the: 16 LGIA Article 1. Section 1 of the LGIP includes identical definitions to those in Article 1 of the LGIA. 17 Unless otherwise indicated, capitalized terms herein have the same definition as in the Commission's LGIA or in the OATT, as applicable. Transmission Provider's Interconnection Facilities and the Interconnection Customer's Interconnection Facilities. Collectively, Interconnection Facilities include all facilities and equipment between the Generating Facility and the Point of Interconnection, including any modification, additions or upgrades that are necessary to physically and electrically interconnect the Generating Facility to the Transmission Provider's Transmission System. Interconnection Facilities are sole use facilities and shall not include Distribution Upgrades, Stand Alone Network Upgrades or Network Upgrades. 18 18 LGIA Article 1. See supra n.1. Finally, the LGIA defines Transmission Provider's Interconnection Facilities as “those Interconnection Facilities that are located between the Point of Interconnection 19 with the grid and the Point of Change of Ownership, 20 and which are owned, controlled, or operated by the transmission provider.” 21 19 The Point of Interconnection is defined in Article 1 of the LGIA as the point where the Interconnection Facilities connect to the Transmission Provider's Transmission System. 20 The Point of Change of Ownership is defined in Article 1 of the LGIA as the point, as set forth in Appendix A to the LGIA, where the Interconnection Customer's Interconnection Facilities connect to the Transmission Provider's Interconnection Facilities. LGIP section 11.2 states that the Transmission Provider and Interconnection Customer shall negotiate the provisions of the appendices to the LGIA. 21 LGIA Article 1. 11. In general, Interconnection Facilities are constructed to enable a generation facility or multiple generation facilities to transmit power to the integrated transmission grid. Interconnection Facilities are typically radial in nature, with a single point of interconnection with the network grid, and over which power flows in one direction toward the transmission grid. 22 Depending on the circumstances, Interconnection Facilities may range in length, but can span considerable distances and represent significant transmission capacity. 23 22 In limited circumstances, power may flow from the grid to supply station power in the event no power is being produced at the generating facility. 23 See, e.g., Bayonne Energy Center, LLC, 136 FERC ¶ 61,019 (2011) (involving a 6.75-mile, 345-kV interconnection facility); Terra-Gen Dixie Valley, LLC, 132 FERC ¶ 61,215 (2010) ( Terra-Gen I ), reh'g denied, 134 FERC ¶ 61,021 (2011), order on request for priority rights, 137 FERC ¶ 61,179 (2011), order on reh'g, 147 FERC ¶ 61,122 (2014) (involving a 214-mile, 230-kV interconnection facility). See also, e.g., Southern Company Serv., Inc., Docket No. ER12-554-000 (Jan. 6, 2012) (delegated letter order) (involving an approximately 2000 foot interconnection facility). 12. In a series of cases since Order No. 2003 became effective, issues have been raised regarding the extent to which, if at all, third parties should be able to have access rights for transmission on the facilities located between the generating facility and the Point of Change of Ownership at which the Transmission Provider's Interconnection Facilities begin, i.e., ICIF. Applications have come before the Commission as petitions for declaratory order and requests for service under sections 210 and 211. In each of these, the Commission has put the onus on the developer, if it would like to preempt a third party's use, to demonstrate that it has plans to use the currently excess capacity. 13. In Milford Wind Corridor, LLC, the Commission recognized that it has granted waivers of the OATT requirements on a case-by-case basis for ICIF owners who demonstrate that their ICIF are limited and discrete and there is no outstanding request by a third party to access the ICIF. 24 24 Milford Wind Corridor, LLC, 129 FERC ¶ 61,149, at P 24 (2009) ( Milford ). 14. At issue in these cases was whether the entity that owns and/or controls ICIF to serve its or its affiliates' generation project or projects has any priority right over third-party requesters to use the capacity on its ICIF. Where an ICIF owner has specific, pre-existing generator expansion plans with milestones for construction of generation facilities and can demonstrate that it has made material progress toward meeting those milestones, the Commission granted priority rights for excess capacity on the ICIF for those future generation projects. 25 For example in Aero Energy, LLC, 26 before ordering service over the Sagebrush line pursuant to FPA sections 210 and 211, the Commission provided the opportunity for the ICIF owner to demonstrate that it had pre-existing contractual obligations or other specific plans that would prevent it from providing the requested firm transmission service to the third party. 27 As a result, the Commission found that one of the Sagebrush partners had shown that it had pre-existing expansion plans that, at some future date, would require firm transmission capacity, and that two other Sagebrush partners had not shown that they had pre-existing expansion plans that would require additional transmission capacity. 25 Alta Wind I, LLC, 134 FERC ¶ 61,109, at PP 16-17 (2011); Milford, 129 FERC ¶ 61,149 at P 22; Aero Energy LLC, 116 FERC ¶ 61,149, at P 28 (2006) Aero Modification Order. Such plans and initial progress also must pre-date a valid request for service. Terra-Gen I, 132 FERC ¶ 61,215 at P 53. 26 Aero Energy LLC, 115 FERC ¶ 61,128 (2006) ( Aero Proposed Order), order granting modification, 116 FERC ¶ 61,149 (2006) ( Aero Modification Order), final order, 118 FERC ¶ 61,204 (2007), reh'g denied, 120 FERC ¶ 61,188 (2007) ( Aero Rehearing Order) (collectively, Aero ). 27 Aero Modification Order, 116 FERC ¶ 61,149 at P 28. 15. The Commission has also considered, on a case-by-case basis, petitions for declaratory order requesting that an ICIF owner be granted priority over third parties to use capacity on its ICIF. 28 In Milford, the Commission granted such priority, finding that Milford had shown that it had specific plans for phased development of its generation. The Commission in Milford summarized the Aero precedent as providing that: 28 See, e.g., Milford, 129 FERC ¶ 61,149 at P 24; Terra-Gen I, 132 FERC ¶ 61,215 at P 49. A transmission owner that filed specific expansion plans with definite dates and milestones for construction, and had made material progress toward meeting its milestones, had priority over later transmission requests. 29 29 Milford, 129 FERC ¶ 61,149 at P 22. This required demonstration necessary to claim priority rights has been referred to as the “specific plans and milestones” showing. This granting of priority rights preserves the ability of the generation developer to deliver its future output to the point of interconnection with the integrated transmission grid, so long as it can make the relevant showing to the Commission sufficient to justify priority. 30 The Commission has also found that an affiliate of the ICIF owner that is developing its own generator projects also may obtain priority rights to the capacity on the ICIF by meeting the “specific plans and milestones” standard with respect to future use. 31 30 The Aero precedent cited above is the only instance where the Commission has not granted priority rights upon an attempted plans and milestones demonstration. 31 See NextEra Energy Resources, LLC, 142 FERC ¶ 61,043, at P 26 (2013). 16. Notwithstanding the ability of an ICIF owner to request priority rights, where an ICIF owner has received a third-party request for service, the Commission has required that the ICIF owner file an OATT. 32 32 Subsequent to ordering transmission under FPA sections 210 and 211 in Aero, the Commission granted market-based rates to several Sagebrush affiliates on the condition that Sagebrush file an OATT for its line if any third party filed a request for service on the line. EDFD Handsome-Lake, 127 FERC ¶ 61,243, at P 15 (2009). Such a request was made, and Sagebrush filed an OATT for its interconnection facility. Sagebrush, a California Partnership, 130 FERC ¶ 61,093, order on reh'g, 132 FERC ¶ 61,234 (2010). In Peetz Logan, the generation owner filed an OATT in response to a request for third-party interconnection and transmission services over its existing 78.2-mile, 230-kV ICIF that had been used to connect three affiliated wind generation projects to the grid. Peetz Logan Interconnect, LLC, 136 FERC ¶ 61,075 (2011) ( Peetz Logan ). In Sky River, the Commission rejected the filing of an executed Common Facilities Agreement providing a third party the right to access and utilize Sky River, LLC's interest in a nine-mile 230-kV “generator tie-line.” Instead, the Commission required that any service by non-owners over the line must be made pursuant to an OATT. Sky River, LLC, 134 FERC ¶ 61,064 (2011) ( Sky River ). Also, in Terra-Gen, the generator owner of a 214-mile, 230-kV radial interconnection facility was ordered by the Commission to file an OATT in response to a request for third-party transmission service. Terra-Gen Dixie Valley, LLC, 134 FERC ¶ 61,027 (2011), order on reh'g, 135 FERC ¶ 61,134 (2011), order granting extension of time , 136 FERC ¶ 61,026 (2011), order on reh'g, 147 FERC ¶ 61,122 (2014). 17. In summary, the Commission's existing policy since 2009 is that, because ICIF are facilities used for the transmission of electric energy in interstate commerce, those who own, control, or operate ICIF must either have an OATT on file or receive a waiver of the OATT requirement. 33 Section 35.28(d) provides that any public utility subject to OATT, OASIS, and Standards of Conduct requirements may file a request for a waiver for good cause shown. 34 The Commission grants such requests for waiver where the public utility owns only limited and discrete facilities or is a small utility. 35 Even if a waiver of the OATT is granted for ICIF, the ICIF owner is subject to the requirement that, if a request for transmission service over the facilities is made, it would have to file an OATT within 60 days of the request 36 and comply with any additional requirements then in effect for public utility transmission providers. The ICIF owner would thus become subject to all of the relevant pro forma OATT requirements, unless it successfully seeks and receives approval for deviations from the pro forma OATT. 33 See Milford, 129 FERC ¶ 61,149 at P 24 (noting that the fact that the facilities merely tie a generator to the grid does not render a line exempt from the Commission's regulation of transmission facilities). See also Evergreen Wind Power III, LLC, 135 FERC ¶ 61,030, at P 15 n.18 (2011) (granting request for waiver of the OATT requirement in the context of a request for market-based rate authority). 34 The Commission has the general statutory authority to waive its regulations as it may find necessary or appropriate. UtiliCorp United Inc., 99 FERC ¶ 61,280, at P 12 (2002); see also Pacific Gas and Electric Co., 99 FERC ¶ 61,045, at P 5 (2002) (“It is however well established that, with or without an explicit provision to that effect, an agency may waive its regulations in appropriate cases.”). Similarly, section 358.1(d) of the Commission's regulations provides that a transmission provider may seek a waiver from all or some of the requirements of Part 358. 35 See, e.g., Prairie Breeze Wind Energy LLC, 145 FERC ¶ 61,290, at P 26 (2013); Ebensburg Power Company, 145 FERC ¶ 61,265, at P 27 (2013); CSOLAR IV South, LLC, 143 FERC ¶ 61,275, at P 16 (2013). 36 Milford, 129 FERC ¶ 61,149 at P 27. See Termoelectrica U.S., LLC, 105 FERC ¶ 61,087, at P 11 (2003); Black Creek Hydro, Inc., 77 FERC ¶ 61,232, at 61,941 (1996). III. Need for Reform A. Commission Proposal 18. The Commission issued a NOPR in this proceeding on May 15, 2014. In the NOPR, the Commission proposed to grant a blanket waiver for ICIF of all OATT, OASIS, and Standards of Conduct requirements in circumstances where a public utility is subject to such requirements solely because it owns, controls, or operates ICIF and sells electric energy from its generating facility. The Commission also proposed a safe harbor period of five years during which there would be a rebuttable presumption that: (1) The eligible ICIF owner has definitive plans to use its capacity without having to make a demonstration through a specific plans and milestones showing; and (2) the eligible ICIF owner should not be required to expand its facilities. 37 The Commission found, on a preliminary basis, that there was a need for reform because OATT requirements as applied to ICIF may impose risks and burdens on generators and create regulatory inefficiencies that are not necessary to achieve the Commission's open access goals. The Commission also preliminarily found that there was a need to reform its requirements for achieving non-discriminatory access over ICIF so as not to discourage competitive generation development with unnecessary burdens, while ensuring non-discriminatory access by eligible transmission customers. 37 NOPR, FERC Stats. & Regs. ¶ 32,701 at P 54. B. Comments 19. The Commission received 24 comments and one reply comment on the NOPR. 38 Of those, 21 commenters 39 generally support the need for reform and the NOPR proposals. Commenters state that the Commission's existing policy is unduly burdensome and unnecessary 40 and that it does not meet the goal of promoting development of generation facilities while ensuring not unduly discriminatory open access to transmission facilities. 41 Commenters argue that ICIF owners are focused on developing new generation resources and the time, effort and cost of complying with the OATT requirements under the Commission's existing policy hinders generation development. 42 Commenters support the Commission's goal of reducing regulatory burdens and promoting development of generation facilities while ensuring open access to transmission facilities and support the Commission's proposal to revise its current ICIF policies. 43 38 See Appendix A for a list of NOPR commenters. 39 These include AWEA, BHE, BP Wind, Linden, DTE, E.ON, EEI, ELCON, EPSA, First Wind, Invenergy, ITC, MISO, MISO TOs, NextEra, NRG, Recurrent, SEIA, Sempra, Southern, and Terra-Gen. SWP also commented on the NOPR, but did not express support or opposition to the proposed changes overall. 40 AWEA at 1; E.ON at 2; and NextEra at 3. 41 EEI at 2. 42 AWEA at 2; Linden at 3; and E.ON at 2. 43 BHE at 1; EEI at 2; and ELCON at 2. 20. Terra-Gen states that the NOPR proposals are essential to minimize the business and regulatory risks faced by generation owners and developers. 44 Further, Terra-Gen argues that the Commission's existing ICIF policy allows third parties to impose substantial and potentially unrecoverable regulatory compliance and other costs on generation owners by requesting access to ICIF without making a showing that the third party is “ready, willing, and able to pay the reasonable costs of transmission services plus a reasonable rate of return on such costs.” 45 44 Terra-Gen at 1. 45 Terra-Gen at 1 (citing New York State Electric & Gas Corp. v. FERC, 638 F.2d 388, 402 (2d. Cir. 1980), cert. denied, 454 U.S. 821 (1981)). 21. Linden states that ICIF owners generally plan to use the excess capacity on their ICIF for their own purposes and that the Commission's existing policy imposes a risk of losing that capacity if another party makes a request for service. 46 ELCON argues that an ICIF owner should retain the rights over its ICIF for its own future projected use. 47 46 Linden at 4. 47 ELCON at 2. 22. MISO supports revising the Commission's ICIF policy because it argues that the existing policy: (1) Creates disincentives to develop more efficient, high-voltage ICIF by expanding the costs and responsibilities of generation owners; (2) imposes transmission owner requirements on entities that are not in the business of providing transmission service to third parties; and (3) creates concerns over the interaction of ICIF with the transmission system, and the reliable interconnection of projects to the transmission system. 48 48 MISO at 4-5. 23. Commenters argue that ICIF are unique and the Commission's open access requirements and pro forma OATT were not designed for and are not appropriate for these facilities. 49 MISO asserts that use of an OATT by an ICIF owner raises complicated issues regarding seams agreements between the transmission provider and the ICIF owner and issues related to Order No. 1000-compliance regional transmission planning and cost allocation. 50 MISO also notes that using OATTs for access to ICIF could create different interconnection processes for different ICIF within the MISO footprint, thus complicating the interconnection process. 51 49 BP Wind at 4; Linden at 3; ELCON at 2; and E.ON at 2. 50 MISO at 5. 51 MISO at 5. 24. On the other hand, APPA, TAPS, and NCPA state that they support the Commission's goal of promoting generation development, but assert that the NOPR proposals would erode the Commission's open access transmission policies. 52 APPA and TAPS argue that the Commission should instead address the concerns identified in the NOPR in a manner that preserves the open access underpinnings of competitive markets and its reliance on market-based rates to ensure just and reasonable wholesale sales, and meets its statutory obligation to eliminate undue discrimination in transmission service. APPA and TAPS contend that the NOPR, as proposed, fundamentally erodes open access by making it effectively impossible for subsequent competitive generation developers to interconnect with the ICIF owner's facilities for long periods of time, if ever. 53 NCPA states that while it supports the Commission's desire to promote generation development, it shares the concerns expressed by APPA and TAPS that the NOPR imperils the open access underpinnings for competitive markets by cutting back on the significant procedural reforms initiated by this Commission in Order Nos. 888 and 889, and supports the alternatives proposed by APPA and TAPS, as described below, by which the Commission could achieve the NOPR's objectives without unnecessarily reducing the protection from discrimination that those orders provided. 54 Similarly, NRECA states that it appreciates the Commission's concerns about imposing the entire open access regime on entities that only own ICIF, but contends that reducing this burden must not come at the expense of ensuring that load-serving entities have access to facilities to serve their loads. 55 52 APPA and TAPS at 2 and NCPA at 3. 53 APPA and TAPS at 2. 54 NCPA at 3. 55 NRECA at 2. 25. APPA and TAPS 56 argue that the NOPR fails to demonstrate the need to change the requirement that an ICIF owner file an OATT upon receipt of a third-party request for service, noting that the NOPR itself recognizes that third-party requests to ICIF owners for service are “infrequen[t]” and “relatively rare.” 57 They also contend that the NOPR has not demonstrated that the proposed procedures would cost less than existing requirements, arguing that the lengthy and costly procedures of sections 210 and 211 could not possibly be less expensive for ICIF owners on an industry-wide basis. They argue that the NOPR proposals will therefore be ineffective at reducing the regulatory costs of ICIF owners and may function as a bar to open access. 58 56 NCPA states that it supports the comments submitted by APPA and TAPS. NCPA at 1 and 3. 57 APPA and TAPS at 20 (citing NOPR, FERC Stats. & Regs. ¶ 32,701 at PP 32, 36). 58 APPA and TAPS at 21. 26. APPA and TAPS contend that the NOPR would invite ICIF owners to close off access to what could well be significant highways to areas ripe for renewable resource development. 59 APPA and TAPS argue that the NOPR would allow an ICIF owner to hold that transmission corridor hostage, block efficient expansion, and deny access to competitors. They add that the ICIF owner is likely to be the competitor of the third party seeking interconnection and transmission service over the ICIF, giving the ICIF owner strong incentive to use its control over ICIF to the advantage of its own generation resources. 60 59 APPA and TAPS at 8 (citing NOPR, FERC Stats. & Regs. ¶ 32,701 at P 9, n.16). 60 APPA and TAPS at 8-9. 27. APPA and TAPS also state that the Commission cannot assume that open access principles need not apply to ICIF because competitors can build their own, arguing that such lines require extensive permitting, and that it is often more difficult to obtain siting approvals for a second line once a first line has been permitted. 61 They contend that, even where it is possible to obtain necessary siting approvals for duplicative lines, inefficient build-out of the grid would make it more costly than necessary to access new generation resources, burdening those resources and consumers, as well as undermining competitive wholesale markets. 61 APPA and TAPS at 9-10. 28. APPA and TAPS contend that departure from the Commission's non-discriminatory access requirements cannot be excused by the fact that usage of ICIF has been requested infrequently thus far, arguing that ICIF access may well become more common in the future given the increasing dependence on renewable resources. 29. APPA, TAPS, and NRECA suggest alternatives to the NOPR proposals. APPA and TAPS state that the Commission could grant a blanket waiver of OATT, OASIS, and Standards of Conduct requirements, but require ICIF owners to submit a standardized, more limited OATT within 60 days of a third-party service request. APPA and TAPS argue that the modified OATT should not remove core elements of open access, including the obligation to expand and the development of rates for point-to-point service, but could eliminate provisions for network transmission service and ancillary services. 62 They state that this will reduce the regulatory burden on ICIF owners and eliminate the need to apply for special waivers on a case-by-case basis, while preserving key limitations on the ICIF owner's ability to discriminate and create barriers to entry to competitive markets. 62 APPA and TAPS at 21-22. 30. APPA and TAPS state that the Commission could address the concern that the existing policy creates too low a bar for third-party requests to trigger the requirement for an ICIF owner to file an OATT by specifying clarified and heightened thresholds for a service request to trigger the requirement to file. They add that the Commission could approve fee structures that enable an ICIF owner to insist upon reasonable deposits before the obligation to file a notice of receipt of a service request and, subsequently, an OATT is triggered. 63 They argue that such additional deposits would discourage speculative service requests that trigger a first-time OATT filing and fully address the specific ICIF owner regulatory burden that the NOPR identifies. They contend that while the extra deposit would increase costs for the first entity that seeks service from the ICIF owner's corporate family, the amount of the deposit would be much lower than the costs of requesting, negotiating, and litigating service under sections 210 and 211. 64 63 APPA and TAPS at 23. 64 APPA and TAPS at 23-24. 31. NRECA suggests that the Commission could implement a procedure under which a prospective customer seeking service on ICIF must submit a request that is fully supported by specified information, followed by the necessary studies and the parties cooperating to reach an agreement for service within a specified period of time, such as 90 days. 65 NRECA adds that if the parties are not able to reach an agreement, the ICIF owner would file an unexecuted service proposal with the Commission. 66 65 NRECA at 5-6. 66 NRECA at 6-7. 32. NRECA argues that its proposed procedures would address the Commission's concern that the existing policy “creates too low a bar for third-party requests for service” because those seeking service would be required to provide adequate information to support their requests. NRECA also argues that its proposal would alleviate the concern that an ICIF owner may be required to file an OATT due to a service request by a requester that subsequently fails to pursue any further development, because a mere service request would no longer trigger that requirement. In addition, NRECA contends that its proposal would promote flexibility by requiring the parties to work together to attempt to reach an agreement. 67 67 NRECA at 7. C. Commission Determination 33. We believe this Final Rule will relieve regulatory burdens and unnecessary risks from generation developers to encourage the development of new generation and efficient interconnection facilities and promote competition while ensuring access to transmission on a not unduly discriminatory basis. 34. Our action is supported by comments on the NOPR, the technical conference, 68 and Notice of Inquiry. 69 Specifically, we appreciate that filing and maintaining an OATT can be burdensome to ICIF owners who do not seek to provide transmission service. Adding a potential OATT obligation to a generation project can introduce an additional element of risk for the developer and its lenders that they would not have if the project were not subject to the potential obligation to file and maintain a transmission tariff. The risk stems from the policy to require an ICIF owner to file an OATT within 60 days of a request for service by a third party and must begin interconnection studies. The ICIF owner's obligation can be triggered with minimal effort by a third party requester, thus a request for service may not sufficiently distinguish third party requesters who have a well-supported request for service from those that do not. We are aware of situations where the ICIF owner received a request for service triggering the requirement that the owner file an OATT, but the requester then failed to pursue any further development. 70 This is an additional risk for the ICIF owner. 68 Priority Rights to New Participant-Funded Transmission, March 15, 2011 Technical Conference, AD11-11-000. 69 Open Access and Priority Rights on Interconnection Facilities, Notice of Inquiry, FERC Stats. & Regs. ¶ 35,574 (cross-referenced at 139 FERC ¶ 61,051 (2012). 70 See NextEra at 5 (“Two of the three NextEra subsidiaries that received inquiries triggering OATT filings with respect to their ICIF—Sagebrush and Peetz Logan—never had customers actually pursue transmission or interconnection service following the initial inquiries”) and Terra-Gen at 2 (“Dixie Valley . . . incurred substantial costs in attempting to comply with the Commission's OATT requirements over several years, only to find that it would have no way to recover those costs because the customer that requested transmission service ultimately did not become a transmission customer”). 35. We also agree that a number of sections of the pro forma OATT, such as the provisions regarding network service, ancillary services, and planning requirements, are arguably inapplicable to most or all ICIF owners. Although ICIF owners may propose deviations from the pro forma OATT, the Commission's existing process of handling these proposed deviations on a case-by-case basis can impose the risk of a time-consuming proceeding with an uncertain outcome. 36. Moreover, interconnecting with ICIF often involves unique circumstances that would benefit from negotiations to tailor individual access agreements. However, the existing policy limits an ICIF owner's contractual flexibility and does not allow parties to use common facility agreements or have service governed outside of an OATT. 71 71 Sky River, 134 FERC ¶ 61,064 at P 13. 37. In addition, it is common for an ICIF owner to initially have excess capacity on its ICIF when it plans to bring generation into commercial service in stages. The Commission has a process for granting priority rights to the ICIF owner for such excess capacity on a case-by-case basis. However, filing a petition for declaratory order to establish priority rights can be a significant burden for the ICIF owner because the Commission's existing policy of requiring a demonstration of “specific plans and milestones” can require substantial effort and resources on the part of the ICIF owner to make the necessary showings. Further, these priority rights do not diminish the risk and potential burden that the ICIF owner may have to file an OATT within 60 days of a request for service. 38. Contrary to APPA and TAPS' argument that the proposed revisions will likely cost more to implement than the Commission's existing OATT requirements, 72 other commenters assert that the risks described above fall on all ICIF owners and therefore that the Commission's existing policy imposes costs, 73 despite the fact that it is unlikely that any third party would request OATT service on most ICIF. The Commission has issued numerous individual orders granting waivers of OATT, OASIS, and Standards of Conduct to ICIF owners, but in only four instances did a third-party request access on ICIF such that the filing of an OATT was required. 74 Although only a small percentage of ICIF owners have actually had to file an OATT, all ICIF owners are subject to the additional risks and potential regulatory burdens discussed above, including possibly having to file an OATT on 60 days' notice in response to a request for service, and possibly losing some of the ICIF capacity planned for future use to a requesting third party. In response to commenters concerns that the process under sections 210 and 211 is more expensive for potential transmission customers than the existing process, we note that the cost of any process has many variables. This Final Rule specifically allows for voluntary interconnection agreements, which may be a more efficient process than currently exists. Under our existing policy, while a potential transmission customer may trigger an ICIF owner's OATT obligation by making a simple request for service, the potential customer often bears the expense to be a party to what are sometimes controversial proceedings. We find that the proposed reforms will avoid the expense of requests that are unlikely to be successful. Accordingly, we find that reforming the open access transmission requirements in this narrow set of circumstances is appropriate. 72 APPA and TAPS at 20. 73 AWEA at 2 and E.ON at 2. 74 Between January 1, 2009, and January 1, 2014, the Commission issued approximately 80 orders granting waiver of OATT, OASIS, and Standards of Conduct requirements to ICIF owners. 39. We find that APPA and TAPS' concerns that the NOPR would allow an ICIF owner to close off access to significant highways to areas ripe for renewable resource development overlook practical considerations of infrastructure development. The approach taken in this Final Rule recognizes that, often, an ICIF owner anticipates that it will use its excess ICIF capacity, and seeks to reduce unnecessary regulatory burdens. The Commission precedent with respect to priority use has given ICIF owners the opportunity to demonstrate that they had pre-existing contractual obligations or other specific plans that would prevent them from providing the requested transmission service at a future date. 75 In balancing the considerations, we are persuaded that the process under sections 210 and 211 allows an ICIF owner to be reasonably assured of being able to use that extra capacity, while also providing a mechanism for expansion. Without such reasonable assurance, there is no incentive for a developer to shoulder the extra expense of ICIF sized larger than their initial project. 75 See, e.g., Aero Modification Order, 116 FERC ¶ 61,149 at P 28. 40. Moreover, we agree with NRECA that it is important to promote flexibility by encouraging the ICIF owner and the third party to work together to attempt to reach an agreement. As discussed further below, this Final Rule adopts a framework that includes opportunities for the ICIF owner and third party to reach mutually agreeable solutions, either as part of a proceeding under sections 210 and 211, or in such a way that obviates the need to bring a proceeding under sections 210 and 211 to the Commission. IV. Proposed Reforms A. Eligible ICIF 1. Commission Proposal 41. In the NOPR, the Commission defined the facilities that were subject to the rule as ICIF because that term already had a specific definition in the pro forma LGIA and LGIP. 76 The Commission proposed to apply the NOPR reforms to any public utility that is subject to OATT, OASIS, and Standards of Conduct requirements solely because it owns, controls, or operates ICIF, in whole or in part, and sells electric energy from its generating facility, as those terms are defined in the pro forma LGIP and the pro forma LGIA adopted in Order No. 2003. The LGIA and LGIP define ICIF as “all facilities and equipment, as identified in Appendix A of the LGIA, that are located between the generating facility and the Point of Change of Ownership, including any modification, addition, or upgrades to such facilities and equipment necessary to physically and electrically interconnect the generating facility to the transmission provider's transmission system.” 77 76 NOPR, FERC Stats. & Regs. ¶ 32,701 at PP 1 and 35. 77 LGIA Article 1. 2. Comments 42. First Wind and Invenergy recommend that the Commission not define the interconnection facilities subject to the waiver with reference to the LGIA and LGIP, but simply as those facilities located between the generating facility and the point of interconnection to the transmission provider's transmission system. This is because some interconnection agreements predate Order No. 2003 which first defined ICIF; some may be implemented under the small generator interconnection procedures under Order No. 2006; and some agreements were entered into with non-Commission jurisdictional transmission providers. They argue that the definition of ICIF and generating facility should be revised to encompass facilities that may not be installed under the Commission's LGIA/LGIP arrangements. 78 Similarly, AWEA seeks clarification that ICIF owners who do not have interconnection agreements under pro forma arrangements or those that have shared facilities agreements (or similar understandings) also qualify for the blanket waiver. 79 78 First Wind at 11-12 and Invenergy at 4-6. 79 AWEA at 7-8. 3. Commission Determination 43. We expand our definition of what interconnection facilities are subject to the Final Rule to include ICIF as well as comparable jurisdictional interconnection facilities that are the subject of interconnection agreements other than an LGIA. For those interconnection customers that have entered into an LGIA, these facilities will be those defined as ICIF in the LGIA and LGIP. For those interconnection customers that have entered into interconnection agreements other than an LGIA, these facilities will be the comparable set of interconnection facilities as those described as ICIF in the LGIA. Therefore, the term ICIF should be read in this Final Rule to encompass this broader scope. We use the term “comparable” set of interconnection facilities because the definition of ICIF in the LGIA is made with reference to specific facilities listed in an appendix to the LGIA and to terms defined elsewhere in the LGIA. Therefore, we cannot apply literally the definition of ICIF in the LGIA to describe facilities in interconnection agreements other than the LGIA. Generally, this comparable set of facilities would include all facilities and equipment that are located between an interconnection customer's generating facility and the point where such facilities connect to the transmission provider's interconnection facilities (called the “point of change of ownership” in the LGIA) that are necessary to physically and electrically interconnect the interconnection customer's generating facility to the transmission provider's facilities that are used to provide transmission service (called the “point of interconnection” in the LGIA). B. Grant Blanket Waivers to Eligible ICIF Owners 1. Blanket Waivers a. Commission Proposal 44. The Commission proposed to add sub-paragraph (d)(2) to 18 CFR 35.28 to grant a blanket waiver of all OATT, OASIS, and Standards of Conduct requirements to any public utility that is subject to such requirements solely because it owns, controls, or operates ICIF, in whole or in part, and sells electric energy from its generating facility, as those terms are defined in the LGIP and LGIA. 80 The Commission proposed that the blanket waiver would apply to all eligible existing and future ICIF owners, and explained that the limitation to ICIF owners that sell electric energy was meant to ensure that the proposed blanket waiver would only apply in situations where sections 210 and 211 would provide interconnection and transmission access to a customer that seeks service over the ICIF. 81 80 The Commission also proposed to make non-substantive revisions to what is currently 18 CFR 35.28(d) in order to update certain cross-references in that paragraph. 81 NOPR, FERC Stats. & Regs. ¶ 32,701 at P 35. b. Comments 45. The majority of commenters support the Commission's proposal to grant a blanket waiver of all OATT, OASIS, and Standards of Conduct requirements to public utility ICIF owners. Commenters agree with the Commission's preliminary findings in the NOPR that a blanket waiver is justified because such facilities do not typically present the concerns about discriminatory conduct that the Commission's OATT, OASIS, and Standards of Conduct requirements were intended to address. 82 Commenters agree that the Commission's existing practice of requiring an OATT for ICIF discourages generation development and results in a disincentive to be the first developer in an area to build ICIF, while creating a relative advantage for subsequent competing generation developers in that area. 83 Additionally, they argue that the Commission's existing practice unreasonably causes developers of ICIF to incur significant costs in response to mere written third-party requests unaccompanied by any deposit. Commenters agree that the requirement to file an OATT following any third-party request creates a regulatory burden without a corresponding enhancement of access. 84 82 EEI at 3 and BHE at 6-7. 83 EEI at 8-9; BHE at 6-7; and E.ON at 2. 84 EEI at 8-9; BHE at 6-7; and E.ON at 2. 46. Commenters state that the OATT is not a good fit for the services that can be provided over ICIF, and argue that such limited service is not comparable to the integrated network, point-to-point, and ancillary services provided under the pro forma OATT. 85 E.ON agrees that the current OATT requirement can be seen as burdensome by ICIF owners who do not seek to be in the business of providing transmission service, can introduce an additional element of risk for the developer and its lenders that they would not have if the project were not subject to the potential obligation to file and maintain a transmission tariff, and limits an ICIF owner's contractual flexibility if it chooses to provide third-party access by mutual agreement. 86 85 NextEra at 4-5 and E.ON at 2. 86 E.ON at 2. 47. Commenters state that the Commission's existing policy of requiring an ICIF owner to file an OATT or seek a waiver that would be revoked only upon a third-party request for service creates too low a bar for third-party requests for service and could lead to competitive mischief. 87 BHE argues that ICIF owners are focused on developing new generation resources and that, given the infrequency of third-party requests and the absence of disputes before the Commission, it is more reasonable and efficient to address third-party requests to access available ICIF capacity as they arise on an individual basis. 88 87 BHE at 6-7 and E.ON at 2. 88 BHE at 6-7. 48. Some commenters argue that adjudicating such OATT waiver requests and OATT tariff filings on a case-by-case basis has led to confusion and uncertainty in the industry with respect to compliance with the Commission's open access requirements as applied to ICIF. 89 DTE argues that there is a filing burden associated with making a waiver request, as well as some uncertainty about the actions that would need to be taken in the unlikely event that these requests for waiver were not granted. DTE states that the proposed blanket waiver would remove any uncertainty regarding the current status of existing eligible ICIF owners that may have been awaiting the Commission's direction on this matter before making the determination of whether or not to seek a “limited and discrete” waiver from the OATT, OASIS and Standards of Conduct regulations. 90 Similarly, NextEra argues that the implication of the description of existing policy in the NOPR is that a significant number of generation owners should be taking actions to address existing open access requirements. NextEra points out that, in the NOPR, the Commission notes that this lack of clarity extends to whether market-based rate applicants that own ICIF, or have affiliates that own ICIF, must file an OATT or seek a waiver from OATT requirements in order to show a lack of vertical market power. NextEra argues that the proposed waiver will provide much needed certainty for ICIF owners by clearly identifying those entities that are not subject to OATT, OASIS, or Standards of Conduct requirements. 91 89 NextEra at 3-4. 90 DTE at 2. 91 NextEra at 7. 49. Southern agrees that the blanket waiver approach appears to be appropriate given that very few generator tie lines have the characteristics ( e.g., long length, excess capacity) that would make them more feasible for interconnection by another generator than the transmission system. 92 92 Southern at 4. 50. In contrast, APPA and TAPS state that creating and maintaining two different standards for access to transmission facilities is problematic in a dynamic grid, adding that ICIF that look like radial lines at the fringe of the system today may be a more central part of the network in a decade or two. 93 93 APPA and TAPS at 10. 51. APPA and TAPS argue that the Commission has long required market-based rate sellers that own transmission to demonstrate mitigation of vertical market power by showing that they and their affiliates either have filed an OATT or received a waiver for every transmission facility that they own, operate, or control, and to offer third parties service comparable to the service the market-based rate sellers and their affiliates provide themselves. APPA and TAPS contend that the proposed blanket waiver does not clarify the manner by which ICIF owners can address concerns about vertical market power when they seek market-based rate authority, but rather that it magnifies those concerns by discarding an essential foundation for allowing the ICIF owner and its affiliates to enjoy market-based rates. 94 94 APPA and TAPS at 14. 52. APPA and TAPS state that they would not oppose an initial grant of a blanket waiver of the requirement that each ICIF owner must file an individual request for waiver of OATT, OASIS, and Standards of Conduct, provided that such waivers would be revoked upon receipt of a third-party request for service on the ICIF. 95 95 APPA and TAPS at 20. 53. APPA and TAPS argue that the NOPR places no limit on the proposed blanket waiver, extending it to periods when there is no reasonable expectation that the ICIF owner is still in the project development mode. 54. NRECA states that it does not object to exempting certain ICIF owners from the mandate to file an OATT and related requirements for limited and discrete facilities, but that any such waiver should be revoked if the entity no longer meets those criteria. 96 96 NRECA at 4. c. Commission Determination 55. We adopt the proposed blanket waiver with modifications as discussed below. 97 We believe the proposal as modified addresses the concerns of commenters while meeting our purpose of reducing unnecessary burden and providing clarity and certainty to developers. Such a waiver is justified because the usually limited and discrete nature of ICIF and ICIF's dedicated interconnection purpose means that such facilities do not typically present the concerns about discriminatory conduct that the Commission's OATT, OASIS, and Standards of Conduct requirements were intended to address. Because third-party requests to use ICIF have been relatively rare, it is more efficient to address such situations as they arise on an individual basis. 97 Certain aspects of the blanket ICIF waiver adopted herein differ from the NOPR proposal. E.g., see infra PP 73-75 for the Commission determination on the public utilities eligible for the blanket waiver and supra P 43 for the Commission determination on the ICIF eligible for the blanket waiver. 56. Further, the ICIF waiver would remove regulatory burdens on competitive generation developers without sacrificing the Commission's ability to require open access in appropriate circumstances. Specifically, we find that a blanket waiver will remedy the undue burden on ICIF owners under our existing policy to file an OATT or seek a waiver that would be revoked upon a third-party request for service from ICIF owners. We find that the time, effort, and cost of complying with the requirements of a public utility transmission provider in these circumstances unduly burden generation development efforts. In addition, we agree with commenters that the existing policy creates too low a bar for third-party requests for service. Specifically, an existing waiver of the OATT is revoked as soon as the ICIF owner receives a third-party request for service, even if that request meets few of the information and other requirements for transmission service under the pro forma OATT. 57. Finally, we agree with DTE and NextEra that providing a blanket waiver of the OATT for ICIF owners will clarify how they meet the OATT filing or OATT waiver requirements involved when seeking market-based rate authority. 98 APPA and TAPS argue that the blanket waiver does not explain how sellers would address vertical market power for purposes of market-based rate authority. However, this Final Rule simply provides an additional method for obtaining waiver of the OATT requirements. Therefore, to the extent that a market-based rate seller or any of its affiliates owns, operates, or controls transmission facilities, the Commission will require that, in order to satisfy the Commission's market-based rate vertical market power requirements in 18 CFR 35.37(d), it either must have a Commission-approved OATT on file, receive waiver of the OATT requirement under 18 CFR 35.28(d)(1), or satisfy the requirements for blanket waiver under 18 CFR 35.28(d)(2). Market-based rate filings cannot be used as the vehicle by which applicants may obtain determinations on whether they qualify for an ICIF blanket waiver. 98 To demonstrate the absence of vertical market power in a market power analysis, a seller or its affiliate that owns, operates, or controls transmission facilities must have an OATT on file unless waived. See 18 CFR 35.37(d). 58. As discussed further below, the blanket waiver adopted herein only applies in situations where sections 210, 211, and 212 would provide interconnection and transmission access to a customer that seeks service over the ICIF. This ensures that we are only waiving the OATT requirements in circumstances where there is an alternative for third parties to seek not unduly discriminatory access. 2. Requirement That ICIF Owners Must Sell Electricity To Qualify for the Waiver a. Commission Proposal 59. The Commission proposed to grant the blanket waiver to any public utility that is subject to the Commission's OATT, OASIS, and Standards of Conduct requirements solely because it owns, controls, or operates ICIF, in whole or in part, and sells electric energy from its generating facility. The Commission's proposal to limit the waiver to ICIF owners who sell electric energy was intended to ensure that any public utility with an OATT blanket waiver would be subject to an interconnection order under section 210. This requirement was seen as necessary so as not to create a gap and leave a potential customer without a means of obtaining an interconnection with ICIF once the OATT interconnection procedures were waived. 99 99 NOPR, FERC Stats. & Regs. ¶ 32,701 at PP 35, 43. 60. Section 210 of the FPA provides, in relevant part, “Upon application of any electric utility . . . the Commission may issue an order requiring (A) the physical connection of . . . the transmission facilities of any electric utility, with the facilities of such applicant.” 100 An “electric utility” is defined as “a person or Federal or State agency . . . that sells electric energy.” 101 Thus, the NOPR granted the waiver only to those that qualified as an electric utility to ensure that section 210 would be applicable. The Commission stated that it believes that there would be a relatively small number of ICIF owners who could not be subject to orders under sections 210 and 211, and sought comments on whether this limitation on which public utilities can take advantage of the blanket waiver is appropriate. The Commission noted that ICIF owners who were not electric utilities had the option to seek waiver on a case-by-case basis. 102 100 16 U.S.C. 824i(a)(1)(A). 101 16 U.S.C. 796(22). 102 NOPR, FERC Stats. & Regs. ¶ 32,701 at PP 51-52. b. Comments 61. Some commenters argue that it is common for separate ICIF-only companies to be created and owned by a generation company or an affiliate, so that an entity separate from the generation company is used to own, operate, and manage the ICIF. 103 Further, these commenters argue that it is unnecessary to exclude from the waiver and safe harbor those entities that do not sell electric energy, and that the Commission can and should modify the proposal to make the waiver applicable to entities that only own the ICIF but do not sell electric energy. They also argue that the Commission routinely grants OATT waivers for such companies under the limited and discrete facilities factor. 104 103 Recurrent at 4; First Wind at 4-8; Invenergy at 7-11; BP Wind at 4-5; E.ON at 6; ITC at 8; NextEra at 7-9; SEIA at 4-5; Sempra at 3-6; and MISO TOs at 5-6. 104 First Wind at 4-8 and Invenergy at 7-11. 62. Recurrent, SEIA, and Sempra argue that ICIF-only companies often are employed when the generation project is developed in phases, and separate companies own the discrete portions of the generating facility that is the subject of a LGIA. 105 SEIA states that establishing a separate entity can facilitate management of the jointly-owned ICIF, assist in establishing a single point of contact with the interconnected transmission owner and operator, and can facilitate the addition of other ICIF users. 106 Sempra states that the ICIF-only entity structure has also been utilized because of tax regulations and other permitting considerations. 107 BP Wind notes that sometimes a separate stand-alone entity is formed to own the ICIF because an RTO requests to have a single point of contact for multiple generators interconnecting at the same point on the grid. 108 105 Sempra at 3 (citing, e.g., Wolverine Creek Goshen Interconnection LLC, Docket Nos. ER06-267-000 (Letter Order dated Jan. 13 2006), Wolverine Creek Energy LLC, et al., Docket Nos. ER12-1280-000 and ER12-1281-000 (May 9, 2012) (unpublished letter order accepting amended common facilities agreement for filing), and Maine GenLead, LLC, 146 FERC ¶ 61,223 (2014)). 106 SEIA at 4. 107 Sempra at 3 (citing, e.g., Docket No. ER03-175-000, “Request of Termoelectrica U.S., LLC for Rehearing, and Expedited Consideration and/or Stay” at n.6 (filed Feb. 10, 2003) (TDM Rehearing Request), and Termoelectrica U.S., LLC, 105 FERC ¶ 61,087 (2003) (order granting rehearing relating to OATT waivers), Docket No. EC14-80-000, “Application for Authorization to Transfer Jurisdictional Facilities Pursuant to section 203 of the Federal Power Act and Request for Expedited Action” at pp. 5-6 (describing the planned ownership structure of future cross-border interconnection facilities), and Energia Sierra Juarez U.S., LLC, Docket No. EC14-80-000 (May 29, 2014) (letter order approving transfer)). 108 BP Wind at 4-5. MISO's comments seem to support this point, stating, “from an operational and reliability perspective, MISO needs to have a single Interconnection Customer entity at each distinct Point of Interconnection to the Transmission System with whom MISO can coordinate. That entity must have the authority to control any other generators that interconnect to its ICIF on its side of the Point of Interconnection.” MISO at 8. 63. E.ON argues that an ICIF-only entity should be afforded the same opportunity to obtain a blanket waiver as entities that sell electricity because this type of entity only exists to accommodate a generator company's phased access to the grid. 109 Recurrent states that when an interconnection company structure is used, the physical arrangement is identical to where the same entity owns the generation and the ICIF—the only difference is that a separate entity, the interconnection company, owns all or a portion of the ICIF and no generation. 110 SEIA asserts that the Commission should not impose unnecessary burdens on developers based on their use of this ownership structure. 111 ITC argues that the ICIF owned by an ICIF-only entity will be functionally identical to situations where generators own ICIF, and the service is likely to be the same. 112 BP Wind agrees that the Commission should ensure that ICIF-only entities are not precluded from being eligible for the proposed blanket waiver on a technicality, so long as the facilities are utilized to interconnect generating facilities to the transmission grid. 113 BP Wind argues that these interconnection-only entities, like generators that directly own interconnection facilities, do not seek to be in the transmission business. 109 E.ON at 6-7. 110 Recurrent at 5-6. 111 SEIA at 4-5. 112 ITC at 12-13. 113 BP Wind at 6. 64. First Wind and Invenergy argue that, if the Commission does not extend the blanket waiver to ICIF-only entities, the rule would be discriminatory because there is no basis to distinguish the two types of ICIF entities other than corporate structure, and ICIF-only entities would face the undue burdens identified in the NOPR. 114 ITC and MISO TOs argue that to provide a blanket waiver to ICIF owners that sell electric energy, but to require ICIF owners that do not sell electric energy to file an OATT or seek waiver thereof, serves no clear purpose and imposes precisely the same burdens and regulatory inefficiencies identified as the basis for the Commission's NOPR, in a manner which discriminates against non-sellers of electric energy. 115 114 First Wind at 4-8 and Invenergy at 7-11. 115 ITC at 12-13 and MISO TOs at 5-6. 65. ITC also is concerned that the Commission's proposal to limit eligibility for the waiver may have unintended consequences. For example, given the practical burdens associated with the operation and maintenance of ICIF, ICIF owners may wish to divest such facilities to transmission owners with more experience operating these types of facilities, and more resources for meeting the reliability requirements of such operation. ITC argues that failure to extend the blanket waiver in such scenarios may discourage such transactions, thereby imposing reliability and operational burdens on generator owners who may not be willing or able to carry them out. 116 MISO TOs quote the NOPR as stating that the pro forma OATT is not a good fit for ICIF and that these facilities do not typically present all the concerns the OATT is intended to address; MISO TOs assert that the same is true whether the ICIF owner happens to sell electric energy from its generating facility or not. 117 116 ITC at 13. 117 MISO TOs at 5-6. 66. Recurrent and Sempra further argue that the Commission has addressed these types of ownership arrangements in the context of “exempt wholesale generator” (EWG) status pursuant to section 32 of the Public Utility Holding Company Act of 2005 (PUHCA). 118 Recurrent states that the Commission has held that an entity that does not own generation facilities but does own a radial interconnection line used solely to connect wholesale-only generating facilities to the transmission grid qualifies as an EWG. Recurrent argues that section 32(a)(2) of PUHCA states that the term “eligible facility” includes interconnecting transmission facilities necessary to effect a sale of electric energy at wholesale, and that an entity may be an EWG if it owns “all or part of one or more eligible facilities.” Recurrent states that with respect to the statutory requirement that an EWG “sell electric energy at wholesale,” the Commission has imputed the generation owner's sales of wholesale power to the interconnection company, in order to satisfy the statutory requirement, in all of the proceedings that have addressed this issue. 119 Recurrent argues that in decisions involving requests for waivers of OATT and related requirements, and in those involving EWG status, the Commission appropriately has not elevated form over substance and has not differentiated its regulatory treatment of interconnection companies from its treatment of a “single entity” that owns both generation and ICIF. 120 118 Sempra at 4-5 (citing, e.g., Wolverine Creek Goshen Interconnection LLC, 111 FERC ¶ 62,209 (2005) (Wolverine Creek Goshen); Sagebrush, 103 FERC ¶ 61,332 (2003) ( Sagebrush ); Termoelectrica U.S., LLC, 102 FERC ¶ 61,019 (2003) ( Termoelectrica ); Peetz Logan Interconnect, LLC, Docket No. EG06-84-000, “Notice of Exempt Wholesale Generator Status” (Sept. 27, 2006); Bishop Hill Interconnection LLC, Docket No. EG12-24-000, “Notice of Self-Certification of Exempt Wholesale Generator Status” (Jan. 20, 2012); Maine GenLead LLC, Docket No. EG14-23-000, “Notice of Self-Certification of Exempt Wholesale Generator Status” (Jan. 24, 2014)). 119 Recurrent at 6. 120 Recurrent at 6-7. 67. Several commenters suggest potential ways to fix the section 210 applicability issue with respect to ICIF-only entities, such that the blanket waiver and safe harbor would apply to ICIF-only companies, and section 210 would preserve the “backstop” ability of third parties to obtain a Commission order requiring the ICIF-only company to interconnect with and provide transmission services to the third party. Recurrent proposes that the Commission grant the blanket waiver to an ICIF owner that does not sell electric energy if the interconnection company files a request for waiver that includes a commitment that if the Commission issues an order requiring the interconnection company to provide transmission services to a third party pursuant to section 211 of the FPA—to which the interconnection company is subject—the interconnection company agrees to voluntarily provide interconnection to the third party. 121 SEIA states that it supports Recurrent's proposal. 122 Similarly E.ON states that the section 210 applicability concern could be alleviated by having the ICIF-only entity affirmatively submit to the Commission's section 210 jurisdiction as a condition to being afforded the blanket waiver. 123 121 Recurrent at 9-10. 122 SEIA at 5 (citing Recurrent at 9-10). 123 E.ON at 7. E.ON also offers a redline of the proposed regulations to effect this change. 68. Sempra states that, although ICIF-only entities may not sell the power produced by their affiliates, they are an indispensable part of the sales transaction, and are typically party to the interconnection agreement along with or as agent for the affiliated generator. 124 Therefore, Sempra argues, for the purpose of section 210 applicability, it would be appropriate to impute the electricity sales of an affiliated generator, as the Commission does in the EWG context, as discussed above, and extend that blanket waiver and safe harbor to the ICIF-only entity. 125 124 Sempra at 4. 125 Sempra at 4-6. 69. First Wind and Invenergy argue that the Commission's concern about entities not being able to use section 210 to request interconnection service can be addressed by the Commission creating an equivalent obligation by regulation for requesting interconnection from an ICIF entity, and then review requests under section 210 standards. 126 Similarly, BP Wind argues that the Commission should revise its regulations so that ICIF-only entities that receive a request for interconnection service would process the request in accordance with requirements similar to those set forth in section 210 of the FPA. 127 126 First Wind at 4-8 and Invenergy at 7-11. Invenergy also offers a redline of the proposed regulations to effect this change. 127 BP Wind at 5-6. 70. NextEra requests that the Commission clarify that ICIF owners that have authorization from the Commission to sell electric energy at market-based rates or that are EWGs are engaged in the sale of electric energy for purposes of determining application of the proposed waiver and application of section 210. NextEra argues that this would ensure consistency between the Commission's use of similar terms and with Commission precedent with respect to EWGs. 128 NextEra states that there may be instances in which an ICIF owner is not currently engaged in sales of electricity yet is authorized by the Commission to engage in such sales under a market-based rates tariff, so it should qualify as an electric utility. 128 NextEra at 7-9. 71. ITC argues that section 210(d) provides that the Commission may, on its own motion, issue an order requiring any action described in subsection (a)(1) if the Commission determines that such order meets the requirements of subsection (c). ITC interprets this to mean that the Commission may issue an interconnection order on its own motion, regardless of whether the ICIF owner qualifies as an electric utility by selling energy. 72. BP Wind argues that, if the Commission does not allow ICIF-only entities to forego filing an OATT, it should at a minimum not require such companies to file an OATT with the Commission until after completion of interconnection studies by the interconnecting utility and the requesting party has committed to move forward with its project. 129 ITC argues that if the Commission does not extend the blanket waiver to ICIF-only entities, the Commission should provide the option for ineligible entities to file a less burdensome and more narrowly tailored OATT that governs the terms of interconnections via the LGIP and LGIA. 130 129 BP Wind at 7. 130 ITC at 8. c. Commission Determination 73. The proposal to limit the waiver to ICIF owners that also sell electricity was intended to prevent the creation of a regulatory gap and ensure that potential customers are not deprived of the ability to seek interconnection with ICIF as a result of the waiver of ICIF owners' OATT obligation. We believe that the initial assessment in the NOPR that relatively few entities that own and/or operate ICIF would be excluded from the blanket waiver by the requirement that they sell electricity may be incorrect. We also believe that the value of reducing regulatory burdens, which is a goal of this Final Rule, applies equally to ICIF owners who sell electricity and to those that do not. Therefore, we conclude that we should extend the blanket waiver to ICIF owners who do not sell electricity, but, in doing so, we must ensure that no potential customers are deprived of their ability to seek interconnection with ICIF by the waiver of the ICIF owner's OATT obligation. To expand the entities eligible for the blanket OATT waiver, we adopt the following procedure to allow ICIF-only entities to be eligible for the blanket OATT waiver. Any public utility to which the blanket waiver stated in section 35.28(d)(2) of the regulations adopted herein applies, but which does not sell electric energy, will receive the blanket waiver upon filing an informational statement with the Commission, as provided for in those regulations adopted herein. 131 In the statement, the entity must declare that, “In order to satisfy the requirements for a blanket waiver as described in section 35.28(d)(2) of the Commission's regulations, [entity] commits to comply with and be bound by the obligations and procedures applicable to electric utilities under section 210 of the FPA.” This informational statement may be brief, requiring only the name and contact information for the entity making the statement, and the affirmative declaration described in the previous sentence. These section 210 statements are to be filed in the following docket, Docket No. AD15-9-000. The Commission will take no action in response to these statements, but the blanket waiver will be applicable upon filing this informational statement. 131 We will not issue a public notice, accept comments, or issue an order on the informational filings. 74. The purpose of this section 210 statement is to create a publically available record of ICIF-only entities that are taking advantage of the blanket OATT waiver, and of the fact that, even though these entities are not electric utilities, they are subject to an application to the Commission under section 210 for an interconnection order. Through this process, our intent is to extend the benefits of the blanket OATT waiver to ICIF-only entities, protect the rights of potential interconnection customers, and minimize the regulatory burden to accomplish these goals. If an entity submits such a statement and later objects to or fails to comply with section 210 obligations and procedures, its blanket waiver will be deemed to have been revoked. 132 132 A section 210 informational statement would remain operative if the public utility that filed it had a change in ownership. However, if the original public utility with an informational statement sold the facilities to a different entity, the new entity would have to satisfy the criteria for a waiver (including, for instance, not owning network transmission facilities), and if it does not, it would be subject to OATT requirements. It is the party's responsibility to ensure that its regulatory filings are up to date. 75. Accordingly, we are revising section 35.28(d)(2) of the regulations to incorporate this extension of the blanket waiver to entities that are not electric utilities, upon the filing of the section 210 statement described above. The safe harbor protections at section 35.28(d)(2)(ii)(B) will also be available to those entities eligible for the blanket waiver, as discussed below. 3. Status of the Third-Party Requester a. Commission Proposal 76. In the NOPR, the Commission stated, “To the extent that either the third-party requester or ICIF owner does not meet applicable requirements for purposes of sections 210 and 211, but where the third-party requester would be eligible for OATT service, the ICIF waiver would not apply.” 133 133 NOPR, FERC Stats. & Regs. ¶ 32,701 at P 51. b. Comments 77. AWEA, First Wind, and Invenergy argue that a public utility's eligibility for the blanket waivers should not depend on the status of any such potential third party that might seek access to ICIF. They argue that the waiver would not provide the expected benefits of reducing risks if it would not apply in the circumstance of an ineligible third-party requester. They argue that the Commission does not explain how an ICIF owner would be expected to deal with requests from such a third-party requester. These parties argue that, if the Commission is concerned about this, it should by regulation require such entities to follow procedures under sections 210 and 211. 134 134 AWEA at 14; First Wind 8-9; and Invenergy at 11-12. c. Commission Determination 78. We agree with commenters that making the applicability of the blanket waiver to the ICIF owner dependent on the status of a potential third-party requester would create unnecessary uncertainty for ICIF owners. Accordingly, we clarify that applicability of the blanket waiver will not depend on the status of the third-party requester. The applicability of the blanket waiver does, however, depend on the status of the ICIF owner or the ICIF owner's willingness to file a section 210 statement, as described above. 4. Non-Public Utilities a. Commission Proposal 79. The Commission proposed to grant a blanket waiver of all OATT, OASIS, and Standards of Conduct requirements to any public utility that is subject to such requirements solely because it owns, controls, or operates ICIF, in whole or in part, and sells electric energy from its generating facility. 135 The NOPR did not specify how the blanket waiver would apply to non-public utilities. 135 NOPR, FERC Stats. & Regs. ¶ 32,701 at P 35. b. Comments 80. APPA and TAPS state that, in the event the Commission modifies its regulations to create blanket waivers for public utility ICIF owners, the same blanket waiver and safe harbor should also apply to non-jurisdictional utilities for purposes of satisfying reciprocity obligations. 136 APPA, TAPS, and SWP explain that non-public utilities are not directly subject to OATT, OASIS, and Standards of Conduct requirements, but are obligated to provide reciprocal service over transmission they own, operate, or control as a condition of taking service under a public utility's OATT. APPA and TAPS state that, to the extent a non-public utility is subject to reciprocity solely because it owns, controls, or operates ICIF and sells energy from its generation facility, it should be able to point to any blanket waiver adopted by the Final Rule for public utilities as eliminating its obligation to individually file for “limited and discrete” waivers to satisfy reciprocity obligations, thereby avoiding the burden on it and the Commission associated with such waivers. They state that any restrictions or safe harbors adopted with respect to section 210 or 211 proceedings regarding public utility ICIF should also be available to such a non-public utility. 136 APPA and TAPS at 27-29. 81. NCPA and SWP contend that the Final Rule should make clear that any blanket waiver adopted in this proceeding applies to eligible public utilities and non-public utilities alike, arguing that treating similarly situated utilities differently in this respect would be unduly discriminatory. 137 SWP states that non-public utilities may request waivers from these obligations according to the same criteria as public utilities. SWP also argues that there is no justification for conferring an advantage on public utilities that non-public utilities do not share. 138 137 NCPA at 4 and SWP at 4. 138 SWP at 5. c. Commission Determination 82. The blanket waiver made available to public utilities under this Final Rule is also available, as commenters suggest, to non-public utilities with a reciprocity obligation. 5. Applicability to Industrial Power Systems' Tie Lines a. Comments 83. ELCON comments that many industrials own and operate combined heat and power systems or other types of generation that are primarily dedicated to their own consumption needs, and that ambiguity with the scope of the NOPR may arise because of commonly used nomenclature, because dedicated lines operated by industrials are often referred to as one type of “generator tie line.” ELCON argues that the NOPR should be revised to clarify that the regulations respecting third-party rights to interconnection facilities, even as newly constrained, do not apply to the generator tie lines operated by industrials and dedicated to their own internal consumption. 139 139 ELCON at 2-3. b. Commission Determination 84. We decline to revise the proposed regulation as ELCON suggests. ELCON's argument that the NOPR's discussion of third-party rights to request interconnection and transmission on ICIF should not apply to electric lines from industrial-owned combined heat and power systems raises an issue that is not the subject of this rulemaking. This Final Rule does not make any determination with respect to the applicability of the Commission's OATT requirements to any particular lines or types of lines. Rather, it applies to any transmission providers who are subject to the requirements of section 35.28 of our regulations, i.e., any public utility that owns, controls, or operates facilities used for the transmission of electric energy in interstate commerce. 140 140 18 CFR 35.28(a). 6. Applicability of the Blanket Waiver to Additional Regulations a. Commission Proposal 85. In the NOPR, the Commission proposed that the blanket waiver would apply to section 35.28 of the Commission's regulation, which relates to OATT requirements, Part 37, which relates to OASIS requirements, and Part 358, which relates to Standards of Conduct for Transmission Providers. 141 141 NOPR, FERC Stats. & Regs. ¶ 32,701 at P 1. b. Comments 86. Linden argues that the blanket waiver should be expanded to also apply to all of Parts 34, 35, 41, 50, 101, and 141 (except sections 141.14 and 141.15) of the Commission's regulations with respect to any provision of transmission service or interconnection service or other sharing with respect to ICIF. 142 Linden contends that this is consistent with the Commission's findings in an order on a proposed shared facilities agreement between Linden and its affiliate, in which the Commission found that such regulations are waived with respect to Linden. 143 142 Linden at 8. 143 Linden at 8 (citing Cogen Technologies Linden Venture, L.L.P., 127 FERC ¶ 61,181, at P 20 (2009)). c. Commission Determination 87. While we recognize that waiver of the provisions mentioned by Linden have, under certain circumstances, been granted by the Commission, we decline to expand the scope of this Final Rule. The blanket waivers granted in this Final Rule are the same as those that could be requested on a case-by-case basis for good cause shown in the Commission's pre-existing regulations at 18 CFR 35.28(d). Whether to grant additional waivers on a generic basis was not something proposed to be addressed in this proceeding. 7. Existing Agreements and Waivers a. Comments 88. Linden contends that the Commission should clarify that the blanket waiver will apply regardless of whether a public utility has already granted access to its ICIF pursuant to a Commission-accepted agreement. Linden argues that the fact that an owner and/or operator of ICIF has allowed a third-party to use its ICIF pursuant to a Commission-accepted agreement does not change the nature of such ICIF, and the blanket waiver should accordingly continue to apply. 144 Linden states that, at the very least, the Commission should clarify that all existing waivers that have been granted to public utilities like Linden will continue to apply. 145 144 Linden at 7. 145 Linden at 7-8. b. Commission Determination 89. We affirm granting access over ICIF via an existing agreement, such as a common facilities agreement or shared use agreement, does not affect an ICIF owner's eligibility for the blanket waiver granted by this Final Rule. Further, we affirm that, if an entity has previously received a specific waiver of the OATT and related obligations pursuant to the Commission's “limited and discrete” or “small entity” standards, the blanket waiver will supersede the existing waiver. 146 If, as Linden postulates, an entity has received a case-specific waiver that waives requirements in addition to those waived by the blanket waiver, the blanket waiver would not rescind the broader waiver. 146 NOPR, FERC Stats. & Regs. ¶ 32,701 at P 40. 8. Existing OATTs a. Commission Proposal 90. The Commission proposed that the grant of a blanket waiver would have no automatic impact on an OATT already on file or on service already being taken under it, but the Commission might on a case-by-case basis consider requests to withdraw an OATT on file for ICIF if no third party is taking service under it. 147 147 NOPR, FERC Stats. & Regs. ¶ 32,701 at P 40. b. Comments 91. AWEA, Terra-Gen, and NextEra assert that an ICIF owner with an OATT on file should be able to withdraw its OATT if there are no third parties taking, or currently pursuing a request for, interconnection or transmission service. 148 AWEA and Terra-Gen ask that the Commission: (1) Clarify that this cancellation policy will apply when the ICIF owner has no existing customers and that any new service requests submitted after such a filing has been made must proceed under sections 210, 211, and 212; and (2) provide an expedited process to grant such requests to withdraw such OATTs. 149 Terra-Gen states that it incurred substantial costs in attempting to comply with the Commission's OATT requirements over several years, only to find that it could not recover those costs because the customer that requested transmission service ultimately did not become a transmission customer. Terra-Gen argues that this experience underscores the importance of the Commission's proposal to provide a case-by-case mechanism to accept cancellation of OATTs filed by ICIF owners that have proven to be unnecessary because no third parties are taking service under them. 150 NextEra requests that the Commission clarify its statement in the NOPR that withdrawal of an OATT “if no party is taking service under it” was not intended to preclude the ability of an ICIF owner with an OATT on file from exercising its rights under section 205 of the FPA to propose alternative tariff structures in the future, as appropriate to the facts and circumstances of service available on the ICIF. 151 148 AWEA at 17; NextEra at 10; and Terra-Gen at 2. 149 AWEA at 17 and Terra-Gen at 4. 150 Terra-Gen at 2. 151 NextEra at 10-11. 92. AWEA further contends that the blanket waivers should also automatically apply to those that already have OATTs on file. AWEA states that ICIF owners that currently have an OATT on file are in need of the proposed reforms just as much as future ICIF owners, and argues that providing blanket waivers to this group as well would provide consistency and certainty to these entities. 152 152 AWEA at 11. c. Commission Determination 93. In the instance where an ICIF owner has an OATT on file and no third parties are taking service, the Commission will consider a request to withdraw an OATT on a case-by-case basis. Thus, we decline to automatically apply blanket waivers to those that already have OATTs on file. We believe this is appropriate in order to give any potential customer actively pursuing service sufficient notice before allowing a filed OATT to be withdrawn. As such, we decline to establish a separate process for cancelling existing OATTs because the Commission will consider the specific circumstances of each request to withdraw an OATT already on file. 9. Revoking the Blanket Waiver a. Commission Proposal 94. In the NOPR, the Commission proposed that the blanket waiver would not be automatically revoked by a service request, but could be revoked in a Commission order if the Commission determines that it is in the public interest to do so pursuant to a proceeding under sections 210 and 211. The Commission also proposed that the waiver would be deemed to be revoked as of the date the public utility ceases to satisfy the qualifications for such waiver ( e.g., it owns, controls, or operates transmission facilities that are not ICIF, or the corporate structure changes such that the ICIF owner is no longer the entity that sells electric energy from its Generating Facility). The Commission sought comment on the circumstances under which and the mechanism by which the Commission should revoke the proposed waiver. 153 153 NOPR, FERC Stats. & Regs. ¶ 32,701 at P 38. 95. The Commission also proposed that, if an OATT waiver were revoked because of such a change in circumstances, the waivers of OASIS and Standards of Conduct would also be revoked, without prejudice to the ICIF owner filing a request to continue its waivers of OASIS and Standards of Conduct pursuant to the waiver criteria then in effect. 154 In the instance where the Commission revokes the ICIF waiver by order, the Commission noted that it may determine whether the OASIS and Standards of Conduct waivers should be continued based on the criteria that are in effect. 155 154 Waivers of the Standards of Conduct may be granted for good cause pursuant to 18 CFR 358.1(d). 155 NOPR, FERC Stats. & Regs. ¶ 32,701 at P 39. b. Comments 96. NextEra, BHE, and AWEA agree that revocation of the blanket waiver should be considered on a case-by-case basis and believe that the processes set forth in sections 210 and 211 of the FPA and section 2.20 of the Commission's regulations are sufficient to evaluate potential revocation of waivers granted to ICIF owners. 156 If, for example, the Commission were to determine that an ICIF owner employed market power against the third party requesting service over the ICIF, it would be reasonable for the Commission to consider the revocation of waiver or other enforcement remedies. 157 Similarly, AWEA asserts that the only plausible basis for revocation of the waiver, besides losing eligibility, is if an ICIF owner refuses to provide transmission access following proceedings under sections 210, 211, and 212. AWEA seeks clarification on what, if any, other criteria might be used by the Commission to determine that it is in the public interest to revoke such a waiver and requests the Commission to provide clear criteria for what would constitute a waiver revocation. 158 BHE states that the waiver should only be revoked in limited circumstances, such as when a third party is granted access under sections 210 and 211 of the FPA or when material circumstances change such that the ICIF owner no longer satisfies the waiver qualification. 159 156 NextEra at 9-10; BHE at 7-8; and AWEA at 8. 157 NextEra at 10. 158 AWEA at 9. 159 BHE at 7. 97. AWEA states that acquisition of transmission facilities should not automatically trigger revocation of the blanket waiver. AWEA argues that service over such transmission facilities will be subject to applicable open access regulations but that ICIFs are distinct facilities that exist for the limited purpose of connecting generation to the grid. 160 160 AWEA at 9. 98. With respect to the revocation process, AWEA recommends that the Commission provide an ICIF owner with reasonable advanced notice detailing the reasons for potential revocation, and give the ICIF owner an opportunity to dispute and to cure the reasons for such a potential revocation. 161 AWEA suggests that the Commission first issue a show cause order to the waiver holder to address why the waiver should not be revoked and provide an opportunity for the waiver holder to make that demonstration. 162 161 AWEA at 9-10. 162 AWEA at 10. 99. AWEA recommends that the Commission outline the process to reinstitute an ICIF owner's waiver if, after revocation of a waiver, it is discovered that the waiver revocation was unnecessary, such as, for example, if the requirement to file an OATT proves to be unnecessary because of the failure of the requesting third party to take transmission service. 163 163 AWEA at 10. 100. AWEA supports the Commission proposals that (1) if the OATT waiver is revoked, the Commission may determine whether the OASIS and Standards of Conduct waivers should continue to be based on the criteria in effect; 164 and (2) if the OATT waiver is revoked due to loss of eligibility, the OASIS and Standards of Conduct waivers will also be revoked without prejudice to the entity filing a request to continue the OASIS and Standards of Conduct waivers. 165 164 AWEA at 10-11. 165 AWEA at 10-11. c. Commission Determination 101. We adopt the NOPR proposal that the blanket waiver would not be automatically revoked by a service request, but could be revoked in a Commission order if the Commission determines that it is in the public interest to do so pursuant to a proceeding under sections 210 and 211 of the FPA. We also adopt the NOPR proposal that the waiver would be deemed to be revoked as of the date the public utility ceases to satisfy the qualifications for such waiver. Additionally, if the ICIF that are covered by a blanket waiver become integrated into a transmission system such that they can no longer be considered ICIF, the blanket waiver would be deemed to have been revoked. To the extent that a dispute arises regarding whether a facility is eligible for the waiver, the Commission will address such a dispute at that time. 102. If the OATT waiver is automatically revoked because of a change in circumstances, we affirm that the waivers of OASIS and Standards of Conduct would also be revoked, without prejudice to the ICIF owner filing a request to continue its waivers of OASIS and Standards of Conduct pursuant to the waiver criteria then in effect. 103. We decline to elaborate on the specific circumstances that would lead to the revocation of the blanket waiver other than ceasing to satisfy the qualifications for such waiver, because it is not possible to anticipate every circumstance that would result in a revocation. Revocation of the blanket waiver in circumstances other than ceasing to satisfy the qualifications for such waiver will be determined by the Commission under applicable statutory and regulatory provisions. Any instance of revocation, however, would be the result of a Commission proceeding, so the ICIF owner would have notice of the revocation and full due process rights to respond. Moreover, under sections 210 and 211 the Commission may direct service to be provided under an interconnection and transmission service agreement without directing that the ICIF owner file an OATT. However, the Commission reserves the right to revoke the blanket waiver and require the filing of an OATT to ensure open access in appropriate circumstances. C. Interconnection and Transmission Under Sections 210 and 211 of the Federal Power Act 1. Sections 210 and 211 104. Sections 210 and 211 of the FPA describe the process for seeking Commission-ordered interconnection and transmission services. Section 210 of the FPA provides, in relevant part, “Upon application of any electric utility . . . the Commission may issue an order requiring (A) the physical connection of . . . the transmission facilities of any electric utility, with the facilities of such applicant.” 166 An “electric utility” is defined as “a person or Federal or State agency . . . that sells electric energy.” 167 Section 211 provides that “any electric utility, Federal power marketing agency, or any other person generating electric energy for sale or resale” may apply to the Commission for an order requiring a “transmitting utility” to provide transmission services, including enlargement of facilities if necessary. 168 The term “transmitting utility” is defined as an entity that “owns, operates, or controls facilities used for the transmission of electric energy . . . in interstate commerce . . . for the sale of electric energy at wholesale.” 169 For a third party to obtain interconnection services and transmission services, an application must be made under both sections 210 and 211. 170 An applicant may consolidate the applications for the Commission's consideration. 171 166 16 U.S.C. 824i(a)(1)(A). 167 16 U.S.C. 796(22). 168 16 U.S.C. 824j. 169 16 U.S.C. 796(23). 170 Tres Amigas LLC, 130 FERC ¶ 61,205, at P 43, reh'g denied, 132 FERC ¶ 61,232 (2010). In Laguna Irrigation District, the Commission explained that “[n]othing in our [section 210] interconnection order requires transmission service. Rather, transmission service will be obtained by Laguna pursuant to other transmission tariffs or agreements.” 95 FERC ¶ 61,305, at 62,038 (2001), aff'd sub nom. Pacific Gas & Electric Co. v. FERC, 44 Fed. Appx. 170 (9th Cir. 2002) (unpublished); see also City of Corona, California v. Southern California Edison Co., 104 FERC ¶ 61,085, at PP 7-10 (2003) (Corona's application under section 210 did not constitute a request for transmission under section 211). 171 See Aero Proposed Order, 115 FERC ¶ 61,128. 105. An application under section 210 must show that the interconnection: (1) Is in the public interest; (2) would either encourage conservation of energy or capital, optimize efficient use of facilities and resources, or improve reliability; and (3) meets the requirements of section 212. 172 The requirements of section 212 are discussed further below. 172 16 U.S.C. 824i(c); Aero Proposed Order, 115 FERC ¶ 61,128 at PP 15-16. 106. An application under section 211 requires that the third party seeking transmission service first make a good faith request for service, complying with 18 CFR 2.20, specifying details as to how much capacity is requested and for what period, at least 60 days before making an application to the Commission for an order requiring transmission service. 173 The Commission may grant an application under section 211 if the application is in the public interest and otherwise meets the requirements under section 212. 173 See 16 U.S.C. 824j(a) (“No order may be issued under this subsection unless the applicant has made a request for transmission services to the transmitting utility that would be the subject of such order at least 60 days prior to its filing of an application for such order.”); 18 CFR 2.20. 107. Section 212 further requires that, before issuing a final order under either section 210 or 211, the Commission must issue a proposed order setting a reasonable time for the parties to agree to terms and conditions for carrying out the order, including allocation of costs. If parties can agree to terms within that time, the Commission may issue a final order approving those terms. If parties do not agree, the Commission will weigh the positions of the parties and issue a final order establishing the terms of costs, compensation, and other terms of interconnection and transmission and directing service. 174 174 16 U.S.C. 824k(c)(2); Aero Proposed Order, 115 FERC ¶ 61,128 at PP 17-18 (providing parties 28 days to negotiate and provide briefing on issues of disagreement). a. Commission Proposal 108. The Commission proposed in the NOPR that, if a third party seeks to use ICIF that qualify for the blanket waiver discussed above, an eligible entity seeking interconnection and transmission service on ICIF would need to follow the rules and regulations applicable to requests for service under sections 210 and 211 (subject to the safe harbor presumption proposed in the NOPR). 175 175 NOPR, FERC Stats. & Regs. ¶ 32,701 at P 41. 109. As discussed above, the Commission's current practice with respect to allowing an ICIF owner to have priority use of excess transmission capacity it has built is to allow the ICIF owner to demonstrate specific plans and milestones for any planned future generation development by the ICIF owner or its affiliates. Consistent with that practice, the Commission proposed in the NOPR to find that, outside of the safe harbor period and to the extent the ICIF owner can demonstrate specific plans and milestones for its and/or its affiliates' future use of the ICIF, with respect to ICIF that are eligible for the blanket waiver discussed above, it is generally in the public interest under sections 210 and 211 to allow an ICIF owner to retain priority rights to the use of excess capacity on ICIF that it plans to use to interconnect its own or its affiliates' future generation projects. 176 Thus, the Commission proposed to make priority determinations for use of ICIF, in the event of a third party request, in the process under sections 210 and 211. The Commission sought comment on whether an ICIF owner's or affiliate's planned future use of the ICIF is an appropriate consideration to factor into a proceeding under sections 210 and 211. 176 NOPR, FERC Stats. & Regs. ¶ 32,701 at P 47. 110. Any disputes as to the extent of excess capacity on ICIF or the ICIF owner's future plans to use such excess capacity would be resolved, subject to the safe harbor presumption discussed below, during the proceedings under sections 210 and 211, using an excess capacity analysis similar to that used in Aero and Milford, in which the ICIF owner must demonstrate specific plans and milestones for the future use of its ICIF. Even if an ICIF owner were able to demonstrate in such a proceeding that no excess capacity exists, if supported by the record in the case, the Commission could order the eligible ICIF owner to expand its facilities to provide interconnection and transmission service under sections 210 and 211. 177 Section 212 requires that the eligible ICIF owners would be fully compensated for any required expansion. 178 This is similar to the rights and obligations under the pro forma OATT. 179 177 16 U.S.C. 824i(a)(1)(D) (“The Commission may issue an order requiring . . . such increase in transmission capacity as may be necessary. . . .”); 16 U.S.C. 824j(a) (“Any electric utility . . . may apply to the Commission for an order under this subsection requiring a transmitting utility to provide transmission services (including any enlargement of transmission capacity necessary to provide such services) to the applicant.”). 178 Section 212(a) provides that an order under section 211 shall require the transmitting utility subject to the order to provide wholesale transmission services at rates, charges, terms, and conditions which permit the recovery by such utility of all the costs incurred in connection with the transmission services and necessary associated services, including, but not limited to, an appropriate share, if any, of legitimate, verifiable and economic costs, including taking into account any benefits to the transmission system of providing the transmission service, and the costs of any enlargement of transmission facilities. 179 Section 15.4 of the pro forma OATT states that f the Transmission Provider determines that it cannot accommodate a Completed Application for Firm Point-To-Point Transmission Service because of insufficient capability on its Transmission System, the Transmission Provider will use due diligence to expand or modify its Transmission System to provide the requested Firm Transmission Service, consistent with its planning obligations in Attachment K, provided the Transmission Customer agrees to compensate the Transmission Provider for such costs pursuant to the terms of Section 27. b. Comments 111. Most commenters support the NOPR proposal that third parties seeking to use ICIF subject to the blanket waiver should do so pursuant to sections 210 and 211. AWEA, BHE, EEI, NextEra, Recurrent, and Southern argue that this approach will protect the ICIF owner from speculative requests for transmission service. 180 NextEra and BHE further argue that the requirements of sections 210 and 211 also protect the interests of third parties seeking to use ICIF. 181 NextEra and Southern also support the NOPR's proposal to evaluate, in the course of a proceeding under sections 210 and 211, whether an ICIF owner's “specific plans and milestones” justify priority rights to use excess capacity on the ICIF, to the extent the safe harbor is not applicable. 182 Finally, NextEra and AWEA contend that the framework under sections 210 and 211 provides the flexibility necessary for ICIF owners and third parties to reach mutually agreeable arrangements tailored to their respective needs. 183 180 Recurrent at 4; Southern at 7; NextEra at 11-14; AWEA at 12-13; BHE at 8; and EEI at 16. 181 NextEra at 11-14 and BHE at 8. 182 NextEra at 11-14. 183 NextEra at 11-14 and AWEA at 12-13. 112. APPA and TAPS argue that the NOPR, as proposed, would erect an impassable barrier to accessing ICIF. APPA, TAPS, and NRECA argue that a proceeding under sections 210 and 211 is time-consuming, burdensome, and expensive. 184 They state that Order No. 888 expressly found those statutory processes to be too cumbersome and time-consuming to provide non-discriminatory access and placed customers “at a severe disadvantage compared to the transmission owner.” 185 They contend that by limiting requesters to access only through sections 210 and 211, even if the request is received many years after the ICIF is energized and there is ample unused capacity, the NOPR creates a potent and permanent obstacle to open access that enhances the ICIF owner's vertical market power without any justification. 186 NRECA argues that prospective customers should not have to initiate such a proceeding with the Commission in order to demonstrate entitlement to service on these Commission-jurisdictional lines. 187 APPA and TAPS also contend that the NOPR has not demonstrated that the proposed procedures will cost less than existing requirements, arguing that the lengthy and costly procedures of sections 210 and 211 could not possibly be less expensive for ICIF owners on an industry-wide basis. 188 184 APPA and TAPS at 11-12. 185 APPA and TAPS at 12 (citing to Order No. 888, FERC Stats. & Regs. ¶ 31,036 at 31,646). 186 APPA and TAPS at 24-25. 187 NRECA at 5. 188 APPA and TAPS at 20-21. c. Commission Determination 113. We find that with respect to ICIF eligible for the blanket waiver discussed above, it is appropriate for entities seeking interconnection and transmission service on ICIF to follow the rules and regulations applicable to requests for service under sections 210 and 211 (subject to the safe harbor discussed below). 189 Given the risk of investment in generation and ICIF, it is appropriate to provide an ICIF owner with priority rights over the use of the excess capacity on ICIF that it plans to use to interconnect its own or its affiliates' future generation projects to the extent the ICIF owner can demonstrate specific plans and milestones for its and/or its affiliates' future use of the ICIF. In addition, we find that given the relatively small percentage of ICIF owners that have actually had to file an OATT, 190 requiring the entity requesting service over ICIF to pursue such service under sections 210 and 211 will not overly burden potential customers of service on ICIF. The process under sections 210 and 211 assures third-party entities requesting service on ICIF and eligible ICIF owners alike that they will have specified procedural rights as set forth in sections 210, 211, and 212 of the FPA and appropriately balances ICIF owners' and third parties' rights to service on ICIF. Further, this framework provides the contractual flexibility that some commenters suggest is not available under our existing policy so that contractual arrangements ( e.g., transmission service agreements, interconnection agreements, and/or shared facilities agreements) can be tailored to the special situations for ICIF in determining the appropriate terms and conditions of service, as many of the pro forma OATT provisions are not applicable to service over ICIF. Finally, we recognize that our existing policy to allow an ICIF owner to retain priority rights if it has plans to use the ICIF capacity and is making progress to achieve those plans can involve a potential transmission or interconnection customer in complex proceedings associated with a request for service. Thus, we believe the reforms adopted herein will not meaningfully change the expense potential customers incur to obtain service. 189 Such third-party requests for service could include requests for firm, nonfirm, conditional, or interim service. See, e.g., 18 CFR 2.20(b)(9). 190 See supra P 38. 114. APPA and TAPS are correct that the Commission in Order No. 888 found section 211 to provide insufficient relief as a general method of enabling more competitive generation to obtain open access transmission service. As a result, Order No. 888 required that public utilities file an OATT to provide readily available, comparable service at known rates, terms, and conditions. In this Final Rule, the Commission finds that the filing of an OATT and compliance with certain regulations are not necessary to prevent unjust and unreasonable rates or unduly discriminatory behavior with respect to ICIF. ICIF are sole-use, limited and discrete, radial in nature, and not part of an integrated transmission network, and third-party requests to use ICIF are infrequent. Case-by-case determinations under sections 210 and 211 are not appropriate for the large number of transmission service requests on the integrated grid, but are appropriate for the few expected requests for service on ICIF, each of which would likely have different circumstances. We find that, for this set of circumstances, the framework of sections 210 and 211 provide a sufficient means for third-party access to ICIF. 2. Voluntary Arrangements a. Comments 115. First Wind and Invenergy ask the Commission to confirm that ICIF owners may continue to enter into shared use agreements with affiliates without requiring the affiliated party to utilize sections 210, 211 and 212 to obtain access. 191 Similarly, Linden requests that the Commission clarify that the Commission's proposed process does not preclude an ICIF owner and a non-affiliated entity seeking service to mutually agree upon an appropriate arrangement outside of the context of a proceeding under sections 210 or 211, if the parties file any resulting mutually agreed upon arrangement pursuant to section 205 of the FPA. 192 Linden contends that the new proposed section 35.28(d)(2)(ii) suggests that the parties must use the process before the Commission that is outlined in sections 210, 211, and 212 of the FPA and the Commission's corresponding regulations. Linden asserts that even where sections 210 and 211 apply, section 212(c)(1) of the FPA requires that the Commission “set a reasonable time for parties . . . to agree to terms and conditions under which such order is to be carried out” and that the Commission generally directs the parties to negotiate appropriate agreements. 193 Accordingly, Linden recommends that the Commission should consider revising section 35.28(d)(2)(ii) to explicitly allow for the possibility that parties may arrive at mutually agreeable arrangements without undergoing a proceeding under sections 210 and 211 at the Commission. 194 Linden further states that parties to the relevant arrangements should be allowed flexibility to negotiate appropriate terms and conditions without restriction as to the form or nature of the agreement for greater regulatory efficiency, and recommends that the Commission add an additional section 35.28(iii) explicitly acknowledging that parties may mutually agree on rates, terms and conditions, subject to Commission review and acceptance. 195 191 First Wind at 15 and Invenergy at 14-15. 192 Linden at 4-5. 193 Linden at 5. 194 Linden at 5-6. 195 Linden at 6-7. 116. E.ON asks the Commission to clarify that the blanket waiver should not be jeopardized if a planned phase of a generation project is owned by a no [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2015-06953. Public record. Not legal advice.