On May 21, 2020, FERC issued three orders denying, or denying in part, complaints against PJM Interconnection, L.L.C. (“PJM”), finding that the complainants failed to demonstrate that PJM’s pseudo-tie rules are unjust, unreasonable, or unduly discriminatory or that such rules had been applied in a manner inconsistent with the PJM Tariff.  With respect to PJM’s market-to-market flowgate test and its electrical distance requirement, however, FERC granted the complaints in part, finding that PJM’s Tariff fails to provide an open and transparent process regarding PJM’s administration of those requirements. Continue Reading FERC Finds PJM Tariff Lacks Transparency for Pseudo-Tied Resources

On May 21, 2020, FERC reversed, on rehearing, an earlier determination from October 2017 that the Commission has the authority to require the Midcontinent Independent System Operator, Inc. (“MISO”) to revise its Transmission, Energy and Operating Reserve Markets Tariff (“Tariff”) to include refund commitments by non-public utility transmission owning members. FERC found that although it has authority to review non-public utility rates included in jurisdictional rates (such as MISO’s), it was neither necessary nor appropriate to impose the refund commitment contemplated on non-public transmission owners in MISO.  FERC also dismissed, as moot, MISO’s Compliance filing submitted in response to the October 2017 Order, and terminated various related proceedings.

Continue Reading On Rehearing, FERC Decides Not to Require Prospective Refund Commitment from Non-Public Utility Transmission Owners

On May 19, 2020, the Edenville dam on the Tittabawassee and Tobacco Rivers in central Michigan was breached during historic flooding.  The downstream FERC-licensed Sanford Dam (Project No. 2785) was later overtopped by the increased flows from the Edenville breach.  Evacuation orders were issued for around 10,000 residents in the area and floodwaters from the dam failures encroached on downtown Midland, Michigan, and a nearby Dow Chemical complex. Continue Reading Dam Fails at Michigan Project with Revoked FERC License

On May 19, 2020 President Trump issued an Executive Order directing federal agencies to “combat the economic consequences of COVID-19” by “rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery.” Continue Reading President Trump Issues Executive Order Directing Regulatory Relief to Support Economic Recovery from COVID-19

As the California Legislature prepares its 2021 budget and continues to address the impacts of COVID-19, the Subcommittee 2 on Resources, Environmental Protection, Energy and Transportation (Subcommittee) proposed language in a trailer bill related to the State Water Resources Control Board’s (Water Board) authority to issue water quality certifications under section 401 of the Clean Water Act (CWA) for federally licensed and permitted activities.  If enacted, the bill purportedly would authorize the Water Board to meet the one-year action requirement under CWA section 401 by issuing a water quality certification—even if California Environmental Quality Act (CEQA) requirements are not met.  Further, the bill seeks to authorize the Water Board to make any changes to conditions in the water quality certification at a later date after CEQA requirements are met. Continue Reading Legislative Proposal in California Seeks to Avoid Waiver for Water Quality Certifications Under Section 401 of the Clean Water Act

On April 27, 2020, the Department of Energy’s (DOE) Water Power Technologies Office (WPTO) released a Request for Information (RFI) to gather information and feedback from hydropower industry stakeholders on its Hydropower Program Research and Development (R&D) Strategy and Hydro and Water Innovation for a Resilient Electricity System (HydroWIRES) Research Roadmap. Continue Reading The Department of Energy’s Water Power Technologies Office Releases Request for Information on Hydropower Program

On May 21, 2020, FERC issued the latest in a series of orders finding that a state—California, in this case—waived its authority to issue water quality certification pursuant to section 401 of the Clean Water Act (CWA) for the Yuba County Water Agency’s (YCWA) Yuba River Development Project, a FERC-licensed hydroelectric project in northern California. Continue Reading FERC Issues Order Finding Waiver of Water Quality Certification; California River Community Seeks State Action on Certification Waivers

On May 26, 2020, FERC staff issued an order determining that additional information provided by the South Carolina Public Service Authority (Santee Cooper) was sufficient for FERC to determine that certain investments made over the term of the existing license for the Santee Cooper Project (FERC No. 199) satisfied the criteria under section 36(b) of the Federal Power Act (FPA), and should be considered when the Commission establishes the length of the next license term for the Project. Continue Reading FERC Approves Additional Early Action Investments to Support Longer License Term on Relicensing

On May 27, 2020, the IRS issued Notice 2020-41, which provides much-anticipated relief for delays caused by the COVID-19 pandemic with respect to the “beginning of construction” requirements for renewable energy projects eligible for the production tax credit (“PTC”) or investment tax credit (“ITC”).

Notice 2020-41 modifies the guidance provided in Notices 2013-29, 2013-60, 2014-46, 2015-25, 2016-31, 2017-04, 2018-59, and 2019-43 (the “Prior Notices”) by (i) extending the Continuity Safe Harbor from four to five years for projects on which construction began in 2016 or 2017 and (ii) providing a safe harbor delivery date for property, the costs of which were intended to qualify for the so-called 3½ Month Rule.

Continuity Safe Harbor

The Prior Notices provide two methods by which a taxpayer can satisfy the applicable beginning of construction requirement: (i) starting physical work of a significant nature (the “Physical Work Test”) or (ii) incurring 5% or more of the costs of the project (the “5% Safe Harbor”). Both methods require that a taxpayer make continuous progress toward completion once construction has begun (the “Continuity Requirement”). The Prior Notices also provide a safe harbor (the “Continuity Safe Harbor”) pursuant to which the Continuity Requirement is deemed to be satisfied if a taxpayer places the project in service by the end of a calendar year that is no more than four calendar years after the calendar year during which construction began. For prior coverage on the Continuity Safe Harbor, please see our prior analysis of Notice 2017-04.

Notice 2020-41 modifies the Continuity Safe Harbor for any project that began construction in either 2016 or 2017 by providing that the Continuity Safe Harbor will be satisfied if the project is placed in service by the end of a calendar year that is no more than five calendar years after the calendar year in which construction began.

Accordingly, wind projects the construction of which begin in 2016 (the last year a project could begin construction and qualify for the full PTC) or 2017, which otherwise would have had placed-in-service deadlines of 2020 or 2021, respectively, to satisfy the Continuity Safe Harbor, now have an additional year to complete development and construction. The panoply of structuring issues raised by the possibility that the placed-in-service date could slip into the next year (tax opinions on the facts-and-circumstances test in the Continuity Requirement, tax insurance to cover off the risk, etc.) may become largely irrelevant.

3½ Month Safe Harbor

For purposes of the 5% Safe Harbor, the Prior Notices and applicable regulations provide that a liability is incurred for federal income tax purposes in the taxable year in which all events have occurred that establish the fact of the liability, the amount of the liability can be determined with reasonable accuracy, and economic performance has occurred with respect to the liability. Applicable regulations further provide that a taxpayer may treat services or property as provided to the taxpayer (and, therefore, economic performance as having occurred) as the taxpayer makes payment to the person providing property or services, if the taxpayer reasonably expects the services or property to be provided within 3½ months after the date of payment (the so-called “3½ Month Rule”).

Notice 2020-41 clarifies that if the taxpayer’s reasonable expectation at the time of payment was that the services or property would be provided in 3½ months, the 3½ Month Rule will be satisfied regardless of whether subsequent events delay the provision of the services or property. However, to provide certainty and assurance, Notice 2020-41 provides that for services or property paid for by a taxpayer on or after September 16, 2019, the taxpayer will be deemed to have had a reasonable expectation that the services or property would be received within 3½ months after payment if the services or property are actually received by October 15, 2020 (the “3½ Month Safe Harbor”). The 3½ Month Safe Harbor applies only for purposes of the “beginning of construction requirements” for the PTC and the ITC.

Many sponsors, relying on the 3½ Month Rule, paid in full for equipment at the end of 2019 (the last year a solar project could begin construction and qualify for the 30% ITC) and expected delivery within 3½ months. The timing of the COVID-19 pandemic created supply chain delays that meant that many sponsors did not in fact take delivery within 3½ months of the date of payment, raising the question as to whether their expectations as to delivery were reasonable in the first place. The 3½ Month Safe Harbor should eliminate the need for an analysis of the reasonableness of the expectations in most cases.

We note that the 3½ Month Safe Harbor requires that the property be “received” by October 15, 2020. The key concepts in the applicable regulations are title transfer, delivery, and acceptance; the concept of receipt does not exist. However, because the October 15 date is so generous, we do not expect the imprecise drafting in Notice 2020-41 to be relevant in most circumstances.

Summary

The extension of the Continuity Safe Harbor is an extremely important development for the wind industry. Industry reports had suggested that a significant portion of wind projects scheduled to be placed in service in 2020 were at risk of slipping into 2021, with potentially disastrous consequences for the projects. The one-year extension provides crucial relief.

The 3½ Month Safe Harbor also provides welcome relief for both the solar and wind industries. As a practical matter, it should help most sponsors avoid awkward questions as to whether their expectations of delivery were reasonable and therefore should promote the stated goals of providing certainty and assurance as to the year in which the relevant costs were incurred.