On January 22, 2021, two Washington state irrigation districts, Quincy-Columbia Basin Irrigation District and East Columbia Basin Irrigation District (the “Districts”), filed a Petition for Declaratory Order (“Petition”) requesting that FERC find that Federal Power Act (“FPA”) section 211A does not grant FERC jurisdiction over an unregulated transmitting utility solely as a result of the utility establishing different transmission rates by customer class or by contract.

According to the Petition, Quincy-Columbia Basin Irrigation District and East Columbia Basin Irrigation District are quasi-municipal irrigation districts that operate and maintain portions of the Columbia Basin Project, which includes the Grand Coulee Dam, multiple reservoirs, and various irrigation delivery facilities to deliver water to more than 600,000 acres of land. The Districts explained that during the Project’s development, the Bonneville Power Administration (“BPA”) and the U.S. Bureau of Reclamation developed a number of transmission lines over which the districts receive federal reserved power in Grant County, Washington. These lines were transferred to Grant Public Utility District (“Grant PUD”) by quitclaim deed in 1976; the deed contains a covenant by which Grant PUD assumed the obligations of BPA to wheel federal reserved power to the districts at no cost through 2017, at which point the Districts would assume responsibility for Grant PUD’s wheeling costs.

The Petition continues that in October 2020, Grant PUD adopted a general transmission rate schedule. But, rather than establish a separate rate class for the Districts for the wheeling of federal reserved power, Grant PUD applied its general rate schedule, arguing that a separate rate schedule would trigger FERC jurisdiction under FPA section 211A. FPA section 211A is one of several FPA provisions establishing FERC’s otherwise limited jurisdiction over unregulated transmission entities, such as BPA and Grant PUD. This section in particular addresses FERC’s ability to issue an order requiring such entities to provide transmission services with rates, terms, and conditions that are comparable to those that the unregulated utility charges or uses to provide transmission services to itself, and are not unduly discriminatory or preferential.

As argued in the Petition, the Districts’ request for Grant PUD to negotiate a separate rate for federal reserved power wheeling does not implicate charges that Grant PUD would pay for its own wheeling services. Thus, they argue, section 211A is not implicated and should not be a hindrance to Grant PUD establishing a separate rate schedule. The Districts argue that their requested declaratory order will remove uncertainty regarding FERC’s jurisdiction and resolve the conflict between the parties, thereby allowing contract negotiations to resume for the transmission and distribution of federal reserved power by Grant PUD for the Districts’ benefit. The Districts requested that FERC act on the Petition on or before April 1, 2021.

The Districts’ Petition, filed in FERC Docket No. EL21-42-000, is available here.