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Cassia County wind developers may take legal action against state regulators

BURLEY • Idaho wind energy developers are still determining if they will pursue legal action against the state for improperly limiting their power contracts.

According to the Federal Energy Regulatory Commission, state regulators were wrong to place a deadline on projects eligible for certain small-scale power contracts with utilities. The federal agency will not intervene, but will allow energy developers to pursue legal action on their own.

The issue stems from a change in the state’s benchmark for eligibility under the federal Public Utility Regulatory Policies Act. For several years, the Idaho Public Utilities Commission allowed projects producing up to 10 megawatts to qualify for the PURPA rates. But last year, the PUC announced that wind projects submitting contracts after Dec. 14, 2010, would only receive the rates for 100 kilowatts or less.

That date was set after Idaho Power Co. and Rocky Mountain Power complained that developers were splitting up big wind developments into smaller projects to be eligible for the rates.

In all, 17 projects – nine of which were destined for south-central Idaho – failed to meet the deadline after utility companies stalled on signing off on the contracts, FERCfound.

“What was unusual was that FERC went to great lengths to show as to why PUC wasn’t in compliance with federal law,” said Peter Richardson, an attorney representing Cotterel WindEnergy Center. The group has proposed five wind projects near Burley.

Richardson said his clients were still determining if they will pursue legal action. He expected they would make a decision soon.

“This is a landmark case in turn of Idaho’s implementation of PURPA,” he said. “But this does offer us new opportunities to move forward on the project.”

The PUC is in settlement discussions with two energy developers after the companies appealed the deadline decision last winter. Developers Cedar Creek Wind and Wasatch Wind Intermountain have held off taking the matter to court, said Gene Fadness, spokesman for the PUC.

Wasatch Wind Intermountain has plans for two projects south of the City of Rocks National Reserve.

“Wind developers wanted an enforcement action but FERC didn’t go that far,” Fadness said. “But they said wind developers have a strong case to take it to whatever court that they want.”

American Wind Group has two projects lined up near Declo. The company is currently contacting legal counsel on how to move forward.

“We feel like we can pursue this in federal court,” said Brian Jackson, American Wind’s president. “It’s an obligation, our project is being threatened. The time is now.”