By-down Payment (Partial contract)
May 4, 2023 – Tri-State and other members seeking the partial power supply (BDP) option, including LPEA, move to dismiss appeal with the D.C. Circuit Court of Appeals asking the court to reverse the FERC decision rejecting the proposed settlement agreement. This dismissal is sought in light of the April 24, 2023 order from FERC.
April 24, 2023 – FERC issues an additional order rejecting the arguments in the rehearing request filed on January 23, 2023.
March 21, 2023 – Tri-State and other members seeking the partial power supply (BDP) option, including LPEA, file an appeal with the D.C. Circuit Court of Appeals asking the court to reverse the FERC decision rejecting the proposed settlement agreement.
February 23, 2023 – FERC denies the request for rehearing by operation of law; however, FERC states that “the request for rehearing of the above-cited order filed in this proceeding will be addressed in a future order to be issued consistent with the requirements of such section.”
January 23, 2023 – Tri-State and other members seeking the partial power supply (BDP) option, including LPEA, file a request for reconsideration with FERC, requesting that the settlement agreement be approved.
December 22, 2022 – FERC rejects the proposed settlement agreement among Tri-State, LPEA, PVREA, and SMPA.
May 18, 2022 – United Power files Initial Comments in Opposition to the Offer of Settlement, effectively converting the April 28, 2022 settlement filing with Tri-State from “Uncontested” to “Contested” and triggering additional procedures at FERC.
April 28, 2022 – Tri-State, LPEA, PVREA, and SMPA file settlement agreement with FERC.
February 16, 2022 – LPEA Board of Directors approves Resolution 2022-02, which approves the terms of a settlement agreement with Tri-State on a partial buyout of LPEA’s contract and authorizes an Exclusivity Agreement to begin the negotiations on a Power Purchase Agreement with Crossover Energy Partners.
September 11, 2020 – FERC accepts (but does not approve) Tri-State’s buy down payment (BDP) methodology. The BDP methodology is set for FERC hearing and settlement judge procedures.
Contract termination payment (full buy-out)
July 23, 2023 – Following the September 29, 2022 order by the FERC Administrative Law Judge, numerous parties filed exceptions and other motions related to that decision for consideration by the full FERC. A decision upholding or modifying the order by the full FERC is expected by July 23, 2023.
September 29, 2022 – FERC Administrative Law Judge rejects Tri-State’s modified CTP calculation and recommends a CTP calculation supported by FERC Trial Staff, which more closely resembles the CTP calculation proposed by United Power.
September 2, 2021 – Tri-State files modified Contract Termination Payment (CTP) calculation with FERC.
June 17, 2021 – FERC issues Order to Show Cause finding “that the terms and conditions in Tri-State Generation and Transmission Association, Inc.’s (Tri-State) Open Access Transmission Tariff, Bylaws, and Rate Schedules (collectively, Tariff) are unjust and unreasonable or unduly discriminatory or preferential based on the barriers it imposes on utility members considering whether to terminate their membership in Tri-State. Specifically, the Tariff does not provide clear and transparent procedures for utility members considering such termination to obtain Contract Termination Payment (CTP) calculations from Tri-State, or for Tri-State to perform such calculations prior to utility members making their termination decisions.”
May 14, 2021 – FERC rejects Tri-State’s Board Policy 125, which “sets forth the procedural requirements associated with a utility member’s request to withdraw from Tri-State and cancel its Wholesale Electric Service Contract (WESC) with Tri-State, including: (1) the administrative fee for securing calculation of the contract termination payment (CTP); (2) the withdrawal notice period; and, (3) the Tri-State Board of Directors’ (Board) approval criteria in connection with a utility member’s request to withdraw from Tri-State.”
June 12, 2020 – FERC accepts (but does not approve) Tri-State’s contract termination payment (CTP) methodology. The CTP methodology is set for FERC hearing and settlement judge procedures.
April 13, 2020 – Tri-State again filed at FERC, this time requesting FERC approval of – and, implicitly, federal preemption relating to – what Tri-State described as an “exit charge methodology.” Tri-State requested the filing take effect the next day (April 14th, 2020), which was also CoPUC deadline. FERC denied that request – and LPEA would later file with FERC, demonstrating the inadequacy of Tri-State’s April 13th, 2020 filing.
April 3, 2021 – The Tri-State Generation and Transmission approved a rate settlement to reduce wholesale power rates to its members, including LPEA, by 2% immediately with an additional 2% reduction in March of 2022. The decision will now go to the Federal Energy Regulatory Commission (FERC) for final approval. When approved, the rate decrease went into effect retroactively, as of March 1, 2021.
December[LM1] 31, 2020 – LPEA files to join United Power’s November 2020 state court lawsuit alleging Tri-State has violated both Colorado law, and Tri-State’s own Articles of Incorporation and Bylaws, by adding the purported non-utility members. LPEA joins only the claims regarding whether the alleged addition of non-utility members to Tri-State violated Colorado law.
COLORADO PUC AND PUC-RELATED ITEMS
November 25, 2020 – LPEA and United Power file a Joint Application asking the CoPUC to “rehear, reargue, and reconsider” its dismissal of their Complaints, noting that the CoPUC has the authority under the law to preserve and define its own jurisdiction. The CoPUC does not grant the request.
November 5, 2020 – CoPUC dismisses LPEA’s and United Power’s Complaints against Tri-State, pointing again to FERC’s August 2020 determination.
October 20, 2020 – CoPUC, pointing to FERC’s August 2020 determination, rules it lacks jurisdiction to decide the question over whether the alleged addition of non-utility members to Tri-State violated Colorado law.
August 28, 2020 – FERC reverses itself and determines FERC has exclusive authority over LPEA’s exit from Tri-State – rather than sharing concurrent authority with the CoPUC. FERC notes that its determination was “based on the record before [it] and that any future Colorado PUC and state court rulings regarding the validity of [a non-utility’s] membership in Tri-State could be relevant to this determination.”
July 10, 2020 – ALJ determines and approves an exit charge methodology for LPEA.
May 28, 2020 – Statements of Position filed by all parties, closing the evidentiary record. The case is currently pending before the ALJ and a decision is expected by the end of June.
May 18 to May 20, 2020 – Evidentiary hearing held.
May 15, 2020 – Responding to a range of filings, the ALJ entered a decision granting summary judgment in favor of LPEA on the issue of federal preemption, by extension limiting the scope of the CoPUC’s hearing to not address “whether the addition of the non-utility members to Tri-State was legal under Colorado law”.
May 8, 2020 – The ALJ granted LPEA’s request to make Tri-State’s initial DMEA exit charge public.
May 4, 2020 – The ALJ denied Tri-State’s request to file further testimony, noting that Tri-State’s decision not to include exit charge figures for LPEA or United Power in the record was “a tactical decision made by Tri-State with full knowledge of the procedural schedule” and that “to allow additional testimony at this late stage of the proceeding would be unfair and unduly prejudicial to the Complainants.”
April 27, 2020 – LPEA filed a request seeking to make the initial exit charge figure Tri-State provided Delta-Montrose Electric Association (“DMEA”) public. Tri-State had previously contended that, while the final exit charge price DMEA was charged was public, the initial Tri-State offer was not.
April 16, 2020 – Tri-State requested that it be allowed another round of testimony to belatedly introduce an exit charge methodology (which is not the norm for CoPUC cases).
April 16, 2020 – The ALJ sets hearing dates (May 18th through May 22nd, 2020).
April 14, 2020 – The CoPUC held a pre-hearing conference to establish a hearing schedule for the consolidated LPEA and United Power proceedings.
March 25, 2020 – The CoPUC referred the proceedings to an Administrative Law Judge (ALJ).
March 20, 2020 – FERC issued an Order “declin[ing] to find that [its] jurisdiction [over Tri-State] is exclusive, and “find[ing] that the Colorado PUC’s jurisdiction over complaints regarding exit charges is not currently preempted.”
March 13, 2020 – The CoPUC temporarily suspended the consolidated proceedings’ schedule, as the assigned Hearing Commissioner steps down at the end of her term.
March 10th, 2020 – LPEA and United Power filed their respective Rebuttal Testimony.
March 6, 2020 – All parties entered a stipulation proposing a new procedural schedule, which the CoPUC approves on March 10th, 2020.
February 12, 2020 – The CoPUC issued a Decision (1) determining it has jurisdiction over LPEA’s and United Power’s Complaints; (2) determining that the Complaints were appropriate for review by the CoPUC; and (3) denying Tri-State’s request for a stay.
February 12, 2020 – Tri-State submitted its Answer Testimony but did not provide an exit charge methodology and continued to withhold any exit charge figure from LPEA.
January 10, 2020 – LPEA and United Power filed their respective Direct Testimony, offering evidence as to why their Complaints should be granted and providing exit charge methodologies for the CoPUC’s consideration.
January 6, 2020 – LPEA and United Power submitted a joint Opposition to Tri-State’s attempt to pause their consolidated CoPUC cases.
December 23, 2019 – Tri-State attempted to have LPEA’s and United Power’s CoPUC proceedings stayed (i.e., paused) during the pendency of Tri-State’s latest FERC proceeding.
December 20, 2019 – LPEA submitted its brief on the CoPUC’s authority and jurisdiction.
December 13, 2019 – The CoPUC issued another Decision, this time establishing a procedural schedule for LPEA’s and United Power’s cases. The schedule included in part instructions for parties to submit briefs on whether the CoPUC possesses the ability to grant LPEA’s and United Power’s requested relief.
November 20, 2019 – The CoPUC issued a Decision that consolidated LPEA’s Complaint with a similar proceeding initiated by United Power, Inc.
November 5, 2019 – LPEA filed a Formal Complaint with the CoPUC, asking for (1) a finding that Tri-State’s refusal to provide an exit charge to LPEA is unjust and unreasonable; (2) a finding that Tri-State’s refusal to provide an exit charge to LPEA is discriminatory; (3) establishment of an exit charge for LPEA that is just, reasonable, and nondiscriminatory; and (iv) any additional or other relief the CoPUC deems proper.
ACTIONS LEADING UP TO COLORADO PUC AND FERC CASES
September 11, 2019 – LPEA filed comments in the CoPUC’s proceeding on integrated resource plans (IRPs). These comments were focused in part on how Tri-State’s attempted move to FERC jurisdiction would impact the IRP process generally, and LPEA’s future. Tri-State also filed comments responding to the questions the CoPUC posed above.
September 6, 2019 – FERC issued an order responding to Tri-State’s filing on September 3rd. They denied Tri-State’s request to shorten the comment period, keeping the timeline at the regular 60 days.
September 4, 2019 – Tri-State’s Board passed a resolution putting a mortarium on granting any exit charges and/or “go shop” letters until Tri-State’s reconstituted contract committee created an exit charge methodology.
August 23, 2019 – The CoPUC ordered Tri-State to respond to a series of questions. They were as follows:
- Identify and describe the new member referenced in Tri-State’s FERC filings. What steps has Tri-State taken to develop, design, or create an entity that will become a member? Within the last six months from the date of this Decision, has Tri-State negotiated with an existing entity to become a member? If so, identify that entity and whether negotiations are currently ongoing.
- Describe the process and transactions(s) by which the new member will accede to Tri-State membership.
- How does the new member Tri-State seeks to add affect Tri-State’s revenues and expenses and the revenue requirement used to set rates?
- Describe, providing a legal and factual basis for your position, whether Tri-State or the “New Member(s)” must make any filing with the regarding, or seeking PUC approval for, any part of the membership accession process or any transaction related thereto.
- Describe how Tri-State can ensure its compliance with Colorado’s state energy goals reflected in House Bill 19-1261, Senate Bill 19-236, and Executive Order B 2019 002 if FERC regulates its rates.
- If FERC regulates Tri-State’s rates, describe to what extent Tri-State will be bound by Phase I or Phase II decisions as they are currently proposed in the Notice of Proposed Rulemaking in Proceeding No. 19R-0408E. Can Tri-State comply with PUC decisions that modify Tri-State’s ERP?
- How can the legislative intent behind § 40-2-134, C.R.S.A. (requiring the Commission to approve Tri-State’s ERP) be honored if FERC regulates Tri-State’s rates?
- What are the total costs to Tri-State of its efforts to move to FERC regulation (including amounts spent to date and planned expenditures) and how will these costs affect Tri-State’s payments into Colorado’s Fixed Utility Fund?
- Identify whether Tri-State’s bylaws are part of its tariffs and if so, identify where the bylaws are located in its tariff filings.
- September 3rd, 2019 – Tri-State, in a new FERC proceeding, announced its alleged new member (Mieco, discussed above). Procedurally, Tri-State also asked FERC to “grant a partial waiver of [FERC’s] 60-day prior notice requirement,” shortening the notice period by “19 days”. This request would “… align the effective date of the Initial FERC Filings with the date Tri-State became a public utility regulated under Part II of the FPA.”
August 23, 2019 – LPEA filed additional comments with the FERC. The filing discussed the following main concerns:
- The primacy of local control over public power utility operations. FERC policy must not undercut the ability of state and local authorities to regulate existing and future rates and terms of service to LPEA’s members.
- Unresolved state jurisdictional issues. CoPUC has initiated a rulemaking proceeding that proposes to require wholesale electric cooperatives (e.g., Tri-State) to apply for and receive CoPUC approval of their integrated or electric resource plans. There is an underlying connection between IRPs and Rate Regulation.
- There is no factual basis in the record of the instant proceedings for finding federal jurisdiction over Tri-State. Tri-State has not provided enough information to the FERC that will allow the FERC to make an informed decision.
- Insufficient information to fairly and reasonably assess the consequences of Tri-State’s action. LPEA has not received adequate information from Tri-State to understand the consequences of the FERC oversight of Tri-State. Costs in time and money to Tri-State and ultimately LPEA’s members? Costs in time and money to LPEA in matters of wholesale rate disputes between Tri-State and LPEA?
- LPEA questions whether the Wholesale Electric Service Contracts (WESCs) and Board of Director Policies filed by Tri-State in the instant proceeding are consistent with the Federal Power Act and the Public Utility Regulatory Policies Act. The “All-Requirements” nature of the WESC inhibits LPEA’s ability to meet federal and state policies related to Environmental Stewardship and potential efforts to install local renewable generation.
August 21, 2019 – LPEA passes Board Resolution 2019-10 LPEA Power Supply Strategy providing guidance to LPEA Staff to pursue options with Tri-State to meet our Members’ needs.
August 19, 2019 – Tri-State’s CEO Duane Highley attended LPEA’s Committee of the Whole meeting to discuss LPEA’s request for an exit charge figure. This was in executive session.
August 13, 2019 – Because Tri-State quickly filed at the FERC without detailed discussions and information passed along to members, LPEA had no choice but to file a Motion to Intervene. This has allowed LPEA to participate in the FERC proceedings, giving us the ability to ask questions and to express concerns or support.
July 23, 2019 – Tri-State made multiple filing with the FERC to become rate-regulated by that agency.
- ER19-2440 – Tri-State’s Wholesale Rates
- ER19-2441 – Tri-State’s Open Access Transmission Tariffs
- ER19-2444 – Tri-State’s Wholesale Electric Service Contract
Tri-State stated the following:
- From Tri-State’s press release dated July 9, 2019:
- “Single rate regulator (emphasis added) benefits members as Tri-State increases member flexibility, renewables[.]”
- “FERC rate regulation aligns Tri-State with rate regulation of other wholesale power providers[.]”
- From Tri-State’s Initial Rate Filing (ER19-2440) dated July 23rd, 2019: “Tri-State will cease to be wholly-owned by such entities … upon the admission of one or more new Member/owners that will not be an electric cooperative or a governmental entity and will not directly or indirectly be wholly-owned by an electric cooperative or a governmental entity.” In a FERC filing made by Tri-State on September 3, 2019, Tri-State announced that Mieco, Inc. was a new member of Tri-State. Mieco is a wholesale energy service company and subsidiary of Marubeni Corporation. They supply natural gas to purchasers throughout the nation, including Tri-State for their use in power generation facilities.
July 17, 2019 – LPEA Board reviewed the findings of the indicative pricing study.
July 2, 2019 – LPEA sent a letter to Tri-State requesting an exit charge figure. Duane Highley, Tri-State’s CEO attended LPEA’s August Board meeting to discuss this request. As detailed below, however, at Tri-State’s September Board meeting, Tri-State passed a resolution putting a mortarium on exit charges and “go shop” letters. LPEA has still not received an exit charge figure, as of June 2020.
June 19, 2019 – LPEA passed Board Resolution 2019-09 requesting that Tri-State withdraw its Motion for Rehearing filed in FERC Docket No. EL 16-39-001 so that needed renewable projects in the region could move forward.
April 17, 2019 – LPEA Board directed LPEA Staff to determine costs and data needs of a transmission study to be completed by WAPA and Tri-State, to determine how they can serve LPEA’s transmission needs if LPEA was to purchase power on the wholesale market
April 17, 2019 – LPEA Board directed LPEA Staff to obtain indicative pricing from wholesale suppliers, with a fuel mix that is designed to meet LPEA’s 50-30-70 Strategic Goal.
April 17, 2019 – Findings of LPEA’s PSC presented to LPEA’s Board of Directors. The Board concluded there was the potential for significant savings from alternative power supply arrangements, warranting deeper investigation.
January 16, 2019 – LPEA adopted new Strategic Goal, under which LPEA will strive to reduce its carbon footprint by 50% from 2018 levels, year by year through 2030 while keeping members’ cost of electricity lower than 70% of Colorado cooperatives.
January 10, 2019 – LPEA received its “go shop” letter from Tri-State. “...Tri-State has agreed to authorize LPEA to explore the possibility of purchasing all or part of its wholesale electricity requirements from a supplier or suppliers other than Tri-State...”
November 19, 2018 – LPEA’s PSC selected Enchanted Energy/Rio Energy to perform an analysis of LPEA’s Wholesale Contract, and Energy Strategies to perform an analysis of alternative power supply options.
September 2018 - through January 2019 – LPEA attempted to work with Tri-State to allow additional flexibility to LPEA, while keeping the remaining membership whole. Negotiations stalled in January 2019, with Tri-State claiming the issue would be better addressed in the contract committee.
September 20, 2018 – LPEA’s PSC RFPs for “Valuation of Wholesale Contract” and “Power Supply.”
September 19, 2018 – LPEA sent a letter to Tri-State notifying the formation of the PSC and requested a “go shop” letter. This letter – which was not received until January 10th, 2019 (detailed below) – was an acknowledgment from Tri-State that LPEA could enter into discussions with alternate power suppliers without violating the Wholesale Electric Service Contract.
August 15, 2018 – LPEA’s Power Supply Committee (PSC) created as a result of LPEA Long Term Strategies Committee’s identification of the need to evaluate LPEA’s power supply options.
January 17, 2018 – LPEA’s Long Term Strategies Committee formed.
- Director Bassett moved that the LPEA Board of Directors shall establish a Long-Term Strategies
- Committee consistent with revised the Statement of Functions of the Long-Term Strategies
- Committee document presented by Attorney Denning. The purpose of the Long-Term Strategies Committee … shall be to evaluate likely scenarios for La Plata Electric Association, Inc.’s energy needs in the next ten to fifteen years, evaluate alternatives, and report these findings to the full Board of Directors.
April 27, 2017 – LPEA passed Board Resolution 2017-05, requesting an increase of 5% to 10% of allowable distributed energy in the Tri-State contract.