20230407IPC Errata to Compliance Filing.pdf

MEGAN GOICOECHEA ALLEN
Corporate Counsel
[e-mail]

April 7, 2023

VIA ELECTRONIC MAIL

Jan Noriyuki, Secretary
Idaho Public Utilities Commission
11331 West Chinden Blvd., Building 8
Suite 201-A
Boise, Idaho 83714

Re: Case No. IPC-E-22-28
Lower Lowline, LLC – Lowline #2 Hydro Project
Idaho Power Company’s Application re Energy Sales Agreement

Dear Ms. Noriyuki:

Attached for electronic filing is an Errata to Idaho Power Company’s Compliance
Filing to Replace Attachment 1 in the above-entitled matter. If you have any questions
about the attached documents, please do not hesitate to contact me.

Very truly yours,

Megan Goicoechea Allen

MGA:cld
Enclosures
RECEIVED
Friday, April 7, 2023 2:43:33 PM
IDAHO PUBLIC
UTILITIES COMMISSION

ERRATA TO IDAHO POWER COMPANY’S COMPLIANCE FILING TO REPLACE
ATTACHMENT 1- 1
DONOVAN E. WALKER (ISB No. 5921)
MEGAN GOICOECHEA ALLEN (ISB No. 7623)
Idaho Power Company
1221 West Idaho Street (83702)
P.O. Box 70
Boise, Idaho 83707
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

Attorneys for Idaho Power Company

BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION

IN THE MATTER OF THE APPLICATION
OF IDAHO POWER COMPANY FOR
APPROVAL OR REJECTION OF AN
ENERGY SALES AGREEMENT WITH
LOWER LOWLINE LLC, FOR THE SALE
AND PURCHASE OF ELECTRIC ENERGY
FROM THE LOWLINE #2 HYDRO
PROJECT.

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CASE NO. IPC-E-22-28

ERRATA TO IDAHO POWER
COMPANY’S COMPLIANCE
FILING TO REPLACE
ATTACHMENT 1

Idaho Power Company (“Idaho Power” or “Company”) hereby respectfully submits
to the Idaho Public Utilities Commission (“Commission”) this Errata to its Compliance
Filing filed on March 31, 2023, to replace the First Amendment to the Energy Sales
Agreement (“ESA”) submitted as Attachment 1 thereto, to help ensure clarity of the
record.
1. Based on consultation with counsel for Staff regarding the Company’s
Compliance Filing in this case, and in particular the First Amendment dated March 30,
2023, submitted as Attachment 1 thereto, the Company prepared a Replacement First
Amendment to the ESA for the purpose of correcting typographical errors to add clarity
as follows:

ERRATA TO IDAHO POWER COMPANY’S COMPLIANCE FILING TO REPLACE
ATTACHMENT 1- 2
 Replacing the references to Power Purchase Agreement, or PPA, with
Energy Sales Agreement, or ESA;
 Correcting the reference made on pages 1 and 2 from “Exhibit” to
“Appendix”;
 Referencing and capitalizing defined terms as appropriate: “Parties” on
page 1, “Facility” and “Qualified Facility” on pages 1 and 4, “Operation
Date” on page 3;
 Replacing the reference to “section” with “paragraph” and “Article” as
appropriate consistent with the ESA; and
 Correcting the reference made on page 5 from “Second” to “First”
Amendment.

2. As a result, Idaho Power seeks to have the First Amendment that was
submitted as Attachment 1 to the Company’s Compliance Filing replaced in its entirety
with Attachment 1 to this Errata for the sake of clarity. A recital has been added to the
Replacement First Amendment for purposes of distinguishing it from the earlier version.
For ease of reference, included as Attachment 2 to this filing is a redlined version showing
the changes incorporated in the Replacement First Amendment (Attachment 1).
3. Idaho Power believes the attached and executed Replacement First
Amendment makes the necessary changes to the ESA required to implement the
Commission’s directives and respectfully requests that the Commission approve the ESA
between Idaho Power and Seller, the Replacement First Amendment thereto, and declare
that all payments for purchases of energy thereunder be allowed as prudently incurred
expenses for ratemaking purposes.
Respectfully submitted this 7th day of April 2023.

MEGAN GOICOECHEA ALLEN
Attorney for Idaho Power Company

ERRATA TO IDAHO POWER COMPANY’S COMPLIANCE FILING TO REPLACE
ATTACHMENT 1- 3
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 7th day of April 2023, I served a true and correct
copy of the foregoing Errata to Idaho Power Company’s Compliance Filing to Replace
Attachment 1 upon the following named parties by the method indicated below, and
addressed to the following:

Michael Duval
Deputy Attorney General
Idaho Public Utilities Commission
11331 W. Chinden Blvd., Bldg No. 8,
Suite 201-A (83714)
PO Box 83720
Boise, ID 83720-0074

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X Email: [e-mail]

Louis Zamora
Twin Falls Canal Company
P.O. Box 326
Twin Falls, Idaho 83303

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_____________________________________
Christy Davenport
Legal Administrative Assistant

BEFORE THE

IDAHO PUBLIC UTILITIES COMMISSION

CASE NO. IPC-E-22-28

IDAHO POWER COMPANY

ATTACHMENT 1

Replacement First Amendment to the ESA Page 1 of 5 Between Idaho Power and Lower Lowline, LLC
REPLACEMENT FIRST AMENDMENT TO THE
ENERGY SALES AGREEMENT
BETWEEN
IDAHO POWER COMPANY
AND
LOWER LOWLINE, LLC
This Replacement First Amendment to the Energy Sales Agreement (“First Amendment”) is effective as of April ___, 2023 (“Effective Date”) and is entered into by and between Idaho Power Company, an Idaho corporation (“Idaho Power”) and Lower Lowline, LLC (“Seller”),
(individually a “Party” and collectively the “Parties”).
WHEREAS, Idaho Power entered into the Energy Sales Agreement (“ESA”) with the Seller on October 13, 2022, for the purchase and sale of energy under the Idaho Public Utilities Commission’s (“Commission”) implementation of the Public Utility Regulatory Policies Act of 1978 (“PURPA”). This 2022 ESA is a replacement contract. The Parties have an existing PURPA
contract that was entered into on September 12, 1986, and runs its full term on April 30, 2023.
Idaho Power filed the 2022 replacement ESA with the Commission for approval or rejection on November 9, 2022. Case No. IPC-E-22-28.
WHEREAS, the Commission issued Order No. 35705 on March 13, 2023, approving the ESA with an effective date of May 1, 2023, conditioned upon the Parties amending Article XXIII
of the ESA regarding modification of the Facility and ESA to ensure: (1) that the Qualified Facility
is paid the proper and authorized rate as of the first operation date after Facility modification; and (2) that the description of the Facility reflected in the final amendment describes the Facility as actually modified to include provisions that address: (1) Language that restricts the Seller from modifying the Facility from the as-built description of the Facility included in Appendix B, without
promptly notifying the Company of that intent; and (2) Language that requires the Seller to provide
notification of planned modifications (such as fuel change or capacity size change) to the as-built description. The Commission further instructed that such language needed to ensure that both Parties agree to: (1) amend the contract reflecting the Facility as actually modified, and (2) adjust payments to the Qualified Facility such that the final amounts reflect the proper authorized rates
of the Facility as actually modified and as of the date when energy is first delivered as a modified
Facility. The Commission also stated, “the Commission directs the Company [Idaho Power] to only include net power supply expense in the Company’s Power Cost Adjustment that reflects the proper authorized rate for all energy delivered as of the first operation date as a modified Facility.” Order No. 35705, p 4.
WHEREAS, the Parties desire to enter into this First Amendment to the ESA to address
the conditions required by Commission and submit the same for the Commission’s approval of the ESA with this First Amendment.
WHEREAS, the Parties submit this Replacement First Amendment to correct typographical errors and to provide clarity.
DocuSign Envelope ID: FD7C3AA3-1457-49ED-BADF-C0CA3EB0AA06
7

Replacement First Amendment to the ESA Page 2 of 5 Between Idaho Power and Lower Lowline, LLC
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be
legally bound, the Parties hereto agree as follows:
1. Incorporation of Recitals. The above-stated recitals are incorporated into and made a part of the ESA, as amended, by this reference to the same extent as if these recitals were set forth in full at this point.
2. Amendment.
A. Appendix B - Section B-1 of Appendix B of the ESA shall be amended as follows:
(new language is underlined, and deleted language uses strikethrough).
“… The Lowline #2 hydro facility is located on the Snake River, near Twin Falls, Idaho. The project includes the installation of a single 2790 kW vertical horizontal Kaplan turbine generating unit. …”
B. Article XXIII - Article XXIII of the ESA is hereby deleted in its entirety and
replaced with the following provisions:
ARTICLE XXIII: FACILITY MODIFICATION
23.1 No later than the First Energy Date, the Seller will provide Idaho Power with an “as-built” description of the Facility in the form set forth in
Appendix B.
23.2 The Seller will not modify the Facility from the description set forth in Appendix B without prior notification to Idaho Power. A proposed modification to the Facility that would change the Facility as described in Appendix B is referred to herein as a “Proposed Facility Modification.”
Proposed Facility Modification does not include additions or expansions to
the Facility that result in an increase to the Maximum Capacity Amount, which are addressed in paragraph 23.6. The Seller may not begin construction of any Proposed Facility Modification(s) unless and until the following requirements have been met:
(i) Seller has promptly notified Idaho Power of the Proposed Facility
Modification(s) prior to initiating the modification design, specification, purchasing and construction process;
(ii) Seller has provided Idaho Power with detailed plans regarding the Proposed Facility Modification(s), including proposed revisions to
the as-built description of the Facility set forth in Appendix B; and
(iii) The Proposed Facility Modification has been reviewed by Idaho Power and a determination made to either pursue amendment as a Proposed Facility Modification pursuant to paragraphs 23.3 and
DocuSign Envelope ID: FD7C3AA3-1457-49ED-BADF-C0CA3EB0AA06

Replacement First Amendment to the ESA Page 3 of 5 Between Idaho Power and Lower Lowline, LLC
23.4 or as an expansion or additional project pursuant to paragraph 23.6.
23.3 Idaho Power will review any Proposed Facility Modification(s) and “as-
built” descriptions to determine whether amendment of the Agreement is appropriate as set forth in paragraph 23.4. In reviewing any Proposed Facility Modification(s) or actual modifications reflected in the as-built description, Idaho Power shall consider the following information: (i) The
nature, scope, and extent of the proposed or actual modification(s); (ii) The
impact, if any, on the applicable avoided cost rates or other relevant terms and conditions; and (iii) Such other information as may reasonably be necessary including the effect on any other provisions hereof which may be impacted by the proposed or actual modification. Proposed modifications
could result in several possible actions including but not limited to: no
change to Appendix B, and thus no further action; an amendment to conform Appendix B to the modified Facility; an amendment to adjust the pricing and other relevant terms and conditions; or a termination and new Agreement.
23.4 Based on its review, Idaho Power, at its sole determination in accord with
the provisions of the Public Utility Regulatory Policies Act of 1978 and any amendments thereto (“PURPA”) and subject to Commission approval, may choose to enter into an amendment of the Agreement to adjust the pricing or other relevant terms and conditions as necessary, including Appendix B;
23.4.1 If Idaho Power determines that it is appropriate to revise the
Agreement, the Parties will enter into a written amendment to the Agreement revising the relevant terms, conditions, description in Appendix B, and, if necessary, pricing, referred to herein as the “Facility Modification Amendment”. The Facility Modification
Amendment will be submitted to the Commission for approval. If
the pricing is adjusted, the Parties will agree on and include in the amendment a pricing true-up mechanism to ensure that the correct rates apply to the modified Facility from the completion date of the modification.
23.4.2 If the Commission determines that the Proposed Facility
Modification would require termination of the Agreement, the Seller may abandon the Proposed Facility Modification or accept the termination. If the Seller accepts the termination, Seller will be responsible for Termination Damages, if any, and the Parties may
negotiate a new agreement based on the Facility as modified.
23.5 In addition to prior notification of any modifications to the Facility from the description set forth in Appendix B, no later than thirty (30) days following the date of substantial completion of such modification, and prior to the first Operation Date of such modification, Seller must provide Idaho Power with
DocuSign Envelope ID: FD7C3AA3-1457-49ED-BADF-C0CA3EB0AA06

Replacement First Amendment to the ESA Page 4 of 5 Between Idaho Power and Lower Lowline, LLC
an “as-built” description of the modified Facility in the form set forth in Appendix B of this Agreement; provided that the Facility, as reflected in the
“as-built” description to be provided under this paragraph, may not deviate
from the Facility Modification Amendment, except, in each case, to the extent such further modification(s) are authorized under a subsequent written amendment to this Agreement that is executed by the Parties and approved by the Commission. If the “as-built” description deviates from
the then-approved Appendix B, Idaho Power will review it and follow the
process described in paragraphs 23.3 and 23.4.
23.6 Idaho Power is not required to purchase any Net Energy above the Maximum Capacity Amount. If Seller builds an expansion or additional project such that the expansion, or additional project would be deemed a
single Qualified Facility or the same site under FERC regulations, Seller
may not require Idaho Power (and Idaho Power will have no obligation to purchase pursuant to this Agreement) the output of any such expansion, or additional facility under the terms, conditions and prices in this Agreement. Instead, Seller may exercise any rights to enter into a new agreement for the
sale of such incremental energy from such additional facility that is a
Qualified Facility under then-applicable laws and regulations.
23.7 Idaho Power is not obligated to and shall not make any incremental payment to Seller as a result of any modification, addition, or expansion of the Facility if such modification was not authorized and approved by the
Commission pursuant to the provisions of this Article 23. Should the Seller
modify, construct additions, and/or expand the Facility without notification to Idaho Power nor the authorization and approval of the Commission pursuant to the provisions of this Article 23, any incremental payments to Seller resulting from and subsequent to the modification, addition, and/or
expansion of the Facility that deviate from the description in Appendix B
shall be unauthorized and immediately due and owing back to Idaho Power. Failure to repay, or reasonably offset future payments made to Seller designed to repay and recoup any unauthorized payment amounts will be deemed a material breach of this Agreement.
3. Commission Approval. The obligations of the Parties under this First Amendment are subject
to the Commission’s approval of this First Amendment and such approval being upheld on appeal, if any, by a court of competent jurisdiction.
4. Effect of Amendment. Except as expressly amended by this First Amendment, the terms and conditions of the ESA remain unchanged.
5. Capitalized Terms. All capitalized terms used in this First Amendment and not defined herein
shall have the same meaning as in the ESA.
6. Scope of Amendment. This First Amendment shall be binding upon and inure to the benefit of the Parties hereto, and their respective heirs, executors, administrators, successors, and assigns,
DocuSign Envelope ID: FD7C3AA3-1457-49ED-BADF-C0CA3EB0AA06

Replacement First Amendment to the ESA Page 5 of 5 Between Idaho Power and Lower Lowline, LLC
who are obligated to take any action which may be necessary or proper to carry out the purpose and intent hereof.
7. Authority. Each Party represents and warrants that as of the Effective Date: (i) it is validly
existing and in good standing in the state in which it is organized, (ii) it is the proper party to amend the ESA, and (iii) it has the requisite authority to execute this First Amendment.
8. Counterparts. This First Amendment may be executed in any number of counterparts, each of which shall be deemed an original and all of which taken together shall constitute a single
instrument.
IN WITNESS WHEREOF, the Parties hereto have caused this First Amendment to be
duly executed as of the date above written.
IDAHO POWER COMPANY
By: _________________________________ Name: _______________________________
Title: ________________________________
LOWER LOWLINE, LLC

By: _________________________________ Name: _______________________________
Title: ________________________________

DocuSign Envelope ID: FD7C3AA3-1457-49ED-BADF-C0CA3EB0AA06
Louis Zamora
Project ManagerVP, Power Supply
Ryan N. Adelman

BEFORE THE

IDAHO PUBLIC UTILITIES COMMISSION

CASE NO. IPC-E-22-28

IDAHO POWER COMPANY

ATTACHMENT 2