(a) The commission shall approve and establish equitable charges to be paid by an electrical corporation which purchases electricity or electrical generating capacity, or both, from any private energy producer employing other than a conventional power source for the generation of electricity.
(b) The commission, on its own motion or on application of an electrical corporation or a private energy producer, may also specify the prices, terms, and conditions for the purchase or sale of electricity or electrical generating capacity, or both, between an electrical corporation and a private energy producer, and these prices, terms, and conditions, so specified, shall be considered reasonable and prudent for all purposes. The commission may act to specify these prices, terms, and conditions on its own motion or on application of an electrical corporation or a private energy producer.
(c) Every private energy producer employing hydroelectric facilities, who executes a contract with an electrical corporation on or after January 1, 1988, or prior to that date, for the purchase of electricity or electrical generating capacity, or both, shall obtain and provide proof of compliance by the private energy producer with all state laws relating to the control, appropriation, use, and distribution of water, including, but not limited to, the obtaining of applicable licenses and permits. The private energy producer shall also provide proof of compliance with the federal Clean Water Act.
(d) (1) For the purpose of providing proof of compliance with all state laws relating to the control, appropriation, use, and distribution of water, the electrical corporation shall require the private energy producer to provide either of the following:
(A) Certification from the State Water Resources Control Board that a water right permit has been issued for the operation of the hydroelectric facility.
(B) Certification from the State Water Resources Control Board that, in the opinion of the board, the private energy producer possesses riparian rights or other water rights which authorize the operation of the hydroelectric facility.
(2) The requirements of paragraph (1) shall apply only to contracts involving hydroelectric projects which have not been accepted by the electrical corporation for commercial operation prior to May 18, 1987.
(3) Every contract executed by a private energy producer who is in violation of paragraph (1) is void and unenforceable on and after whichever of the following dates applies:
(A) February 29, 1988, for contracts involving hydroelectric projects which have been accepted by the electrical corporation for commercial operation on or after May 18, 1987, and prior to January 1, 1988.
(B) The 60th day after a project has been accepted by the electrical corporation for commercial operation, for contracts involving hydroelectric projects which are accepted by the electrical corporation for commercial operation on or after January 1, 1988.
(4) The commission shall disallow, for purposes of establishing rates for an electrical corporation, all amounts expended for the purchase of electricity pursuant to a contract that is void and unenforceable under this subdivision.
(e) (1) For the purposes of providing proof of compliance with the federal Clean Water Act, the electrical corporation shall require the private energy producer to provide a statement from the State Water Resources Control Board that certification pursuant to Section 401 of the federal Clean Water Act has either been granted or waived by the board for operation of the hydroelectric facility. The board shall not waive certification unless the board finds that there is reasonable assurance that the project shall comply with all applicable requirements of the federal Clean Water Act and state water quality laws. If the board cannot make this finding within the period provided for certification, the board shall either certify upon conditions that provide reasonable assurance of compliance or deny certification.
(2) The requirements of paragraph (1) shall apply only to contracts involving hydroelectric projects which have not been accepted by the electrical corporation for commercial operation prior to January 1, 1992.
(3) Every contract executed by a private energy producer who is in violation of paragraph (1) is void and unenforceable on and after whichever of the following dates applies:
(A) March 1, 1993, for contracts involving hydroelectric projects which are accepted by the electrical corporation for commercial operation between January 1, 1992, and December 31, 1992.
(B) The 60th day after having been accepted by the electrical corporation for commercial operation, for contracts involving hydroelectric projects which are accepted by the electrical corporation for commercial operation on or after January 1, 1993.
(4) The commission shall disallow, for purposes of establishing rates for an electrical corporation, all amounts expended for the purchase of electricity pursuant to a contract that is void and unenforceable under this subdivision.
(f) Subdivision (d) does not apply to any private energy producer if all of the following conditions are met:
(1) The electrical corporation did not make timely written demand for the proof of compliance required by paragraph (1) of subdivision (d).
(2) On or before the date the project was accepted by the electrical corporation for commercial operation, the private energy producer was in fact in compliance with all applicable state laws relating to the control, appropriation, use, and distribution of water, including, but not limited to, those laws that require the obtaining of all applicable entitlements.
(3) Prior to October 14, 1991, the private energy producer has provided proof of the applicable certification from the State Water Resources Control Board pursuant to subparagraph (A) of paragraph (1) of subdivision (d), which proof contains further certification from the State Water Resources Control Board of the existence of the condition identified in paragraph (2) of subdivision (f).
(g) For purposes of meeting the requirements of subdivision (d) or (e), or of providing certification required under Section 26013 of the Public Resources Code, the private energy producer shall furnish information as is reasonably required by the State Water Resources Control Board to document a claim of right, a certification, or a waiver. Every private energy producer requesting certification and a statement from the board pursuant to subdivisions (d) and (e), or to Section 26013 of the Public Resources Code, shall pay to the board at the time of filing the request, a fee of two hundred fifty dollars ($250) to cover the reasonable cost of the board in evaluating and processing the certification request.
(h) As used in this section, “Federal Clean Water Act” means the federal Water Pollution Control Act (Sections 1251 et seq. of Volume 33 of the United States Code) and acts amendatory thereof or supplementary thereto.
(Amended by Stats. 1992, Ch. 739, Sec. 1. Effective January 1, 1993.)