Boulder Solar Power JUN 3 2016 MBR App.Pdf

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UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION

Boulder Solar Power, LLC ) Docket No. ER16-_____-000

APPLICATION FOR MARKET-BASED RATE AUTHORIZATION, REQUEST FOR DETERMINATION OF CATEGORY 1 SELLER STATUS, REQUEST FOR WAIVERS AND BLANKET AUTHORIZATIONS, AND REQUEST FOR WAIVER OF PRIOR NOTICE REQUIREMENT

Pursuant to Section 205 of the Federal Power Act (“FPA”),1 Section 35.12 of the

regulations of the Federal Energy Regulatory Commission (“FERC” or the “Commission”),2

Rules 204 and 205 of the Commission’s Rules of Practice and Procedure,3 and FERC Order Nos.

697, et al.4 and Order No. 816,5 Boulder Solar Power, LLC (“Applicant”) hereby requests that

the Commission: (1) accept Applicant’s proposed baseline market-based rate tariff (“MBR

Tariff”) for filing; (2) authorize Applicant to sell electric energy, capacity, and certain ancillary

services at market-based rates; (3) designate Applicant as a Category 1 Seller in all regions; and

(4) grant Applicant such waivers and blanket authorizations as the Commission has granted to

other sellers with market-based rate authorization. Applicant requests that the Commission

waive its 60-day prior notice requirement6 to allow Applicant’s MBR Tariff to become effective

as of July 1, 2016. In support of this Application, Applicant states as follows:

1 16 U.S.C. § 824d (2012). 2 18 C.F.R. § 35.12 (2016). 3 Id. §§ 385.204 and 385.205. 4 Mkt.-Based Rates for Wholesale Sales of Elec. Energy, Capacity & Ancillary Servs. by Pub. Utils., Order No. 697, FERC Stats. & Regs. ¶ 31,252, clarified, 121 FERC ¶ 61,260 (2007), order on reh’g, Order No. 697- A, FERC Stats. & Regs. ¶ 31,268, clarified, 124 FERC ¶ 61,055, order on reh’g, Order No. 697-B, FERC Stats. & Regs. ¶ 31,285 (2008), order on reh’g, Order No. 697-C, FERC Stats. & Regs. ¶ 31,291 (2009), order on reh’g, Order No. 697-D, FERC Stats. & Regs. ¶ 31,305 (2010), aff’d sub nom. Mont. Consumer Counsel v. FERC, 659 F.3d 910 (9th Cir. 2011), cert. denied sub nom. Pub. Citizen, Inc. v. FERC, 133 S. Ct. 26 (2012). 5 Refinements to Policies & Procedures for Mkt.-Based Rates for Wholesale Sales of Elec. Energy, Capacity & Ancillary Servs. by Pub. Utils., Order No. 816, FERC Stats. & Regs. ¶ 31,374 (2015), order on reh’g and clarification, Order No. 816-A, 155 FERC ¶ 61,188 (2016) (to become effective July 25, 2016). 6 18 C.F.R. § 35.3(a)(1). 20160603-5296 FERC PDF (Unofficial) 6/3/2016 12:51:20 PM

I. CORRESPONDENCE AND COMMUNICATIONS

Applicant requests that the Commission direct all correspondence and communications

related to this Application to the following persons and add each person to its official service list

for this proceeding:7

Lisa Bodensteiner George D. (Chip) Cannon, Jr. Executive Vice President and General Counsel Scott D. Johnson SunPower Corporation Akin Gump Strauss Hauer & Feld LLP 77 Rio Robles 1333 New Hampshire Avenue, N.W. San Jose, CA 95134 Washington, D.C. 20036 Tel: (408) 240-4235 Tel: (202) 887-4000 lisa.bodensteiner@sunpower.com Fax: (202) 887-4288 [email protected] Jack Semrani [email protected] Senior Counsel/Regulatory & Transactions SunPower Corporation 2900 Esperanza Crossing Austin, TX 78758 Tel: (512) 953-4471 [email protected]

II. DOCUMENTS SUBMITTED WITH THIS APPLICATION

Applicant submits the following documents with this Application:

• Applicant’s proposed MBR Tariff in RTF format with metadata attached and a PDF copy of the same for publication in eLibrary (Attachment A);

• Applicant’s asset appendix in Order No. 816 format (Attachment B); and

• An organizational chart illustrating the upstream ownership of Applicant (Attachment C).

III. DESCRIPTION OF APPLICANT AND ITS AFFILIATES

The following is a description of Applicant and its electric generation facility and

upstream owners and affiliates.8

7 Applicant requests that the Commission waive Rule 203(b)(3) of its Rules of Practice and Procedure, 18 C.F.R. § 385.203(b)(3), to the extent necessary to allow each person listed to be included on the official service list for this proceeding.

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Applicant is a Delaware limited liability company formed for the purpose of developing,

constructing, owning, and operating the Boulder Solar I Project (a/k/a Boulder Solar I Nevada)

(the “Project”), an approximately 100 MW (nameplate) photovoltaic electric power generating

facility to be located in Boulder City, Clark County, Nevada, and to engage in all other lawful

businesses activities consistent with exempt wholesale generator (“EWG”) status. Applicant’s

principal place of business is 77 Rio Robles, San Jose, California, 95134. Applicant is not

currently engaged in any business activities other than those associated with the development,

construction, ownership, and future operation of the Project. Applicant has self-certified its

status as an EWG.9

The Project is currently expected to begin generating test power in August 2016 and to

commence commercial operation in November 2016. The Project will include interconnecting

transmission facilities necessary to connect the generating facility to the Nevada Power

8 The term “affiliate” as used in this Application includes certain entities that Applicant is conservatively assuming are affiliates of Applicant for purposes of this Application. These entities, which own and operate generating facilities in the California Independent System Operator Corporation (“CAISO”) balancing authority area (“BAA”) market, are Blackwell Solar, LLC (“Blackwell”) and Lost Hills Solar, LLC (“Lost Hills”). Blackwell and Lost Hills arguably are not affiliates of Applicant under 18 C.F.R. § 35.36(a)(9) because their only relationship to Applicant is through indirect, passive, non-controlling interests in Blackwell and Lost Hills owned by SunPower Corporation (“SunPower”) through 8point3 Energy Partners LP (“8point3 Partners”), an entity formed to hold indirect interests in certain electric generating facilities developed by subsidiaries of SunPower and First Solar, Inc. See 8point3 Energy Partners LP, 151 FERC ¶ 62,162 (2015) (“Yieldco Formation Order”). 8point3 Partners, as the result of a transaction approved by the Commission in the Yieldco Formation Order, indirectly owns non- controlling, passive membership interests in Blackwell and Lost Hills. Applicant considers 8point3 Partners’ indirect interests in Blackwell and Lost Hills to be passive because those interests are consistent with the interests the Commission determined to be passive in AES Creative Res., L.P., 129 FERC ¶ 61,239 (2009). Accordingly, Blackwell and Lost Hills should not be affiliates of Applicant under 18 C.F.R. § 35.36(a)(9) and should not be subject to consideration in the Commission’s market power analysis in connection with this Application. See Order No. 816 at P 284 (clarifying that “sellers should not include in their asset appendices entities and facilities for which they have claimed, and demonstrated to the Commission, that the only relationship is through passive, non- controlling interests consistent with AES Creative (i.e., where the seller has a strictly passive ownership interest in another entity, or another entity has a strictly passive ownership interest in the seller”). However, because Blackwell and Lost Hills have not yet, to Applicant’s knowledge, demonstrated to the Commission on their own behalf that 8point3 Partners’ indirect interests in them are, in fact, consistent with the interests the Commission determined to be passive in AES Creative, Applicant is conservatively treating Blackwell and Lost Hills as affiliates for purposes of this Application out of an abundance of caution. 9 Boulder Solar Power, LLC, Notice of Self-Certification of Exempt Wholesale Generator Status, Docket No. EG16-83-000 (filed Apr. 7, 2016).

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Company (“NEVP”) d/b/a NV Energy (“NVE”) transmission system to permit Applicant to

make wholesale sales of electricity from the Project. Applicant will sell all of the net output of

the Project to NVE under a 20-year power purchase agreement (“PPA”) that expires in 2037.

Applicant is an indirect, wholly-owned subsidiary of SunPower, a Delaware corporation

whose shares are publicly traded on the NASDAQ. SunPower is a vertically-integrated solar

products and services company that designs, manufactures, and delivers high-efficiency and

high-reliability solar photovoltaic panels and electricity generating systems to residential,

business, government, and utility customers. SunPower is headquartered in San Jose, California,

and has offices in North America, Europe, Australia, Africa, and Asia. As of the date of this

Application, Total Energies Nouvelles Activités USA, SAS (f/k/a Total Gas & Power USA,

SAS), which is a wholly-owned subsidiary of Total S.A. (“Total”),10 owns approximately 60% of

the issued and outstanding shares of SunPower’s common stock. No other person directly or

indirectly owns, controls, or holds, with power to vote, 10% or more of SunPower’s outstanding

voting securities. An organizational chart illustrating Applicant’s upstream ownership is

provided in Attachment C.

Pursuant to a Shared Facilities Agreement to be filed with the Commission, Applicant

will share with two affiliates, Boulder Solar II, LLC (“Boulder II”) and Boulder Solar III, LLC

(“Boulder III,” and together with Boulder II, the “Co-Tenants”),11 certain common premises and

10 Total is a global, integrated energy producer and provider, a leading international oil and gas company, and, through its interest in SunPower, the world’s second-ranked solar energy operator. Total has approximately 100,000 employees and operates in more than 130 countries. See, e.g., Press Release, SunPower, Colbún Awards 15-Year Contract to Total and SunPower (May 26, 2016), http://newsroom.sunpower.com/2016-05-26- Colb-n-Awards-15-Year-Contract-to-Total-and-SunPower. 11 Co-Tenants are developing and will construct, own, and operate two photovoltaic electric power generating facilities, comprising approximately 100 MW (net) in the aggregate, and related interconnection facilities to be located in Clark County, Nevada. Co-Tenants have not yet self-certified their status as EWGs, but plan to do so later in their development process. Co-Tenants also do not yet have market-based rate authorization from the Commission. Co-Tenants plan to apply to the Commission for authorization to sell electric energy, capacity, and - 4 -

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facilities, including approximately 2.3 miles of above-ground, 230-kV transmission line

necessary to interconnect Applicant’s and Co-Tenants’ respective generating facilities to the

NVE transmission system, breakers, relays, poles, pipes, and access roads to be used in the

construction and operation of Applicant’s and Co-Tenants’ respective generating facilities.

Applicant and Co-Tenants will own undivided tenancy in common interests in the shared

facilities and will be entitled to use their pro rata shares of the shared facilities to deliver electric

energy from their respective generating facilities to the NVE transmission system.

Other than as described herein and set forth in Applicant’s asset appendix,12 no affiliate

of Applicant holds any interests in any entity that: (1) generates electric energy, (2) transmits

electric energy, (3) provides inputs to electric power production, as defined in Section

35.36(a)(4) of the Commission’s regulations,13 or (4) owns or controls a franchised public utility.

IV. APPLICANT SATISFIES THE COMMISSION’S STANDARDS FOR MARKET- BASED RATE AUTHORIZATION

Applicant requests authorization to sell electric energy, capacity, and certain ancillary

services at market-based rates under the proposed MBR Tariff. Pursuant to Order No. 697, the

Commission evaluates applications for market based-rate authorization using a two-pronged

analysis of horizontal and vertical market power.14 The Commission will grant market-based

rate authorization if the applicant and its affiliates do not have or have adequately mitigated

horizontal (generation) market power and vertical market power, including transmission market

ancillary services at market-based rates pursuant to Section 205 of the FPA prior to any sale of power from their respective generating facilities. 12 Because the NVE BAA (a/k/a the “NEVP BAA”) should be the only relevant market for purposes of this Application, see infra note 19, Applicant’s affiliates’ and their assets in the CAISO and Public Service Company of Colorado BAAs should not affect Applicant’s eligibility for market-based rate authorization. Accordingly, details regarding such affiliates and their assets beyond what appears in Applicant’s asset appendix would not assist the Commission in its analysis of this Application. 13 18 C.F.R. § 35.36(a)(4). 14 E.g., Order No. 697 at PP 13-22.

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power and barriers to entry in any market.15 Applicant and its affiliates will not have horizontal

or vertical market power and have not erected and will not erect barriers to entry. Accordingly,

Applicant satisfies the Commission’s standards for market-based rate authorization.

A. Applicant and Its Affiliates Will Not Have Horizontal Market Power

Applicant has a long-term PPA with NVE under which NVE will purchase all of the net

output from the Project. At this time, Applicant has no affiliates in the NEVP BAA market that

are subject to consideration in the Commission’s market power analysis for this Application.16

Accordingly, Applicant and its affiliates do not control any uncommitted wholesale capacity in

the NEVP BAA market.

Typically, the Commission requires that an applicant for market-based rate authorization

demonstrate its and its affiliates’ lack of horizontal market power in the relevant market(s) by

showing that it and its affiliates pass two indicative screens: (1) the Pivotal Supplier Analysis

(“PSA”) screen; and (2) the Market Share Analysis (“MSA”) screen.17 There is a rebuttable

presumption of market power if an applicant fails either screen.18 The relevant geographic

market for Applicant is the NEVP BAA market, where the Project is located.19 The NEVP BAA

is in the Commission’s Northwest Region.20

15 E.g., id. at P 791. 16 As noted above, Applicant’s affiliates Boulder II and Boulder III are developing generating facilities in the NEVP BAA market, but neither of those entities has any operational generating capacity or has applied for market-based rate authorization. 17 E.g., Order No. 697 at PP 33-44, 62, 231-32. 18 E.g., id. at P 63. 19 In Order No. 697, the Commission determined that it would continue to use a seller’s BAA or the Regional Transmission Organization (“RTO”)/Independent System Operator (“ISO”) market, as applicable, as the default relevant geographic market, unless it has made a specific finding that there is a submarket within an RTO/ISO, in which case the submarket becomes the default relevant geographic market for purposes of the market- based rate analysis for a seller located within such submarket. Id. at P 231. Where a generator in a non-RTO/ISO market is interconnecting to a non-affiliate owned or controlled transmission system, there is only one relevant market, which is the BAA in which the generator is located. Id. at P 232 n.217. 20 Sierra Pac. Power Co., 147 FERC ¶ 61,137, at P 11 (2014).

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Both indicative screens measure whether a seller and its affiliates in the relevant

market(s) can utilize their uncommitted capacity to exercise horizontal market power. The MSA

screen measures whether a seller has a dominant position in the relevant market(s) based on the

number of megawatts of uncommitted capacity owned or controlled by the seller and its affiliates

as compared to the uncommitted capacity of the entire relevant market(s).21 The PSA screen

measures the potential of a seller and its affiliates to exercise horizontal market power based on

uncommitted capacity at the time of the annual peak demand in the relevant market(s).22 A seller

is pivotal if such demand cannot be met without some contribution of supply by the seller or its

affiliates.23

As noted above, Applicant has a long-term PPA under which it will sell all of the net

output of the Project to NVE. As also noted above, Applicant has no affiliates in the NEVP

BAA market that are subject to consideration in the Commission’s market power analysis for this

Application. Pursuant to Order No. 816,24 Applicant represents that its long-term contract with

NVE described above is for firm sales for one year or longer to a non-affiliate. The Commission

has held that when all of the generating capacity of a seller and its affiliates in the relevant

BAA(s) or market(s) (including any relevant first-tier BAA(s) or market(s)) is fully committed

on a long-term, firm basis to one or more non-affiliated buyers, the seller has no uncommitted

capacity and does not need to file the Commission’s indicative market power screens.25 Because

Applicant has no uncommitted capacity in the NEVP BAA and no affiliates in the NEVP BAA

that are subject to consideration in the Commission’s market power analysis for this Application,

21 Order No. 697 at P 34. 22 Id. at P 35. 23 Id. 24 See Order No. 816 at P 39. 25 Id.

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Applicant and its affiliates will not have horizontal market power in that market and Applicant

has not included indicative screens in this Application.

B. Applicant and Its Affiliates Will Not Have Vertical Market Power

Applicant and its affiliates will not have vertical market power. Neither Applicant nor

any of its affiliates owns or controls electric transmission facilities other than those limited

transmission facilities necessary to interconnect individual generation facilities, including

Applicant’s generating facility, to the transmission grid. In accordance with the Commission’s

Order No. 807,26 and pursuant to 18 C.F.R. § 35.28(d)(2), Applicant and the Co-Tenants intend

to affirm to the Commission that their interconnection facilities satisfy the requirements for

blanket waiver of the Commission’s Open Access Transmission Tariff requirements in 18 C.F.R.

§ 35.28, the Open Access Same-Time Information System requirements in 18 C.F.R. Part 37,

and the Standards of Conduct for Transmission Providers in 18 C.F.R. Part 358, and commit to

comply with and be bound by the obligations and procedures applicable to electric utilities under

Section 210 of the FPA. Applicant’s affiliates that own or operate interconnecting transmission

facilities either already qualify or will qualify for the blanket waiver provided in Order No.

807.27

In addition, neither Applicant nor any of its affiliates has the ability to erect any other

barriers to entry into any market. Applicant does not own or control inputs to electric power

26 Open Access & Priority Rights on Interconnection Customer’s Interconnection Facilities, Order No. 807, FERC Stats. & Regs. ¶ 31,367, at P 57, order on reh’g, Order No. 807-A, 153 FERC ¶ 61,047 (2015). 27 See CED Corcoran Solar, LLC, 152 FERC ¶ 61,075, at PP 11-12 (2015) (directing entities to “review the regulations to determine for themselves whether they qualify as entities granted the blanket waivers under Order No. 807” and that “applicants that qualify for the blanket authorization do not need to request, nor should they request,” waiver of the Commission’s Open Access Transmission Tariff requirements in 18 C.F.R. § 35.28, the Open Access Same-Time Information System requirements in 18 C.F.R. Part 37, and the Standards of Conduct for Transmission Providers in 18 C.F.R. Part 358).

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production, as defined by the Commission,28 in any market. Affiliates of Applicant own or

control sites for generation capacity development in various markets, but the Commission no

longer requires sellers to provide information regarding sites for generation capacity

development to demonstrate a lack of vertical market power.29 In any case, consistent with the

rebuttable presumption that the Commission adopted in Order No. 697,30 these sites do not allow

Applicant or its affiliates to erect barriers to entry. Affiliates of Applicant also own and control

certain intrastate natural gas pipeline facilities in Texas that are used to service Total’s industrial

operations in Port Arthur, Texas. However, the Commission has adopted a rebuttable

presumption that sellers cannot erect barriers to entry with regard to the ownership or control of,

or affiliation with any entity that owns or controls, such intrastate natural gas transportation

facilities.31

Finally, as required by Section 35.37 of the Commission’s regulations,32 Applicant

affirmatively states that it and its affiliates have not erected and will not erect barriers to entry

into the NEVP BAA market.

V. COMPLIANCE WITH COMMISSION REGULATIONS

As required by Order No. 697, Applicant has included in its proposed MBR Tariff a

provision requiring compliance with Part 35, Subpart H of the Commission’s regulations.33 If

granted market-based rate authorization, Applicant will comply with the various reporting

requirements applicable to entities authorized to sell electric energy, capacity, and ancillary

28 See 18 C.F.R. § 35.36(a)(4) (“inputs to electric power production” include “intrastate natural gas transportation, intrastate natural gas storage or distribution facilities; sites for generation capacity development; physical coal supply sources and ownership of or control over who may access transportation of coal supplies”). 29 Order No. 816 at PP 18, 212. 30 Order No. 697 at P 446. 31 Id. 32 18 C.F.R. § 35.37(e)(3). See also Order No. 816 at P 356. 33 Order No. 697, Appendix C.

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services at market-based rates, subject to the waivers Applicant requests in this Application, to

the extent granted. Applicant will submit Electric Quarterly Reports pursuant to the

Commission’s regulations34 and the requirements of Order Nos. 2001, et al.,35 and will promptly

inform the Commission of any change in status that would reflect a departure from the facts

provided in this Application, as required by the Commission’s regulations.36 In addition, in

accordance with the Commission’s Market Behavior Rules,37 Applicant represents that it will not

report transactions to publishers of electric or natural gas price indices. If Applicant begins

reporting price data to index publishers, it will notify the Commission as required.38

VI. ANCILLARY SERVICES

As required by Order No. 69739 and the Commission’s regulations,40 Applicant requests

authorization to sell ancillary services at market-based rates as set forth in Applicant’s proposed

MBR Tariff, including authorization to make third-party sales of Regulation and Frequency

Response Service, Reactive Supply and Voltage Control Service, Energy and Generator

Imbalance Service, Operating Reserve-Spinning, and Operating Reserve-Supplemental, subject

to the limitations on such sales established in Order No. 784.41 Applicant’s proposed MBR

34 18 C.F.R. § 35.10b. 35 Revised Pub. Util. Filing Requirements, Order No. 2001, FERC Stats. & Regs. ¶ 31,127, reh’g denied, Order No. 2001-A, 100 FERC ¶ 61,074, reh’g denied, Order No. 2001-B, 100 FERC ¶ 61,342, order directing filing, Order No. 2001-C, 101 FERC ¶ 61,314 (2002), order directing filing, Order No. 2001-D, 102 FERC ¶ 61,334, order refining filing requirements, Order No. 2001-E, 105 FERC ¶ 61,352 (2003), order on clarification, Order No. 2001-F, 106 FERC ¶ 61,060 (2004), order revising filing requirements, Order No. 2001-G, 120 FERC ¶ 61,270, order on reh’g and clarification, Order No. 2001-H, 121 FERC ¶ 61,289 (2007), order revising filing requirements, Order No. 2001-I, FERC Stats. & Regs. ¶ 31,282 (2008). 36 18 C.F.R. § 35.42. 37 Id. § 35.41(c). 38 Id. 39 Order No. 697 at P 1060. 40 18 C.F.R. § 35.40. 41 Third-Party Provision of Ancillary Servs.; Accounting & Financial Reporting for New Elec. Storage Technologies, Order No. 784, FERC Stats. & Regs. ¶ 31,349, at P 200-01 (2013), order on clarification, Order No. 784-A, 146 FERC ¶ 61,114 (2014).

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Tariff includes the Commission’s standard tariff provisions for sales of ancillary services into

markets operated by RTOs and ISOs and as a third-party supplier,42 and Applicant requests

authorization to sell ancillary services under those provisions.

VII. REQUEST FOR DETERMINATION OF CATEGORY 1 SELLER STATUS

In Order No. 697, the Commission created a category of sellers, i.e., “Category 1

Sellers,” that is exempt from the requirement to file triennial updated market power analyses,43

and stated that it would “make a finding regarding the category in which the seller falls” in

response to new applications for market-based rate authorization.44 Applicant satisfies the

criteria for Category 1 Seller status in all regions because: (1) it and its affiliates will own or

control less than 500 MW of electric generating capacity in aggregate per region; (2) it will not

own, operate, or control transmission facilities other than limited equipment necessary to connect

the Project to the NVE-controlled transmission grid; (3) it is not affiliated with any person that

owns, operates, or controls transmission facilities in any region other than limited equipment

necessary to connect individual generation facilities to the transmission grid, or with any

franchised public utility in any region; and (4) it does not raise any vertical market power

issues.45 Accordingly, Applicant requests that the Commission designate it as a Category 1

Seller in all regions.

VIII. REQUESTS FOR WAIVERS AND ADDITIONAL BLANKET AUTHORITY

Applicant requests that the Commission grant it waivers and blanket authorizations

consistent with those granted to other independent power producers with market-based rate

authority. Specifically, Applicant requests: (1) waiver of Subparts B and C of Part 35 of the

42 E.g., Order No. 697 at PP 917, 1061. 43 E.g., id. at PP 848-49 and n.1000. 44 Id. at P 851. 45 See 18 C.F.R. § 35.36(a)(2). See also Order No. 816 at PP 317-18, 320.

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Commission’s regulations, except for 18 C.F.R. §§ 35.12(a), 35.13(b), 35.15, and 35.16; (2)

waiver of Parts 41, 101, and 141 of the Commission’s regulations, except for 18 C.F.R. §§

141.14 and 141.15;46 (3) blanket authorization under Section 204 of the FPA and Part 34 of the

Commission’s regulations to issue securities and assume liabilities;47 and (4) such other waivers

and authorizations as the Commission may deem appropriate.

IX. REQUEST FOR WAIVER OF PRIOR NOTICE REQUIREMENT

Applicant requests that the Commission waive its 60-day prior notice requirement to

allow Applicant’s MBR Tariff to become effective as of July 1, 2016. Applicant currently

expects to begin generating test power in August 2016, but could be ready to do so before then.

The requested effective date will ensure that Applicant’s MBR Tariff will be effective well in

advance of when Applicant is ready to begin generating test power. The Commission has

previously granted waiver of its prior notice requirement under similar circumstances.48

Accordingly, there is good cause to grant waiver of the 60-day prior notice requirement.

X. CONCLUSION

Applicant requests that the Commission issue an order: (1) accepting Applicant’s

proposed MBR Tariff and authorizing Applicant to sell energy, capacity, and certain ancillary

services at market-based rates as set forth in Applicant’s MBR Tariff; (2) granting waiver of the

prior notice requirement to permit the MBR Tariff to become effective as of July 1, 2016; (3)

designating Applicant as a Category 1 Seller in all regions; and (4) granting Applicant the

46 Order No. 697 at P 984 (“We will continue the Commission’s historical practice of granting waiver of Parts 41, 101 and 141 of the Commission’s regulations to certain entities with market-based rate authority.”). Applicant’s request for waiver of Part 101 is limited as set forth in the proposed MBR Tariff. See Order No. 816 at P 349. 47 16 U.S.C. § 824c; 18 C.F.R. Part 34. 48 See, e.g., CSOLAR IV West, LLC, Docket No. ER14-1656-000 (May 15, 2014) (delegated letter order) (granting market-based rate authority effective one day after the applicant’s filing where the applicant explained that the requested effective date was necessary to ensure that the applicant had market-based rate authority prior to becoming operational).

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waivers and blanket authorizations it requests in this Application and any other waivers

necessary for the Commission to grant this Application.

Respectfully submitted,

/s/ Scott D. Johnson Jack Semrani George D. (Chip) Cannon, Jr. Senior Counsel/Regulatory & Transactions Scott D. Johnson SunPower Corporation Akin Gump Strauss Hauer & Feld LLP 2900 Esperanza Crossing 1333 New Hampshire Avenue, N.W. Austin, TX 78758 Washington, D.C. 20036 Tel: (512) 953-4471 Tel: (202) 887-4000 [email protected] Fax: (202) 887-4288

Dated: June 3, 2016 Attorneys for Boulder Solar Power, LLC

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ATTACHMENT A

MBR Tariff

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BOULDER SOLAR POWER, LLC

MARKET-BASED RATE TARIFF

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BOULDER SOLAR POWER, LLC

MARKET-BASED RATE TARIFF

1. Availability: Boulder Solar Power, LLC (“Seller”) makes electric energy, capacity, and ancillary services available under this Market-Based Rate Tariff (“Tariff”) to any purchaser with whom Seller has contracted, except as prohibited below.

2. Rates: All sales shall be made at rates established by agreement between the purchaser and Seller.

3. Other Terms and Conditions: All other terms and conditions shall be established by agreement between the purchaser and Seller.

4. Seller Category: Seller is a Category 1 seller in all regions, as defined in 18 C.F.R. § 35.36(a).

5. Compliance with Commission Regulations: Seller shall comply with the provisions of 18 C.F.R. Part 35, Subpart H, as applicable, and with any conditions the Commission imposes in its orders concerning Seller’s market-based rate authority, including orders in which the Commission authorizes Seller to engage in affiliate sales under this tariff or otherwise restricts or limits the Seller’s market-based rate authority. Failure to comply with the applicable provisions of 18 C.F.R. Part 35, Subpart H, and with any orders of the Commission concerning Seller’s market-based rate authority, will constitute a violation of this Tariff.

6. Limitations and Exemptions Regarding Market-Based Rate Authority: Seller has received: (1) waiver of Subparts B and C of 18 C.F.R. Part 35, except for sections 35.12(a), 35.13(b), 35.15, and 35.16; (2) waiver of 18 C.F.R. Parts 41, 101 (with the exception that waiver of the provisions of Part 101 that apply to hydropower licensees is not granted with respect to licensed hydropower projects), and 141 (with the exception of sections 141.14 and 141.15); and (3) blanket authorization under Section 204 of the Federal Power Act, 16 U.S.C. § 824c, and 18 C.F.R. Part 34 for all future issuances of securities and assumptions of liabilities. Boulder Solar Power, LLC, Docket No. ER16- ____-000 (2016).

7. Ancillary Services: Seller also will make available to any purchaser with whom it has contracted the following ancillary services:

a. PJM: Seller offers regulation and frequency response service, energy imbalance service, and operating reserve service (which includes spinning, 10-minute, and 30-minute reserves) for sale into the market administered by PJM Interconnection, L.L.C. (“PJM”) and, where the PJM Open Access Transmission Tariff permits, the self-supply of these services to purchasers for a bilateral sale that is used to satisfy the ancillary services requirements of the PJM Office of Interconnection.

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b. New York: Seller offers regulation and frequency response service, and operating reserve service (which include 10-minute non-synchronous, 30-minute operating reserves, 10-minute spinning reserves, and 10-minute non-spinning reserves) for sale to purchasers in the market administered by the New York Independent System Operator, Inc.

c. New England: Seller offers regulation and frequency response service (automatic generator control), operating reserve service (which includes 10- minute spinning reserve, 10-minute non-spinning reserve, and 30-minute operating reserve service) to purchasers within the markets administered by the ISO New England, Inc.

d. California: Seller offers regulation service, spinning reserve service, and non- spinning reserve service to the California Independent System Operator Corporation (“CAISO”) and to others that are self-supplying ancillary services to the CAISO.

e. MISO: Seller offers regulation service and operating reserve service (which include 10-minute spinning reserve and 10-minute supplemental reserve) for sale to the Midcontinent Independent System Operator, Inc. (MISO) and to others that are self-supplying ancillary services to MISO.

f. Southwest Power Pool: Seller offers regulation service and operating reserve service (which include 10-minute spinning reserve and 10-minute supplemental reserve) for sale to the Southwest Power Pool, Inc. (SPP) and to others that are self-supplying ancillary services to SPP.

g. Ancillary Services - Third-Party Provider: Third-party ancillary services: Seller offers Regulation and Frequency Response Service, Reactive Supply and Voltage Control Service, Energy and Generator Imbalance Service, Operating Reserve-Spinning, and Operating Reserve-Supplemental. Sales will not include the following: (1) sales to an RTO or an ISO, i.e., where that entity has no ability to self-supply ancillary services but instead depends on third parties; and (2) sales to a traditional, franchised public utility affiliated with the third-party supplier, or sales where the underlying transmission service is on the system of the public utility affiliated with the third-party supplier. Sales of Operating Reserve- Spinning and Operating Reserve-Supplemental will not include sales to a public utility that is purchasing ancillary services to satisfy its own open access transmission tariff requirements to offer ancillary services to its own customers, except where the Commission has granted authorization. Sales of Regulation and Frequency Response Service and Reactive Supply and Voltage Control Service will not include sales to a public utility that is purchasing ancillary services to satisfy its own open access transmission tariff requirements to offer ancillary services to its own customers, except at rates not to exceed the buying public utility transmission provider’s OATT rate for the same service or where the Commission has granted authorization.

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8. Revisions to Tariff: Seller may file revisions to this Tariff with the Commission. Nothing contained in this Tariff shall be construed as affecting or limiting in any way the right of Seller to unilaterally file with the Commission for a change in any aspect of this Tariff under Section 205 of the Federal Power Act, 16 U.S.C. § 824d, and the Commission’s rules and regulations promulgated thereunder.

9. Effective Date: This Tariff is effective as of the date specified by the Commission.

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ATTACHMENT B

Asset Appendix

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Table 1: Market-Based Rate Authority and Generation Assets

[A] [B] [C] [D] [E] [F] [G] [H] [I] [J] [K] [L] [M] Location Capacity Rating: Methodology End Note Filing Entity Market / Capacity Capacity Docket # where Generation Name Date Geographic Used in [K]: Number and its Balancing In-Service Rating: Rating: MBR authority (Plant or Unit Owned By Controlled By Control Region (N)ameplate, (Enter text Energy Authority Date Nameplate Used in was granted Name) Transferred (S)easonal, 5-yr in End Affiliates Area (MW) Filing (MW) (U)nit, 5-yr (E)IA, Note Tab) (A)lternative

Boulder Solar I Boulder Project (a/k/a Boulder Solar Boulder Solar Expected Solar ER16-___-000 N/A NEVP Northwest 100.0 100.0 N 1, 2 Boulder Solar I Power, LLC Power, LLC 2016 Power, LLC Nevada)

Henrietta Solar Expected Parrey, LLC ER16-1154-001 Parrey, LLC Parrey, LLC N/A CAISO Southwest 102.0 102.0 N 3, 4 Project 2016

Stanford Solar Solar Star Generating Station Solar Star Solar Star Expected California ER16-___-000 (a/k/a Rosamond California XLI, California XLI, N/A CAISO Southwest 54.0 54.0 N 5, 6 2016 XLI, LLC Solar Project LLC LLC Phase I) Golden Fields Golden Solar I Project Golden Fields Golden Fields Expected Fields Solar ER16-___-000 (a/k/a Rosamond N/A CAISO Southwest 54.0 54.0 N 7, 8 Solar I, LLC Solar I, LLC 2016 I, LLC Solar Project Phase II)

Java Solar, Java Solar, Java Solar, Expected ER16-___-000 Java Solar Project N/A CAISO Southwest 14.0 14.0 N 9, 10 LLC LLC LLC 2017

Kingbird Kingbird Solar Kingbird Solar Expected ER16-38-001 Kingbird Solar LLC 03/31/16 CAISO Southwest 20.0 20.0 N 11, 12 Solar A, LLC A, LLC A, LLC 2016

Page 1 of 7 20160603-5296 FERCPDF(Unofficial)6/3/201612:51:20PM Applicant and Affiliates

Kingbird Kingbird Solar Kingbird Solar Expected ER16-39-001 Kingbird Solar LLC 03/31/16 CAISO Southwest 20.0 20.0 N 13, 14 Solar B, LLC B, LLC B, LLC 2016

Solar Star Solar Star Solar Star Colorado III, ER15-2224-000 Hooper Solar Colorado III, Colorado III, 04/01/16 PSCO Northwest 11/16/15 52.0 52.0 N 15, 16 LLC LLC LLC

Solar Star Solar Star Solar Star Quinto Solar PV California ER15-1218-000 California XIII, California XIII, 06/24/15 CAISO Southwest 07/14/15 108.0 108.0 N 17, 18 Project XIII, LLC LLC LLC

Blackwell Blackwell Roseville ER15-55-000 Blackwell 04/16/15 CAISO Southwest 04/2015 12.0 12.0 N 19, 20 Solar, LLC Solar, LLC Electric

Lost Hills Lost Hills Roseville ER15-54-000 Lost Hills 04/16/15 CAISO Southwest 04/2015 20.0 20.0 N 21, 22 Solar, LLC Solar, LLC Electric

Page 2 of 7 20160603-5296 FERCPDF(Unofficial)6/3/201612:51:20PM Applicant and Affiliates

Table 2: Long-Term Purchased Power Agreements (PPA)

[A] [B] [C] [D] [E] [F] [G] [H] [I] Location Docket # where Amount Market / Geographic Filing Entity and its Energy Start Date End Date End Note Number (Enter MBR authority Seller Name of PPA Balancing Region Affiliates (mo/da/yr) (mo/da/yr) text in End Note Tab) was granted (MW) Authority Area

Boulder Solar Power, LLC ER16-___-000 N/A N/A N/A N/A N/A N/A 23

Parrey, LLC ER16-1154-001 N/A N/A N/A N/A N/A N/A 23

Solar Star California XLI, LLC ER16-___-000 N/A N/A N/A N/A N/A N/A 23

Golden Fields Solar I, LLC ER16-___-000 N/A N/A N/A N/A N/A N/A 23

Java Solar, LLC ER16-___-000 N/A N/A N/A N/A N/A N/A 23

Kingbird Solar A, LLC ER16-38-001 N/A N/A N/A N/A N/A N/A 23

Kingbird Solar B, LLC ER16-39-001 N/A N/A N/A N/A N/A N/A 23

Solar Star Colorado III, LLC ER15-2224-000 N/A N/A N/A N/A N/A N/A 23

Solar Star California XIII, LLC ER15-1218-000 N/A N/A N/A N/A N/A N/A 23

Blackwell Solar, LLC ER15-55-000 N/A N/A N/A N/A N/A N/A 23

Lost Hills Solar, LLC ER15-54-000 N/A N/A N/A N/A N/A N/A 23

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Table 3: Transmission Assets / Natural Gas Assets

Electric Transmission Assets and/or Natural Gas Intrastate Pipelines and/or Gas Storage Facilities [A] [B] [C] [D] [E] [F] [G] [H] [I] [J] Location Size Cite to order accepting OATT or Market / Filing Entity order approving End Note Number Date Control Balancing Geographic Region Size: (length and and its Energy the transfer of Asset Name and Use Owned By Controlled By (Enter text in End Note Transferred Authority kV) Affiliates transmission Tab) Area facilities to an RTO or ISO

Shared gen-tie line and related Boulder Solar Boulder Solar Power, Boulder Solar Power, 2.3 miles, N/A premises and N/A NEVP Northwest 24, 25 Power, LLC LLC LLC 230 kV facilities and Shared Facilities Agreement

Shared gen-tie line and related 1.5 miles, Parrey, LLC N/A premises and Parrey, LLC Parrey, LLC N/A CAISO Southwest 24, 25 115 kV facilities and Shared Facilities Agreement

Solar Star California XLI, N/A N/A N/A N/A N/A N/A N/A N/A 24, 25 LLC

Golden Fields N/A N/A N/A N/A N/A N/A N/A N/A 24, 25 Solar I, LLC

Shared gen-tie line and related 1.5 miles, Java Solar, LLC N/A premises and Java Solar, LLC Java Solar, LLC N/A CAISO Southwest 24, 25 115 kV facilities and Shared Facilities Agreement

Shared gen-tie line Kingbird Solar and poles and N/A Kingbird Solar A, LLC AV Solar Ranch 1, LLC N/A CAISO Southwest 230 kV 24, 25 A, LLC Shared Facilities Agreements

Page 4 of 7 20160603-5296 FERCPDF(Unofficial)6/3/201612:51:20PM Applicant and Affiliates

Shared gen-tie line Kingbird Solar and poles and N/A Kingbird Solar B, LLC AV Solar Ranch 1, LLC N/A CAISO Southwest 230 kV 24, 25 B, LLC Shared Facilities Agreements

Solar Star Colorado III, N/A N/A N/A N/A N/A N/A N/A N/A 24, 25 LLC

Solar Star California XIII, N/A N/A N/A N/A N/A N/A N/A N/A 24, 25 LLC

Blackwell N/A N/A N/A N/A N/A N/A N/A N/A 24, 25 Solar, LLC

Lost Hills Solar, N/A N/A N/A N/A N/A N/A N/A N/A 24, 25 LLC

Page 5 of 7 20160603-5296 FERCPDF(Unofficial)6/3/201612:51:20PM Applicant and Affiliates

Asset Appendix: End Notes

[A] [B] [C] List End Note (Generation, Explanatory Note Number PPA, or Transmission)

1 Generation Regarding Cell F6, the Boulder Solar I Project is under development. There has been no transfer of control over it.

2 Generation Nameplate capacity is in MWac.

3 Generation Regarding Cell F7, the Henrietta Solar Project is under development. There has been no transfer of control over it.

4 Generation Nameplate capacity is in MWac (from EIA-860).

5 Generation Regarding Cell F8, the Stanford Solar Generating Station is under development. There has been no transfer of control over it.

6 Generation Nameplate capacity is in MWac.

7 Generation Regarding Cell F9, the Golden Fields Solar I Project is under development. There has been no transfer of control over it.

8 Generation Nameplate capacity is in MWac.

9 Generation Regarding Cell F10, the Java Solar Project is under development. There has been no transfer of control over it.

10 Generation Nameplate capacity is in MWac.

Regarding Cell F11, see 8point3 Energy Partners LP, Notification of Closing, Docket No. EC16-41-000 (filed Apr. 15, 2016) (advising the Commission of the 11 Generation consummation of the sale by First Solar, Inc. of indirect equity interests in Kingbird Solar A, LLC to 8point3 Operating Company, LLC).

12 Generation Nameplate capacity is in MWac (from EIA-860).

Page 6 of 7 20160603-5296 FERCPDF(Unofficial)6/3/201612:51:20PM Applicant and Affiliates

Regarding Cell F12, see 8point3 Energy Partners LP, Notification of Closing, Docket No. EC16-41-000 (filed Apr. 15, 2016) (advising the Commission of the 13 Generation consummation of the sale by First Solar, Inc. of indirect equity interests in Kingbird Solar B, LLC to 8point3 Operating Company, LLC).

14 Generation Nameplate capacity is in MWac (from EIA-860).

Regarding Cell F13, see Solar Star Colorado III, LLC, Notice of Consummation of Transaction, Docket No. EC16-80-000 (filed Apr. 11, 2016) (advising the 15 Generation Commission of the consummation of the sale by SunPower Corp. of indirect equity interests in Solar Star Colorado III, LLC to 8point3 Operating Company, LLC).

16 Generation Nameplate capacity is in MWac (from EIA-860).

Regarding Cell F14, see 8point3 Energy Partners LP, et al ., Notification of Closing, Docket No. EC15-129-000 (filed June 29, 2015) (advising the Commission of the 17 Generation consummation of the proposed transactions through which ownership and control of Solar Star California XIII, LLC was transferred to 8point3 Operating Company, LLC).

18 Generation Nameplate capacity is in MWac (from EIA-860).

Regarding Cell E15, see, e.g. , Blackwell Solar, LLC, et al ., Notice of Non-Material Change in Status, Docket Nos. ER15-54-000, et al . (filed May 15, 2015) (stating that "Roseland Electric" controls the output of the Blackwell Project). Regarding Cell F15, see Blackwell Solar, LLC, et al ., Notice of Consummation, Docket No. 19 Generation EC15-79-000 (filed Apr. 23, 2015) (advising the Commission of the consummation of the transaction through which Southern Renewable Partnerships, LLC acquired 100% of the managing Class A membership interests in Lost Hills Blackwell Holdings, LLC).

20 Generation Nameplate capacity is in MWac (from EIA-860).

Regarding Cell E16, see, e.g. , Blackwell Solar, LLC, et al ., Notice of Non-Material Change in Status, Docket Nos. ER15-54-000, et al . (filed May 15, 2015) (stating that "Roseland Electric" controls the output of the Lost Hills Project). Regarding Cell F16, see Blackwell Solar, LLC, et al ., Notice of Consummation, Docket No. 21 Generation EC15-79-000 (filed Apr. 23, 2015) (advising the Commission of the consummation of the transaction through which Southern Renewable Partnerships, LLC acquired 100% of the managing Class A membership interests in Lost Hills Blackwell Holdings, LLC).

22 Generation Nameplate capacity is in MWac (from EIA-860).

23 PPA None of Applicant or its affiliates is the purchaser under any power purchase agreement.

Table 3 does not include intrastate natural gas pipelines owned by affiliates of Total S.A. (“Total”) that are used solely to service Total’s industrial 24 Transmission operations in Texas.

Applicant and its affiliates either already qualify or will qualify for the blanket waiver provided in the Commission's Order No. 807 because they do not own or 25 Transmission control electric transmission facilities other than those limited transmission facilities necessary to interconnect individual generation facilities to the grid.

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ATTACHMENT C

Organizational Chart

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BOULDER SOLAR POWER, LLC

MARKET-BASED RATE TARIFF

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BOULDER SOLAR POWER, LLC

MARKET-BASED RATE TARIFF

2. Rates: All sales shall be made at rates established by agreement between the purchaser and Seller.

3. Other Terms and Conditions: All other terms and conditions shall be established by agreement between the purchaser and Seller.

4. Seller Category: Seller is a Category 1 seller in all regions, as defined in 18 C.F.R. § 35.36(a).

7. Ancillary Services: Seller also will make available to any purchaser with whom it has contracted the following ancillary services:

20160603-5296 FERC PDF (Unofficial) 6/3/2016 12:51:20 PM

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9. Effective Date: This Tariff is effective as of the date specified by the Commission.

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FERC rendition of the electronically filed tariff records in Docket No. ER16-01882-000 Filing Data: CID: C005278 Filing Title: Market-Based Rate Tariff Company Filing Identifier: 67 Type of Filing Code: 400 Associated Filing Identifier: Tariff Title: Tariffs, Rate Schedules and Service Agreements Tariff ID: 35 Payment Confirmation: Suspension Motion: N

Tariff Record Data: Record Content Description, Tariff Record Title, Record Version Number, Option Code: MBR Tariff, Market-Based Rate Tariff, 1.0.0, A Record Narative Name: Tariff Record ID: 58 Tariff Record Collation Value: 1000 Tariff Record Parent Identifier: 0 Proposed Date: 2016-07-01 Priority Order: 500 Record Change Type: New Record Content Type: 1 Associated Filing Identifier:

BOULDER SOLAR POWER, LLC

MARKET-BASED RATE TARIFF

BOULDER SOLAR POWER, LLC

MARKET-BASED RATE TARIFF

2. Rates: All sales shall be made at rates established by agreement between the purchaser and Seller. 20160603-5296 FERC PDF (Unofficial) 6/3/2016 12:51:20 PM

3. Other Terms and Conditions: All other terms and conditions shall be established by agreement between the purchaser and Seller.

4. Seller Category: Seller is a Category 1 seller in all regions, as defined in 18 C.F.R. § 35.36(a).

7. Ancillary Services: Seller also will make available to any purchaser with whom it has contracted the following ancillary services:

c. New England: Seller offers regulation and frequency response service (automatic generator control), operating reserve service (which includes 10-minute spinning reserve, 10-minute non-spinning reserve, and 30-minute operating reserve service) to purchasers within the markets administered by the ISO New England, Inc. 20160603-5296 FERC PDF (Unofficial) 6/3/2016 12:51:20 PM

d. California: Seller offers regulation service, spinning reserve service, and non-spinning reserve service to the California Independent System Operator Corporation (“CAISO”) and to others that are self-supplying ancillary services to the CAISO.

g. Ancillary Services - Third-Party Provider: Third-party ancillary services: Seller offers Regulation and Frequency Response Service, Reactive Supply and Voltage Control Service, Energy and Generator Imbalance Service, Operating Reserve-Spinning, and Operating Reserve-Supplemental. Sales will not include the following: (1) sales to an RTO or an ISO, i.e., where that entity has no ability to self-supply ancillary services but instead depends on third parties; and (2) sales to a traditional, franchised public utility affiliated with the third-party supplier, or sales where the underlying transmission service is on the system of the public utility affiliated with the third-party supplier. Sales of Operating Reserve-Spinning and Operating Reserve-Supplemental will not include sales to a public utility that is purchasing ancillary services to satisfy its own open access transmission tariff requirements to offer ancillary services to its own customers, except where the Commission has granted authorization. Sales of Regulation and Frequency Response Service and Reactive Supply and Voltage Control Service will not include sales to a public utility that is purchasing ancillary services to satisfy its own open access transmission tariff requirements to offer ancillary services to its own customers, except at rates not to exceed the buying public utility transmission provider’s OATT rate for the same service or where the Commission has granted authorization.

9. Effective Date: This Tariff is effective as of the date specified by the Commission. 20160603-5296 FERC PDF (Unofficial) 6/3/2016 12:51:20 PM Applicant and Affiliates