TITLE XXXIV
PUBLIC UTILITIES
Chapter 374-A
AUTHORIZING ELECTRIC UTILITIES TO PARTICIPATE IN ELECTRIC POWER FACILITIES
Section 374-A:1
374-A:1 Definitions. –
In this chapter:
I. "Commission" means the public utilities commission.
II. "Domestic electric utility" means an electric utility resident in, or organized under the laws of this state.
III. "Electric power facilities" means generating units rated 25 megawatts or above and transmission facilities rated 69 kilovolts or above planned to be placed in service in New England after June 24, 1975.
IV. "Electric utility" means any individual or entity or subdivision thereof, private, governmental or other, including a municipal utility, wherever resident or organized, primarily engaged in the generation and sale or the purchase and sale of electricity or the transmission thereof, for ultimate consumption by the public.
V. "Foreign electric utility" means any electric utility other than a domestic electric utility.
VI. "Municipal utility" means a city, county, town or village district within the state, engaged in the generation and sale or the purchase and sale of electricity or the transmission thereof, for ultimate consumption by the public under RSA 38, RSA 52 or any special laws. Except where otherwise specifically provided, a municipal utility may exercise any of its powers or authority contained in this chapter through its municipal officers or members of the board of commissioners in whom the management of such municipal utility is vested.
Source. 1975, 501:1. 1986, 70:1, eff. July 11, 1986.
Authority, Taxation, Regulation
Section 374-A:2
374-A:2 Powers of Domestic Electric Utilities. –
Notwithstanding any contrary provision of any general or special law relating to the powers and authorities of domestic electric utilities or any limitation imposed by a corporate or municipal charter, but subject to the conditions set forth in this chapter, a domestic electric utility shall have the following additional powers:
I. To jointly or separately plan, finance, construct, purchase, operate, maintain, use, share costs of, own, mortgage, lease, sell, dispose of or otherwise participate in electric power facilities or portions thereof within or without the state or the product or service therefrom or securities issued in connection with the financing of electric power facilities or portions thereof; and
II. To enter into and perform contracts and agreements for such joint or separate planning, financing, construction, purchase, operation, maintenance, use, sharing costs of, ownership, mortgaging, leasing, sale, disposal of or other participation in electric power facilities, or portions thereof, or the product or service therefrom, or securities issued in connection with the financing of electric power facilities or portions thereof, including, without limitation, contracts and agreements for the payment of obligations imposed without regard to the operational status of a facility or facilities and contracts and agreements with domestic or foreign electric utilities for the sale or purchase of electricity from an electric power facility or facilities for long or short periods of time or for the life of a specific electric generating unit or units. Such contracts and agreements may contain provisions for arbitration, delegation, non-unanimous amendment and any other matters deemed necessary or desirable to carry out their purposes.
Nothing in this section shall be construed to authorize a domestic electric utility to sell electricity at wholesale or retail within or without this state except:
(a) As otherwise authorized by or under its charter or the general or special laws of this state other than by this chapter;
(b) In connection with sales of economy, backup and other energy; and
(c) For any sale or sales of capacity and related energy from a specifically identified generating unit which is an electric power facility.
Source. 1975, 501:1, eff. June 24, 1975.
Section 374-A:2-a
374-A:2-a Municipal Purchase and Distribution of Electricity. –
Notwithstanding any provision of law to the contrary, a municipality may enter into an agreement with another municipality in order to jointly purchase electrical service from a facility or provider. Any municipality which enters into such an agreement may distribute electricity to any municipality which is a party to the agreement.
Source. 1996, 192:1, eff. Aug. 2, 1996.
Section 374-A:3
374-A:3 Powers of Foreign Electric Utilities. –
Notwithstanding any contrary provision of any general or special law relating to the powers and authorities of foreign electric utilities, but subject to the conditions set forth in this chapter, a foreign electric utility shall have the following additional powers: Jointly, with one or more other electric utilities, including at least one domestic electric utility, to construct, purchase, operate, maintain, use, own, mortgage, lease, sell, dispose of or otherwise participate in electric power facilities or portions thereof within this state or the product or service therefrom and in connection therewith to enter into and perform within the state contracts and agreements as provided in RSA 374-A:2, II; provided, however, that nothing in this section shall be construed to exempt from state regulation any facility, product or service to which this section applies or to authorize a foreign electric utility to sell electricity at wholesale or retail within this state except:
I. As otherwise authorized by or under the laws of this state other than this chapter;
II. In connection with sales of economy, backup and other energy; and
III. For any sale or sales of capacity and related energy from a specifically identified generating unit which is an electric power facility.
Source. 1975, 501:1, eff. June 24, 1975.
Section 374-A:4
374-A:4 Joint Ownership and Waiver of the Right of Partition. –
If any domestic or foreign electric utility acquires or owns an interest as a tenant in common with one or more other domestic or foreign electric utilities in any electric power facilities in this state, the surrender or waiver by any such owner of such property of its right to partition such property shall not be invalid or unenforceable as unduely restricting the alienation of such property.
Source. 1975, 501:1, eff. June 24, 1975.
Section 374-A:5
374-A:5 Taxation. –
I. All electric power facilities, real and personal, situated within the state of any domestic electric utility other than a municipal utility, all such facilities of a municipal utility situated within the state but without its corporate limits, and all such facilities situated within the state of any foreign electric utility shall be subject to assessment and taxation as tangible property in the same manner and to the same extent as is provided by law with respect to such property of a corporation defined as a "public utility" in RSA 362:2.
II. Legislative consent is hereby given to the application to any domestic electric utility which has acquired or has an interest in an electric power facility, real or personal, situated without the state, or which is acting without the state pursuant to authority granted in this chapter, of the laws of other states with respect to taxation, payments in lieu of taxes, and the assessment thereof.
Source. 1975, 501:1, eff. June 24, 1975.
Section 374-A:6
374-A:6 Regulation of Domestic Electric Utilities. –
I. (a) Notwithstanding the exception for municipal corporations operating within their corporate limits provided in RSA 362:2, any municipal utility which acquires or is acquiring or has any interest in an electric power facility located within its corporate limits or elsewhere shall, with respect to such facility so long as it retains such interest therein, be considered a "public utility" for all purposes of RSA Title XXXIV and a corporation to which the provisions of RSA 231:159-182 shall be applicable, provided that RSA 231:159-182 to the extent not now applicable to a municipal utility shall be applicable to such a utility only with respect to those facilities constituting electric power facilities; provided, however, that nothing in this section shall be deemed to affect either such municipal utility's exemption from public utility status while operating within its corporate limits or such municipal utility's status as a public utility while operating outside its corporate limits, except in either case with respect to its interest in such facility; and provided, further, that the following requirements of RSA Title XXXIV shall be applicable only to the extent, if any, hereinafter specified:
(1) The provisions of RSA 359-T, 367, 368, 372, 373, 376, 377, 379, 380, 381, and 382 and all sections in RSA Title XXXIV relating solely to public utilities other than electric utilities shall not apply to any such municipal utility;
(2) The provisions of RSA 363-A and 364 and the provisions of RSA 366:8, 369:8, 369:14-16, 374:12, and 374:32 shall not apply to any such municipal utility;
(3) The provisions of RSA 371 shall be applicable to a municipal utility only with respect to those facilities constituting electric power facilities; and
(4) The provisions of RSA 378 shall apply only to rates, prices and charges made by any such municipal utility for sales of electricity other than to the ultimate consumer thereof.
(b) In construing all sections of RSA Title XXXIV where reference is made to officers or directors of a public utility, such provisions shall, where applicable to any municipal utility by virtue of the provisions of subparagraph (a), be deemed to include the municipal officers or members of the board of commissioners in whom the management of such municipal utility is vested.
(c) Notwithstanding any other provision of law, any municipal charter, or any ordinance or bylaw adopted thereunder, competitive bidding shall not be required in connection with the purchase of equipment, supplies or materials required for the construction or operation of electric power facilities. Any provision of any law, municipal charter, ordinance or bylaw relating to contracts awarded by municipalities or municipal utilities for construction, reconstruction, alteration, remodeling, repair, demolition, equipment, supplies or materials shall not be applicable to contracts related to electric power facilities wherever the utility or utilities having primary responsibility for the construction or operation of the facility are not municipal utilities.
II. Legislative consent is hereby given to the application to any domestic electric utility which is acting without the state, pursuant to authority granted in this chapter, of regulatory and other laws of other states and of the United States.
III. In addition to ownership, sole or joint in electric power facilities, the commission shall include in the rate base of a domestic electric utility any investments, including securities, prepayments or other investments, acquired by it in connection with its participation in an electric power facility within or without the state.
Source. 1975, 501:1, eff. June 24, 1975. 2013, 100:9, eff. Aug. 23, 2013. 2022, 14:5, eff. Jan. 1, 2023.
Section 374-A:7
374-A:7 Regulation of Foreign Electric Utilities. –
I. Each foreign electric utility which is acting pursuant to authority granted in this chapter shall, before owning or operating any electric power facilities in this state, notify the commission of the action to be taken by it and obtain the commission's permission under RSA 374:22 and 26 to the extent such permission is required by RSA 374:22; shall thereafter furnish to the commission annually a copy of the annual report filed by it with the utility regulatory agency of the state of its domicile or principal locus; and shall furnish to the commission from time to time such other information with respect to its activities in the state as the commission may reasonably request;
II. Any foreign electric utility which owns or operates any electric power facilities in this state shall:
(a) File with the secretary of state as a foreign corporation doing business in New Hampshire and consent to service of process pursuant to the provisions of RSA 293-A;
(b) Be subject to and comply with all laws and regulations applicable to the construction, operation and use of such electric power facilities; provided, however, that such foreign electric utility shall not be deemed to be a public utility for the purposes of RSA Title XXXIV except in relation to its activities as a participant in electric power facilities within the state and except to the extent that the activities in this state of such foreign electric utility exclusive of such participation in electric power facilities shall cause it to be deemed a public utility; and
(c) Be subject to the requirements of RSA 369 and other regulatory laws within the state with respect to any financing of its interest in such electric power facilities, including any borrowing or the issuance of any notes, bonds or other evidence of indebtedness or securities of any nature; provided, however, that it shall be exempt from the requirements of this subparagraph upon certification filed with the commission by a regulatory agency of the state of domicile or principal locus of such foreign electric utility, or of the United States, either that said regulatory agency has general regulatory jurisdiction over the financing of such foreign electric utility or that said regulatory agency has exercised jurisdiction over, or has reviewed and not objected to, a particular proposed financing or that said regulatory agency has general supervision of such foreign electric utility in the conduct of its electric business.
Source. 1975, 501:1, eff. June 24, 1975.
Application of Related Laws
Section 374-A:8
374-A:8 Proceedings to Acquire Property or to Obtain Rights in Public Waters and Lands. –
Electric generating stations, electric substations, and lines for transmission of electricity which are electric power facilities, irrespective of the destination and ultimate use of the electricity to be so generated and transmitted, shall be electric generating stations, electric substations, and lines for transmission of electricity for which an electric utility, domestic or foreign, may petition under RSA 371 for permission to take lands, rights or easements by eminent domain or for a license to construct and maintain facilities over, under or across public waters or state lands, provided that the commission shall find that such facilities will provide a substantial benefit to the public in this state.
Source. 1975, 501:1, eff. June 24, 1975.
Section 374-A:9
374-A:9 Provision for Exemption From Zoning Regulations. –
For purposes of RSA 674:30, an electric power facility located within the state and used or to be used by one or more domestic or foreign electric utilities pursuant to authority set forth in this chapter shall be considered a structure used or to be used by a public utility, and each such utility, shall be considered a public utility.
Source. 1975, 501:1, eff. June 24, 1975.
Section 374-A:10
374-A:10 Severability. –
This chapter shall be construed in all respects so as to meet all constitutional requirements. Except as expressly provided, this chapter shall not affect the interpretation of other laws. If any provision or clause of this chapter, or the application thereof to any person or circumstance, is held invalid, such invalidity shall not affect other provisions or applications of this chapter, and to that end, the provisions of this chapter are declared to be severable. Each section of this chapter shall be separable from all other sections hereof and the nullification of any section from this chapter shall have no effect on the remaining sections of this chapter.
Source. 1975, 501:1, eff. June 24, 1975.