Patrick F. Welch Featured in In Business Magazine - Trade Across Borders

 
Jennings Strouss attorney Patrick Welch discusses how Arizona is building strong business ties with Mexico.

Read the full article here.

New Laws Promote Development of Small Hydropower Projects

Jennings Strouss Attorneys, Deborah A. Swanstrom and Andrea I. Sarmentero Garzón, author “New Laws Promote Development of Small Hydropower Projects,” published in the December issue of the American Bar Association’s Energy and Natural Resources Litigation Committee Newsletter

New Laws Promote Development of Small Hydropower Projects

Hydropower supplies about seven percent of the U.S. electricity demand and is currently the nation’s largest source of renewable carbon-free energy. The operational flexibility that pumped storage hydropower projects provide to the grid, by responding rapidly to supply and demand imbalances and maintaining power system stability, is particularly beneficial. Yet, reportedly only three percent of the dams in the United States currently generate hydropower. Congress therefore decided to change existing laws to promote more expeditious development of small hydropower projects.

On August 9, 2013, President Obama signed into law two new Acts passed by Congress: (i) the Hydropower Regulatory Efficiency Act, PL 113-23 (August 9, 2013) 127 Stat 493 (“Hydropower Efficiency Act”); and (ii) the Bureau of Reclamation Small Conduit Hydropower Development and Rural Jobs Act, PL 113-24 (August 9, 2013) 127 Stat 498 (“Reclamation Act”). Both Acts streamline and expedite the regulatory approval process to facilitate development of small hydropower projects.

The Hydropower Efficiency Act

The Hydropower Efficiency Act: (1) expands the Federal Energy Regulatory Commission (“FERC” or “Commission”) exemptions for small hydropower projects and conduits; (2) establishes a general exemption from Federal Power Act (“FPA”) license requirements for certain hydropower projects (3) allows the term of preliminary permits to extend beyond three years; (4) directs FERC to investigate the feasibility of an expedited two-year licensing process for certain hydropower projects; and (5) directs the Secretary of the Department of Energy (“DOE”) to conduct certain studies.

1. 1.      Expansion of Existing Exemptions

This new law expands the small project exemption, provided in the Public Utility Regulatory Policies Act and codified in 16 U.S.C. § 2705(d), by increasing the capacity of projects eligible for this exemption from 5 megawatts (“MW”) to 10 MW. The new law also expands the existing conduit exemption, provided in the FPA and codified in 16 U.S.C. § 823a, by increasing the capacity of non-municipal projects eligible for this exemption from 15 MW to 40 MW. Municipal hydropower projects keep their prior 40 MW eligibility threshold for conduit exemptions. The new law maintains the FPA definition of “conduit” as any tunnel, canal, pipeline, aqueduct, flume, ditch or similar manmade water conveyance that is operated for the distribution of water for agricultural, municipal, or industrial consumption and not primarily for the generation of electricity.

1. 2.      General Exemption from License Requirements

The new law exempts from the FPA’s license requirements small hydropower projects that meet the following criteria: (1) use for electric power generation only the hydroelectric potential of a non-federally owned conduit, (2) have a maximum installed capacity of 5 MW, and (3) are not currently licensed or exempted from license requirements.

The Hydropower Efficiency Act requires any person, state, or municipality proposing to construct a qualifying conduit hydropower facility to file with FERC a notice of intent. FERC recently posted a template of notice of intent on its website.

The Act also requires FERC to make an initial determination as to whether the facility meets the qualifying criteria within fifteen days after receiving such a notice of intent. If the initial determination finds that the hydropower project meets the criteria for exemption, FERC must publish public notice of the notice of intent. If an entity contests whether the hydropower project meets the criteria for an exemption, FERC must issue a final determination within forty-five days after the date of publication of the public notice. If no entity contests whether the hydropower project meets the criteria for an exemption, then the project will be deemed to meet the criteria for waiver within forty-five days after the date of publication of the public notice without further FERC action.

1. 3.      Extension of Preliminary Permits

FERC is now authorized to extend the preliminary permit term for up to two additional years beyond the three years currently allowed if FERC finds that the permittee has implemented activities under the permit in good faith and with reasonable diligence. In the prior regime, there was no extension of time for expired preliminary permits. The permittee was and still is allowed to file another preliminary permit application for the same location but it is not guaranteed to keep its licensing priority because the second preliminary permit application, like the initial permit application, is open to potential competing applications by other entities.

1. 4.      Expedited Licensing Process

Currently, licensing processes for hydropower projects may take up to five years. To expedite the licensing of low impact hydropower projects, the new law directs FERC to investigate the feasibility of issuing a license for hydropower projects at non-powered dams and closed loop pumped storage projects in a two-year period. Significantly, the new law states that this two-year period shall include any FERC pre-licensing process.

FERC must hold a series of workshops to solicit public comment on how to implement the expedited licensing process and develop the applicable qualification criteria. On October 22, 2013, FERC held its first workshop under Docket No. AD13-9-000. On January 2, 2014 FERC issued a Notice opening a three-month window to file petitions for expedited hydro license under a pilot program starting February 5, 2014 and ending on May 5, 2014. The projects to be filed must comply with the following minimum criteria:

• Must cause little to no change to existing surface and groundwater flows and uses;
• Must not adversely affect federally listed threatened and endangered species;
• If the project is proposed to be located at or use a federal dam, the request to use the two-year process must include a letter from the dam owner saying the plan is feasible;
• If the project would use any public park, recreation area, or wildlife refuge, the request to use the two-year process must include a letter from the managing entity giving its approval to use the site; and
• For a closed-loop pumped storage project, the project must not be continuously connected to a naturally flowing water feature.

FERC will select the projects that best fit within these minimum criteria and initiate the pilot program to test the feasibility of an expedited two-year expedited licensing process. By February 2017, FERC must hold a final workshop to solicit public comment on the effectiveness of the tested two-year licensing process.

1. 5.      DOE Studies

The Hydropower Efficiency Act directs DOE to study: (1) the technical flexibility that existing pumped storage facilities can provide to support intermittent renewable electric energy generation, including the potential for such facilities to be upgraded or retrofitted with advanced commercially available technology; and (2) the technical potential of existing pumped storage facilities and new advanced pumped storage facilities to provide grid reliability benefits.

The Reclamation Act

The Reclamation Act: (1) provides that the Bureau of Reclamation (“Reclamation”) Power Resources Office is the lead office of small conduit hydropower processes; (2) defines “small conduit hydropower” as a facility capable of producing 5 MW or less of electric capacity; (3) excludes small conduit hydropower projects from requirements under the National Environmental Policy Act of 1969 (“NEPA”); and (4) establishes a right of first refusal for the lease of power privilege to irrigation districts or water users associations.

1. 1.      Lead Office

The new Reclamation Act amends the Reclamation Project Act of 1939 to authorize the Secretary of the Interior (acting through Reclamation) to contract for the development of small conduit hydropower projects. Reclamation’s Power Resources Office is established as the lead office of small conduit hydropower policy and procedure setting activities. According to the Congressional Research Service’ summary of the enacted bill, 113th Congress, 2013–2015. H.R. 678, (April 10, 2013) this “lead office” role is intended to exclude such activities from FERC’s jurisdiction.

1. 2.      NEPA Categorical Exclusion

The new law requires the Bureau to apply its categorical exclusion process under NEPA to qualifying small conduit hydropower projects. This exclusion does not include the siting of associated transmission facilities on federal lands. The application of this categorical exclusion under NEPA means that these small conduit hydropower projects in Reclamation’s conduits could be allowed to proceed without preparing NEPA environmental documents, such as an environmental impact statement.

1. 3.      Right of First Refusal

The new law requires that a lease of power privilege be offered first to an irrigation district or water users association operating or receiving water from transferred or reserved conduits. The law defines: (i) “reserved conduit” as any conduit included in project works whose care, operation, and maintenance has been reserved by Reclamation; and (ii) “transferred conduit” as any conduit included in project works whose care, operation, and maintenance has been transferred to a legally organized water users association or irrigation district.

If the irrigation district or water users association elects not to accept a lease of power privilege offer, Reclamation must offer the lease of power privilege to other parties.

Litigation Issues

The use of a categorical NEPA exclusion under the Reclamation Act and the expedited licensing process combined with the new exemption from license requirements under the Hydropower Efficiency Act is expected to reduce costs incurred by small hydropower project developers, including costs associated with long processes and protracted litigation.

These new streamlined processes and reduced bureaucratic and litigation costs should help induce construction of small hydropower projects. However, it remains possible that some environmental groups or third parties attempting to halt construction of specific hydropower projects challenge the implementation of these streamlined processes.

This article was largely published in the ABA Section of Environment, Energy & Natural Resources – Litigation Committee Newsletter, December 2013, Vol. 2, No. 1.

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Jennings, Strouss & Salmon Elects New Members

PHOENIX, Ariz. (January 6, 2014) – Jennings, Strouss & Salmon, a leading Phoenix-based law firm, is pleased to announce that Kerry A. Hodges and Anne E. McClellan have been elected Members (Partners) of the firm, effective January 1, 2014.
“We congratulate Kerry and Anne for their achievement, which reflects our confidence in their legal skills, professionalism, and standing in the community,” said J. Scott Rhodes, Managing Attorney at Jennings, Strouss & Salmon.

Hodges is a litigator whose practice focuses on commercial, real estate, bankruptcy and business disputes. He also has experience in representing attorneys in disciplinary proceedings before the State Bar. Prior to joining the firm, Hodges served as a law clerk to the Honorable James A. Teilborg of the U.S. District Court for the District of Arizona. Before embarking on his legal career, he played professional baseball for two seasons in the Houston Astros minor league system. Hodges earned a B.A. in English from Texas Tech University, and a J.D. from Regent University School of Law.

McClellan focuses her practice on litigation, health care, medical and professional liability defense, and health insurance subrogation and lien enforcement. Prior to joining the firm, McClellan served as a legal extern to the Arizona Attorney General's Office. She earned a B.A. in Political Science and History from Webster University, and a J.D. from Arizona State University Sandra Day O’Connor College of Law.



About Jennings, Strouss & Salmon
Jennings Strouss & Salmon is one of the Southwest's leading law firms, providing legal counsel for over 70 years through its offices in Phoenix, Peoria, and Yuma, Arizona; and Washington, D.C. The firm's primary areas of practice include agribusiness; bankruptcy, reorganization and creditors’ rights; construction; corporate and securities; employee benefits and pensions; energy; family law and domestic relations; health care; intellectual property; labor and employment; litigation; real estate; surety and fidelity; tax; and trust and estates. For additional information please visit www.jsslaw.com and follow us on LinkedIn, Facebook and Twitter.

~JSS~

Contact:  Dawn O. Anderson  |  danderson@jsslaw.com|  602.495.2806

Jennings Strouss & Salmon Selected as One of the “2013 Best Places to Work”

PHOENIX, Ariz. (December 23, 2013) – Jennings, Strouss & Salmon, a leading Phoenix-based law firm, is pleased to announce that it has been named to The Phoenix Business Journal's, "2013 Best Places to Work" list in the medium-sized business category (under 500 employees).

The "Best Places to Work" list, which was started in 2003, recognizes Valley companies who, through a third party administered employee survey, rank their respective companies as being the best places to work. The areas surveyed are varied parts of employee life, including workplace environment, leadership direction, culture, and management practices. Jennings Strouss & Salmon was acknowledged for creating an enjoyable corporate culture and work environment that fosters personal and professional growth for its employees.

"We are excited to rank on the ‘Best Places to Work' list this year," said J. Scott Rhodes, Managing Attorney. "Making the list is truly an honor that undoubtedly provides all of our employees with a sense of pride."

Winners were announced at the "Best Places to Work" Luncheon, held December 12^th at the Fairmont Scottsdale Princess.

About Jennings, Strouss & Salmon
Jennings Strouss & Salmon is one of the Southwest's leading law firms, providing legal counsel for over 70 years through its offices in Phoenix, Peoria, and Yuma, Arizona; and Washington, D.C. The firm's primary areas of practice include agribusiness; bankruptcy, reorganization and creditors’ rights; construction; corporate and securities; employee benefits and pensions; energy; family law and domestic relations; health care; intellectual property; labor and employment; litigation; real estate, land use and zoning; surety and fidelity; tax; and trust and estates. For additional information please visit www.jsslaw.com and follow us on LinkedIn, Facebook and Twitter.

~JSS~

 

Contact:  Dawn O. Anderson  |  danderson@jsslaw.com|  602.495.2806

Think Twice Before Photocopying Military Identification Cards

Many businesses offer active-duty and retired members of the United States’ Armed Forces discounts on products and services.  While this is certainly a commendable practice, it is not without risk to the business offering the discount.  Many such businesses require some type of verification of a customer’s military status before qualifying the customer for the offered discount.  Many businesses, including those not offering discounts but needing verification of identity for other purposes, have adopted the practice of making a photocopy of the customer’s military identification card.  Doing so, however, while seemingly the easiest way to obtain such verification, can result in a criminal violation of Federal law.

The statute in question, 18 U.S.C. § 701, does not require intent or an evil motive, but rather, requires only the simple act of photocopying a military identification card to establish the violation. 

The statute in question provides:

Whoever manufactures, sells, or possesses any badge, identification card, or other insignia, of the design prescribed by the head of any department or agency of the United States for use by any officer or employee thereof, or any colorable imitation thereof, or photographs, prints, or in any other manner makes or executes any engraving, photograph, print, or impression in the likeness of any such badge, identification card, or other insignia, or any colorable imitation thereof, except as authorized under regulations made pursuant to law, shall be fined under this title or imprisoned not more than six months, or both.

(Emphasis added).

If your business offers military discounts and collects verification of a customer’s military status, make sure your employees are aware of this prohibition and, if you have not done so already, a policy should be adopted and incorporated into your training program to ensure that this prohibition is known and complied with by your team. 

Please note that the only prohibition arising out of the above statute relates to photocopying the military identification card. You can ask to see the customer’s military identification card and can make note of all information contained on the card, you just cannot photocopy it. If merely making note of the information on the card is not sufficient for your internal purposes, you can request that the customer provide written confirmation of his or her status as a military member from his or her commanding officer.  Alternatively, you can obtain a Service Members Civil Relief Act Certificate through a public website which allows businesses to verify the current active military status of specific individuals. There is no charge for the certificate if obtained online. You can submit a request for the certificate on the Department of Defense’s website at www.defense.gov by searching for “Service Members Civil Relief Act Certificates.” 

As with any blanket prohibition, there are certain exceptions where the photocopying of military IDs is permitted. There is an exception for health care providers, which permits them to make photocopies of military IDs only for the purpose of providing benefits. This exception can be found in a  Department of Defense Instruction issued in 1997, and provides that civilian and military medical providers are authorized to photocopy military ID as proof of insurance for the purposes of providing medical care to Department of Defense beneficiaries.

Another exception is in connection with an employer’s compliance with the Immigration and Nationality Act, the federal statute governing the form I-9 process. This Act expressly permits the photocopying of any “document presented by an individual pursuant to this subsection.” Since a military identification card is one of the permissible forms of identification under this Act, an employer may photocopy the military ID and retain the copy (only for the purposes of complying with the Act). 

If your business offers military discounts, or has a practice of photocopying military identification cards for your business/commercial purposes, make certain your employees are aware of this prohibition and adjust your policies and procedures accordingly so you do not become an example of no good deed going unpunished.

If you have any questions regarding your policies or procedures in this area, please seek the advice of competent counsel.

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Client Alert: 2013 Year End Tax Planning Strategies

For the first time in several years, taxpayers can consider their year-end tax planning devoid of speculation as to what, if any, eminent changes Congress may enact to the tax laws. Most commentators are predicting that there will be no substantial tax law changes in 2014.

This year, for the first time, tax planning for taxpayers with adjusted gross incomes over threshold amounts ($200,000 for single taxpayers; $250,000 for married taxpayers) must take into account the new 3.8% Medicare tax on Net Investment Income that was enacted as part of the Affordable Care Act of 2010. Net Investment Income includes interest, dividends, rents, royalties and annuity income, but also includes taxable income from trades or businesses that were passive activities of the taxpayer under IRC § 469.

You may recall that a passive activity is a trade or business in which the taxpayer does not actively participate. The temporary regulations under IRC § 469 set forth seven different tests to determine whether the taxpayer actively participated in the activity. (The 500 hour standard is the most commonly used test). Taxpayers (together with their tax advisors) should analyze whether they are on track to satisfy the material participation standards for their profitable trade or business activities. The expenditure of a few additional hours in the activity prior to year-end may permit exclusion of that activity's income from Net Investment Income, thus avoiding the 3.8% Medicare tax on that income.
Contemporaneous documentation of the time that the taxpayer devoted to the activity is imperative for these purposes. In our experience, IRS auditors tend to accord much greater credibility to records that are prepared prior to the filing of the related returns, in contrast to those that are generated at a later time in connection with the audit.

The timely recording of participation hours is, of course, also important to any taxpayer activities that are not profitable, in order to avoid the suspension of the deductibility of such losses under the passive activity loss rules.

We have compiled a checklist of actions that may help you save tax dollars if you act before year-end. Not all actions will apply in your particular situation, but you will likely benefit from many of them. We can narrow down the specific actions that you can take once we meet with you to tailor a particular plan. In the meantime, please review the following list and contact us at your earliest convenience so that we can advise you on which tax-saving moves to make.
Depending upon the individual circumstances of a taxpayer, customary year-end tax planning strategies might include the following:

• Increase the amount you set aside for next year in your employer's health flexible spending account (FSA) if you set aside too little for this year.
• If you become eligible to make health savings account (HSA) contributions in December of this year, you can make a full year's worth of deductible HSA contributions for 2013.
• Realize losses on stock while substantially preserving your investment position. There are several ways this can be done. For example, you can sell the original holding, then buy back the same securities at least 31 days later.
• Postpone income until 2014 and accelerate deductions into 2013 to lower your 2013 tax bill. This strategy may enable you to claim larger deductions, credits, and other tax breaks for 2013. These include IRA and Roth IRA contributions, child credits, higher education tax credits, the above-the-line deduction for higher-education expenses, and deductions for student loan interest. Postponing income is also desirable for those taxpayers who anticipate being in a lower tax bracket next year due to changed financial circumstances. Note, however, that in some cases, it may pay to actually accelerate income into 2013. For example, this may be the case where a person's marginal tax rate is much lower this year than it will be next year. Finally, taxpayers should realize that for tax years 2013 and after, the "Pease" phase out of itemized deductions is once again applicable.
• If you believe a Roth IRA is better than a traditional IRA, and want to remain in the market for the long term, consider converting IRA money that is invested in beaten-down stocks (or mutual funds) into Roth IRAs if eligible to do so. Keep in mind, however, that such a conversion will increase your adjusted gross income for 2013. Remember also to take your required minimum distributions from your IRA, 401(k) plan, or other qualified plan.
• It may be advantageous to try to arrange with your employer to defer a bonus that may be coming your way until 2014.
• If you own an interest in a partnership or S corporation, you may need to increase your basis in the entity so that you can deduct a loss from it for this year.
• Consider prepaying expenses that can generate deductions for this year.
• If you expect to owe state and local income taxes when you file your return next year, ask your employer to increase withholding of state and local taxes (or pay estimated tax payments of state and local taxes) before year-end to pull the deduction of those taxes into 2013, if doing so will not create an Alternate Minimum Tax (AMT) problem.
• Those facing a penalty for underpayment of federal estimated tax may be able to eliminate or reduce it by increasing their withholding prior to year-end.
• Estimate the effect of any year-end planning moves on the AMT for 2013, keeping in mind that many tax breaks allowed for purposes of calculating regular taxes are disallowed for AMT purposes. This includes the deduction for state property taxes on your residence, state income taxes (or state sales tax if you elect this deduction option), miscellaneous itemized deductions, and personal exemption deductions. Other deductions, such as for medical expenses, are calculated in a more restrictive way for AMT purposes than for regular tax purposes. As a result, in some cases, deductions should be deferred rather than accelerated to keep them from being lost because of the AMT.
• Businesses should consider making expenditures that qualify for the business property expensing option (under IRC § 179) for assets bought and placed in service this year.
• You may want to settle an insurance or damage claim in order to maximize your casualty loss deduction this year.
• If you are self-employed and have not done so yet, set up a self-employed retirement plan.
• If you are thinking of donating a used auto to charity, you may want to inquire whether the charity plans to sell the car or use it in its charitable activities, the latter may yield a bigger deduction for you.
• If you are age 70½ or older, own IRAs (or Roth IRAs), and are thinking of making a charitable gift before year-end, consider arranging for the gift to be made directly by the IRA trustee. Such a transfer can achieve important tax savings.
• Consider extending your subscriptions to professional journals, paying union or professional dues, enrolling in (and paying tuition for) job-related courses, etc., to bunch into 2013 miscellaneous itemized deductions subject to the 2%-of-AGI floor.
• Depending on your particular situation, you may also want to consider triggering a debt-cancellation event in 2013, electing to deduct investment interest against capital gains, or disposing of a passive activity to allow you to deduct suspended losses.
• Make gifts sheltered by the annual gift tax exclusion before the end of the year and thereby save gift and estate taxes. You can give $14,000 in 2013 to each of an unlimited number of individuals, but you cannot carry over unused annual exclusions from one year to the next. The transfers also may save family income taxes where income-earning property is given to family members in lower income tax brackets who are not subject to the kiddie tax. Certain taxpayers should also consider using some or all of their lifetime gift and estate tax exclusion (asset value equivalent of $5.25 million in 2013, increasing to $5.34 million for 2014) prior to year end.
• Purchase qualified small business stock (QSBS) before the end of this year. There is no tax on gain from the sale of such stock if it is (1) purchased after September 27, 2010 and before January 1, 2014, and (2) held for more than five years. In addition, such sales won't cause AMT preference problems. To qualify for these breaks, the stock must be issued by a regular C corporation with total gross assets of $50 million or less, and a number of other technical requirements must be met.

These are just some of the year-end steps that can be taken to reduce taxes. These suggested strategies must, of course, be carefully considered in light of the precise circumstances confronting each taxpayer. Obviously, one size does not fit all when it comes to tax planning.

About the Author: Jack N. Rudel is a member of Jennings, Strouss & Salmon law firm. Mr. Rudel is a seasoned practitioner, having provided legal advice to international, national, regional and local business clients for over thirty-five years. Mr. Rudel is certified as a Tax Specialist by the State Bar Board of Specialization, and provides representation to such clients in tax (U.S. and International), general business planning, corporate law, mergers and acquisitions, and real estate matters. Mr. Rudel can be contacted by email jrudel@jsslaw.com or 602.262.5951.

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