TITLE 29

State Government

Departments of Government

CHAPTER 80. DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL

Subchapter II. The Delaware Energy Act


(a) This subchapter shall be known and may be cited as "The Delaware Energy Act."

(b) The General Assembly finds and declares that:

(1) An adequate, reliable, and continuous supply of energy is essential to the health, safety, and welfare of the citizens of this State and to the sustained growth of the State's economy;

(2) Shortages of non-renewable energy resources could threaten the reliable supply of energy in the State;

(3) Inefficient energy consumption leads to increased air pollution from traditional means of producing energy, which may be significantly mitigated by the development of efficiency programs and alternative energy resources;

(4) Growth and inefficient energy usage must be addressed programmatically to continue the social, economic and environmental vitality of the State;

(5) The State must provide for the development of a comprehensive state energy policy which will ensure an adequate, reliable and continuous supply of energy and which is protective of public health and the environment and which promotes our general welfare and economic well-being;

(6) The establishment of the State Energy Office is in the public interest and will promote the general welfare by assuring coordinated and efficient management of state energy policy.

(c) It is the purpose and intent of the General Assembly:

(1) To establish the State Energy Office within the Department of Natural Resources and Environmental Control;

(2) To provide for development and maintenance of a comprehensive state energy plan;

(3) To provide for the development and maintenance of a state emergency energy shortage contingency plan;

(4) To provide for the development of a state facilities energy management plan;

(5) To reduce, to the maximum extent possible, the environmental consequences of energy generation and use in the State;

(6) To achieve effective management of energy functions within the state government;

(7) To encourage and ensure full and effective public participation in the formulation and implementation of a state energy plan.

74 Del. Laws, c. 38, § 1.;

For the purposes of this subchapter:

(1) "Cost effective energy efficiency projects" means energy efficiency improvements including, but not limited to, wall, floor and ceiling/attic insulation, lighting and electrical upgrades, window replacements and HVAC tune-ups and replacements with a return on investment (ROI) of less than 3 years based upon materials and labor.

(2) "Customer" means any person that has constructed, purchased or leased Renewable Energy Technology and placed it in service in this State for the purpose of generating or receiving energy in this State, including the owner/operator of any building or facility, but not the occupants thereof, that supplies energy to the occupants of such building or facility.

(3) "Person" means and includes an individual, a trust, estate, partnership, limited liability company, association, company or corporation.

(4) "Renewable energy technology" or "alternative energy technology" means and includes any of the following machinery, equipment, or real property:

a. Hydroelectric generators, located at existing dams or in free-flowing waterways, and related devices for water supply and control, and converting, conditioning, and storing the electricity generated;

b. Wind equipment, required to capture and convert wind energy into electricity or mechanical power, and related devices for converting, conditioning and storing the electricity produced;

c. Solar energy equipment, and related devices necessary for collecting, storing, exchanging, conditioning or converting solar energy to other useful forms of energy;

d. Geothermal heat pumps and geothermal heat pump systems;

e. Fuel cells and fuel cell systems; and

f. Biodiesel manufacturing facilities.

(5) "Solar energy equipment" means any equipment that uses solar radiation as a substitute for traditional energy for water heating, active space heating and cooling, passive heating, daylighting, generating electricity, distillation, desalinization, detoxification or the production of industrial or commercial process heat, and includes related devices necessary for collecting, storing, exchanging, conditioning or converting solar energy to other useful forms of energy.

74 Del. Laws, c. 38, § 1; 74 Del. Laws, c. 87, § 1; 75 Del. Laws, c. 160, § 1; 77 Del. Laws, c. 452, § 1.;

(a) There is hereby established the State Energy Office within the Department of Natural Resources and Environmental Control, Office of the Secretary.

(b) The Director of the Division of Energy and Climate is the administrator and head of the State Energy Office and is the State Energy Coordinator, who shall:

(1) Be qualified by training or experience to perform the duties of the Office; and

(2) Perform such functions in the administration of the State Energy Office as the Secretary of the Department of Natural Resources and Environmental Control may from time to time require.

(c) The State Energy Office shall:

(1) Act as a central repository and clearinghouse for collection and dissemination of data and information on energy resources and energy matters in the State, including but not limited to:

a. Data on energy supply, demand, costs, projections and forecasts;

b. Inventory data on energy research and development projects, studies, or other programs conducted in the State under public or private supervision or sponsorship, and the results thereof; and

c. The environmental impacts of energy generation and use and the means of reducing those impacts through alternative fuels, innovative energy technologies, conservation or other means.

(2) Coordinate with other state and federal agencies including, but not limited to, the Delaware Public Service Commission, the Office of State Planning and Coordination, the Office of Management and Budget, the Delaware Economic Development Office, the Delaware Emergency Management Agency and the Department of Agriculture in carrying out its duties under this subchapter;

(3) Recommend legislative or other initiatives to the Secretary, and hence to the Governor and General Assembly, that will enable or assist the State, its instrumentalities, or private citizens, to secure federal funds made available to states and individuals to support energy conservation programs and initiatives, whatever form those funds take;

(4) Provide for a program of energy audits of facilities owned by instrumentalities of the State in cooperation with designated representatives of said facilities;

(5) Provide for the training and certification of energy auditors to conduct energy audits as may be necessary and proper to carry out the purposes and policies of this subchapter, or any other energy-related law applicable to this State;

(6) Assist the Division of Facilities Management in developing the state facilities energy management plan as required in § 8806(c) of Title 29; and

(7) Facilitate the development of a comprehensive State Energy Plan designed to protect the health, safety and welfare of the citizens and economy of the State and which shall include, but not be limited to:

a. Encouraging and promoting conservation of energy through reducing wasteful, uneconomical or inefficient uses of energy;

b. Encouraging and promoting the use of renewable electric generation facilities and alternate energy technologies by residential and commercial consumers; and

c. Encouraging and promoting such other energy efficiencies and conservation goals, methods, standards, training, programs and policies that are consistent with the intent of this subchapter, especially those directed toward improving end-use efficiency among the State's energy consumers.

74 Del. Laws, c. 38, § 1; 74 Del. Laws, c. 87, § 2; 75 Del. Laws, c. 88, § 16(5); 78 Del. Laws, c. 290, § 233.;

(a) A Cabinet Committee on Energy is established and shall serve in an advisory capacity to the Governor. It shall be comprised of the following members:

(1) The Secretary of the Department of Natural Resources and Environmental Control.

(2) The Secretary of the Department of Agriculture.

(3) The Secretary of the Department of Transportation.

(4) The Secretary of the Department of Health and Social Services.

(5) The Secretary of the Department of Safety and Homeland Security.

(6) The Secretary of the Department of State.

(7) The Director of the Delaware Economic Development Office.

(8) The Director of the Office of Management and Budget.

(9) Such others as the Governor may designate.

(b) The Governor shall designate 1 member to serve as Chairperson of the Committee.

(c) The Committee shall consider matters relating to energy issues and use in state government, including, but not limited to:

(1) Developing programs for state agencies to save energy through energy efficiency in facility construction and operation, energy and equipment procurement.

(2) Setting comprehensive goals and prioritizing programs based on the cost effectiveness of energy saving measure.

(3) Developing and implementing the use of transportation energy reduction methods for employees.

(4) Identifying opportunities for the use of fuel cells and solar energy equipment to meet the energy needs of agencies and/or state buildings.

(d) The State Energy Office shall provide staffing assistance to the Cabinet Committee on Energy.

74 Del. Laws, c. 415; 75 Del. Laws, c. 88, §§ 21(13), 38.;

(a) There is hereby established the Governor's Energy Advisory Council.

(b) The Governor's Energy Advisory Council shall monitor Delaware's energy system, identify and propose actions to enhance Delaware's energy system and provide counsel to the Governor on promoting an economic, reliable and competitive energy market for all Delaware consumers.

(c) The Governor's Energy Advisory Council shall be assigned the following responsibilities:

(1) Developing implementation plans for recommendations from the 2003 "Delaware Energy Task Force Report to the Governor" and tracking ongoing implementation efforts.

(2) Spearheading the updating of the Delaware Energy Plan every 5 years from date of enactment. The updating process shall include a process for public input and measures for progress in attaining goals identified in the plans.

(3) Monitoring federal, state and regional energy issues, identifying the impacts on Delaware and recommending actions to the Governor in response to identified issues.

(4) Other duties as referred by the Governor.

(d) The Governor's Energy Advisory Council shall be composed of 17 members as follows:

(1) A Chair to be appointed by the Governor for a term of 3 years and who shall be eligible for re-appointment for terms of 3 years.

(2) Chair of the Cabinet Committee on Energy.

(3) Chair of the Public Service Commission.

(4) The Public Advocate.

(5) Chair of the Weatherization Assistance Program Policy Advisory Council.

(6) Nine members who shall be appointed by the Governor representing, to the extent possible, the following constituencies: electricity transmission; electricity distribution; electricity generation; agriculture and/or agribusiness; municipal utilities; renewable energy; innovative energy technology; transportation fuels and environmental interests. These members shall be appointed by the Governor as follows:

a. Three members shall be appointed for 3-year terms;

b. Three members shall be appointed for initial 2-year terms.

c. Three members shall be appointed for initial 1-year terms;

d. Thereafter, appointees shall serve for 3-year terms.

(7) The Secretaries of Transportation, Natural Resources and Environmental Control and Agriculture and the Director of Economic Development shall serve as ex-officio members.

(e) An appointment, pursuant to this section, to replace a member whose position becomes vacant prior to the expiration of the member's term shall be filled only for the remainder of that term. Members shall continue to serve after the expiration of their terms until they resign, are reappointed or replaced.

(f) Members of the Advisory Council shall serve without compensation, except that they may be reimbursed for reasonable and necessary expenses incident to their duties as members in accordance with state law.

74 Del. Laws, c. 415.;

(a) The State Energy Office shall administer moneys in the Green Energy Fund, in consultation with other offices within Department of Natural Resources and Environmental Control (DNREC), the Delaware Economic Development Office and the Division of the Public Advocate, through a program of environmental incentive grants and loans for the development, promotion and support of energy efficiency programs and renewable or alternative energy technology in the State.

(b) The State Energy Office shall establish standards, procedures and regulations governing the administration of the Green Energy Fund which are not inconsistent with this subchapter. Up to 7.5% of the moneys deposited in the Green Energy Fund each year may be used for administration of the Fund, and an additional 2.5% of the moneys may be used for outreach activities including marketing, advertising and workshops.

(c) The goals which shall guide use of the Green Energy Fund include:

(1) Fostering use of energy efficient, renewable and environmentally friendly energy technologies throughout the State in the residential, commercial, industrial, public and agricultural sectors;

(2) Promoting research, development and demonstration projects in the fields of energy efficiency and renewable energy technologies;

(3) Advocating green public policy initiatives;

(4) Establishing and supporting education and public awareness programs;

(5) Pursuing community outreach programs;

(6) Supporting the development of green industries and generators in the State;

(7) Encouraging the construction, maintenance and operation of green buildings, schools and residential developments; and

(8) Creating market incentives for the pursuit of renewable energy resources by energy providers in the State.

(d) The Green Energy Fund shall be used for programs in Delaware including, but not limited to:

(1) The Green Energy Endowment Program:

a. The Green Energy Endowment Program shall provide cash grants from the Green Energy Fund to customers that have constructed, purchased, leased or who have executed a power purchase agreement for renewable energy technology and have placed such renewable energy technology in service.

b. Any 1 cash grant for any 1 project shall be no more than is necessary to promote deployment of renewable energy technologies. The level of incentive shall be set by the Secretary, in consultation with the Sustainable Energy Utility Oversight Board, and may be amended from time to time to respond to market conditions.

c. Persons eligible for cash grants under the Green Energy Endowment Program shall include:

1. Persons in Delaware receiving services from Conectiv, or its successor, after the adoption of a restructuring plan pursuant to § 1005(a) of Title 26; and

2. Persons in Delaware receiving services from a nonregulated electric supplier which is contributing to the Green Energy Fund.

d. Grants made under the Green Energy Endowment Program shall not exceed 65% of all expenditures from the Green Energy Fund on an annual basis.

e. Funds available for grants under the Green Energy Endowment Program will be allocated into a residential pool and a nonresidential pool on an annual basis. Sixty percent of the funds available for grants under the Green Energy Incentive Program will be allocated to the residential pool and 40% of the funds available for grants under the Green Energy Endowment Program will be allocated to the nonresidential pool.

f. For all new Green Energy Endowment Program applicants who have not, as of July 28, 2010, received a commitment of funding from DNREC, must first, before applying for a grant under this program, conduct a home performance with Energy Star audit, using a Building Performance Institute or equivalent certification program trained professional, and identify cost-effective energy efficiency projects. Newly constructed homes and commercial buildings must receive Energy Star certification or an equivalent third-party green building certification in order to receive funding under this program.

(2) The Technology Demonstration Program:

a. The Technology Demonstration Program shall provide cash grants equal to 25% of the cost of a project which demonstrates the market potential of Renewable Energy Technology in Delaware, with no 1 grant for any 1 project to exceed $200,000.

b. Grants made under the Technology Demonstration Program shall not exceed 25% of all expenditures from the Green Energy Fund on an annual basis.

(3) The Research and Development Programs:

a. Under the Research and Development Programs monies will be expended from the Green Energy Fund:

1. To support qualifying research and graduate studies in Delaware in energy efficiency and renewable energy technologies; and

2. To provide grants equal to no greater than 35% of the cost of project for the development of a product in Delaware directly related to Renewable Energy Technology, including but not limited to any product improving the engineering of, adapting or developing Renewable Energy Technology either as an independent piece of Renewable Energy Technology or as a component thereof, with no 1 grant for any one project to exceed $250,000.

b. Grants made under the Research and Development Programs, in the aggregate, shall not exceed 10% of all expenditures from the Green Energy Fund on an annual basis.

(4) Solar Energy Curriculum Program. — The Solar Energy Curriculum Program shall provide cash grants from the Green Energy Fund to high schools in Delaware that are Delmarva Power customers and that create a course, or curriculum, that teaches the science, economics, policy, and hands-on installation of solar photovoltaic technology. Grants made under this program shall provide 100% funding for the installation of a solar photovoltaic system to be used as part of the qualifying school's solar energy curriculum. Total funding may not exceed $10,000 per school for solar equipment only, and shall not prevent the school from participating in the Green Energy Endowment Program. Green Energy Fund dollars committed to such installations shall not exceed $100,000 per year total. The Energy Office shall establish appropriate curriculum eligibility criteria before awarding any such grants.

(5) Unexpended Funds. — Any amount allocated to the Green Energy Endowment Program, the Technology Demonstration Program and the Research and Development Programs and not expended during a particular year shall be considered as part of the Green Energy Fund and available for allocation and expenditure in subsequent years. Provided the Controller General approves, annual funds collected and unused during 1 fiscal year that have been apportioned to the commercial sector in the Green Energy Endowment Program may be moved for use in the residential sector in following years to allow the Energy Office to satisfy application queues should they develop.

(6) The Secretary may, in the event the Endowment program described in paragraph (d)(1) of this section above is unable to keep pace with demand, indefinitely suspend the Technology Demonstration and Research and Development programs defined in paragraphs (d)(2) and (3) of this section and direct all available funds to the Green Energy Endowment Program until such time as any queue is eliminated and all applicants have received their authorized payment.

(e) Upon a finding by the Secretary, in consultation with the Sustainable Energy Utility Oversight Board, that the incentives provided for renewable energy technologies through the operation of the Delaware Renewable Energy Portfolio Standard as authorized under subchapter III-A, of Chapter 1, of Title 26, are substantially equivalent to or exceed those allowed under this chapter, the Secretary may, providing that all approved applicants receive payments offered under the Green Energy Endowment Program, suspend in part or in full, the Green Energy Endowment Program, the Technology and Demonstration Program and/or the Research and Development Program under paragraphs (d)(1)-(3) of this section and reallocate revenues authorized under § 1014(a) of Title 26 to alternative incentive programs to promote energy efficiency and green building programs, renewable energy loan programs and incentive programs for nonprofit organizations. In the event the Secretary makes such a finding in consultation with the Sustainable Energy Utility Oversight Board, the Secretary shall provide to the Chairs of the House and Senate Energy Committees the Secretary's rationale for such a finding and a full description of the new program to be implemented.

(f) Incentives provided through the Green Energy Fund shall be exempt from taxation by the State and by the counties and municipalities of the State.

74 Del. Laws, c. 38, § 1; 74 Del. Laws, c. 87, § 3; 74 Del. Laws, c. 415; 75 Del. Laws, c. 160, §§ 2, 3; 76 Del. Laws, c. 166, §§ 2-6; 77 Del. Laws, c. 452, §§ 2-7.;

The Secretary shall promulgate rules and regulations governing the administration of the State Energy Office or that are necessary to carry out the provisions of this subchapter.

74 Del. Laws, c. 38, § 1; 74 Del. Laws, c. 415.;

(a) Definitions. — As used in this section:

(1) "Agency" means any state agency, authority, or any political subdivision of the State or local government, including, but not limited to, county, city, township, village or municipal government, local school districts, and institutions of higher education, any state-supported institution, or a joint action agency composed of political subdivisions.

(2) "Contract Administrator" means an entity or person contracted through competitive bid by the Delaware Energy Office that manages the functions and responsibilities of the SEU.

(3) "Fiscal agent" means an entity or person contracted by the Delaware Energy Office to assist in the financial management of the SEU.

(4) "Implementation contractor" means any entity competitively contracted by the SEU to implement specific programs and services.

(5) "SEU Oversight Board" ("the Board") means a board comprised of public, academic and private sector representatives that acts to establish and revise SEU performance targets and to oversee SEU program planning, implementation, and evaluation to ensure compliance with performance targets.

(6) "Sustainable Energy Utility" ("SEU") is the nonprofit entity under which the contract administrator must operate according to the provisions of this section to develop and coordinate programs for energy end-users in Delaware for the purpose of promoting the sustainable use of energy in Delaware.

(b) Intent of legislation. — The General Assembly finds that there remain in Delaware significant, cost-effective opportunities to acquire end-user energy efficiency savings that can lower customers' bills and reduce the environmental impacts of energy production, delivery, and use. Delaware has an opportunity to create new markets for customer-sited renewable energy generation that will help build jobs in Delaware, improve our national security, keep value within the local economy, improve energy reliability, and protect Delawareans from the damaging effects of recurrent energy price spikes.

(c) Sustainable Energy Utility administrative organization.

(1) This section creates the "Sustainable Energy Utility" ("SEU"). The SEU program through the contractor administrator shall design and deliver comprehensive end-user energy efficiency and customer-sited renewable energy services to Delaware's households and businesses. The SEU shall be unaffiliated with any of the State's electric or gas utilities, public or private, and it will operate through the contract administrators under contract to the Delaware Energy Office ("Energy Office" or "DEO") under the direction of the State Energy Coordinator. The SEU shall be known by a trade name to be determined by the Delaware Energy Office.

(2) Routine administration of the SEU shall be managed by a contract administrator. The funds to support the SEU's activities shall be managed by a fiscal agent. This institutional structure, with ultimate responsibility for oversight residing with the Delaware Energy Office under the direction of the State Energy Coordinator and the Oversight Board, as detailed in subsections (d) and (e) of this section, is intended to protect not only the SEU's independence, but also to assure that its performance is continually and closely monitored and that it always has the strongest incentives to operate as efficiently as possible. The SEU contract administrator ("CA") and fiscal agent ("FA") will be selected by the Delaware Energy Office through an open, competitive bidding process.

(d) Responsibilities of the Delaware Energy Office. — The Delaware Energy Office shall assume the following responsibilities relating to the development, implementation, and monitoring of the SEU:

(1) The Energy Office shall prepare requests for proposals (RFPs) to solicit bid proposals to engage each of the 2 administrator contractors: the SEU contract administrator and the fiscal agent. The RFPs shall be open to public comment, amended if necessary, and then submitted to the Oversight Board for approval prior to release. To maintain independence between each of the administrative functions, any bidder for an administrator contract, and any bidder's affiliate, shall not concurrently hold or be awarded the other administrator contract. Neither shall any bidder for the contract administrator be affiliated with a utility, public or private, that operates in Delaware, or any agency of Delaware, or any entity providing power or fuel to Delaware's distribution utilities or residents.

a. The Energy Office shall determine and describe in detail in the RFPs the following: the roles of each contracted position; the relevant performance targets set by legislation, the Energy Office or the Oversight Board; the bidding and contract procedures; the criteria for evaluation of bid proposals; and the annual reporting requirements. In addition, the Energy Office shall define performance incentives such that if the SEU exceeds program targets by 120% it shall receive a bonus, and if the SEU achieves less than 80% of program targets it shall be charged a penalty. By written agreement between the DEO and the SEU, performance incentives may be passed through to implementation contractors when the DEO and SEU decide this is in the best interest of the State's development of sustainable energy resources.

b. The Energy Office must require bidders for the SEU contract administrator to present, in their proposals, plans including, but not limited to: evaluation, monitoring and verification of program performance; data collection and management; and financial management.

c. The Energy Office shall ask bidders for the SEU contract administrator to describe how they will obtain information from, and be responsive to, the public, and how bidders intend to resolve disputes with stakeholders and customers.

d. The Energy Office shall evaluate the proposals based on criteria outlined in the RFP and then select and hire the contractors for the 2 positions.

e. The Energy Office shall determine the contract period for each administrator position, but such periods shall be no less than 3 years and no more than 5 years. The Energy Office may offer a renewal contract to a current contractor for 1 additional contract term, provided the contractor has met or exceeded expectations and the Oversight Board approves of the renewal. The contract must be open to the public through the RFP process after 2 consecutive terms by 1 contractor.

(2) The Energy Office shall report biannually to the Oversight Board on the progress of the SEU and the management of the contract administrator and fiscal agent contracts.

(3) The Energy Office shall ensure continuity of program implementation and sufficient carry-over funding during the transition period between the end of 1 SEU contract term and the beginning of another SEU contract term, so that Delawareans may still have regular access to sustainable energy services during transitional periods.

(4) The Energy Office must use the appropriate responsibilities outlined in the subsections (f) and (g) of this section to develop additional RFP guidelines for each contractor.

(5) The Energy Office shall develop appropriate means to issue Renewable Energy Credits and Solar Renewable Energy Credits, as defined in § 352 of Title 26, for renewable energy technologies sited in Delaware.

(e) SEU Oversight Board.

(1)a. The SEU Oversight Board shall consist of 11 members and shall include the Secretary of the Department of Natural Resources and Environmental Control or the Secretary's designee, and the Public Advocate or the Public Advocate's designee. Seven members of the SEU Oversight Board shall be appointed by and serve at the pleasure of the Governor: 1 representative from academia, 1 representative from the nonprofit community with experience servicing the low to moderate income community, 1 representative from the nonprofit environmental community, 1 representative from the nonprofit energy community, 1 representative from the business community, and 2 representatives from the financial/accounting community. Two members of the SEU Oversight Board shall be members of the General Assembly: 1 from the Senate, who shall be appointed by and serve at the pleasure of the President Pro Tempore, and 1 from the House of Representatives who shall be appointed by and serve at the pleasure of the Speaker of the House. The Board shall elect 1 of its members to serve as a chairperson by a majority vote. The State Energy Coordinator in the Delaware Energy Office shall serve on the board in an ex officio nonvoting capacity. The existing SEU Oversight Board shall continue to serve until the Governor has appointed 7 members of the SEU Oversight Board. The initial Board members appointed to replace the existing SEU Oversight Board shall be appointed for terms of 2 to 4 years. The terms of the Board members shall be staggered. After the initial appointments to the SEU Oversight Board have been made, any subsequent Board member appointed or reappointed to replace any sitting Board member shall be appointed for a term of 4 years.

b. The SEU Oversight Board shall be governed by and subject to the Delaware Freedom of Information Act [Chapter 100 of this title].

c. The SEU Oversight Board shall include a provision in its bylaws pertaining to conflicts of interest and Board members shall be required to sign conflict of interest statements.

(2) After it has been constituted, the SEU Oversight Board shall appoint an advisory committee. The advisory committee may include representatives of organizations which represent low and moderate income energy consumers, low and moderate income housing consumers, civic organizations, environmental organizations, the energy industry, the energy efficiency and energy conservation community, the renewable energy community, marketing and public relations, small business, agriculture, accounting, business management, banking, finance, nonprofit communities, the general public, and the academic community. The Board shall decide the number of advisory committee members (including ex officio members).

a. The purpose of the advisory committee is to provide advice to the Board on issues of public policy and public education which may enhance the performance and quality of service of the SEU.

b. Selection of the advisory committee shall occur by a two-thirds vote of Board members. Advisory committee members will be recommended by a 3-person selection committee appointed by the Board. Criteria for the advisory Board members shall include professional experience, community service, reputation, significance to Delaware, a diversified representation of the Delaware community and geographical representation of the State.

c. Nominations for the advisory committee may be submitted by Board members and public solicitation.

(3) Board members shall serve without compensation except for travel allowed in paragraph (e)(8) of this section.

(4) No Board member shall receive financial gain from service on the Board.

(5) Board members shall not be employed by any organization directly or indirectly affiliated with the SEU or its contractors for a period of not less than 2 years after the end of their service on the Board.

(6) The Board shall adopt by-laws, by September 28, 2007, to govern itself.

(7) The Board shall have the following responsibilities:

a. Review and approve RFP's developed by the Energy Office for the contracts of the SEU contract administrator and fiscal agent.

b. Review and approve the annual and contract-term SEU performance targets recommended by the contract administrator.

c. Review and approve any proposed modifications to SEU performance targets or program designs during the contract term of the contract administrator.

d. Contract an independent professional agency to monitor and verify results reported by the contract administrator in annual and contract-term reports.

e. Receive biannual reports from the Energy Office, as described in paragraph (d)(2) of this section, and offer recommendations to the Energy Office regarding the management of the SEU.

(8) In order for the Board to meet its obligations, the SEU shall annually set aside a budget at the beginning of the State fiscal year not to exceed 75,000 real 2007 dollars, and not to be less than 50,000 real 2007 dollars. Use of these funds shall be limited to the following:

a. Payment of consultant fees for independent analyses of policy and program options to improve SEU performance voted by two-thirds of board members.

b. Supported travel by Oversight Board members to conferences and workshops of direct relevance to sustainable energy market development and performance. Supported travel is capped for individual members at 3,000 real 2007 dollars and only 1 supported travel can be requested by a member in a fiscal year.

c. Sponsorship of annual statewide competitions by elementary, middle and/or high school students in Delaware to recommend SEU service logos, mottos or new sustainable energy measures.

d. Other uses as voted by two-thirds of the members of the Oversight Board that can be shown to directly improve the performance of the SEU and/or the State's development of sustainable energy resources.

(f) Responsibilities of the fiscal agent. — The fiscal agent shall assist the Energy Office with the financial management of the SEU program. The fiscal agent is the SEU's "Treasury." The FA may be contracted by fee only or by a fee-plus-incentive structure as determined by the Energy Office. The primary responsibilities of the fiscal agent are to:

(1) Receive funds for the SEU from the funding sources outlined in subsection (j) of this section, disburse these funds to the SEU contract administrator under the direction of the Energy Office, and keep accurate records of such transactions;

(2) Interface with bonding and revenue authorities;

(3) Oversee financial transactions involving Renewable Energy Credits (RECs) and possible Solar Lifeline activities; and

(4) Pay SEU invoices.

(g) SEU contract administrator responsibilities. — The SEU contract administrator will manage the day-to-day functions and responsibilities of the SEU. The contract administrator's chief responsibilities are program research and design, administration of the implementation contracts, and oversight to ensure the implementation contractors meet appropriate performance and budgetary targets. The contract administrator may be contracted by fee only or by a fee-plus-incentive structure as determined by the Energy Office.

(1) Program research and design.

a. The contract administrator shall undertake a comprehensive resource analysis ("Analysis") to support initial program planning for the SEU. The Analysis must include demographic energy use assessments, population and economic growth estimates, energy consumption forecasts, regional energy efficiency trend analyses, technical and economic potential estimates, and market potential assessments. The comprehensive resource analysis must:

1. Assess energy end-user markets, including electricity end-uses, natural gas end-uses, clean vehicles, green buildings, weatherization, and affordable energy services;

2. Assess energy end-user demographic sectors, including low-income, residential, commercial, industrial, agricultural, and transportation sectors; and

3. Assess energy end-use equipment, including appliances, lighting, heating, cooling, industrial processes, and vehicles.

b. Using the results from the Analysis from paragraph (g)(1)a. of this section, the contract administrator shall select markets, end-users, and end-use equipment for the SEU to target through its programs.

c. The contract administrator shall develop a comprehensive suite of program designs based on the Analysis and selected markets, end-users, and end-use equipment, as described in paragraphs (g)(1)a. and (g)(1)b. of this section. Each program design must specify, at minimum, program goals, performance targets, an estimated budget, an implementation strategy, and an evaluation strategy. The contract administrator is not required to design or initiate all programs at once, but it must demonstrate how each program fits within the contract administrator's overall strategy to meet its own performance targets as well as the SEU's long-term performance targets established in subsection (i) of this section.

d. The contract administrator is expected to fulfill the following responsibilities through program designs, RFPs for Implementation Contractors, and program implementation:

1. To be responsive to customers and market forces in implementing and redesigning the programs it delivers;

2. To design a portfolio of programs to allow all energy end-users, regardless of electricity or gas retail providers, and regardless of market segment or end-use fuel, to participate in the SEU programs;

3. To promote program initiatives and market strategies that address the needs of persons or businesses facing the most significant barriers to participation;

4. To promote coordinated program delivery, including coordination with low income weatherization programs, other efficiency programs, and utility programs;

5. To coordinate with relevant regional and national energy efforts and markets, including markets for pollution emissions offsets and credits, and renewable energy credits;

6. To consider innovative approaches to delivering sustainable energy services, including strategies to encourage third party financing and leveraged customer contributions to the cost of program measures, as consistent with principles of sound program design;

7. To offer "one-stop shopping" and be the point-of-contact for sustainable energy services in Delaware;

8. To create a comprehensive website that provides easy access to SEU programs and information for all Delawareans, allowing them to participate in SEU programs electronically;

9. To emphasize "lost opportunity" markets, which are sustainable energy measures that can only be cost-effectively captured at particular times, such as during new construction or extensive remodeling; and

10. To emphasize market strategies to deliver services.

e. The contract administrator shall continue to research and assess the resources and market needs for sustainable energy services in Delaware, as described in paragraph (g)(1)a. of this section, while program implementation is ongoing. The contract administrator and other stakeholders will use this research to assess the impacts and effectiveness of SEU programs; to make adjustments to SEU program performance targets; to reassess targeted markets, end users, and end uses; and to recommend further policy initiatives for consideration by the General Assembly.

(2) Administration of implementation contracts.

a. With the exception of education and public outreach programs, which the contract administrator may implement itself with approval of the Energy Office and Oversight Board, all other SEU programs must be delivered by competitively selected implementation contractors.

b. The SEU shall propose rules to guide the bidding process and criteria to guide bid selection. The RFPs shall specify a contract term not to exceed the limitation set forth in The Energy Performance Contracting Act set forth in subchapter V of Chapter 69 of this title.

c. The contract administrator shall be responsible for selecting winning implementation contractor bids.

d. Any entity, including electricity or gas utilities in Delaware, may bid for an implementation contract. If an affiliate of the contract administrator bids, or intends to bid, for an implementation contract, both the contract administrator and its affiliate must ensure that the affiliate does not benefit from any unfair advantage resulting from insider information.

e. RFP's for competitively bid implementation contracts should include provisions for performance-based incentives as appropriate to ensure that program targets are achieved or exceeded.

f. If an implementation contractor is not successfully selected through the RFP bidding process, the contract administrator may implement its own program delivery process subject to approval by the Energy Office and Oversight Board.

(3) Oversight, monitoring, and verification.

a. The Oversight Board must review the contract administrator's proposed program designs, performance targets, and RFPs before the contract administrator submits RFPs for bid. When reviewing and approving the SEU's programs and RFPs, the Oversight Board must ensure that program coordination between the contract administrator, implementation contractors, and customers is as streamlined and simple as possible from the customer's perspective. The Oversight Board shall ensure that the SEU's programs will provide packaged-services. Rather than simply providing the most cost-effective or easiest-to-provide services, packaged-services must be designed to provide customers with as many relevant end-use services at once, each time the contract administrator or the implementation contractors have contact with a customer.

b. The contract administrator must develop and maintain information services to collect all performance, market, and financial data necessary to monitor and evaluate SEU performance as specified in its contract with the Energy Office. The contract administrator must make such data available to the Energy Office and Oversight Board upon request.

c. Consistent with the specific terms of its contract and generally accepted accounting principles, the contract administrator must prepare and submit detailed documentation and invoices for administrative, management, and program costs to the fiscal agent for review in order to receive payment.

d. The contract Administrator must develop appropriate mechanisms to accurately evaluate, monitor, and verify program performance and implementation contractor performance.

e. The contract administrator shall have 30 days to respond to complaints from, or disputes among, affected persons or entities. After 30 days any unresolved complaints shall be presented to the Energy Office and Oversight Board.

f. The contract administrator shall submit to the Oversight Board for approval any reports produced by the contract administrator that codify current practices or detail new practices or substantive changes in the SEU's implementation of programs and services.

g. The contract administrator shall conduct site visits and review the files of the implementation contractors as necessary to ensure contract compliance.

(h) Evaluation, monitoring, and verification. — The Energy Office must ensure that adequate evaluation, monitoring, and verification mechanisms are in place so that:

(1) The Energy Office and Oversight Board can verify that both SEU and Implementation Contractor expenditures result in verifiable energy savings over the expected lifetime of each energy-saving measure.

(2) The SEU and implementation contractors are held responsible for the energy savings reportedly achieved through program activities and expenditures.

(i) SEU initial program targets.

(1) Energy efficiency. — By December 31, 2015, the SEU shall have achieved an average 30% reduction in annual energy usage for SEU participants, with a target of one-third of the participant savings occurring for residential clients, based on January 1, 2006 baseline levels. The Energy Office and Oversight Board may increase or accelerate this target if a comprehensive resource analysis indicates a greater cost-effective end-user energy efficiency potential exists or if the SEU achieves performance targets ahead of schedule.

(2) Delaware Solar Lifeline. — For the purposes of this subsection, a low-income household shall be defined as a household that qualifies for Low-Income Home Energy Assistance Program (LIHEAP) assistance in Delaware. The SEU shall have the authority to administer the Delaware Solar Lifeline program, which shall provide, by December 31, 2015, each low-income household with a life-sustaining supply of at least 200 kilowatt-hours per month of low-cost electricity not to exceed $.05 per kWh in real 2007 dollars from in-state solar electric resources, the electricity generated thereof dedicated entirely for use by low-income households in the Solar Lifeline program. The Energy Office shall devise annual Solar Lifeline program goals that specify a targeted amount of installed photovoltaic capacity and a targeted number of households to be served. Such targets shall increase at a reasonable rate each year until sufficient in-state photovoltaic capacity has been installed to provide, by December 31, 2015, each low-income household with at least 200 kilowatt-hours per month of low-cost solar electricity. Implementation of the Solar Lifeline program and the obligation to meet the December 31, 2015 target shall depend upon the DEO and SEU obtaining the approval of the Oversight Board, as voted by a majority of board members. The chief criterion for board approval shall be that the DEO and SEU have identified self-sustaining funds for the program or that the General Assembly has approved designated funds for the purpose of maintaining the Solar Lifeline program.

(3) Affordable energy. — The SEU shall assess strategies and funding mechanisms to weatherize at least 800 low-income households per year, not counting those households served with Weatherization Assistance Program funding. The SEU shall target services to households living in single-family owner-occupied units and mobile homes, single-family rental units, rental buildings with 5 units or less, and large multifamily buildings with greater than 5 units. The SEU shall target three low-income levels: 200% of the federal poverty level, 60% of the state median income, and 80% of the state median income.

(4) Green Buildings and Clean Vehicles.

a. The Delaware Energy Office shall define "green buildings" and "clean vehicles" as appropriate to meet statewide energy efficiency targets established in paragraph (1) of this subsection, and with consideration for current best-practice definitions.

b. To establish initial SEU performance targets for Clean Vehicles and Green Buildings programs, the Delaware Energy Office, under the leadership of the State Energy Coordinator, and the Oversight Board shall either:

1. Determine appropriate initial SEU performance targets for Clean Vehicles and Green Buildings market programs to be included in the SEU Contract Administrator request for proposal,

2. Or the Energy Office and the Oversight Board may require that bidders for the SEU contract administrator propose such performance targets.

(5) Customer-sited Renewable Energy. — Targets and rebate levels for Customer-sited Renewable Energy Technologies ("Customer-sited Renewables") shall be established by the DEO, under the direct supervision of the State Energy Coordinator. Customer-sited Renewables shall include solar electric, solar thermal, geothermal and wind energy systems not to exceed in capacity the levels specified in net-metering regulations of § 1014 of Title 26. Under the direct supervision of the State Energy Coordinator, the DEO shall develop incentive tiers for different customer-sited renewables and customer classes based on identified state best practices. Rebates shall not exceed 50% of the incremental cost of Customer-sited Renewables compared to the retail cost of electricity. Rebates shall decline over time unless the DEO and SEU agree that doing so will prevent SEU clients from maximizing installed capacity of Customer-sited Renewable Energy in a least-cost manner. Under the direct supervision of the State Energy Coordinator, the DEO shall specify a certain fraction of SEU-supported Customer-sited Renewables to be located at residential locations. The SEU shall furnish 3 services to participants who purchase Customer-sited Renewables. First, it shall provide incentives sufficient to cover the incremental cost of investing in Customer-sited Renewables, in accord with DEO incentive tiers and current retail energy prices. Second, the SEU shall obtain, on behalf of participants, Renewable Energy Credits ("RECs") and Solar Renewable Energy Credits ("SRECs"), as defined in § 352 of Title 26. Third, the SEU shall negotiate the wholesale price for RECs and SRECs for SEU participants, using its ability to aggregate Customer-sited Renewables to the best advantage of SEU participants. For these services, the SEU shall charge a fee sufficient to pay its costs and to maintain incremental cost investments in Customer-sited Renewables. This fee can be assessed as a 1-time charge or an annual payment subject to the mutual agreement of the SEU and the participant. The Energy Office, under direct supervision of the State Energy Coordinator, shall determine a fair and reasonable rate that the SEU may charge for aggregating RECs and SRECs. The SEU fee shall not exceed 35% of the retail value of RECs or SRECs.

(j) Funding for the SEU.

(1) The Delaware Energy Office shall contract with the SEU contractor administrator to assist in the administration of some or all of the Green Energy Fund in accordance with § 8057 of this title.

(2) Bonds of the SEU.

a. The SEU may from time to time issue bonds for any corporate purpose and all such bonds, notes, bond anticipation notes or other obligations of the SEU issued pursuant to this section shall be and are hereby declared to be negotiable for all purposes notwithstanding their payment from a limited source and without regard to any other law or laws. In anticipation of the sale of such bonds, the SEU may issue negotiable bond anticipation notes and may renew the same from time to time, but the maximum maturity of any such note, including renewals thereof, shall not exceed 5 years from the date of issue of the original note. Such notes shall be paid from any revenues of the SEU available therefor and not otherwise pledged, or from the proceeds of sale of the bonds of the SEU in anticipation of which they were issued. The notes shall be issued in the same manner as the bonds. Such notes and the resolution or resolutions authorizing the same may contain any provisions, conditions or limitations which a bond resolution of the SEU may contain.

b. The bonds and notes of every issue shall be payable solely out of the revenues of the SEU, subject only to any agreements with the holders of particular bonds or notes pledging any particular revenues and subject to any agreements with any participating facility. Notwithstanding that bonds and notes may be payable from a special fund, they shall be and be deemed to be, for all purposes, negotiable instruments subject only to the provisions of the bonds and notes for registration.

c. The bonds may be issued as serial bonds or as term bonds, or the SEU, in its discretion may issue bonds of both types. The bonds shall be authorized by resolution of the members of the SEU Oversight Board and shall bear such date or dates, mature at such time or times, not exceeding 50 years from their respective dates, bear interest at such rate or rates, payable at such time or times, be in such denominations, be in such form, either coupon or registered, carry such registration privileges, be executed in such manner, be payable in lawful money of the United States of America at such place or places, and be subject to such terms of redemption, as such resolution or resolutions may provide. Such resolution or resolutions may delegate to any combination of 3 of the members of the SEU Oversight Board, the power to determine any of the matters set forth in this paragraph (j)(2) and the power to award the bonds to a purchaser or purchasers at public sale or to negotiate a sale to a purchaser or purchasers. The bonds or notes may be sold at public or private sale for such price or prices as the SEU shall determine. Pending preparation of the definitive bonds, the SEU may issue interim receipts or certificates which shall be exchanged for such definitive bonds.

d. Neither the members of the SEU Oversight Board nor any person executing the bonds or notes shall be liable personally on the bonds or notes or be subject to any personal liability or accountability by reason of the issuance thereof.

e. The SEU shall have power, out of any funds available therefor, to purchase its bonds or notes. The SEU may hold, pledge, cancel or resell such bonds or notes subject to and in accordance with agreements with bondholders or participating facilities. The SEU may elect to have bonds issued by a conduit issuer and borrow the proceeds thereof.

f. Bonds or notes issued under this section shall not be deemed to constitute a debt or liability of the State or of any political subdivisions thereof or a pledge of the faith and credit of the State or of any such political subdivision, but shall be payable solely from the funds herein provided therefor. All such bonds or notes shall contain on the face thereof a statement to the effect that neither the State nor any political subdivision thereof shall be obligated to pay the same or the interest thereon and that neither the faith and credit nor the taxing power of the State or of any political subdivision thereof is pledged to the payment of the principal of or the interest on such bonds. The issuance of bonds under this section shall not directly or indirectly or contingently obligate the State or any political subdivision thereof to levy or to pledge any form of taxation whatever therefor, or to make any appropriation for their payment. Nothing contained in this section shall prevent or be construed to prevent the SEU from pledging its full faith and credit or the full faith and credit of a participating facility to the payment of bonds or issue of bonds authorized pursuant to this section.

g. Interest on bonds or notes issued under this section shall be exempt from income taxation by this State or any political subdivision thereof.

(3) Revenue sources contributing to the SEU for the purpose of paying bond debt may include but not be limited to funds from shared savings agreements with SEU participants and partial proceeds from the sale of Renewable Energy Credits or Solar Renewable Energy Credits in local and regional markets. The Green Energy Fund shall provide equity leverage for the SEU.

(4) Staffing necessary for the DEO to fulfill its responsibilities in this section shall be funded from the Delaware Energy Answers program and by existing program funding within the Department of Natural Resources and Environmental Control.

(5) Incentives provided through the SEU shall be exempt from taxation by the State and by the counties and municipalities of the State.

(k) Contracts with the State or agencies. — The State or any agency may enter into contracts with the SEU or a qualified provider (as defined in § 6972(5) of this title) for the purpose of acquiring, constructing, operating, or providing a project undertaken by an implementation contractor or qualified provider, including arrangements for paying the costs of such project, which costs may include debt service requirements of the SEU relating to that project. If the SEU procures an implementation contract in accordance with subsection (g) of this section, a contract between the SEU and the State or an agency that provides the benefit of the implementation contract to the State or agency may be entered into by the State or agency without additional competitive procurement.

No obligation of the State or an agency under an installment payment agreement, a guaranteed energy performance contract or any other agreement entered into in connection with a project under this Chapter 80 or Chapter 69 of this title shall constitute or create a debt of the State or agency. No such obligation of the State or an agency shall constitute a tax supported obligation or a bond or a note of the State as provided in Chapter 74 of this title.

76 Del. Laws, c. 54, § 1; 76 Del. Laws, c. 235, §§ 1, 2; 76 Del. Laws, c. 296, § 1; 77 Del. Laws, c. 131, §§ 1-5; 77 Del. Laws, c. 222, §§ 3, 4; 77 Del. Laws, c. 452, § 8; 78 Del. Laws, c. 85, § 1.;

(a) No county or municipal government, homeowner association, or association formed for the management of commonly-owned elements and facilities or for regulating use of private property shall adopt any covenant, restriction, deed restriction, zoning restriction, or subdivision restriction which prohibits or restricts the owner of a property from using a system for obtaining wind energy for a residential single family dwelling unit. Any such restriction adopted after August 8, 2009, shall be void and unenforceable. Notwithstanding the provisions of any existing county or municipal zoning ordinance or regulation, no prohibition against or restriction on wind energy systems for residential single-family homes that is inconsistent with this section and adopted prior to August 8, 2009, shall be effective and no conditional use or other zoning review process shall be required.

(b) A county or municipal government, homeowner association, or an association formed for the management of commonly-owned elements and facilities or for regulating use of private property may place restrictions on wind energy system installations subject to subsection (a) of this section, provided such restrictions shall not be more restrictive than the following:

(1) Wind turbines shall be setback 1.0 times the turbine height from adjoining property line. Turbine height means the height of the tower plus the length of 1 blade.

(2) The aggregate noise or audible sound of a wind system shall not exceed 5 decibels above the existing average noise level of the surrounding area and shall be restricted to a maximum of 60 decibels measured at any location along the property line to the parcel where the wind system is located.

(3) Wind systems shall be free from signage, advertising, flags, streamers, any decorative items or any item not related to the operation of the wind turbine. Electric wiring for the turbines shall be placed underground for non-building integrated systems.

(4) This section shall not be applicable in any county or municipal designated historic district or historic zoning district.

(5) Any wind energy system shall be buffered from any properties or structures included on the Historic Register.

(c) The provisions of this section shall apply to wind energy systems and wind facilities that qualify for support from the Green Energy Fund, as authorized under § 8057 of this title, or other such similar programs administered by the State Energy Office.

77 Del. Laws, c. 147, § 1; 77 Del. Laws, c. 329, § 88.;