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 nonrenewable 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 the Delaware Public Service Commission, the Office of State Planning and Coordination, the Office of Management and Budget, 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 [repealed]; 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; 81 Del. Laws, c. 49, § 3; 81 Del. Laws, c. 374, § 23;
(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.
(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; 81 Del. Laws, c. 49, § 3; 81 Del. Laws, c. 374, § 24;
(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, including actions to lessen the climate change impacts of 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:
(2) Providing recommendations to the State Energy Office on updates to the Delaware Energy Plan and Climate Action 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 and policies to the Governor and General Assembly in response to identified issues.
(4) Other duties as referred by the Governor.
(d) The Governor’s Energy Advisory Council shall be composed of 25 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 Public Service Commission or their designee.
(3) The Public Advocate or their designee.
(4) Chair of the Weatherization Assistance Program Policy Advisory Council or their designee.
(5) The Executive Director of the Delaware Sustainable Energy Utility or their designee.
(6) Fifteen members who shall be appointed by the Governor representing, to the extent possible, the following constituencies: electricity transmission; electricity distribution; electricity generation; economically or environmentally overburdened and underserved communities; Public Service Commission-regulated, municipal, and cooperative public utilities; agriculture and/or agribusiness; utilities; solar energy; wind energy; energy efficiency; innovative energy technology; industrial electricity users; transportation fuels; and environmental, public health, and energy interests. These members shall be appointed by the Governor as follows:
a. Five members shall be appointed for 3-year terms;
b. Five members shall be appointed for initial 2-year terms;
c. Five 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 or their designees shall serve as ex-officio members.
(8) One member of the Senate appointed by the President Pro Tempore of the Senate.
(9) One member of the House of Representatives appointed by the Speaker of the House of Representatives.
(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 are 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.
(g) The Chair of the Advisory Council may establish such subcommittees of the Advisory Council as the Chair determines would provide assistance to the Advisory Council in meeting its responsibilities. Any subcommittee shall be chaired by an Advisory Council member or their designee.
(h) A quorum of the Advisory Council is a majority of its members. A vacant position is not counted for quorum purposes. Official action by the Advisory Council requires the approval of a majority of the members present at a meeting with a quorum.
(i) The State Energy Office shall provide staff support to the Advisory Council.
(j) Annual report. —
On or before January 31, 2023, and on or before every January 31 thereafter, the Council shall submit an annual report to the Governor, President Pro Tempore of the Senate, and the Speaker of the House of Representatives for distribution to the members of the General Assembly, with a copy to the Director and the Legislative Librarian of the Division of Research of Legislative Council, and the Delaware Public Archives.74 Del. Laws, c. 415; 81 Del. Laws, c. 49, § 3; 81 Del. Laws, c. 374, § 25; 83 Del. Laws, c. 356, § 1;
(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) 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 moneys 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; 81 Del. Laws, c. 49, § 3; 81 Del. Laws, c. 374, § 26;
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) “Affected electric energy provider” means an electric distribution company, rural electric cooperative, or municipal electric company serving energy customers in Delaware.
(2) “Affected energy provider” means an affected electric energy provider or affected natural gas distribution company.
(3) “Affected natural gas distribution company” means a natural gas distribution company serving energy customers in Delaware.
(4) “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.
(5) “Commission” means the Delaware Public Service Commission.
(6) “Energy efficiency” means a decrease in consumption of electric energy or natural gas on a per unit of production basis which does not cause a reduction in the quality or level of service provided to the energy customer, achieved through measures or programs that target consumer behavior, or replace or improve the performance of equipment, processes, or devices. Energy efficiency can also mean the reduction in transmission and distribution losses associated with the design and operation of the electrical system.
(7) “Energy savings” means reductions in electricity consumption, reductions in natural gas consumption, electricity peak demand response programs resulting in reduced electricity consumption, or measurable efficiency gains from the transition to lower-emission fuels, as determined by the Secretary through regulations pursuant to paragraph (h)(3) of this section.
(8) “Secretary” means the Secretary of the Department of Natural Resources and Environmental Control.
(9) “SEU Oversight Board” (“the Board”) means the board created pursuant to this section.
(10) “Sustainable Energy Utility” (“SEU”) is the nonprofit entity created pursuant 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 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.
(2) Routine administration of the SEU shall be managed by an executive director selected by the Board through an open and competitive selection process.
(d) SEU Oversight Board. — (1) a. The business and affairs of the SEU shall be managed by or under the direction of the SEU Oversight Board. The SEU Oversight Board shall consist of 11 members and shall include the Secretary of the Department of Natural Resources and Environmental Control (“DNREC”) or the Secretary’s designee, and the Public Advocate or the Public Advocate’s designee. The Board shall include representation from each county. Seven members of the SEU Oversight Board shall be appointed by and serve at the pleasure of the Governor, and may include, but not be limited to, representatives from the nonprofit environmental community, the nonprofit energy community, the nonprofit community servicing the low and moderate income community, the financing/accounting community, business, labor, and education. One member of the SEU Oversight Board shall be appointed by and serve at the pleasure of the President Pro Tempore, and 1 member 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 Director of the Division of Energy and Climate of DNREC, or the Director’s designee, shall serve on the Board in an ex officio nonvoting capacity. The terms of the board members shall typically be 4 years, and shall be staggered. The Governor may appoint members for terms of less than 4 years to ensure that the terms are staggered. The Governor may, at any time, remove any gubernatorial appointee to the SEU Oversight Board for gross inefficiency, malfeasance, misfeasance or nonfeasance, in office. A gubernatorial appointee may be deemed to have resigned their position if they are absent from 3 consecutive board meetings without good cause.
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) The SEU Oversight Board may, from time to time, appoint 1 or more advisory committees. An 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. Among other things, the advisory committee may 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. A candidate for an advisory committee shall require a 2/3 vote of Board members in order to serve. Criteria for the advisory committee 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.
(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, among others permitted by law:
a. Review and approve the contract-term and performance targets recommended by the executive director.
b. Review and approve any proposed modifications to SEU performance targets or program designs.
(e) SEU executive director responsibilities. — The SEU executive director is responsible for the day-to-day functions and responsibilities of the SEU. The executive director’s chief responsibilities include oversight of program management, and setting and compliance with appropriate performance and budgetary targets.
(1) Program research and design. — a. The executive director shall develop a comprehensive suite of program designs. Each program design must specify, at minimum, program goals, performance targets, an estimated budget, an implementation strategy, and an evaluation strategy. The executive director is not required to design or initiate all programs at once, but he or she must demonstrate how each program fits within the SEU’s overall strategy to meet the SEU’s long-term performance targets.
b. The executive director is expected to fulfill the following responsibilities through program designs, RFPs, and program implementation:
1. To be responsive to customers and market forces in implementing and redesigning the programs;
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 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.
(2) Administration of contracts. — The SEU shall propose and adopt 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.
(3) Oversight and reporting. — a. The SEU Oversight Board shall develop a 3- to 5-year strategic plan, with input provided by board members, stakeholder groups across the State, and the public at large. The strategic plan shall be made available to the public on the SEU’s website. The SEU’s strategic plan shall include an educational component for the general public with a continued focus on residential energy efficiency projects.
b. The SEU shall publish a comprehensive annual report which shall be submitted to the Governor and the General Assembly and made available to the public on the SEU’s website.
c. The SEU shall have certified financial statements prepared at the end of each fiscal year and make them available to the public on the SEU’s website.
d. The SEU’s financial statements shall be audited every other year by an independent certified public accounting firm qualified to perform such an audit, and the audit results shall be made available to the public on the SEU’s website.
(f) Funding for the SEU. — (1) DNREC may partner with the SEU 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 (f)(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) Incentives provided through the SEU or proceeds from the Regional Greenhouse Gas Initiative shall be exempt from taxation by the State and by the counties and municipalities of the State.
(g) 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, 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 a contract in accordance with subsection (e) of this section, a contract between the SEU and the State or an agency that provides the benefit of the 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.
(h) Expansion of cost-effective energy efficiency programs. — Notwithstanding progress towards the achievement of the energy savings targets in § 1502(a) of Title 26, each affected energy provider shall implement energy efficiency, energy conservation, and peak demand reduction programs that are cost-effective, reliable, and feasible as determined through regulations promulgated pursuant to paragraph (h)(3) of this section and delivered in collaboration with the Sustainable Energy Utility as described herein.
(1) Development and delivery of programs. — a. An advisory council consisting of 13 members shall be established by the Secretary and shall include 2 representatives of the Sustainable Energy Utility, and 1 representative of each of the following sectors:
1. Affected energy providers;
6. Residential; and
7. Low-income sectors.
The advisory council will assist affected energy providers in the development of energy efficiency, peak demand reduction, and emission-reducing fuel switching programs to meet the requirements of this section and in evaluation, measurement and verification of energy savings. Programs shall be designed to maximize the cost-savings benefits for ratepayers by utilizing private financing and allowance proceeds from the Regional Greenhouse Gas Initiative to the maximum extent practicable and consistent with this section, as the preferred sources of program financing prior to expenditures that would otherwise be eligible for rate recovery. The advisory council shall also recommend adoption of financing mechanisms, including, but not limited to, on-bill financing, property assessed clean energy (“PACE”) models, and other innovative financing tools.
b. The advisory council, in collaboration with the Public Service Commission staff, and the Public Advocate, shall recommend candidate energy efficiency, and reduction, and emission-reducing fuel-switching program elements that are cost-effective, reliable, and feasible, including financing mechanisms. Such programs shall prioritize the use of energy audits to identify comprehensive energy efficiency measures that maximize cost-effective savings. The advisory council shall recommend 3-year program portfolios and define associated savings targets for the consideration of each affected energy provider.
c. Unless otherwise provided, affected energy providers shall prepare and submit to the advisory council 3-year program plans, schedules, and budgets designed to reflect the recommended program portfolios, including the defined energy savings targets. On a 3-year cycle, the advisory council shall review energy efficiency, peak demand reduction, and fuel switching program plans for each affected energy provider and recommend them for approval by the appropriate regulatory authority, if it finds them to be cost-effective through a net-cost-benefit analysis that quantifies expected cost savings when considered in their entirety pursuant to regulations required by paragraph (h)(3) of this section. Such programs must reduce overall utility bills.
d. Evaluation, measurement, and verification costs incurred by the advisory council and affected energy providers shall be included as costs in the cost-effectiveness test for the program portfolios. Costs shall be reimbursed first by any direct revenues from the programs, including but not limited to revenues from wholesale capacity markets. If such revenues are greater than program costs, the additional revenues shall be applied towards reducing the costs of future energy efficiency programs. If such revenues are less than program costs, the remaining costs shall be allocated to affected energy providers on the basis of total annual sales of energy and reimbursed by affected energy providers as part of energy efficiency and peak demand response program operation costs.
e. The Commission shall review the programs and portfolios recommended by the advisory council, including evaluating the projected net-cost savings, in determining whether to approve such programs for implementation by Commission-regulated affected energy providers. Notwithstanding any provision in Title 26, the Commission shall approve the recovery of appropriate costs incurred by Commission-regulated affected energy providers for approved programs and portfolios on an annual basis, in the same manner as other supply resources, including allocated costs pursuant to this paragraph (h)(1). The Commission shall approve cost recovery for cost-effective energy savings resulting from cost-effective programs and portfolios of commission-regulated affected energy providers that are verified through procedures established in regulations promulgated pursuant to paragraph (h)(3) of this section and determined not to increase overall utility bills. Recovery of appropriate costs shall be through a rate-recovery mechanism that is consistent with the goals and objectives of this section and recommended by the advisory council, filed by the affected energy providers, and approved by the Commission.
1. For the portion of efficiency programs not financed through SEU-secured private financing or Regional Greenhouse Gas Initiative allowance proceeds, or other SEU resources, the Commission shall utilize a process that achieves the efficient and timely recovery on an annual basis by commission-regulated affected energy providers of appropriate costs and associated rates of return related to implementing activities and programs recommended by the advisory council.
2. For commission-regulated affected energy providers, appropriate costs incurred arising out of activities and programs recommended by the advisory council that are not subject to contemporaneous recovery shall be subject to deferred accounting treatment to ensure that program costs are less than expected savings. Program costs may not be placed in the permanent rate base, nor exceed the amortization schedule of the deferred accounting treatment.
3. Peak demand reduction programs of commission-regulated affected energy providers that are currently under review or already have been approved by the Commission, including dynamic pricing and direct load control, shall not be subject to review and approval by the advisory council.
f. Affected energy providers that are not regulated by the Commission may elect to develop, implement and fund programs for energy efficiency and peak demand reduction recommended for approval by the boards of directors for rural electric cooperatives or the pertinent local regulatory authorities for municipal electric companies. For purposes of any comparable plan implemented pursuant to the requirements of § 363 of Title 26, energy efficiency resulting in a reduction in overall energy consumption that exceeds 10% of the electricity provider’s 2007 electric consumption shall constitute an “eligible energy resource” under § 352 of Title 26, provided such energy provider has first achieved the 15% energy savings goal as required by § 1502(a)(1) of Title 26 and determined pursuant to paragraph (h)(3) of this section. Such energy efficiency shall be measured and verified as provided in paragraph (h)(3) of this section.
g. The affected energy providers and the Sustainable Energy Utility shall collaborate to promote available energy efficiency and peak demand reduction programs through a common marketing platform provided by the SEU, which shall serve as an easily accessible resource for all residents of Delaware seeking to save money through energy efficiency.
h. Nothing in this section shall reduce the authority of the Sustainable Energy Utility as defined in this title. The Sustainable Energy Utility, at its discretion, may provide private financing, allowance proceeds from the Regional Greenhouse Gas Initiative, or other financial resources to reduce implementation costs of energy efficiency programs in coordination with the affected energy providers and may collaborate with affected energy providers to provide efficiency programs.
(2) Annual reporting. — DNREC shall annually publish a report on statewide electricity and natural gas consumption and electricity peak energy demand and make the report available to the general public by December 31 of each calendar year. All affected energy providers shall provide actual and projected electric and natural gas consumption and peak usage data to DNREC on an annual basis as specified in regulations promulgated pursuant to paragraph (h)(3) of this section. The report shall identify progress toward the energy and peak savings targets of § 1502(a) of Title 26. In determining compliance with the applicable energy savings requirements, the Secretary shall exclude reported electricity savings or natural gas savings that are not adequately demonstrated and documented, in accordance with the regulations promulgated under paragraph (h)(3) of this section.
(3) Evaluation, measurement, and verification of energy efficiency. — a. Not later than June 30, 2015, the Secretary of the Department of Natural Resources and Environmental Control, with the cooperation of affected energy providers, shall, by regulation, establish the requirements of this subsection, including, but not limited to:
1. Evaluation, measurement and verification procedures and standards, including impact evaluation, environmental outcomes, process evaluation, market effects, and cost-effectiveness evaluation;
2. Requirements under which affected energy providers shall demonstrate, document, and report compliance with the energy savings targets established under § 1502(a) of Title 26; and
3. Procedures and standards for defining and measuring electricity savings and natural gas savings that can be counted towards the energy savings targets established under § 1502(a) and (b) of Title 26.
b. All regulations promulgated under this chapter shall be adopted under the Administrative Procedures Act, Chapter 101 of Title 29. Regulations promulgated by the Secretary shall not differ significantly among affected natural gas distribution companies or among affected electric energy providers. Regulations promulgated pursuant to this chapter and case decisions issued under the auspices of this chapter by the Secretary shall be subject to direct appeal to the Superior Court pursuant to the provisions of the Administrative Procedures Act, Chapter 101 of Title 29. The Environmental Appeals Board shall not have jurisdiction over any such appeal.76 Del. Laws, c. 54, § 1; 70 Del. Laws, c. 186, § 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; 79 Del. Laws, c. 395, § 1; 81 Del. Laws, c. 79, § 44; 83 Del. Laws, c. 178, § 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 nonbuilding 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;
(a) The General Assembly finds and declares that:
(1) The production and efficient use of energy will continue to play a central role in the economic future and environmental sustainability of Delaware and the nation as a whole; and
(2) The development, production, and efficient use of clean energy will strengthen the economy, improve the public and environmental health of this State, and contribute to the energy security of our nation; and
(3) The financing of clean energy systems and energy efficient technologies, and the powers conferred and expenditures made pursuant to this statute, will serve a valid public purpose and that the enactment of this section is expressly declared to be in the public interest.
(b) It is the purpose and intent of the General Assembly:
(1) To establish a voluntary commercial property assessed clean energy program in the State to provide access to financing for clean energy systems and energy efficient technologies with free and willing commercial property owners of both existing properties and new construction within the State.
(2) To utilize the Sustainable Energy Utility and the unique capabilities and qualities inherent within its structure and finances to launch a commercial voluntary assessed clean energy program that ensures the private capital markets can participate in this program.
(c) Definitions. — (1) “Benefit assessment” means a voluntary property assessment or other government service fee assessment, as authorized by this section, which is the mechanism through which a commercial property owner repays the financing for the qualifying energy improvements;
(2) “Benefited property owner” means an owner of qualifying commercial real property who desires to install qualifying energy improvements and provides free and willing consent to the benefit assessment against the qualifying commercial real property;
(3) “Clean energy systems” means renewable energy power generation including solar photovoltaic and thermal, wind, biomass, or geothermal and including waste heat recovery and other zero or net-zero emission energy sources available with advancing technology;
(4) “Commercial property” means any real property other than a residential dwelling containing less than 5 dwelling units;
(5) “County” means any county as defined in Title 9, and as authorized by this legislation or the SEU to issue benefit assessments;
(6) “Delaware Voluntary Property Assessed Clean Energy Program” or “D-PACE Program” means a program that facilitates reductions in energy production and consumption and utilizes the benefit assessments authorized by this section as security for the financing of these qualifying energy improvements;
(7) “Energy efficient technologies” means any device or piece of equipment, used in conjunction with existing infrastructure and appliances or as a replacement, that reduces energy consumption, but does not itself generate energy;
(8) “Energy utilities” means Delmarva Power and Light, Chesapeake Utilities, Delaware Electric Co-operative, Delaware Municipal Electric Corporation, or their successors as defined in Chapter 10 of Title 26;
(9) “Participating county” means a county that has entered into a written agreement, as approved by its legislative body, with the D-PACE Program pursuant to which the county has agreed to levy benefit assessments for qualifying energy improvements for benefited commercial property owners within such county and costs reasonably incurred in performing such duties;
(10) “Qualifying commercial real property” means any commercial property located in the State, regardless of ownership, that meets the qualifications established for the D-PACE Program;
(11) “Qualifying energy improvements” means any construction, renovation or retrofitting of energy efficient technology, clean energy systems, or qualifying waste heat recovery technologies that are permanently fixed to qualifying commercial real property;
(12) “Qualifying waste heat recovery technologies” means equipment and processes that capture the waste thermal energy from electric generation and other waste heat sources for use in nonpower generating commercial/industrial processes, including but not limited to space and water heating, in qualifying commercial real estate where fossil fuel power generation is not the principal business;
(13) “SEU” means the Sustainable Energy Utility as defined in this chapter; and
(14) “Third-party capital provider” means 1 or more entities, other than the SEU, that provides financing to benefited property owners for energy improvements.
(d) The SEU shall establish a D-PACE Program in the State to fund qualifying energy improvements to commercial real property, such that the improvements, property, and owner or owners fulfill the requirements enumerated herein, and those established by the SEU as part of the administration of the program.
(1) If a benefited property owner requests D-PACE financing from the SEU or a third-party capital provider for qualifying energy improvements under this section, the SEU shall:
a. Require performance of an SEU approved energy audit or feasibility analysis of such qualifying energy improvements on the qualifying commercial real property that assesses the expected energy cost savings over the useful life of such improvements unless a qualifying energy improvement is deemed automatically qualified by the SEU;
b. Require an evaluation of the property owner’s credit, history, and other financial obligations, before approving such financing;
c. If financing is approved, either by the SEU or the third-party capital provider, require the participating county to levy a benefit assessment on the qualifying commercial real property with the property owner in a principal amount sufficient to pay the costs of the improvements and any associated costs covered by the D-PACE Program that will benefit the qualifying commercial real property;
d. Impose requirements and criteria to ensure that the proposed improvements are consistent with the purpose of the D-PACE Program;
e. Impose requirements and conditions on the financing to ensure timely repayment, including, but not limited to, procedures for placing a lien on a property as security for the repayment of the benefit assessment;
f. Require that written consent for a superior lien from all existing properly recorded lien holders be obtained before any improvements are financed or made; and
g. Allow the property owner to rescind any D-PACE financing agreement entered into, with either the SEU or a third-party capital provider, not later than 3 business days after such an agreement.
(2) SEU shall collect fees to offset costs associated with executing the program, including but not limited to, administrative costs, conducting feasibility studies, and monitoring and verifying project results.
(3) The SEU may serve as an aggregating entity for the purpose of securing public, foundation, or private third-party financing for qualifying energy improvements pursuant to this section.
(4) The SEU may use the services of 1 or more private, public or quasi-public third-party administrators to administer, provide support, or obtain financing for the D-PACE Program.
(5) The benefit assessment:
a. May cover up to 100% of project costs, including but not limited to, application fees, audits, equipment, maintenance, labor, and other costs directly related to the project over the project’s life;
b. May also cover a portion of the D-PACE Program costs;
c. May be neither extinguished nor accelerated in the event of default or bankruptcy; and
d. Shall be levied and collected as to assessment payments currently and past due in the same manner as the property assessments of the participating county government on real property.
(6) The benefit assessment shall constitute a lien against the qualifying commercial real property on which the qualifying energy improvements are made. This lien shall:
a. Be superior to any other liens except the lien for other property taxes and other governmental service assessments of the participating county and other municipalities and share the same senior lien as other property taxes and governmental service assessments to the extent only of the amount of the DPACE assessments, penalties and fees currently due and/or in arrears;
b. Remain with the real property upon sale, including sale or transfer by operation of a tax monition sale or mortgage foreclosure, regardless of method; and
c. In the event of default or delinquency, be pursued in the same manner as with other property assessments, with respect to any penalties, fees and remedies and lien priorities; provided that notwithstanding any other provision of law including without limitation the provisions regarding the discharge of liens contained in §§ 8761 and 8773 of Title 9, a tax sale or other foreclosure sale brought by the SEU or a third-party capital provider with respect to D-PACE assessments shall not have the effect of extinguishing any subordinate mortgage liens against the qualifying commercial real property. Notwithstanding the foregoing or any other provision of law:
1. The SEU and third-party capital providers shall not have the authority to pursue a foreclosure of benefit assessment liens by the monition method established pursuant to § 8721 et seq. of Title 9 but shall have the authority to pursue a foreclosure of benefit assessment liens by attachment methods pursuant to § 8771 et seq. of Title 9 and § 8741 et seq. of Title 9.
2. The tax collecting authority in a monition sale may collect in such sale, in addition to taxes, D-PACE assessments but to the extent only of the D-PACE assessments, penalties, and fees currently due or in arrears.
3. The provisions above with respect to not extinguishing subordinate mortgage liens shall not apply in the case of a sale by monition method brought by a tax collecting authority, regardless of whether D-PACE assessments are collected at such sale.
4. The SEU and third-party capital providers shall not be required to, nor shall they have the authority to, unless so directed by the applicable tax collecting authority, foreclose liens for property taxes and other governmental service assessments or collect such taxes and assessments in a sale with respect to D-PACE assessments.
5. The SEU and third-party capital providers shall not be required to pay proceeds upon a tax or other sale to collect D-PACE assessments to holders of subordinate mortgage liens.
(7) The liens created by benefit assessments may be assigned as follows:
a. Any participating county may assign to the SEU any and all liens filed by the tax collector, as provided in the written D-PACE agreement between participating county and the SEU;
b. The SEU may sell or assign, for consideration, any and all liens received from the participating county;
c. The assignee or assignees of such liens shall have and possess the same powers and rights at law or in equity as the participating county and its tax collector with regard to the precedence and priority of such lien, the accrual of interest, the fees and expenses of collection, and lien enforcement including, but not limited to, foreclosure and a suit on the debt; and
d. Costs and reasonable attorneys’ fees incurred by the assignee as a result of any foreclosure action or other legal proceeding brought pursuant to this section and directly related to the proceeding shall be assessed in any such proceeding against each person having title to any property subject to the proceedings. Such costs and fees may be collected by the assignee at any time after demand for payment has been made by the assignee.
(8) The SEU shall allow third-party capital providers to provide loans directly to benefited property owners in lieu of, or in addition to, the SEU providing such loans.
(9) Pursuant to the purpose and objectives outlined herein, and with respect to the responsibilities of administering the D-PACE Program, the SEU shall develop program guidelines governing the terms and conditions under which financing may be made available to the D-PACE Program, in consultation with the Department of Natural Resources and Environmental Control, Division of Energy and Climate, energy utilities, the banking industry, local governments, and commercial property owners;
The program guidelines document shall include:
a. Underwriting criteria, which at a minimum must include verification of ownership, an assessment of property debt and value, an ability to pay evaluation, and for all financing arrangements by the SEU and third-party capital providers a savings to investment ratio evaluation;
b. A requirement that the life of the improvements is greater than the term of the financing;
c. Qualifications for improvements, including but not limited to: minimum project life for cost-effective, permanent application; minimum project value, consistent with ensuring the recapture of applicable administrative costs; maximum project value and project value relative to property value, consistent with local and national renewable and energy efficiency credit/funding programs and ensuring mortgage lender support; and maximum renewable energy project size consistent with local and national credit/funding programs, and with local energy service company (utility) regulations;
d. Recommended energy efficiency improvements to qualified commercial property owners seeking financing for clean energy generation systems;
e. Criteria for approving energy audits and auditors, selecting engineering reports for feasibility analyses, and determining the appropriate method of analyzing expected energy performance for D-PACE projects;
f. Standards for the processes of approval, financing, construction, repayment, including optional repayment at the time of sale of the property and SEU, third-party capital provider, and/or participating county actions of recourse in the event of default;
g. Standards for monitoring and verifying the energy and cost savings and other relevant outcomes of D-PACE funded projects, consistent with the project scale and scope, as well as the goals of the D-PACE Program;
h. A requirement to educate the property owner about the costs and risks associated with participating in the D-PACE Program established by this section, including but not limited to, the effective interest rate of the benefit assessment, fees charged by the SEU to administer the program, and the risks related to the failure of the property owner to pay the benefit assessment; and
i. Greater detail on all program specifications, processes, and party duties as assigned to the SEU in this section, as well as all necessary program guidelines and other specifications consistent with the administration of a statewide D-PACE Program not listed herein.
(e) The SEU shall have the authority to:
(1) Use principal and interest payments from existing benefit assessments to fund other projects;
(2) Use other legally available funds for project financing, including but not limited to, existing revenues, federal, state, local, or philanthropic grants, or private financing, notes, or other obligations;
(3) Impose fees to offset costs associated with executing the financing, including but not limited to, administrative costs, attorneys’ fees, conducting feasibility studies, and monitoring and verifying project results;
(4) Specify whether these fees are to be collected at certain steps or intervals, or added into the project financing;
(5) Set a fixed or variable rate of interest for the repayment of the financing amount at the time the financing is arranged, or allow a third-party capital provider to set the interest rate, provided that party is financing the improvements;
(6) Enter into a financing agreement with the owner of qualifying commercial real property, to include billing and receiving payments from the participants (in the same manner property and government service assessments are collected); with approval of the participating county, transfer the rights and authorities of the financing agreement, including but not limited to billing and receiving payments, to a third-party capital provider, such that the party is directly financing the qualified energy improvement.
(7) Establish a D-PACE loss reserve.
(f) The D-PACE Program shall not be operational and available for commercial property owner participation/financing until a comprehensive program guideline document is adopted by the SEU Board of Directors. Prior to submission to the Board of Directors for adoption, the SEU shall:
(1) Organize a public hearing regarding the program guidelines document;
(2) Publish a notice to include the time, date, place of the public hearing, and a summary of the nature of the guidelines in at least 2 Delaware newspapers of general circulation, and by electronic posting on the SEU website, a minimum of 20 days prior to such hearing; and
(3) Provide the SEU Board of Directors minutes of the public hearing with the submission of the program guidelines.81 Del. Laws, c. 402, § 1; 83 Del. Laws, c. 91, § 1; 83 Del. Laws, c. 283, § 46;
(a) As used in this section:
(1) “Agency” means as defined in § 6301 of Title 29.
(2) “All-electric vehicle” means an electric vehicle that operates solely from an internal electric battery.
(3) “Costs” means the costs associated with electricity used by the agency’s EVSEs, installation of the agency’s EVSEs, and maintenance of the infrastructure and equipment of the agency’s EVSEs.
(4) “Electric vehicle supply equipment” or “EVSE” means equipment that connects an electric vehicle to an external source of electricity to recharge the electric vehicle’s internal battery.
(5) “Electric Vehicle” or “EV” includes plug-in hybrid vehicles and all-electric vehicles, and means a motor vehicle, as defined in § 101 of Title 21, that satisfies both of the following:
a. Uses 1 or more electric motors for propulsion.
b. Is powered through an internal battery that is charged using an external electricity source.
(6) “Plug-in hybrid vehicle” means an electric vehicle that operates with an internal combustion engine and an electric motor that can be plugged into an external electric power source to charge the internal battery.
(b) An agency that has installed EVSE may make the EVSE available for use, at the agency’s discretion, by the public or employees, or both.
(c) If an agency provides access to its EVSE for charging to an electric vehicle not owned by the State, it may charge a fee for the use of its EVSE that does not exceed the agency’s costs. The agency shall use the fees collected for the payment of the electricity used by the EVSE and for the maintenance of the EVSE infrastructure and equipment.
(d) Agency EVSE must be located on state-owned or state-leased real property used for state offices, service centers, maintenance facilities, correctional facilities, visitor centers, research centers, health-care facilities, recreational facilities, or other state-owned or state-leased real property where state employees work or receive visitors conducting business with state agencies.83 Del. Laws, c. 179, § 1;