MPUC Issues Order Setting Forth “Discrete Electric Generating Facilities” Safe Harbor

Today, the Maine Public Utilities Commission (MPUC) issued an Advisory Ruling establishing a safe harbor for the determination whether a generation facility is a Discrete Electric Generating Facility for the purposes of qualifying for the MPUC’s Net Energy Billing and Distributed Generation Programs. This safe harbor helps clarify when two facilities that are in “geographic proximity” will be considered to be “discrete.” The Advisory Ruling provides:

Discrete DG/NEB Facility “Safe Harbor” Criteria

(The following criteria are applicable to facilities whose capacity in the aggregate is equal to or greater than 5MW and which are owned and/or being developed by the same entity, an affiliated entity, or in partnership or otherwise in cooperation, coordination, or with which there is a shared financial interest with an unaffiliated entity. Facilities that are more than 5 miles apart at their closes point are presumed to be discrete)

• Facility sites must be at least one mile apart at their closest point;
• Facilities that are between one mile and 5 miles apart at their closest point must meet all remaining criteria;
• Facilities must not share development or EPC contractors or other resources unless a developer can demonstrate that doing so provides no economies of scope or scale;
• The Maine DEP has not determined that the facilities will be reviewed consistent with the “Common Scheme of Development” standard;
• Facilities may not share common interconnection facilities or costs;
• Facilities may not share common long-term or permanent investment or financing sources, but developers may use common financing sources for early development activities such as site control and permitting;
• Balance of System (BOS) 57 elements and costs must not be shared or otherwise common to the facilities;
• Facilities may not share common access roads or rights of way.

As part of the DG Procurement or NEB application process, as applicable, an owner/developer must provide an affidavit or other attestation that each of its projects meets these “Safe Harbor” criteria or has otherwise been found by the Commission to be a Discrete Generation Facility. In addition, developers must ensure that any transfer of ownership of a project includes the prohibition on common long-term or permanent investment or financing.

The full Advisory Ruling may be found here.