New Mexico Register / Volume XXXIII, Issue 13 / July 12, 2022
TITLE 17 PUBLIC
UTILITIES AND UTILITY SERVICES
CHAPTER 9 ELECTRIC SERVICES
PART 573 COMMUNITY
SOLAR
17.9.573.1 ISSUING
AGENCY: New Mexico Public Regulation
Commission.
[17.9.573.1 NMAC - N, 07/12/2022]
17.9.573.2 SCOPE: This rule applies to investor-owned
electric utilities subject to the commission’s jurisdiction and to rural
electric distribution cooperatives that opt into the community solar
program. This rule also applies to subscriber
organizations and subscribers as defined in the Community Solar Act,
Subsections M and N of Section 62-16B-2 NMSA 1978.
[17.9.573.2 NMAC - N, 07/12/2022]
17.9.573.3 STATUTORY
AUTHORITY: Paragraph (10) of Subsection B of
Section 8-8-4 and Section 62-16B-7 NMSA 1978.
[17.9.573.3 NMAC - N, 07/12/2022]
17.9.573.4 DURATION: Permanent, unless otherwise indicated.
[17.9.573.4 NMAC - N, 07/12/2022]
17.9.573.5 EFFECTIVE DATE: July 12,
2022, unless a later date is cited at the end of a section.
[17.9.573.5
NMAC - N, 07/12/2022]
17.9.573.6 OBJECTIVES: The objectives of this rule are to
implement the Community Solar Act, Section 62-16B-1 et seq. NMSA 1978,
and to reasonably allow for the creation, financing
and accessibility of community solar facilities.
[17.9.573.6
NMAC - N, 07/12/2022]
17.9.573.7 DEFINITIONS: [RESERVED]
[17.9.573.7
NMAC - N, 07/12/2022]
17.9.573.8 LIBERAL
CONSTRUCTION: If any part or application of this
rule is held invalid, the remainder of its parts and any other applications of
the rule shall not be affected.
[17.9.573.8 NMAC - N, 07/12/2022]
17.9.573.9 UTILITY
FILINGS FOR IMPLEMENTATION OF PROGRAM: Utilities shall file all tariffs, agreements and forms necessary for implementation of the community
solar program with the commission within 60 days of the effective date of this
rule.
[17.9.573.9
NMAC - N, 07/12/2022]
17.9.573.10 COMMUNITY SOLAR FACILITY REQUIREMENTS:
A. A community solar facility, excepting any native
community solar project, shall:
(1) have a nameplate capacity rating of
five megawatts alternating current or less;
(2) be located in the service territory
of the qualifying utility and be interconnected to the electric distribution
system of that qualifying utility;
(3) have at least ten subscribers;
(4) have the option to be co-located with
other energy resources, but shall not be co-located with other community solar facilities;
(5) not allow a single subscriber to be
allocated more than forty percent of the generating capacity of the facility;
and
(6) make at least forty percent of the
total generating capacity of a community solar facility available in
subscriptions of 25 kilowatts or less.
B. At least thirty percent of electricity produced from each
community solar facility shall be reserved for low-income subscribers and
low-income service organizations. The
commission will issue guidelines to ensure the carve-out is achieved each year
and develop a list of low-income service organizations and programs that may
pre-qualify low-income customers.
[17.9.573.10
NMAC - N, 07/12/2022]
17.9.573.11 STATEWIDE CAPACITY PROGRAM CAPS:
A. The initial statewide capacity program
cap of 200 megawatts alternating current is allocated among the three
qualifying utilities according to addressable market estimations, subject to
further refinement, as follows:
(1) public service company of New Mexico
(PNM), 125 MW;
(2) southwestern public service company
(SPS), 45 MW; and
(3) El Paso electric company (EPE), 30
MW.
B. If, within one year of the receipt
by a utility of the results of an initial request for proposals for community
solar facilities, the initial capacity cap allocation for that utility has not
been fully committed by contract, the commission may, at its discretion, apply
the unused capacity to another utility on a showing of the latter utility’s
sufficient subscriber demand.
C. On or before April 1, 2024, the commission
will commence a review of the results of the initial allocation and subscriber
demand for the community solar program and a proceeding to establish a revised
annual statewide capacity program cap and allocation to be in effect after
November 1, 2024.
[17.9.573.11
NMAC - N, 07/12/2022]
17.9.573.12 PROCESS FOR SELECTION OF COMMUNITY SOLAR FACILITIES:
A. The commission will engage a third-party administrator to
manage an unbiased and nondiscriminatory process for selection of proposed
projects for building and operating community solar facilities. The commission will have no
involvement in the process except to the extent that the administrator
or any participant in the process may raise before the commission an issue that
is not fully addressed in this rule and that the commission finds, in its
discretion, that it should address.
B. Community solar facility projects shall be selected
through a competitive solicitation process, with each bid meeting the following
minimum requirements for eligibility:
(1) the bidder’s legally binding site control;
(2) the bidder’s commitment to meeting
statutory subscriber minimums and not exceeding statutory maximums;
(3) the bidder’s completion of a utility pre-application
report or an equivalent report by the utility;
(4) the bidder’s proof of access to
collateral for the applicable project deposit; and
(5) the bidder’s payment of a $1000
non-refundable bid application fee to the commission.
D. No utility shall use any information provided in the
interconnection application process or any information to which the utility has
superior access to gain an unfair advantage for itself or any
utility-affiliated bidder in the project selection process.
E. Eligible bids shall be scored using a set of non-price
factors, with each factor weighted by the number of points awarded to the
factor, as follows:
(1) each bid shall be awarded to one of
the following categories pertaining to permitting status, each with its own
point weighting:
(a) a bid for which all necessary
non-ministerial permits and approvals have been secured, based upon a
permitting plan signed by a licensed engineering firm, shall be categorized as
fully permitted and shall be awarded 15 points:
(b) a bid for which applications are
pending for all necessary non-ministerial permits, or for which one or more
permits have been granted and applications are pending for the remainder, based
upon permitting plan signed by a licensed engineering firm, shall be
categorized as permits known and pending and shall be awarded 10 points;
(c) a bid for which the necessary
non-ministerial permits have been identified based upon a permitting plan
signed by a licensed engineering firm, but not all such permits have been
applied for, shall be categorized as permits known and shall be awarded five
points; or
(d) a bid for which the necessary
non-ministerial permits have not been identified, based upon a permitting plan
signed by a licensed engineering firm, shall be categorized as no permitting activity and shall be awarded no points.
(2) each bid shall
be awarded points for having any, some, or all of the following attributes concerning the bidder’s experience in
developing and managing community solar projects, with the attributes being
additive, not exclusive, for a range of zero to 10 potential points per bid:
(a) a bid made by a bidder composed of
partners or principals having experience with subscriber recruiting and
subscription management shall be awarded three points;
(b) a bid made by a bidder composed of
partners or principals having experience building and operating facilities
shall be awarded three points; and
(c) a bid made by a bidder composed of
partners or principals having experience working directly with low-income
communities shall be awarded four points.
(3) each bid shall be assigned to one of
the following categories pertaining to financing status, each with its own
point weighting:
(a) a bid for which financing has been
secured, whether in the form of an executed commitment letter from the project
financier(s) or in the form of written confirmation of executive-level approval
for internal financing, shall be categorized as financing secured and shall be
awarded 10 points;
(b) a bid for which financing has not
been secured but for which a detailed and feasible financing plan has been
prepared shall be categorized as financing planned and shall be awarded four
points; or
(c) a bid for which financing has not
been secured and for which no detailed and feasible financing plan has been
prepared shall be categorized as financing unplanned and shall be awarded no
points.
(4) each bid shall be awarded points for having
one or both of the following attributes concerning the proposed project site’s
viability for interconnection, with the attributes being additive, not
exclusive, for a range of zero to five potential points per bid:
(a) a bid for which the proposed project
site’s distance to the utility’s nearest three-phase line is less than one
mile, as demonstrated by the utility’s pre-application report or convincing
alternative evidence presented by the bidder, shall be awarded two points; and
(b) a bid for which the proposed project
would interconnect to a line of voltage 12 kV or higher, as demonstrated by the
utility’s pre-application report, shall be awarded three points.
(5) each bid shall be awarded points for
including any, some, or all the following commitments beyond what is required
by the statute, with the commitments being additive, not exclusive, for a range
of zero to 25 potential points per bid:
(a) a bid including a commitment to
exceed the statutory thirty-percent minimum level of subscription of low-income
subscribers shall be awarded two points for each additional five-percent
commitment above the thirty-percent minimum, up to a maximum of eight points
for a commitment to a fifty-percent low-income subscription level for the
proposed project;
(b) a bid including a commitment to serve
a specific percentage of direct-billed low-income customers shall be awarded
two points for a ten-percent commitment and two additional points for each
additional ten-percent commitment, up to a maximum of eight points for a
commitment to a forty-percent subscription level of direct-billed, low-income
subscribers for the proposed project;
(c) a bid including a commitment to
refrain from imposing upon any potential low-income subscriber any up-front
costs of subscribing, a commitment to refrain from imposing upon any potential
low-income subscriber any early termination fee, and a commitment to refrain
from requiring or ordering any credit check or credit report for any low-income
subscriber, shall be awarded two points; and
(d) a bid including a commitment to
supplement the community solar bill credit for any low-income subscriber, for a
minimum period of five years, by including, in addition to the credit as
calculated and provided by the utility, a credit from the subscriber
organization to the subscriber in the amount of an additional twenty to thirty
percent of the utility solar bill credit, shall be awarded four points for a
commitment of twenty percent up to and including twenty-two percent, five
points for a commitment above twenty-two percent up to and including twenty-five
percent, six points for a commitment above twenty-five percent up to and
including twenty-seven percent, or seven points for a commitment above
twenty-seven percent up to and including thirty percent.
(6) each bid shall be awarded points for
having any, some, or all of the following attributes
concerning benefits to local communities, to disproportionately impacted
communities, or to disadvantaged groups, with the attributes being additive,
not exclusive, for a range of zero to 20 potential points per bid:
(a) a bid including a commitment to offer
workforce training or educational opportunities to disproportionately impacted
communities shall be awarded six points;
(b) a bid including a commitment to contract
for materials, supplies, or services only with businesses owned or operated
locally or owned or operated by members of racial minorities, women, veterans,
or Native Americans, shall be awarded six points;
(c) a bid including a commitment to ownership
of the proposed facility by members of the local community shall be awarded two
points; and
(d) a bid including evidence of and a
description of an existing and continuing partnership with a tribe, pueblo,
local community, or non-profit community organization shall be awarded six
points.
(7) each bid shall be awarded points for
having any, some, or all of the following attributes
concerning the proposed project site, with the attributes being additive, not
exclusive, for a range of zero to five potential points per bid:
(a) a bid for a project to be sited on a
brownfield, built environment, or rooftop shall be awarded two points;
(b) a bid for a project to be sited on
municipal, county, or state land shall be awarded one point; and
(c) a bid for a project that has received
a favorable analysis from the department of cultural affairs
or a qualified independent expert shall be awarded two points.
(8) each bid shall be categorized
according to the provisions of Section 13-1-21 NMSA 1978, and
shall be awarded points accordingly.
(9) The program administrator may award
an additional five points to any bid that, as determined by the administrator
in its discretion, includes an innovative commitment or provision beneficial to
the local community, to potential subscribers, or to the program overall.
G. For each bid selected to proceed
further by the program administrator, the bidder shall pay to the commission an
application fee in the amount of $2500 for each megawatt of nameplate capacity
the proposed facility is expected to have.
H. The program administrator shall
identify sets of proposed projects to comprise utility-specific wait lists of
proposed projects that would be eligible and able to participate in the program
should a project or multiple projects be withdrawn after being selected to go
forward. The wait lists shall be
comprised of projects that received total scores immediately below the scores
of the projects that were selected. The
program administrator shall maintain a wait list for each qualifying utility,
including projects with combined capacities for each utility equal to the
utility’s allocated capacity cap. Each bidder proposing
a wait-listed project shall pay the $2500/MW application fee within 30 days of
moving from the wait list into the queue of selected projects.
I. A utility must consider interconnection applications for
community solar projects that have been selected by the administrator and any
projects from the wait list that replace any selected projects and need not
consider interconnection applications for community solar projects that have
not been selected or have not replaced selected projects. Among the group of interconnection
applications for community solar projects that have been selected by the administrator
or have replaced selected projects, a utility must prioritize consideration of
applications in the order of ranking by points awarded to each project in the
selection process. A utility shall not
apply any preference for interconnection applications for community solar
projects as opposed to other types of interconnection applications, and
vice-versa, regarding prioritization in the interconnection queue.
[17.9.573.12
NMAC - N, 07/12/2022]
17.9.573.13 INTERCONNECTION
AND ADMINISTRATIVE COSTS:
A. The commission may determine on a case-by-case basis
whether the cost of distribution system upgrades necessary to interconnect one
or more community solar facilities may be eligible for some form of
cost-sharing:
(1) among subscriber organizations using
the same distribution facilities;
(2) among all ratepayers of the
qualifying utility via rate base adjustments; or
(3) among ratepayers of the same rate
class as subscribers to the community solar facility via a rate rider for that
class.
B. In making a determination that
there are public benefits to such a cost-sharing mechanism, the commission will
employ the analysis that the commission employs when considering cost sharing
or rate basing grid modernization projects as defined by 71-3 NMSA 1978, the
Grid Modernization Act, to make a finding that the approved expenditures are:
(1) reasonably expected to improve the
utility’s electrical system efficiency, reliability, resilience and security;
(2) reasonably expected to maintain
reasonable operations, maintenance and ratepayer costs;
(3) reasonably expected to meet energy
demands through a flexible, diversified and distributed energy portfolio;
(4) reasonably expected to increase access
to and use of clean and renewable energy, with consideration given to
increasing access to low-income subscribers and subscribers in underserved
communities; or
(5) designed to contribute to the
reduction of air pollution, including greenhouse gases.
C. The commission will consider approving sharing of
interconnection costs with nonsubscribing ratepayers
only to the extent that the costs borne by such ratepayers are matched or
exceeded by demonstrable benefits to such ratepayers, so that there will be no
subsidization of interconnection costs by nonsubscribing
ratepayers.in appropriate cases.
D. A utility may recover administrative costs of carrying
out its responsibilities concerning the community solar program through a rate
rider from which nonsubscribing ratepayers are
exempt. A utility may apply to the
commission to establish such a rider.
[17.9.573.13
NMAC - N, 07/12/2022]
17.9.573.14 REGISTRATION
OF SUBSCRIBER ORGANIZATIONS:
A. The commission will issue a registration form that each
subscriber organization shall file with the commission, that includes ownership
and contact information, non-profit registration, or proof of certification to
operate in New Mexico, and a general description of the project(s) proposed by
the subscriber organization.
B. Each subscriber organization’s
ongoing authorization to operate community solar facilities shall be dependent
upon the organization’s compliance with the statutory thirty-percent low-income
subscription minimum for each facility operated by the subscriber
organization. Each subscriber organization shall report to
the program administrator on a monthly basis upon
the organization’s progress toward meeting the requirement. Subscriber organizations that have reached
the required level shall report on a quarterly basis to verify that the
requirement continues to be met.
Subscriber organizations that fail to reach the required level within
one year of project selection may be subject, at the commission’s discretion,
to penalties up to and including suspension or revocation of the subscriber
organization’s authorization to operate.
[17.9.573.14 NMAC - N, 07/12/2022]
17.9.573.15 SPECIAL SUBSCRIBER PROVISIONS:
A. Low-income customers who are eligible to meet the thirty
percent carve out of Paragraph (3) of Subsection B of Section 62-16B-7 NMSA
1978 may be pre-qualified based on participation in any of the following
programs:
(1) Medicaid;
(2) Supplemental Nutrition Assistance
Program (SNAP);
(3) Low-Income Home Energy Assistance
Program (LIHEAP);
(4) first-time homeowner programs and
housing rehabilitation programs;
(5) living in a
low-income/affordable housing facility; or
(6) state and federal income tax credit
programs.
B. An entire multi-family affordable housing project may
prequalify its entire load as a low-income subscriber.
C. A customer who does not qualify
under subpart A may provisionally qualify as a low-income subscriber by signing
a self-attestation that the customer’s income and household size qualify the
customer as a low-income subscriber, until the customer provides sufficient
confirming documentation within ninety days of providing the self-attestation.
D. Low-income service organizations
need only fit the special definition of this term provided in the community
solar act, Subsection H of Section 62-16-2 NMSA 1978.
E. For the initial period of the
program, the commission shall contract with an experienced service provider to partner
with community organizations and to manage an outreach program to attract
low-income subscribers to the program.
[17.9.573.15
NMAC - N, 07/12/2022]
17.9.573.16 SUBSCRIBER
PROTECTIONS:
A. The commission has adopted a uniform disclosure form,
identifying the information to be provided by subscriber organizations to
potential subscribers, in both English and Spanish, and when appropriate, native or indigenous languages, to ensure fair disclosure of
future costs and benefits of subscriptions, key contract terms, security
interests and other relevant but reasonable information pertaining to the
subscription, as well as grievance and enforcement procedures. The key contract terms to be disclosed on the
form are subscription size (kw dc), estimated contract effective date, contract
term (months or years), option to renew y/n?,
enrollment costs/subscription fees, payment terms, rate discount, estimated
total one year payments, early termination fees or cancellation terms, and
subscription portability or transferability.
The subscriber organization shall provide the form to a potential
subscriber and allow them a reasonable time to review the form’s disclosures
and sign the form before entering into a subscription agreement. The subscriber organization shall maintain in
its files a signed form for each subscriber for the duration of the
subscriber’s subscription, plus one year, and shall make the form available to
the commission upon the commission’s request.
B. The subscriber organization must maintain a minimum level
of general liability insurance coverage
for each facility that it operates, with the minimum level dependent upon the
nameplate capacity of the facility, according to the following schedule: one million dollars per occurrence for a
facility with a capacity greater than 250 kW, five hundred thousand dollars per
occurrence for a facility with a capacity in the range of 40 kW - 250kW, and
three hundred thousand dollars per occurrence for a facility with a capacity
below 40 kW.
[17.9.573.16
NMAC - N, 07/12/2022]
17.9.573.17 SUBSCRIPTION
AGREEMENTS: Each subscriber organization shall
develop and implement a written subscriber agreement containing the
organization’s terms and conditions for subscribing to its project.
A. The subscriber agreement must include the following
terms, at a minimum:
(1) general project information;
(2) the effective date and term of the agreement;
(3) identification of all charges and fees;
(4) payment details;
(5) information about the bill credit mechanism;
(6) a comparison of the subscriber’s net
bill with and without the subscription;
(7) the terms and conditions of service;
(8) the process for customer notification
if the community solar facility is out of service;
(9) the customer protections provided;
(10) contact information for questions and
complaints; and
(11) the subscriber organization’s
commitment to notify the subscriber of changes that could impact the
subscriber.
B. The commission may consider
additional required terms in a future proceeding.
C. Complaints by subscribers against
subscriber organizations may be submitted to the commission’s consumer
relations division for informal resolution.
The commission may, in its discretion, refer serious issues to the
attorney general to pursue enforcement proceedings.
[17.9.573.17 NMAC - N, 07/12/2022]
17.9.573.18 CO-LOCATION OF COMMUNITY SOLAR FACILITIES: As long as a community solar
facility is not located on the same parcel as another community solar facility,
it shall not be considered co-located with another community solar facility.
For any parcel that has been subdivided in the two years prior to a
community solar project bid, all subdivided parcels shall be considered a single
parcel for the purposes of this
rule. The commission will consider, on a
case-by-case basis, allowing more than one community solar facility to be
located on the same parcel.
[17.9.573.18
NMAC - N, 07/12/2022]
17.9.573.19 PRODUCTION DATA:
A. The subscriber organization shall pay for a production
meter to be used to measure the amount of electricity and renewable energy
certificates generated by each community solar facility, whether installed by
the utility or the subscriber organization.
A net meter may serve as the production meter if the utility determines
that there is no material onsite load at the facility.
B. The subscriber organization shall provide real-time
reporting of production as specified by the utility. For a community solar facility with
production capacity greater than 250 kW AC, the subscriber organization shall
provide real-time electronic access to production and system operation data to
the utility.
C. Production from the facility shall be reported to the
subscribers by the subscriber organization on at least a monthly basis. Subscriber organizations are encouraged to
provide website access to subscribers showing real-time output from the
facility, if practicable, as well as historic production data.
[17.9.573.19
NMAC - N, 07/12/2022]
17.9.573.20 COMMUNITY SOLAR BILL CREDIT RATE:
A. In
calculating the solar bill credit rate, the utility shall calculate the total
aggregate retail rate on a per-customer-class basis, less the
commission-approved distribution cost components, and identify all proposed
rules, fees and other charges converted to a kilowatt-hour rate, including fuel
and power cost adjustments, the value of renewable energy attributes and other
charges of a qualifying utility's effective rate schedule applicable to a given
customer rate class, but does not include charges described on a qualifying
utility's rate schedule as minimum monthly charges, including customer or
service availability charges, energy efficiency program riders or other charges
not related to a qualifying utility's power production, transmission or
distribution functions, as approved by the commission, franchise fees and tax
charges on utility bills;
B. The total aggregate retail rate is the total amount of a
qualifying utility's demand, energy and other charges converted to a
kilowatt-hour rate, including fuel and power cost adjustments, the value of
renewable energy attributes and other charges of a qualifying utility's
effective rate schedule applicable to a given customer rate class, but does not
include charges described on a qualifying utility's rate schedule as minimum
monthly charges, including customer or service availability charges, energy
efficiency program riders or other charges not related to a qualifying utility's
power production, transmission or distribution functions, as approved by the
commission, franchise fees and tax charges on utility bills. The utility’s tariff for the bill credit
shall include a table specifying the components of the total aggregate retail
rate, the value of the renewable energy attributes and the distribution costs
to be subtracted.
C. The utility shall base its distribution cost calculation
upon its most recently commission-approved cost-of-service study indexed to
current value.
D. The utility shall not subtract any costs of transmission
from the solar bill credit rate calculation.
[17.9.573.20
NMAC - N, 07/12/2022]
17.9.573.21 UNSUBSCRIBED ENERGY:
A. If
a community solar facility is not fully subscribed in a given month, the
unsubscribed energy may be rolled forward on the community solar facility
account for up to one year from its month of generation and allocated by the
subscriber organization to subscribers at any time during that period. At the end of that period, any undistributed
bill credit shall be removed, and the unsubscribed energy shall be purchased by
the qualifying utility at its applicable avoided cost of energy rate as
approved by the commission.
B. The utility shall document any
payments made for unsubscribed energy, including documentation of the utility’s
calculation of avoided cost and make such documentation available to the
commission upon request. The utility may
request recovery of such payments in its next base rate case.
[17.9.573.21
NMAC - N, 07/12/2022]
17.9.573.22 REPORT TO LEGISLATURE: On April 1, 2023 and April 1, 2024, qualifying utilities and subscriber
organizations shall provide information to the commission relevant to the
report to the legislature due on November 1, 2024. The commission will issue specific
information requests no later than 45 days before each April deadline.
[17.9.573.22
NMAC - N, 07/12/2022]
HISTORY OF
17.9.570 NMAC: [RESERVED]