Friday 6 April 2012

FIT 2.0: It's a good day to be co-operative.

FIT 2.0 is out (draft available for comments). What does it say for community power?

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Update, (April 12), long after reading the FIT Contract Sec 17. Watch for the risks involved. If a supplier enters a contract as a community project and (for all but rooftop solar) the project community participation level drops below 15% at any time over the Term of the contract, the supplier is in default. Thus in any partnership we need to ensure that safeguards are in place to prevent the ownership from so doing. (For rooftop solar the limit is 5 years, rather than 20.)

In addition, Sec 17 has no comparable mechanism of default in the case where community participation drops below 50%. Recall that the Recommendations indicted a 10% set-aside for community projects with >50% community equity. This says to me that the 10% set-aside is not yet included in the contract, and there is no mention of it in the rules.  So unless it is being abandoned in its entirety, it seems fairly clear that we will be getting a community FIT one of these days. I'll put a bet on July, to coincide with the CEPP re-launch.
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http://fit.powerauthority.on.ca/comments-welcome-draft-fit-program-rules-and-contract

The new Feed-in Tariff Rules have been published, and are very welcome. The OPA team should be commended this time for their quick action; they have clearly been working very hard on this.

The “FIT Rules 2.0” remain close to the recommendations offered by the Deputy Minister a short while ago.  A lot of attention has been paid to the points system by which priority for contracts will be granted, and it is sure that “community equity” will be highly sought after as a way to achieve higher points. (Read my previous post if you're not with me on this.


Some important questions were still being asked, including:

1) Are they serious about this new definition of community?

2) What kinds of partnerships are now facilitated? Will developers be knocking on co-ops’ doors?

3) What about the CEPP and existing applicants?


I’m going to offer a brief analysis based on a first reading of the rules and relevant definitions. My short answers are:

1)    Yes, they were/are serious.
2)    Lots of partnerships are possible, and co-ops (existing and new) will be sought after. But the requirements for co-op participation may not be entirely welcome (or entirely co-operative).
3)    It’s still tough to say.


Now the longer answers:

1) Are they serious about this new definition of community?

In true OPA legalese...

52. Community Investment Member means:


(a) in respect of a Large FIT Project or a Large FIT Facility, a Co-op with at least 50 Co-op Members that are Property Owners; or


(b) in respect of a Small FIT Project or a Small FIT Facility, a Co-op with at least 35 Co-op Members that are Property Owners.

 - and then this:

238. Property Owner means a natural person that, as of the date two years prior to the date of an Application, and at the date of such Application still is, the registered owner of real property in a Municipality in which a Project described in such Application is (in whole or in part) located.

“A” municipality…?


179. Municipality means a municipal corporation as defined by the Municipal Act, 2001, SO 2001, c.25.


Which is about what the recommendations had given us, but with more clarity.  As one new member suggested, it sounds a bit like France prior to the Revolution. No property? No rights!

Short answer: Yes, they were serious.

To be sure, this definition of property owner is exclusive, and will alienate a large number of people who rent, or co-own property, etc. It seems hard to justify this, and it will be challenged by a lot of parties.


2) What kinds of partnerships are now facilitated? Will developers be knocking on co-ops’ doors?


First, it is confirmed that existing applicants will be invited to re-submit their applications and retain their time stamp (but be careful about the timing!). Small projects (<500kW) get to re-apply first.
[FIT Rules 5.2 Transitional Provisions for Pre-Existing Applications]

Prioritization [FIT Rules Section 6]
Applications will be prioritized according to 1) points and 2) original time stamp. Points are the priority. They will be highly sought.

The points system is as we saw it, with 3 points for Co-op participation >15%, 3 for First Nations >15%, 2 for Education/Health Participation.

These are “Project Type” points, and CANNOT be combined. They each can, however, be combined with “non-project type” points. These are 2 for Municipal and FN support, project readiness or Ed/Health host, and 1 for “system benefit”. There are two exceptions: First Nations projects can’t get points for their own FN support, and Ed/H can’t get points for both type and host.


So let’s consider a few partnerships:

1)    A Co-op 15% share, with FN and Municipal support, on Ed/H property, project ready (one extra if water, biomass, biogas): 11 (12) points

2)    A Co-op or FN 15% share on Ed/H property, project ready: 7 points

3)    A private lease, co-op 15% share, municipal support, project ready: 7 points.

4)    A School w Municipal support, project ready: 6 points

5)    Private lease, co-op 15% share, no municipal support, project ready: 5 points

6)    Private lease, project ready: 2 points.


Maximizing points will maximize priority, and that suggests developers will be seriously weighing the sale of a portion of a project in order to get the contract. And why not? Isn’t that what many of us have been advocating? Note the last option (6) is effectively the industry standard - and this looks to be unlikely to achieve a contract in upcoming rounds. So grab your partners!


But how easy is it to “sell” a 15% portion of a project (at the application stage)?


[DEFINITIONS] 53. Community Participation Level means, in relation to a Project or a Facility, the percentage of the total Direct Economic Interest in the Applicant or the Supplier that is held by a Community Investment Member, provided that the Community Participation Level shall be reduced by a percentage equal to the percentage of the total Economic Interest (without double counting indirect Economic Interest) held in such Community Investment Member by any Person or Affiliate thereof whose primary business or employment is the development of non-community based electricity generation projects, as determined by the OPA in consultation with the third party administrator of the “Community Energy Partnership Program”.



That seems to say a developer could partner with a co-op, but must genuinely release the portion of the project to others through a co-op (unless the developer is already a deemed Community Power developer). Interesting role for CEPP here.


Note also the [DEFINITIONS 55] Community Participation Project Declaration which means that the co-op members who provide points eligibility also need to provide contact info, and a signed authorization that OPA may collect and use that information and may contact that person. Note the declaration must be part of the application. But while 35/50 resident members must provide their information, it does not seem the *investment* needs to come from those particular members. Rather, the investment comes from the co-op itself.

Nonetheless, the *members* are recognized as individuals, and there is something un-co-operative about, for instance:

[RULES] 3.3 Other Application Requirements
(a) If an Application is for a Participation Project, such Application must include
Supporting Documentation evidencing the requisite Participation Level with respect to eligibility for claimed Priority Points, Application Security amount and Price Adder. In the case of a Community Participation Project, the Application must include signed consent from each Co-op Member of such Co-op who is a Property Owner:
(i) to the collection, use and disclosure by the OPA of such member’s personal information contained in or supplementing the Application; and
(ii) to the OPA contacting each such member for verification purposes.


I think we need to ask OPA to clarify/correct this, because it would *seem to* require that 100% of the co-op's members who are "property owners" must consent to being contacted. In the definition of "Community Participation Project Declaration", it is only the minimum (35/50) who need to actively consent, which seems much more reasonable.

Generally, though, co-ops work by majority, not consensus; and collectively, rather than individually. I can understand the need for the Rules to be careful that "artificial" co-ops don't arise, and to verify the local participation... but some members are going to be uncomfortable with being “verified” as individual, consenting members of the co-op. As members of the co-op, members have *already* consented (to act collectively).

At any rate [Short Answer], it seems a wide range of partnerships are possible and attractive for developers and partners. Where co-ops are involved, however, the limitations on “property ownership” may bring some justifiable resentment. One can certainly imagine it being challenged on the basis of human rights. Could the OPA not use "residency in the municipality" as the criterion, verified using driver's license or some other records?

***
Updated, (April 12), after reading the FIT Contract Sec 17. Watch for the risks involved. If a supplier enters a contract as a community project and (for all but rooftop solar) the project community participation level drops below 15% at any time over the Term of the contract, the supplier is in default. Thus in any partnership we need to ensure that safeguards are in place to prevent the ownership from so doing.

In addition, Sec 17 has no comparable mechanism for default in the case where community participation drops below 50%. Recall that the Recommendations indicted a 10% set-aside for community projects with >50% community equity. This says to me that the 10% set-aside is not yet included in the contract, and there is no mention of it in the rules.  So unless it is being abandoned in its entirety, it seems fairly clear that we will be getting a community FIT one of these days. I'll put a bet on July, to coincide with the CEPP re-launch.
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3) What about the CEPP and existing applicants?


There is very little to go on as yet regarding the CEPP. The Recommendations stated there would be new rules by July. I would expect them sooner. Will only-co-ops be eligible? What about existing applicants and/or grant recipients?

My gut feeling is that the CEPP will be restricted to Community Investment Members – that is, co-ops with 35 or 50 members – from here on in.  I would expect applicants who have not yet received a Funding Agreement to be out of luck.

For those who have a funding agreement, there is still no certainty that I can see. It is worth noting that it is considered an “event of default” if the recipient is no longer eligible to receive funds under CEPP, but there is some flexibility in how that is treated. Still, I would not be surprised if existing recipients who no longer fit the eligibility terms have their grants discontinued. That's going to upset a lot of people, no doubt "one or more individuals resident in Ontario". Well, it’s nice while it lasts.


Short Answer to it all: It’s time to get serious about Community Power, and it’s a good year to be a co-op (or, it seems, a co-op developer).

These new rules ensure that co-ops – along with First Nations, Municipalities, and Schools and Hospitals - have a significant role to play this next round of the game. And for that the CP sector is surely thankful.

Still, co-ops will have new challenges dealing with their membership if they’re going to play. But it’s developers who should take the initiative and offer some assistance to cover the added costs. Developers need to pony up – this is the new cost of doing business. Effectively, every Municipality could support at least one co-op, and some could surely handle a large number.

After a dreadful drought, these new rules arrive like a flash flood. The next few weeks and months will be busy, and I fear they may get ugly, as everybody – developers and co-ops alike – tries to grab their bit of the pie. I think it’s essential that the co-operative sector tries hard to co-operate, to build relationships and networks and trust, so we don’t fall prey to the boom and bust. If we work together, we may manage to ensure that there is a steady purpose for co-ops in the future of energy in Ontario.