SENATE BILL 137

50th legislature - STATE OF NEW MEXICO - first session, 2011

INTRODUCED BY

Peter Wirth

AN ACT

RELATING TO PUBLIC UTILITIES; PROVIDING FOR A RETAIL RATE FOR THE PURCHASE OF ELECTRIC POWER FROM CUSTOMER-GENERATORS; PROHIBITING ADDITIONAL RATES TO CUSTOMER-GENERATORS NOT CHARGED TO OTHER CUSTOMERS IN THE SAME RATE CLASS; PROVIDING FOR A TWELVE-MONTH BILLING CYCLE.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 62-3-3 NMSA 1978 (being Laws 1967, Chapter 96, Section 3, as amended) is amended to read:

     "62-3-3. DEFINITIONS.--Unless otherwise specified, when used in the Public Utility Act:

          A. "affiliated interest" means a person who directly or indirectly, through one or more intermediaries, controls or is controlled by or is under common control with a public utility. Control includes instances when:

                (1) a person is an officer, director, partner, trustee or person of similar status or function;

                (2) a person owns directly or indirectly or has a beneficial interest in ten percent or more of voting securities of a person;

                (3) a person has a level of ownership of securities other than voting securities that the commission establishes as creating a presumption of control; and

                (4) the possession of the power to direct or cause the direction of the management and policies of a person exists in fact, notwithstanding the lack of ownership of ten percent or more of the person's voting securities;

          B. "commission" means the public regulation commission;

          C. "commissioner" means a member of the commission;

          D. "municipality" means a municipal corporation organized under the laws of the state, and H-class counties;

          E. "person" means an individual, firm, partnership, company, rural electric cooperative organized under Laws 1937, Chapter 100 or the Rural Electric Cooperative Act, corporation or lessee, trustee or receiver appointed by any court. "Person" does not mean a class A county as described in Section 4-36-10 NMSA 1978 or a class B county as described in Section 4-36-8 NMSA 1978. "Person" does not mean a municipality as defined in this section unless the municipality has elected to come within the terms of the Public Utility Act as provided in Section 62-6-5 NMSA 1978. In the absence of voluntary election by a municipality to come within the provisions of the Public Utility Act, the municipality shall be expressly excluded from the operation of that act and from the operation of all its provisions, and no such municipality shall for any purpose be considered a public utility;

          F. "securities" means stock, stock certificates, bonds, notes, debentures, mortgages or deeds of trust or similar evidences of indebtedness issued, executed or assumed by a utility;

          G. "public utility" or "utility" means every person not engaged solely in interstate business and, except as stated in Sections 62-3-4 and 62-3-4.1 NMSA 1978, that may own, operate, lease or control:

                (1) any plant, property or facility for the generation, transmission or distribution, sale or furnishing to or for the public of electricity for light, heat or power or other uses;

                (2) any plant, property or facility for the manufacture, storage, distribution, sale or furnishing to or for the public of natural or manufactured gas or mixed or liquefied petroleum gas for light, heat or power or other uses; but "public utility" or "utility" shall not include any plant, property or facility used for or in connection with the business of the manufacture, storage, distribution, sale or furnishing of liquefied petroleum gas in enclosed containers or tank truck for use by others than consumers who receive their supply through any pipeline system operating under municipal authority or franchise and distributing to the public;

                (3) any plant, property or facility for the supplying, storage, distribution or furnishing to or for the public of water for manufacturing, municipal, domestic or other uses; provided, however, that nothing contained in this paragraph shall be construed to apply to irrigation systems, the chief or principal business of which is to supply water for the purpose of irrigation;

                (4) any plant, property or facility for the production, transmission, conveyance, delivery or furnishing to or for the public of steam for heat or power or other uses;

                (5) any plant, property or facility for the supplying and furnishing to or for the public of sanitary sewers for transmission and disposal of sewage produced by manufacturing, municipal, domestic or other uses; provided that "public utility" or "utility" as used in the Public Utility Act does not include any utility owned or operated by a class A county as described in Section 4-36-10 NMSA 1978 either directly or through a corporation owned by or under contract with such a county; or

                (6) any plant, property or facility for the sale or furnishing to or for the public of goods or services to reduce the consumption of or demand for electricity or natural gas, and is either a public utility under the definitions found in Paragraph (1) or (2) of this subsection, or is an alternative energy efficiency provider as described in Section 62-17-7 NMSA 1978;

          H. "rate" means every rate, tariff, charge or other compensation for utility service rendered or to be rendered by a utility and every rule, regulation, practice, act, requirement or privilege in any way relating to such rate, tariff, charge or other compensation and any schedule or tariff or part of a schedule or tariff thereof;

          I. "renewable energy" means electrical energy generated by means of a low- or zero-emission generation technology that has substantial long-term production potential and may include, without limitation, the following energy sources: solar, wind, hydropower, geothermal, landfill gas, anaerobically digested waste biomass or fuel cells that are not fossil fueled. "Renewable energy" does not include fossil fuel or nuclear energy;

          J. "service" or "service regulation" means every rule, regulation, practice, act or requirement relating to the service or facility of a utility;

          K. "Class I transaction" means the sale, lease or provision of real property, water rights or other goods or services by an affiliated interest to a public utility with which it is affiliated or by a public utility to its affiliated interest;

          L. "Class II transaction" means:

                (1) the formation after May 19, 1982 of a corporate subsidiary by a public utility or a public utility holding company by a public utility or its affiliated interest;

                (2) the direct acquisition of the voting securities or other direct ownership interests of a person by a public utility if such acquisition would make the utility the owner of ten percent or more of the voting securities or other direct ownership interests of that person;

                (3) the agreement by a public utility to purchase securities or other ownership interest of a person other than a nonprofit corporation, contribute additional equity to, acquire additional equity interest in or pay or guarantee any bonds, notes, debentures, deeds of trust or other evidence of indebtedness of any such person; provided, however, that a public utility may honor all agreements entered into by such utility prior to May 19, 1982; or

                (4) the divestiture by a public utility of any affiliated interest that is a corporate subsidiary of the public utility;

          M. "corporate subsidiary" means any person ten percent or more of whose voting securities or other ownership interests are directly owned by a public utility;

          N. "public utility holding company" means an affiliated interest that controls a public utility through the direct or indirect ownership of voting securities of that public utility;

          O. "voting securities" means securities that carry the present right to vote for the election of directors or other members of the governing body ultimately responsible for the management of the organization; [and]

          P. "future test period" means a twelve-month period beginning no later than the date a proposed rate change is expected to take effect;

          Q. "clean generation source" means a facility that produces electrical energy:

                (1) generated by the use of low- or zero-emission generation technology with substantial long-term production potential;

                (2) generated by the use of a renewable energy resource that may include a solar, wind, hydropower or geothermal resource or by the use of a biomass resource such as agriculture or animal waste, small diameter timber, salt cedar and other phreatophyte or woody vegetation removed from a river basin or watershed in the state, landfill gas and anaerobically digested waste biomass or hydrogen produced from renewable sources used in fuel cells; and

                (3) that is not generated by use of fossil fuel or nuclear energy;    

          R. "customer-generator" means a retail customer of a public utility, or a rural electric cooperative organized pursuant to the Rural Electric Cooperative Act, who is also the operator of a clean generation source; and

          S. "net metering" means a measurement of the difference between the electricity supplied to a customer-generator by a public utility or a rural electric cooperative and the electricity that is generated by the customer-generator and delivered to a public utility or a rural electric cooperative at the same point of interconnection."

     SECTION 2. A new section of the Public Utility Act is enacted to read:

     "[NEW MATERIAL] NET METERING--RETAIL RATE FOR PURCHASES--NO ADDITIONAL RATES--TWELVE-MONTH BILLING CYCLE.--If a public utility or a rural electric cooperative organized pursuant to the Rural Electric Cooperative Act is required to make net metering services available to a customer-generator:

          A. the applicable rate for the purchase of electrical energy by a public utility or a rural electric cooperative from a customer-generator shall be based on the retail rate of the public utility or rural electric cooperative that is applicable to the customer-generator's customer class;

          B. rates from a public utility or a rural electric cooperative for a customer-generator shall be the same as the rates applicable to customers in the same rate class who are not customer-generators. A public utility or a rural electric cooperative shall not charge any new or additional demand charge, standby charge, customer charge, minimum monthly charge, interconnection charge or any other rate that would increase a customer-generator's costs beyond those of other customers in the same rate class who are not customer-generators;

          C. at the end of a billing cycle, which shall be a twelve-month period, where the electricity generated by a customer-generator exceeds the electricity supplied by a public utility or a rural electric cooperative, and upon an affirmative election by the customer-generator, the public utility or rural electric cooperative shall:

                (1) purchase the excess electricity from the customer-generator pursuant to Subsection A of this section; or

                (2) apply the excess electricity as a credit for electric service subsequently supplied to the customer-generator; and

          D. a customer-generator who fails to make an affirmative election pursuant to Subsection C of this section shall not be owed compensation for the excess electricity generated by the customer-generator during the applicable billing cycle."