[SENATE, January 9, 2008 – S2468, being the text of Senate, No. 2457, printed as amended)]
[SENATE, January 9, 2008 – S2468, being the text of Senate, No. 2457, printed as amended)] |
Whereas, The deferred operation of this act would tend to defeat its purpose, which is forthwith to generate renewable energy and promote efficiency, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public safety and convenience
Be it enacted by the Senate and House of
Representatives in General Court assembled,
SECTION 1. Section 9A of chapter 7 of the General Laws, as appearing in the 2006 Official Edition, is hereby amended by adding the following 5 paragraphs:-
When purchasing new motor vehicles, the commonwealth shall purchase hybrid or alternative fuel vehicles, to the maximum feasible extent and consistent with the ability of such vehicles to perform their intended duties, at a rate of not less than 5 per cent annually for all new motor vehicle purchases so that, taking into account the existing number of such vehicles owned and operated by the commonwealth, not less than 50 per cent of the motor vehicles owned and operated by the commonwealth shall be hybrid or alternative fuel vehicles by the year 2018. The average fuel consumption, for the entire fleet of passenger vehicles owned or leased by the commonwealth, except those vehicles used for emergency purposes, security purposes and special services, shall be equal to or more efficient than the United States Corporate Average Fuel Economy, known as CAFE, standards as established by the National Highway Traffic Safety Administration, known as the NHTSA, and the United States Environmental Protection Agency.
The division of operational services shall forward to the division of energy resources all requests for motor vehicle acquisitions by agencies of the commonwealth. The division of energy resources shall thereafter report to the division of operational services regarding the availability of a hybrid or alternative fuel vehicle that will feasibly achieve the intended use designated by the requesting agency.
The division of capital asset management and maintenance, in consultation with the division of energy resources, shall develop a system of protocols for the acquisition of alternative fuel vehicles and hybrids, including identifying the potential for acquisition of heavy, medium and light-duty vehicles, based on the anticipated mileage and usage of such vehicles, and the effectiveness of single fuel or dual fuel alternative fuel vehicles for the particular purpose identified.
The division of energy resources shall submit to the secretary of administration and finance, the clerks of the senate and house of representatives and the joint committee on state administration and regulatory oversight an annual statement detailing the progress, as well as any additional relevant information, of both the acquisition of hybrid or alternative fuel vehicles by the commonwealth and the acquisition of vehicles by the commonwealth that have average fuel consumption which is equal to or more efficient than the aforemenentioned CAFE standard.
SECTION 2. Said chapter 7 is hereby further amended by inserting after section 39C the following section:-
Section 39D. (a) The commissioner shall require a state agency that initiates the construction of a new facility owned or operated by the commonwealth or a renovation of an existing facility owned or operated by the commonwealth when the renovation costs exceed $25,000 and includes the replacement of systems, components or other building elements which affect energy or water consumption to design and construct or renovate the facility in a manner that minimizes the life-cycle cost of the facility by utilizing energy efficiency, water conservation or renewable energy technologies under the following criteria:
(i) The state agency shall utilize alternate technologies when the life-cycle cost analysis conducted under subsection (b) shows that such systems are economically feasible.
(ii) Each new educational facility, including a municipal educational facility financed through the school building assistance program, for which the projected demand for hot water exceeds 1,000 gallons per day or which operates a heated swimming pool, shall be constructed, whenever economically and physically feasible, with a solar or other renewable energy system as the primary energy source for the domestic hot water system or swimming pool of the facility.
(iii) The division of capital asset management and maintenance or the state agency shall, in the design, construction, equipping and operation of such facilities, coordinate these efforts with the division of energy resources in order to maximize reliance on, and the benefits of, renewable energy research and investment activities.
(iv) Higher education construction projects shall include green buildings standards as included in the MA-CHPS Green Schools Guidelines.
(b) The division of capital asset management and maintenance or the state agency initiating the construction or renovation of a facility as described in subsection (a) shall conduct a life-cycle cost analysis of any such facility’s proposed design that evaluates the short-term and long-term costs and the technical feasibility of using alternate technologies to provide lighting, heat, water heating, air conditioning, refrigeration, gas or electricity. In calculating life-cycle costs, a state agency shall include the value of avoiding carbon emissions, creating renewable energy certificates and other environmental benefits created from the utilization of alternate technologies, as applicable. This value shall be equal to the bid price of the published market value of any such benefit and shall be assumed to increase at a rate of 5 per cent per year above the estimated rate of inflation for any year in which there are no published values. To calculate life-cycle costs, a state agency shall use a discount rate equal to the rate that the commonwealth’s tax-exempt long-term bonds are yielding at the time of said calculation and shall assume that the cost of fossil fuels and electricity will increase at the rate of 3 per cent per year above the estimated rate of inflation.
(c) Notwithstanding section 11C of chapter 25A or any regulations issued thereunder, the division of capital asset management and maintenance may procure energy management services jointly with a state agency or a building authority that is procuring energy or related services. Notwithstanding subsection (d) of said section 11C, said section 11C shall apply to the extent feasible as determined by the commissioner of energy resources.
(d) For purposes of this section, the term “economically feasible” shall mean that the cost of installing and operating an alternate technology is lower than the cost of installing and operating the energy, energy-using technology or water-using technology that would otherwise be installed, as determined by a life-cycle cost analysis.
(e) The division of capital asset management and maintenance or the state agency initiating the construction or renovation of a facility subject to the requirements of subsection (a) shall file with the division of capital asset management and maintenance and the division of energy resources a report detailing the agency’s compliance with this section with respect to each such facility.
(f) The division of energy resources shall issue an annual report to the general court detailing the compliance record of all state agencies with the construction and renovation provisions of this section.
SECTION 3. Chapter 12 of the General Laws is hereby amended by striking out section 11E, as appearing in the 2006 Official Edition, and inserting in place thereof the following section:-
Section 11E. (a) The attorney general may participate, appear and intervene in any regulatory or judicial proceedings, federal or state, in which the interests of ratepayers in the commonwealth may be involved, including, but not limited to, a matter affecting utility services rendered or involving the rates, charges, prices, tariffs or practices of an electric, gas, generator, transmission, telephone, telegraph, voice over internet protocol, or cable or satellite television company doing business in the commonwealth. The attorney general shall have standing to intervene in all proceedings before the department of public utilities and the department of telecommunications and cable.
For the purpose of such participation, appearance or intervention, the attorney general may expend such funds as may be appropriated therefor; provided, however, that such expenditures shall not exceed annually the amount assessed against such electric, gas, telephone and telegraph company under section 3 of chapter 24A, notwithstanding the provisions of subsection (b).
The attorney general shall not expend any of such funds if the expenditure shall conflict with his duties under section 3.
(b) In the performance of his duties under this section, the attorney general may retain an expert or a consultant to assist in proceedings before the department of public utilities or the department of telecommunications and cable. If the attorney general determines that the services of an expert or a consultant are necessary or desirable in a proceeding, he shall file notice in the proceeding that includes the type of expert or consultant sought and the anticipated cost. Upon the filing of such notice, the department before which the proceeding is commencing shall allow full parties to the proceeding the opportunity to comment regarding the necessity or desirability of such services. Absent a showing that the costs proposed are unnecessary for the attorney general to represent ratepayer interests in the proceeding or that such costs are not reasonable or proper, the use of the expert or consultant shall be approved. Costs for an expert or a consultant shall not exceed $150,000 per proceeding unless approved by the department based upon exigent circumstances, including the complexity of the proceeding. All reasonable and proper expenses, as defined in this section, shall be borne by the affected company in the proceeding and shall be paid by such company at such times and in such manner as the attorney general directs. All reasonable and proper costs and expenses, as defined in this section, shall be recognized by the departments for all purposes as proper business expenses of the affected company, subject to recovery through rates.
(c) The attorney general may request, orally or in writing, that any company subject to the jurisdiction of the department of public utilities or the department of telecommunications and cable respond to not more than 15 information requests, including subparts, per calendar month regarding any matter related to the rates, charges, tariffs, books or service quality of the company, and the company shall answer these information requests fully and completely in a reasonably prompt manner, not to exceed 30 calendar days from the date of issuance, regarding any issue that is within the jurisdiction of the department. Department rules pertaining to the scope of questions and objections to discovery shall apply to any such request and the department shall have jurisdiction to rule on any objections or motions to compel. If the company fails to answer the information requests in a reasonably prompt manner, the attorney general may request enforcement of this subsection from the department having jurisdiction over the company.
SECTION 4. Chapter 13 of the General Laws is hereby amended by inserting after section 97 the following section:-
Section 97A. (a) The board of registration of home inspectors, in consultation with the state board of building regulations and standards, the division of energy resources and the energy efficiency advisory council, shall develop requirements and promulgate regulations establishing a home energy scoring program to require the scoring by licensed personnel at the time of sale of single-family residential dwellings and multiple-family residential dwellings with less than 5 dwelling units. The board of registration of home inspectors shall consider other state home scoring programs and any relevant federal programs when developing such requirements and promulgating such regulations. Components scored by the program shall include, but not be limited to: fixtures, heating, ventilation, air conditioning, building envelope and insulation, lighting and hot water systems.
(b) The board may include in its regulations any provisions requiring sellers of such dwellings to reasonably provide potential buyers with copies of utility bills and, if applicable, oil heating bills for the dwelling for charges incurred during the prior calendar year; and provisions requiring utilities and heating oil distributors to provide potential sellers billing information for the dwelling for charges incurred during the prior calendar year if the seller has not retained such bills.
(c) The regulations shall include provisions for training and licensure; standards of professional and ethical conduct for home energy scoring personnel; and the establishment of reasonable fees for the services of such personnel, to be paid by the sellers or purchasers of dwellings. These regulations shall provide waivers including, but not limited to, those by potential buyers, of the home energy audit conducted under the home energy scoring program and that any construction improvements included within the audit shall not be required to be performed.
(d) Before implementation of any regulations established under this section, the board of registration of home inspectors shall report to the senate and house committees on ways and means and the joint committees on consumer protection and professional licensure and telecommunications, utilities and energy on the anticipated added costs, if any, to sellers or purchasers of dwellings relating to the implementation of this section. The report shall include any recommendations deemed appropriate by the board, including, but not limited to, any added costs being absorbed by any existing energy efficiency program funding sources or mechanisms.
SECTION 5. Chapter 21A of the General Laws is hereby amended by inserting after section 18A the following section:-
Section 18B. (a) The secretary, in conjunction with the Massachusetts Technology Park Corporation, shall create a green communities program for communities that wish to implement a comprehensive program to reduce greenhouse gas emissions through the promotion of efficiency, renewable energy, transportation and other strategies. The standards for being designated a green community shall be developed and administered by the secretary. The standards shall include the requirement that a community create and submit a plan to leverage state, federal, local and voluntary efforts to achieve measurable and defined environmental goals based on a checklist of potential strategies.
(b) The secretary shall direct program administrators of energy efficiency funds and the Massachusetts Renewable Energy Trust Fund to assist green communities in achieving their community based goals and objectives; provided, however, that funds shall be allocated, and low-income programs shall be implemented, under subsection (c) of section 19 of chapter 25. Such assistance may include: (i) developing and delivering targeted services to a green community; (ii) increasing the proportional share of resources available to a green community based on the amount of leveraged funds that the community proposes to incorporate and deliver as part of its plan and the availability of overall program funds; and (iii) making reasonable efforts to create customized strategies in support of the community’s plan. The assistance to be provided to green communities by administrators of energy efficiency funds and the Massachusetts Renewable Energy Trust Fund shall not result in the expenditure, award, encumbrance or application of more than 20 per cent of the funds expended, awarded, encumbered or otherwise applied by each administrator in any single calendar year.
(c) The secretary shall expedite state funding for business development and transportation development and siting approvals for projects associated with an approved green communities plan.
(d) The secretary shall establish a program to support any community that institutes a project to inventory and reduce its environmental footprint. This program shall include directed support from the energy efficiency and renewable energy program administrators to provide a checklist on how to conduct an environmental footprint analysis and to provide input into monitoring and calculating progress towards reducing that footprint.
(e) A green community may create and enforce building codes on both new and existing facilities within its jurisdiction, which will assist green communities in achieving their community based goals and objectives; provided, however, that a green community shall ensure that loans are available to the owners of such facilities to perform projects required by such building codes and that the cost of installing and operating such projects is lower than either, in the case of existing facilities where no renovation is proposed, the cost of doing nothing, or, in the case of existing facilities where a renovation is proposed or in the case of new facilities, the cost of installing and operating the energy or energy-using technology that would otherwise be installed, as determined by a life-cycle cost analysis.
A green community may issue from time to time bonds or notes in order to finance all or a portion of the costs of the projects authorized under this subsection. Notwithstanding any provision of chapter 44 to the contrary, the maturities of any such bonds issued by a municipality hereunder either shall be arranged so that for each issue the annual combined payments of principal and interest payable in each year, commencing with the first year in which a principal payment is required, shall be as nearly equal as practicable in the opinion of the municipal treasurer or shall be arranged in accordance with a schedule providing for a more rapid amortization of principal. The first payment of principal of each issue of bonds or of any temporary notes issued in anticipation of the bonds shall be not later than 5 years after the anticipated date of commencement of the regular operation of such projects financed thereby, as determined by the municipal treasurer, and the last payment of principal of the bonds shall be not later than 25 years from the date of the bonds. Indebtedness incurred under this section shall not be included in determining the limit of indebtedness of a municipality under section 10 of said chapter 44 but, except as otherwise provided herein, shall be subject to said chapter 44. A green community may place tax liens on facilities within its jurisdiction in order to facilitate loans for investments in such facilities, which will assist green communities in achieving their community based goals and objectives.
A green community may establish an enterprise fund under section 53F1/2 of chapter 44 for the receipt of all applicable revenues from the owners of facilities with projects borrowing funds from a green community. Such receipts shall be used to pay the costs of administering loans and to pay the principals and interest on any bonds or notes issued therefor.
SECTION 6. Said chapter 21A is hereby further amended by adding the following section:-
Section 21. The secretary, in conjunction with the secretary of administration and finance, may design and implement a competitive bidding process for the competitive procurement of electric generation on behalf of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth procuring electricity from a local distribution company through basic service under subsection (e) of section 1B of chapter 164.
SECTION 7. Chapter 25 of the General Laws is hereby amended by inserting after section 5D the following section:-
Section 5E. The department shall periodically audit all gas and electric companies subject to its jurisdiction, including, but not limited to, review of the following documents: (i) all financial statements, the balance sheet, the income statement, the statement of cash flows, the statement of retained earnings, the notes to the financial statements and the information in the annual return to the department; (ii) documents concerning the reconciling mechanisms related to rates, prices, charges or costs and savings related to a merger, acquisition or consolidation for 3 years following the merger, acquisition or consolidation; and (iii) documents concerning service quality measure statistics and service quality performance at least every 3 years or whenever service quality penalties equal or exceed 50 per cent of the maximum. Upon written complaint of the attorney general requesting an independent audit of any company subject to the department’s jurisdiction, the department shall commence a proceeding within 30 days of receipt of the complaint for the purpose of ordering the requested audit in a reasonable time. The results of any audit so ordered shall be filed promptly with the department and each audit shall be paid for by the company that is the subject of the audit.
SECTION 8. Said chapter 25 is hereby further amended by inserting after section 18 the following section:-
Section 18A. The commission may make an assessment against each steam distribution company under the jurisdictional control of the department. Each steam distribution company shall annually report by March 31 its intrastate operating revenues for the previous calendar year to the department. The assessments shall be apportioned according to each steam distribution company’s intrastate operating revenues, to produce an annual amount not greater than $600,000, as shall be determined and certified annually by the commission as sufficient to reimburse the commonwealth for funds appropriated by the general court for the operation and general administration of the department and for the cost of fringe benefits as established by the commissioner of administration under section 5D of chapter 29, including group life and health insurance, retirement benefits, paid vacations, holidays and sick leave. In no instance shall the assessment against any individual steam distribution company be made at a rate exceeding 0.2 per cent of such company’s intrastate operating revenues.
Each company shall pay the amount assessed against it within 30 days after the date of the notice of assessment from the department. Such assessments collected by the department shall be credited to the General Fund
SECTION 9. Said chapter 25 is hereby further amended by striking out section 19, as appearing in the 2006 Official Edition, and inserting in place thereof the following section:-
Section 19. (a) The department shall require a mandatory charge of 2.5 mills per kilowatt-hour for all consumers, except those served by a municipal lighting plant, to fund energy efficiency programs including, but not limited to, demand side management programs. The programs shall be administered by the electric distribution companies and by municipal aggregators with energy plans certified by the department under subsection (b) of section 134 of chapter 164. In addition to the aforementioned mandatory charge, such programs shall also be funded by other funding as approved by the department after consideration of: (i) the effect of any rate increases on residential and commercial consumers; (ii) the availability of other private or public funds, utility administered or otherwise, that may be available for energy efficiency or demand resources; and (iii) whether past programs have lowered the cost of electricity to residential and commercial consumers. In authorizing such programs, the department shall ensure that they are delivered in a cost-effective manner capturing all available efficiency opportunities and utilizing competitive procurement processes to the fullest extent practicable.
(b) The department may approve and fund gas energy efficiency programs proposed by gas distribution companies including, but not limited to, demand side management programs. Energy efficiency activities eligible for funding under this section shall include geothermal heating and cooling projects. Funding may be supplemented by funds authorized by section 21. The programs shall be administered by the gas distribution companies. In authorizing such programs, the department shall ensure that they are delivered in a cost-effective manner capturing all available efficiency opportunities and utilizing competitive procurement processes to the fullest extent practicable.
(c) Electric and gas energy efficiency program funds shall be allocated to customer classes, including the low-income residential subclass, in proportion to their contributions to those funds; provided, however, that at least 10 per cent of the amount expended for electric energy efficiency programs and at least 20 per cent of the amount expended for gas energy efficiency programs shall be spent on comprehensive low-income residential demand side management and education programs. The low-income residential demand side management and education programs shall be implemented through the low-income weatherization and fuel assistance program network and shall be coordinated with all electric and gas distribution companies in the commonwealth with the objective of standardizing implementation. Such programs shall be screened only through cost-effectiveness testing which compares the value of program benefits to program costs to ensure that a program is designed to obtain energy savings and system benefits with value greater than the costs of the program.
SECTION 10. Section 20 of said chapter 25, as so appearing, is hereby amended by inserting after the first sentence the following sentence:- Notwithstanding any general or special law to the contrary: (i) a municipal lighting plant which does not supply generation service outside its own service territory or does not open its service territory to competition may elect to assess and remit a mandatory charge per kilowatt-hour upon its electricity consumers on the same terms and conditions as apply to the charge imposed on consumers residing in competitive distribution service territories under this paragraph and subsection (c); provided, however, that such an election by a municipal lighting plant shall be irrevocable and shall not be deemed to be supplying generation service outside its service territory or opening its service territory to competition at the retail level for the purposes of the first sentence of this paragraph; and (ii) in administering the Massachusetts Renewable Energy Trust Fund, the Massachusetts Technology Park Corporation, doing business as the Massachusetts Technology Collaborative, shall not make any grant or loan or provide any subsidy from the trust fund to any municipal lighting plant or consumer residing in the distribution service territory of such municipal lighting plant unless: (A) a mandatory charge per kilowatt-hour is assessed against all consumers residing in the distribution service territory and remitted to the collaborative under the preceding sentence or clause (i); (B) the grant or subsidy is made under paragraph (2) of subsection (f) of section 4E of chapter 40J; or (C) the board of directors of the collaborative, as a condition precedent to any such grant, loan or subsidy, shall have determined and incorporated into the minutes of its proceedings findings that: (1) any such grant, loan or subsidy is intended for the principal purpose of generating public benefits for those consumers who reside in distribution service territories in which the mandatory charge is so imposed and remitted and will generate only incidental private benefits to the recipient or others residing in a distribution service territory in which the mandatory charge is not so imposed and remitted; and (2) the facts and circumstances associated with the recipient or the residence of the recipient provide unique or extraordinary opportunities to advance the public purposes of the trust fund over those opportunities available through grants or subsidies made to recipients residing in distribution service territories in which such a mandatory charge is assessed and remitted.
SECTION 11. Said chapter 25 is hereby further amended by adding the following 2 sections:-
Section 21. (a) To mitigate capacity and energy costs for all customers, the department shall ensure that, subject to subsection (c) of section 19, electric and natural gas resource needs shall first be met through all available energy efficiency and demand reduction resources that are cost effective or less expensive than supply. The cost of supply shall be determined by the department with consideration of the average cost of generation to all customer classes over the previous 24 months.
(b)(1) Every 3 years, by July 31, the electric distribution companies and municipal aggregators with certified efficiency plans shall jointly prepare an electric efficiency investment plan and the natural gas distribution companies shall jointly prepare a natural gas efficiency investment plan. Each plan shall provide for the acquisition of all available energy efficiency and demand reduction resources that are cost effective or less expensive than supply and shall be prepared in coordination with the energy efficiency advisory council established by section 22. Each plan shall provide for the acquisition, with the lowest reasonable customer contribution, of all of the cost effective energy efficiency and demand reduction resources that are available from municipalities and other governmental bodies.
(2) A plan shall include: (i) an assessment of the estimated lifetime cost, reliability and magnitude of all available energy efficiency and demand reduction resources that are cost effective or less expensive than supply; (ii) the amount of demand resources, including efficiency, conservation, demand response and load management, that are proposed to be acquired under the plan and the basis for this determination; (iii) the estimated energy cost savings that the acquisition of such resources will provide to electricity and natural gas consumers, including, but not limited to, reductions in capacity and energy costs and increases in rate stability and affordability for low-income customers; (iv) a description of programs, which may include, but which shall not be limited to: (A) efficiency and load management programs; (B) demand response programs; (C) programs for research, development and commercialization of products or processes which are more energy-efficient than those generally available; (D) programs for development of markets for such products and processes, including recommendations for new appliance and product efficiency standards; (E) programs providing support for energy use assessment, real time monitoring systems, engineering studies and services related to new construction or major building renovation, including integration of such assessments, systems, studies and services with building energy codes programs and processes, or those regarding the development of high performance or sustainable buildings that exceed code; (F) programs for the design, manufacture, commercialization and purchase of energy-efficient appliances and heating, air conditioning and lighting devices; (G) programs for planning and evaluation; (H) programs providing commercial, industrial and institutional customers with greater flexibility and control over demand side investments funded by the programs at their facilities; and (I) programs for public education regarding energy efficiency and demand management; provided, however, that not more than 1 per cent of the fund shall be expended for items (C) and (D) collectively, without authorization from the advisory council; (v) a proposed mechanism which provides performance incentives to the companies based on their success in meeting or exceeding the goals in the plan; (vi) the budget that is needed to support the programs; (vii) a fully reconciling funding mechanism which may include, but which shall not be limited to, the charge authorized by section 19; (viii) the estimated amount of reduction in peak load that will be reduced from each option and any estimated economic benefits for such projects including job retention, job growth or economic development; and (ix) data showing the percentage of all monies collected that will be used for direct consumer benefit, such as incentives and technical assistance to carry the plan. With the approval of the council, the plan may also include a mechanism to prioritize projects that have substantial benefits in reducing peak load, reducing the energy consumption or costs of municipalities or other governmental bodies, or that have economic development, job creation or job retention benefits.
(3) A program included in the plan shall be screened through cost-effectiveness testing which compares the value of program benefits to the program costs to ensure that the program is designed to obtain energy savings and system benefits with value greater than the costs of the program. Program cost-effectiveness shall be reviewed periodically by the department and by the energy efficiency advisory council. If a program fails the cost-effectiveness test as part of the review process, it shall either be modified to meet the test or shall be terminated.
(c) Each plan prepared under subsection (b) shall be submitted for approval and comment by the energy efficiency advisory council every 3 years by July 31. The electric and natural gas distribution companies and municipal aggregators shall provide any additional information requested by the council that is relevant to the consideration of the plan. The council shall review the plan and any additional information and shall submit its approval or comments to the electric and natural gas distribution companies and municipal aggregators not later than 3 months after submission of the plan. The electric and natural gas distribution companies and municipal aggregators may make any changes or revisions to reflect the input of the council.
(d)(1) The electric and natural gas distribution companies and municipal aggregators shall submit their respective plans, together with the council’s approval or comments and a statement of any unresolved issues, to the department every 3 years by October 31. The department shall consider the plans and shall provide an opportunity for interested parties to be heard in a public hearing.
(2) Not later than 90 days after submission of a plan, the department shall issue a decision on the plan which ensures that the electric and natural gas distribution companies have identified and shall capture all energy efficiency and demand reduction resources that are cost effective or less expensive than supply and shall approve, modify and approve, or reject and require the resubmission of the plan accordingly. The department shall approve a fully reconciling funding mechanism for the approved plan and, in the case of municipal aggregators, a fully reconciling funding mechanism that requires coordination between the distribution company and municipal aggregator to ensure that program costs are collected, allocated and distributed in a cost effective, fair and equitable manner. The department shall determine the effectiveness of the plan on an annual basis.
(3) Each electric and natural gas plan shall be in effect for 3 years.
(e) To the extent an electric or natural gas distribution company or municipal aggregator has not reasonably complied with the plan, the department may open an investigation. In any such investigation, the utility company or aggregator shall have the burden of proof to show whether it had good cause for failing to reasonably comply with the plan. If the utility company or aggregator does not meet its burden, the department may levy a fine of not more than the product of $0.05 per kilowatt-hour or $1 per therm times the shortfall of kilowatt-hours saved or therms saved, as applicable, depending upon the facts and circumstances and degree of fault, which shall be paid to the Massachusetts Technology Park Corporation within 60 days after the end of the year in which the department levied the fine. The fine shall not impact ratepayers. The division of energy resources shall oversee the use of the funds held by the Massachusetts Technology Park Corporation under this subsection so as to maximize the amount of energy efficiency achieved.
Section 22. (a) The department shall appoint and convene an energy efficiency advisory council which shall consist of not more than 12 members, including at least 1 person representing each of the following: (i) residential consumers, (ii) the low-income weatherization and fuel assistance program network, (iii) the environmental community, (iv) businesses, including large C&I end-users, (v) the manufacturing industry, (vi) energy efficiency experts, (vii) organized labor, (viii) the department of environmental protection, (ix) the attorney general, (x) the executive office of housing and economic development, (xi) the Massachusetts Technology Park Corporation; and (xii) the division of energy resources. Interested parties shall apply to the department for designation as members. Members shall serve for terms of 5 years and may be reappointed. The commissioner of energy resources shall serve as chair of the council. A representative of energy efficiency experts shall not have a contractual relationship with any electric or natural gas distribution company, electricity or natural gas provider, or any municipal aggregator. There shall be 1 non-voting, ex-officio member from each of the electric and natural gas distribution utilities, 1 from each of the approved municipal aggregators, 1 from the heating oil industry and 1 from the energy efficiency businesses.
(b) The council shall, as part of the approval process by the department, seek to maximize net economic benefits through energy efficiency and load management resources and to achieve energy, capacity, climate and environmental goals through a sustained and integrated statewide energy efficiency effort. The council shall review and approve demand resource program plans and budgets, work with program administrators in preparing energy resource assessments, determine the economic, system reliability, climate and air quality benefits of efficiency and load management resources, conduct and recommend relevant research, and recommend long term efficiency and load management goals to maximize economic savings and achieve environmental goals. Approval of efficiency and demand resource plans and budgets shall require a two-thirds majority vote. The council shall, as part of its review of plans, examine opportunities to offer joint programs providing similar efficiency measures that save 2 or more fuel resources or to coordinate programs targeted at saving 2 or more fuel resources. Any costs for joint programs shall be allocated equitably among the efficiency programs.
(c) The council may retain expert consultants; provided, however, that such consultants shall not have any contractual relationship with an electric or natural gas distribution company or provider doing business in the commonwealth or any affiliate of such company.The council shall annually submit to the department a proposal regarding the level of funding required for the retention of expert consultants and reasonable administrative costs. The proposal shall be approved by the department either as submitted or as modified by the department. The department shall allocate funds sufficient for these purposes from the natural gas and electric efficiency funding authorized under section 19; provided, however, that such allocation shall not exceed 1 per cent of such funding on an annual basis. The consultants used under this section shall be experts in energy efficiency and shall be independent.
(d) The electric and natural gas distribution companies and municipal aggregators shall provide quarterly reports to the council on the implementation of their respective plans. The reports shall include a description of the program administrator’s progress in implementing the plan, a summary of the savings secured to date and such other information as the council shall determine. The council shall provide an annual report to the department and the joint committee on telecommunications, utilities and energy on the implementation of the plan which includes descriptions of the programs, expenditures, cost-effectiveness and savings and other benefits during the previous year.
SECTION 12. Section 3 of chapter 25A of the General Laws, as appearing in the 2006 Official Edition, is hereby amended by inserting after the definition of “Energy management services” the following definition:-
“Energy savings”, a measured reduction in fuel, energy, operating or maintenance costs resulting from the implementation of energy conservation measures or projects; provided, however, that any payback analysis to evaluate the energy savings of a geothermal energy system to provide heating, cooling or water heating over its expected lifespan shall include gas and electric consumption savings, maintenance savings and shall use an average escalation rate based on the most recent information for gas and electric rates compiled by the Energy Information Administration of the United States Department of Energy.
Marine or hydrokinetic energy”, electrical energy from: (i) waves, tides and currents in oceans, estuaries and tidal areas; (ii) free-flowing water in rivers, lakes and streams; (iii) free-flowing water in man-made channels; or (iv) differentials in ocean temperature, called ocean thermal energy conversion.
SECTION 13. Section 5 of said chapter 25A, as so appearing, is hereby amended by striking out, in lines 2 and 3, the words “energy, the joint committee on government regulations”, and inserting in place thereof the following words:- telecommunications, utilities and energy.
SECTION 14. Section 10 of said chapter 25A is hereby repealed.
SECTION 15. Said chapter 25A is hereby further amended by striking out section 11F, as appearing in the 2006 Official Edition, and inserting in place thereof the following 2 sections:-
Section 11F. (a) The division of energy resources shall establish a renewable energy portfolio standard for all retail electricity suppliers selling electricity to end-use customers in the commonwealth. By December 31, 1999, the division shall determine the actual percentage of kilowatt-hours sales to end-use customers in the commonwealth which is derived from existing renewable energy generating sources. Every retail supplier shall provide a minimum percentage of kilowatt-hours sales to end-use customers in the commonwealth from new renewable energy generating sources, according to the following schedule: (i) an additional 1 per cent of sales by December 31, 2003, or one calendar year from the final day of the first month in which the average cost of any renewable technology is found to be within 10 per cent of the overall average spot-market price per kilowatt-hour for electricity in the commonwealth, whichever is sooner; (ii) an additional one-half of 1 per cent of sales each year thereafter until December 31, 2009; and (iii) an additional 1 per cent of sales every year thereafter. For the purpose of this subsection, a new renewable energy generating source is one that begins commercial operation after December 31, 1997, or that represents an increase in generating capacity after December 31, 1997, at an existing facility. Commencing on January 1, 2008, such minimum percentage requirement shall be known as the “Class I” renewable energy generating source requirement.
(b) For the purposes of this section, a renewable energy generating source is one which generates electricity using any of the following: (i) solar photovoltaic or solar thermal electric energy; (ii) wind energy; (iii) ocean thermal, wave or tidal energy; (iv) fuel cells utilizing renewable fuels; (v) landfill gas; (vi) waste-to-energy which is a component of conventional municipal solid waste plant technology in commercial use; (vii) naturally flowing water and hydroelectric; (viii) low emission advanced biomass power conversion technologies using such fuels such as wood, by-products or waste from agricultural crops, food or animals, energy crops, biogas, liquid biofuel including but not limited to biodiesel, organic refuse-derived fuel, or algae; and (ix) geothermal energy; provided, however, that the calculation of a percentage of kilowatt-hours sales to end-use customers in the commonwealth from new renewable generating sources shall exclude clauses (vi) and (vii) herein. The division may also consider any previously operational biomass facility retrofitted with advanced conversion technologies as a renewable energy generating source. A renewable energy generating source may be located behind the customer meter within the ISO-NE, as defined in section 1 of chapter 164, control area if the output is verified by an independent verification system participating in the New England Power Pool Generation Information System, in this section called NEPOOL GIS, accounting system and approved by the division.
(c) New renewable energy generating sources meeting the requirements of this subsection shall be known as Class I renewable energy generating sources. For the purposes of this section, a Class I renewable energy generating source is one that began commercial operation after December 31, 1997, or represents the net increase from incremental new generating capacity after December 31, 1997 at an existing facility, where the facility generates electricity using any of the following: (i) solar photovoltaic or solar thermal electric energy; (ii) wind energy; (iii) ocean thermal, wave or tidal energy; (iv) fuel cells utilizing renewable fuels; (v) landfill gas; (vi) energy resulting from new hydroelectric facilities regulated by FERC or incremental energy from increased capacity or efficiency improvements at existing hydroelectric facilities regulated by the Federal Regulatory Energy Commission, so long as such energy from new facilities or from increased capacity and efficiency does not involve pumped storage of water and meets low impact standards as established by the department of environmental protection, in consultation with the division and the department of fish and game; provided, however, that only energy from new facilities up to 25 megawatts or attributable to improvements that incrementally increase capacity by up to 25 megawatts at an existing hydro electric facility shall be considered new renewable energy; (vii) low emission, advanced biomass power conversion technologies, such as gasification using fuels such as wood, by-products or waste from agricultural crops, food or animals, energy crops, biogas, liquid biofuel including but not limited to biodiesel, organic refuse-derived fuel, or algae; or (viii) marine or hydrokinetic energy as defined in section 3; or (ix) geothermal energy. A Class I renewable generating source may be located behind the customer meter within the ISO-NE control area if the output is verified by an independent verification system participating in the NEPOOL GIS accounting system and approved by the division.
(d) Every retail electric supplier providing service under contracts executed or extended on or after January 1, 2009, shall provide a minimum percentage of kilowatt-hour sales to end-use customers in the commonwealth from Class II renewable energy generating sources. For the purposes of this section, a Class II renewable energy generating source is one that began commercial operation before December 31, 1997 and generates electricity using any of the following: (i) solar photovoltaic or solar thermal electric energy; (ii) wind energy; (iii) ocean thermal, wave or tidal energy; (iv) fuel cells utilizing renewable fuels; (v) landfill gas; (vi) waste-to-energy which is a component of conventional municipal solid waste plant technology in commercial use; (vii) low emission biomass power conversion technologies, such as gasification using fuels such as wood, by-products or waste from agricultural crops, food or animals, energy crops, biogas, liquid biofuel including but not limited to biodiesel, organic refuse-derived fuel, or algae; or (viii) marine or hydrokinetic energy as defined in section 3; or (ix) geothermal energy. A Class II renewable generating source may be located behind the customer meter within the ISO-NE control area provided that the output is verified by an independent verification system participating in the NEPOOL GIS accounting system and approved by the division.
(e) Every retail supplier shall annually provide to end-use customers in the commonwealth generation attributes from Class II energy facilities in an amount approved by the division; provided, however, that the division may specify that a certain percentage of these requirements must be met through energy generated from a specific technology or fuel type in subsection (d). Such minimum percentage requirement for kilowatt-hour sales from Class II energy generating sources may be adjusted by the division as necessary to promote the continued operation of existing energy generating resources that meet the requirements of said subsection (d), and may be met through kilowatt-hour sales to end-use customers from any energy generating source meeting the requirements of said subsection (d).
(f) After conducting administrative proceedings, the division may add technologies or technology categories to any list; provided, however, that the following technologies shall not be considered renewable energy supplies: coal, oil, natural gas and nuclear power. The division shall establish and maintain regulations allowing for a retail supplier to discharge its obligations under this section by making an alternative compliance payment in an amount established by the division for Class I and Class II renewable energy generating sources. The division shall establish and maintain regulations outlining procedures by which each retail supplier shall annually submit for the division’s review a filing illustrating the retail supplier’s compliance with the requirements of this section.
(g) In satisfying its annual obligations under subsection (a), each retail supplier shall provide a portion of the required minimum percentage of kilowatt-hours sales from new on-site renewable energy generating sources located in the commonwealth and having a power production capacity of not more than 2 megawatts which began commercial operation after December 31, 2007, including, but not limited to, behind the meter generation and other similar categories of generation determined by the division. The portion of the required minimum percentage required to be supplied by such on-site renewable energy generating sources shall be established by the division; provided, however, that the division may specify that a certain percentage of these requirements must be met through energy generated from a specific technology or fuel type.
(h) The division shall establish and maintain regulations allowing for a retail supplier to discharge its obligations under subsection (g) by making an alternative compliance payment in an amount established by the division; provided, however, that the division shall set on-site generation alternative compliance payment rates at levels that will stimulate the development of new on-site renewable energy generating sources.
(i) A municipal lighting plant shall be exempt from the obligations under this section so long as and insofar as it is exempt from the requirements to allow competitive choice of generation supply under section 47A of chapter 164.
(j) Renewable energy certificates used for complying with the Massachusetts RPS, or the associated energy, while available to the complying electric supplier for use with a federal renewable portfolio standard to the extent permitted by such standard, shall not be used for, banked, sold or transferred to any other company or affiliate for use in complying with any state or federal renewable portfolio standard based on any other load obligation.
Section 11F1/2. (a) The division of energy resources shall establish an alternative energy portfolio standard for all retail electricity suppliers selling electricity to end-use customers in the commonwealth. Every retail electric supplier providing service under contracts executed or extended on or after January 1, 2009 shall provide a minimum percentage of kilowatt-hour sales, as determined by the division, to end-use customers in the commonwealth from alternative energy generating sources and the division shall annually thereafter determine the minimum percentage of kilowatt-hour sales to end-use customers in the commonwealth which shall be derived from alternative energy generating sources. For the purposes of this section, an alternative energy generating source is one which generates electricity using any of the following: (i) coal gasification with capture and permanent sequestration of carbon dioxide; provided, however, that the fuel shall be purchased by, and contractually transported to, the alternative energy generating source in ISO-NE, as defined in section 1 of chapter 164; (ii) combined heat and power; (iii) flywheel energy storage; (iv) any facility which substitutes any portion of its fossil fuel source with an equal to or greater portion of an alternative, paper-derived fuel source approved by the department of environmental protection through a beneficial use determination for the production of heat or power; or (v) any other alternative energy technology approved by the division under an administrative proceeding conducted under chapter 30A; provided, however, that the following technologies shall not be considered alternative energy supplies: coal, except when used in coal gasification; oil; natural gas, except when used in coal gasification or combined heat and power; and nuclear power.
(b) The division shall set: (i) emission performance standards, including standards for carbon dioxide and fuel conversion efficiency standards for all technologies included in this section, consistent with the commonwealth’s environmental goals, including, but not limited to, the reduction of greenhouse gas emissions; and (ii) a net carbon dioxide emissions rate not to exceed the emissions rate of a new natural gas combined cycle power plant which shall include all emissions related to thermal delivery, combustion, gasification, fuel processing and sequestration, whether or not such activities occur at the alternative generating source or at another location. At least once every 2 years the division shall review and update, if necessary, all standards for new alternative energy generating sources to require the best available emissions control technologies and all feasible efficiency improvements.
(c) The division shall promulgate regulations allowing for a retail supplier to discharge its obligations under this section by making an alternative compliance payment in an amount established by the division. Such regulations shall outline procedures by which each retail supplier shall annually submit for the division’s review a filing illustrating the retail supplier’s compliance with the requirements of this section.
(d) A municipal lighting plant shall be exempt from the obligations under this section so long as and insofar as it is exempt from the requirements to allow competitive choice of generation supply under section 47A of chapter 164.
NO SECTION 16.
SECTION 17. Section 11I of chapter 25A, as appearing in the 2006 Official Edition, is hereby amended by adding the following subsection:-
(o) Notwithstanding any general or special law to the contrary, local authorities may amend existing energy service agreements to bring products and services to additional buildings or assets in the community. The amendments may be accomplished through negotiation with the selected energy service provider.
SECTION 18. Said chapter 25A is hereby further amended by inserting after section 11I the following section:-
Section 11J. (a) For the purposes of this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:-
“Generator”, the person that owns, directly or indirectly, or has title to the output from the renewable energy generating source that is located in a control area external to the ISO- NE, as defined in section 1 of chapter 164, control area.
“Person”, any individual, corporation, limited liability company, general or limited partnership, trust, association or other entity.
(b) A renewable energy generating source, as defined in subsection (b) of section 11F, that is physically located in or relocated to a control area external to the ISO-NE control area may qualify as an eligible renewable energy generating source under section 11F; provided, however, that the renewable energy generated by such renewable energy generating source is delivered into and used by consumers within the ISO-NE control area.
(c) The delivery of renewable energy into the ISO-NE control area, as described in subsection (b), shall not qualify under the renewable portfolio standard, notwithstanding such delivery into the ISO-NE control area, unless the generator of such renewable energy: (i) initiates the import transaction pursuant to a spot market sale to ISO-NE or under a bilateral sales contract with a purchaser of the renewable energy located in the ISO-NE control area by properly completing a North American Electric Reliability Corporation tag from the generator in the external control area to either a node or zone in the ISO-NE control area; and (ii) complies with all ISO-NE rules and regulations required to schedule and deliver the renewable energy generating source’s energy or capacity into the ISO-NE control area.
(d) During any period during which the generator, or any person under contract with the generator, is delivering renewable energy from the renewable energy generating source into the ISO-NE control area, and notwithstanding compliance with subsection (b), the renewable energy generated by the renewable energy generating source that is eligible for the renewable portfolio standard shall be limited to the lesser of the following: (i) the renewable energy actually generated by the renewable energy generating source; or (ii) the renewable energy actually scheduled and delivered into the ISO-NE control area by the generator.
(e) The division may adopt regulations and requirements as it considers appropriate consistent with this section.
SECTION 19. Section 12 of said chapter 25A, as appearing in the 2006 Official Edition, is hereby amended by inserting after the word “on”, in line 15, the following words:- telecommunication, utilities and.
SECTION 20. Said chapter 25A is hereby further amended by adding the following 4 sections:-
Section 14. (a) As used in this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:-
“Building authority”, the University of Massachusetts Building Authority, the Southeastern Massachusetts University Building Authority, the University of Lowell Building Authority or any other building authority which may be established for similar purposes.
“Eligible”, able to meet all requirements for offerors or bidders set forth in this section and section 44D of chapter 149 and not debarred from bidding under section 44C of said chapter 149 or any other applicable law, and who shall certify that he is able to furnish labor that can work in harmony with all other elements of labor employed or to be employed on the work.
“Governmental body”, a city, town, district, regional school district, county, or agency, board, commission, authority, department or instrumentality of a city, town, district, regional school district or county, and all other public agencies which are not state agencies or building authorities.
“Minor informalities”, minor deviations from, insignificant mistakes in, and matters of form rather than substance of the proposal or contract document which can be waived or corrected without prejudice to other offerors, potential offerors or the public agency.
“Person”, any natural person, business, partnership, corporation, union, committee, club, or other organization, entity or group of individuals.
“Public agency”, a department, agency, board, commission, authority or other instrumentality of the commonwealth or political subdivision of the commonwealth or 2 or more subdivisions thereof.
“Responsible”, demonstrably possessing the skill, ability and integrity necessary to faithfully perform the work called for by a particular contract, based upon a determination of competent workmanship and financial soundness in accordance with this section and section 44D of chapter 149.
“Responsive offeror”, a person who has submitted a proposal which conforms in all respects to the requests for proposals.
“Secretary”, the secretary of the executive office of energy and environmental affairs.
“State agency”, a state agency, board, bureau, department, division, section, or commission of the commonwealth.
(b) A public agency may, in the manner provided by this section, contract for the procurement of energy management services. Such contracts may include terms of 20 years or less. The public agency shall solicit competitive sealed proposals through a request for proposals. At least 1 week prior to soliciting proposals for a contract under this section, a public agency shall notify the secretary in writing, in such form and including such information as the secretary shall prescribe by regulation, of the agency’s intent to solicit proposals. Such notification shall, at a minimum, include a complete copy of the agency’s request for proposals. An acknowledgment of receipt, in such form and by including such information as the secretary shall prescribe by regulation, shall be issued to the public agency upon successful compliance with the requirements of this paragraph.
Requests for proposals for an energy management services contract to be entered into on behalf of a state agency or a building authority shall be developed jointly by the division of capital asset management and maintenance and the using agency. Such proposals shall only be solicited by the division of capital asset management and maintenance after the commissioner of said division has given his prior written approval, and no contract for energy management services shall be valid unless approved and signed by said commissioner. Said commissioner may delegate to state agencies and building authorities the authority to enter into such contracts with an estimated construction cost of less than $1,000,000. Such delegation shall be in writing from the commissioner to the regulating agency or building authority.
The request for proposals published by a public agency under this section shall include: (i) the time and date for receipt of proposals and the address of the office to which the proposals are to be delivered; (ii) a description of the services to be procured, including specific requirements and all evaluation criteria that will be utilized by the state agency or building authority; and (iii) proposed contract terms and conditions and an identification of such terms and conditions which shall be deemed mandatory and nonnegotiable. The request for proposals may incorporate documents by reference, provided that the request for proposals specifies where prospective offerors may obtain the documents. The public agency shall make copies of the request for proposals available to all persons on an equal basis. Public notice of the request for proposals shall conform to the procedures set forth in subsection (1) of section 44J of chapter 149. Proposals shall be opened publicly, in the presence of 2 or more witnesses, at the time specified in the request for proposals, and shall be available for public inspection.
Sections 44A, 44B and sections 44E to 44H, inclusive, of said chapter 149 shall not apply to contracts procured under this section. Section 44D of said chapter 149 shall apply as appropriate to proposals submitted for contracts under this section, and every such proposal shall be accompanied by: (i) a copy of a certificate of eligibility issued by the commissioner of the division of capital asset management and maintenance; and (ii) an update statement. The offeror’s qualifications shall be evaluated by the division of capital asset management and maintenance in a manner designated by the commissioner of said division. If the public agency determines that any offeror is not responsible or eligible, the public agency shall reject the offer and shall give written notice of such action to the division of capital asset management and maintenance.
State agencies and building authorities shall award contracts under this section to the lowest offeror demonstrably possessing the skill, ability and integrity necessary to perform faithfully energy management services.
Payments under a contract for energy management services may be based in whole or in part on any cost savings attributable to a reduction in energy and water consumption due to the contractor’s performance or revenues gained due to the contractor’s services which are aimed at energy and water cost savings.
(c) The provisions of this subsection shall apply to a governmental body procuring contracts under this section.
Unless no other manner of description suffices, and the governmental body so determines in writing, setting forth the basis for the determination, all requirements shall be written in a manner which describes the requirements to be met without having the effect of exclusively requiring a proprietary supply or service or a procurement from a sole source.
Subject to a governmental body’s authority to reject, in whole or in part, any and all proposals, as provided in this section, a governmental body shall unconditionally accept a proposal without alteration or correction, except as provided in this paragraph. An offeror may correct, modify or withdraw a proposal by written notice received in the office designated in the request for proposals prior to the time and date set for opening the proposals. After proposal opening, an offeror may not change any provisions of the proposal in a manner prejudicial to the interests of the governmental body or fair competition. The governmental body shall waive minor informalities or allow the offeror to correct them. If a mistake and the intended proposal are clearly evident on the face of the proposal document, the governmental body shall correct the mistake to reflect the intended correction and so notify the offeror in writing, and the offeror may not withdraw the proposal. An offeror may withdraw a proposal if a mistake is clearly evident on the face of the proposal but the intended correction is not similarly evident.
The governmental body shall evaluate each proposal and award each contract based solely on the criteria set forth in the request for proposals. Such criteria shall include, but shall not be limited to, all standards by which the governmental body will evaluate responsiveness, responsibility, qualifications of the offeror, technical merit and cost to the governmental body. The request for proposals shall specify the method for comparing proposals to determine the proposal offering the lowest overall cost to the governmental body, taking into consideration comprehensiveness of services, energy or water cost savings, costs to be paid by the governmental body and revenues to be paid to the governmental body. If the governmental body awards the contract to an offeror who did not submit the proposal offering the lowest overall cost, the governmental body shall explain the reason for the award in writing.
The evaluations shall specify revision, if needed, to each proposal which should be obtained by negotiation prior to awarding the contract to the offeror of the proposal. The governmental body may condition an award on successful negotiation of the revisions specified in the evaluation, and shall explain in writing the reasons for omitting any such revision from a plan incorporated by reference in the contract.
(d) The public agency may cancel a request for proposals, or may reject in whole or in part any and all proposals when the public agency determines that cancellation or rejection serves the best interests of the public agency.
The public agency shall state in writing the reason for a cancellation or rejection. The public agency shall promptly publish in the central register notice of the offeror awarded the contract. The public agency shall, within 30 days, file a copy thereof with the secretary.
The secretary, in consultations with the commissioner of the division of capital asset management and maintenance, shall promulgate regulations for the procurement of energy management services under this section; provided, however, that the commissioner of capital asset management and maintenance shall promulgate regulations for services to be procured for state agencies and building authorities; and provided further, that regulations affecting the operations of housing authorities within the jurisdiction of the department of housing and community development shall be promulgated in consultation with the director of housing and community development. Such regulations may limit the scope of services procured and the duration of contracts, and shall include any requirements that the secretary or commissioner of capital asset management and maintenance deems necessary to promote prudent management of such contracts at the appropriate facilities. Such regulations shall require the submission, at least annually, of such information as the secretary or commissioner of capital asset management and maintenance may deem necessary in order to monitor the costs and benefits of contracts for energy management services.
(e) The secretary shall enforce the requirements of this section and regulations promulgated hereunder as they relate to public agencies except for state agencies and building authorities and shall have all the necessary powers to require compliance therewith. The commissioner of the division of capital asset management and maintenance shall enforce all such regulations as they relate to state agencies and building authorities. Any order of the secretary under this subsection shall be effective and may be enforced according to its terms, and enforcement thereof shall not be suspended or stayed by the entry of an appeal. The superior court for Suffolk county shall have jurisdiction over appeals of orders of the secretary under this subsection, and shall also have jurisdiction upon application of said secretary to enforce all orders of said secretary under this subsection. The burden of proof shall be upon the appealing party to show that the order of said secretary is invalid. An aggrieved person shall not be required to seek an order from said secretary as a condition precedent to seeking any other remedy.
(f) Local authorities may amend existing energy service agreements to bring products and services to additional buildings or assets in the community. The amendments may be accomplished through negotiation with the energy service provider.
Section 15. (a) A public agency, as defined in section 17, may contract for energy conservation projects, as defined in section 3, that have a total project cost of $100,000 or less, directly and without further solicitation, with electric and gas utilities, their subcontractors and other providers of such energy conservation projects authorized under sections 19 and 21 of chapter 25 and section 11G.
(b) For purposes of this section, "total project cost" shall mean all construction costs of an energy conservation project, whether borne by the utility or public agency, including, without limitation, the costs associated with equipment purchase and installation of said equipment. Ancillary services provided at no cost by utilities, such as auditing and design, are not considered part of project cost.
(c) Public agencies may pay for such energy conservation projects through additions to their monthly utility bills.
(e) Sections 44A to 44M, inclusive, of chapter 149 and section 39M of chapter 30 shall not apply to contracts entered into under this section.
Section 16. (a) Notwithstanding sections 11C and 11I, for solar photovoltaic projects with a total project cost that is less than $100,000, a public agency may acquire photovoltaic panels and associated equipment for onsite use of the energy generated by these panels from contracts procured by the operational services division pursuant to section 22 of chapter 7 and sections 51 and 52 of chapter 30.
(b) For purposes of this section, "total project cost" shall mean all construction costs of a photovoltaic project, whether borne by the utility or public agency or other sources, including, without limitation, the costs associated with equipment purchase and installation of said equipment. Ancillary services provided at no cost, such as auditing and design, are not considered part of project cost.
(c) Sections 44A to 44M, inclusive, of chapter 149 and section 39M of chapter 30 shall not apply to contracts entered into under this section.
Section 17. (a) As used in this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:—
“Eligible”, able to meet all requirements for offerors or bidders set forth in this section including, without limitation, being certified by the division of capital asset management and maintenance as eligible to provide energy management systems services and not debarred from bidding under section 44C of chapter 149 or any other applicable law.
“Energy conservation measures”, measures involving modifications or maintenance and operating procedures of a building or facility and installations therein, which are designed to reduce energy consumption in such building or facility, or the installation or modification of an installation in a building or facility which is primarily intended to reduce energy consumption.
“Energy conservation projects”, projects to promote energy conservation, including, but not limited to, energy conserving modification to windows and doors; caulking and weather-stripping; insulation; automatic energy control systems; hot water systems; equipment required to operate variable steam, hydraulic and ventilating systems; plant and distribution system modifications including replacement of burners, furnaces or boilers; devices for modifying fuel openings; electrical or mechanical furnace ignition systems; utility plant system conversions; replacement or modification of lighting fixtures; energy recovery systems; and cogeneration systems.
“Energy management services”, a program of services, including energy audits, energy conservation measures, energy conservation projects or a combination thereof, and building maintenance and financing services, primarily intended to reduce the cost of energy and water in operating 1 or more buildings, which may be paid for, in whole or in part, by cost savings attributable to a reduction in energy and water consumption which result from the services.
“Energy management systems”, the design and installation of systems or maintenance programs to conserve energy use within a building, including, without limitation, (i) performance-contracting energy saving projects; (ii) the installation or modification of new and existing equipment which will reduce energy and water consumption associated with a heating, ventilation and air conditioning system; a lighting system; a building envelope; a domestic hot water system; and other energy and water using devices; and (iii) the work associated with monitoring and verifying project savings and the study or design of the subject work, whether performed directly or managed through subcontractors.
“Energy savings”, a measured reduction in fuel, energy, operating or maintenance costs resulting from the implementation of energy management services when compared with an established baseline of previous fuel, energy, operating or maintenance costs, including, but not limited to, future capital replacement expenditures avoided as a result of equipment installed or services performed under a guaranteed energy savings contract.
“Guaranteed energy savings contract”, a contract for the evaluation, recommendation or implementation energy management services in which payments are based, in whole or in part, on any energy savings attributable to the contract.
“Person”, any natural person, business, partnership, corporation, union, committee, club or other organization, entity or group of individuals.
“Public agency”, a city, town or district, including a regional school district; or a combination of 2 or more such cities, towns or districts, including regional school districts; or a department, agency, board, commission, authority or other instrumentality of the commonwealth.
“Qualified provider”, responsible and eligible person who shall be able to meet all requirements set forth in this section and who shall not be debarred from bidding under section 44C of chapter 149 or any other applicable law and who shall be experienced in the design, implementation and installation of energy savings measures.
“Request for qualifications”, a solicitation directed to qualified providers issued by a public agency to obtain energy management services under a guaranteed energy savings contract subject to this section. The request for qualifications shall include the following: (i) the name and address of the public agency; (ii) the name, address, title and phone number of a contact person; (iii) the date, time and place where qualifications shall be received; (iv) a description of the services to be procured, including a facility profile with a detailed description of each building involved and accurate energy consumption data for the most recent 2 year period, stated objectives for the program, a list of building improvements to be considered or required and a statement as to whether the proposed improvements will generate sufficient energy savings to fund the full cost of the program; (v) the evaluation criteria for assessing the qualifications; (vi) a statement that the public agency may cancel the request for qualifications or may reject, in whole or in part, any and all energy savings measures when the public agency determines that cancellation or rejection serves the best interests of the public; and (vii) any other stipulations and clarifications the public agency may require, which shall be clearly identified in the request for qualifications.
“Responsible”, demonstrably possessing the skill, ability and integrity necessary to faithfully perform the work called for by a particular contract, based upon a determination of competent workmanship and financial soundness in accordance with section 44D of chapter 149.
(b) A public agency may use this section in the procurement of energy management services as an alternative to the procedures in section 11C. Nothing in this section shall preclude any such agency from choosing to proceed thereafter under said section 11C. A public agency may enter into a guaranteed energy savings contract in order to achieve energy savings at facilities in accordance with this section. All energy savings measures shall comply with current local, state and federal construction and environmental codes and regulations. Before entering into a guaranteed energy savings contract, a public agency shall issue a request for qualifications. Public notice of the request for qualifications shall conform to the procedures set forth in subsection (1) of section 44J of chapter 149. At least 1 week before soliciting a request for qualifications for a guaranteed energy savings contract, a public agency shall notify the commissioner of energy resources in writing, in such form and including such information as the commissioner of capital asset management and maintenance shall prescribe by regulation, of the agency’s intent to solicit qualifications. The notification, at a minimum, shall include a copy of the agency’s request for qualifications. An acknowledgment of receipt, in such form and including such information as the commissioner of capital asset management and maintenance shall prescribe by regulation, shall be issued by the commissioner of energy resources to the public agency upon successful compliance with the requirements of this subsection. Qualifications shall be opened publicly, in the presence of 2 or more witnesses, at the time specified in the request for qualifications, and shall be available for public inspection. The provisions of sections 44A, 44B and sections 44E to 44H, inclusive, of said chapter 149 shall not apply to contracts procured under this section. Section 44D of said chapter 149 shall apply as appropriate to qualifications submitted for contracts under this section, and every such qualification shall be accompanied by: (i) a copy of a certificate of eligibility issued by the commissioner of capital asset management, and (ii) by an update statement.
The public agency shall evaluate the qualified providers to determine which best meets the needs of the public agency by reviewing the following: (i) references of other energy savings contracts performed by the qualified providers; (ii) the certificate of eligibility and update statement provided by the qualified providers; (iii) the quality of the products proposed; (iv) the methodology of determining energy savings; (v) the general reputation and performance capabilities of the qualified providers; (vi) substantial conformity with the specifications and other conditions set forth in the request for qualifications; (vii) the time specified in the qualifications for the performance of the contract; and (viii) any other factors the public agency considers reasonable and appropriate, which factors shall be made a matter of record.
Respondents shall be evaluated only on the criteria set forth in the request for qualifications.
The public agency shall conduct discussions with, and may require public presentations by, each person who submitted qualifications in response to the request for qualifications regarding their qualifications, approach to the project and ability to furnish the required services. The public agency shall select in order of preference 3 such persons, unless fewer persons respond, they consider to be the most highly qualified to perform the required services. The agency may request, accept and consider proposals for the compensation to be paid under the contract only during competitive negotiations conducted under subsection (d).
(c) The public agency may cancel a request for qualifications, or may reject, in whole or in part, any and all proposals when the public agency determines that cancellation or rejection serves the best interests of the public agency. The public agency shall state in writing the reason for a cancellation or rejection.
(d) The public agency shall negotiate a contract with the most qualified person at a rate of compensation which the public agency determines is fair, competitive and reasonable. If Should the public agency is unable to negotiate a satisfactory contract with the person considered to be the most qualified at a rate the public agency determines to be fair, competitive and reasonable, negotiations with that person shall be formally terminated. The public agency shall then undertake negotiations with the second most qualified person. Failing accord with the second most qualified person, the public agency shall terminate those negotiations and then undertake negotiations with the third most qualified person. If the public agency is unable to negotiate a satisfactory contract with any of the selected persons, the public agency may select additional qualified providers who responded to the request for qualifications, in the order of their competence and qualification, and continue negotiations in accordance with this subsection until either an agreement is reached or the public agency cancels the request for qualifications.
(e) The decision of a public agency, as defined in section 1, regarding the selection of a qualified provider shall be final and shall not be subject to appeal except on the grounds of fraud or collusion.
(f) The public agency shall provide public notice of the meeting at which it proposes to award the guaranteed energy savings contract, of the name of the parties to the proposed contract and of the purpose of the contract. The public notice shall be made at least 10 days before the meeting. The public agency shall promptly publish in the central register notice of the award and those public agencies, other than state agencies and building authorities, shall notify the commissioner of energy resources of such award and provide a copy of the guaranteed energy savings contract.
(g) The guaranteed energy savings contract shall include a written guarantee of the qualified provider that either the amount of energy savings guaranteed will be achieved or the qualified provider shall reimburse the public agency for the amount of the shortfall. Methods for measurement and verification of guaranteed savings shall conform to the most recent standards established by the Federal Energy Management Program of the United States Department of Energy. The secretary shall enforce the requirements of this section and regulations promulgated hereunder as they relate to public agencies except for state agencies and building authorities and shall have all the necessary powers to require compliance therewith. The commissioner of the division of capital asset management and maintenance shall enforce the regulations as they relate to state agencies and building authorities. Any order of the commissioner of energy resources under this subsection shall be effective and may be enforced according to its terms, and enforcement thereof shall not be suspended or stayed by the entry of an appeal therefrom. The superior court for Suffolk County shall have jurisdiction over appeals of orders of the commissioner of energy resources under this subsection, and shall also have jurisdiction upon application of the commissioner to enforce all orders of the commissioner under this subsection. The burden of proof shall be upon the appealing party to show that an order of the commissioner is invalid. An aggrieved person shall not be required to seek an order from the commission as a condition precedent to seeking any other remedy. The value of guaranteed savings may represent either all or part of annual payments at the discretion of the agency. The guaranteed energy savings contract term for providing a guarantee, measurement and verification, maintenance, service and installment or lease payments shall not exceed 20 years. The division of capital asset management and maintenance, in concurrence with the state inspector general, shall promulgate regulations for the procurement of energy management services, including establishing safeguards to be included in guaranteed energy savings contracts. The regulations shall require the submission, at least annually, of information as the commissioner of capital asset management and maintenance and the inspector general consider necessary in order to monitor the costs and benefits of contracts for energy management services.
(h) Payments under a contract for energy management services may be based in whole or in part on any cost savings attributable to a reduction in energy and water consumption due to the contractor’s performance or revenues gained due to the contractor’s services which are aimed at energy and water cost savings.
(i) Unless no other manner of description suffices, and the public agency so determines in writing, setting forth the basis for the determination, all requirements shall be written in a manner which describes the requirements to be met without having the effect of exclusively requiring a proprietary supply or service, or a procurement from a sole source.
(j) Before entering into a guaranteed energy savings contract, the public agency shall require the qualified provider to file with the public agency a payment or a performance bond relating to the installation of energy savings measures, in an amount equal to 100 per cent of the estimated contract value from a surety company licensed to do business in the commonwealth and whose name appears on United States Treasury Department Circular 570.
(k) Guaranteed energy savings contracts may extend beyond the fiscal year in which they become effective.
(l) Local authorities may amend existing energy service agreements to bring products and services to additional buildings or assets in the community. The amendments may be accomplished through negotiation with the energy service provider.
SECTION 20A. Chapter 30 of the General Laws is hereby amended by inserting after section 36A the following section:-
Section 36B. The commissioner of administration shall establish and enforce regulations governing the fuel efficiency standards required for all vehicles.
SECTION 21. Section 4A of chapter 40J of the General Laws, as appearing in the 2006 Official Edition, is hereby amended by striking out, in line 7, the word “five” and inserting in place thereof the following figure:- 30.
SECTION 22. Section 4E of said chapter 40J, as so appearing, is hereby amended by inserting after the word “energy”, in line 18, the following words:- , energy conservation and efficiency, including, but not limited to, residential combined heat and power systems of 10 kilowatts or less and commercial combined heat and power systems of 60 kilowatts or less..
SECTION 23. Said section 4E of said chapter 40J, as so appearing, is hereby further amended by inserting after the word “commonwealth”, in line 30, the following words:- , together with such other initiatives and activities as the board may deem appropriate to further the public purposes of the fund.
SECTION 24. Said section 4E of said chapter 40J, as so appearing, is hereby further amended by striking out, in line 44, the words “and (vi)” and inserting in place thereof the following words:- (vi) the promotion of energy conservation and efficient energy use and the development and use of green buildings; and (vii).
SECTION 25. Said section 4E of said chapter 40J, as so appearing, is hereby further amended by inserting after the word “expend”, in line 48, the following words:- or pledge.
SECTION 25A. Said section 4E of said chapter 40J, as so appearing, is hereby further amended by inserting after the word "energy", in line 133, the following words:- ; marine or hydrokinetic energy as defined in section 3 of chapter 25A.
SECTION 26. Said section 4E of said chapter 40J, as so appearing, is hereby further amended by inserting after the word “resources”, in line 74, the following words:- including, without limitation, the promotion and development of energy-efficient green buildings, particularly in affordable housing and schools and other public buildings. At least 10 per cent of the fund shall be dedicated to energy efficiency projects and activities undertaken by or for the benefit of cities and towns, including without limitation energy conservation measures and projects, procurement of energy management services, installation of energy management systems, adoption of demand side reduction initiatives, adoption of energy efficiency policies and the siting and construction of renewable energy, combined heat and power or distributed generation facilities on municipally owned properties. On an annual basis and in consultation with the low-income weatherization and fuel assistance program network, 10 per cent of the fund shall be dedicated to projects for the benefit of low-income ratepayers, including projects implemented by the low-income weatherization and fuel assistance program network.
SECTION 27. Said section 4E of said chapter 40J, as so appearing, is hereby further amended by striking out, in lines 136 to 138, inclusive, the words “such as gasification using such biomass fuels as wood, agricultural, or food wastes, energy crops, biogas, biodiesel, or organic refuse-derived fuel”, and in inserting in place thereof the following words:- using fuels such as wood, by-products or wastes from agricultural crops, food or animals, energy crops, biogas, liquid biofuel including but not limited to biodiesel, organic refuse-derived fuel, or algae; geothermal energy; solar domestic hot water.
SECTION 28. Said section 4E of said chapter 40J, as so appearing, is hereby further amended by inserting after the word "engine", in line 146, the following words:- ; and provided further, that the board shall make grants, loans or other support from the fund, not to exceed a total of $3,000,000 annually, for hydroelectric facilities, other than pumped storage facilities, in the Commonwealth constructed prior to December 31, 1997 for upgrades to increase the efficiency or capacity and to reduce any environmental impacts.
SECTION 28A. Paragraph (1) of subsection (f) of said section 4E of said chapter 40J, as so appearing, is hereby amended by inserting after the second sentence, the following sentence:- Such funds may also be used by a municipality or group of municipalities with an established load aggregation program under section 134 of chapter 164 in a service territory in which all consumers together have a peak load of at least 200 megawatts for grants, loans or other financial assistance to overcome barriers to renewable energy development, if consistent with this section.
SECTION 29. Said section 4E of said chapter 40J, as so appearing, is hereby further amended by striking out subsection (i) and inserting in place thereof the following subsection:-
(i) The corporation shall be assisted in the implementation of this section by an oversight board consisting of not more than 15 individuals, which shall include 1 member to be appointed by the speaker of the house, 1 member to be appointed by the president of the senate, 1 member to be appointed by the minority leader of the house, 1 member to be appointed by the minority leader of the senate, the secretary of housing and economic development or his designee, the attorney general or his designee, the secretary of energy and environmental affairs or his designee, the chair of the department of public utilities, the executive director of the Massachusetts Municipal Association or his designee, and not more than 6 individuals appointed by the governor from the recommendation submitted by the chair of the board relating to clause (i) of said section 4, with an interest in matters related to the general purpose and activities of the fund and the knowledge and experience in at least one of the following areas: electricity distribution, generation, supply, or power marketing; the concerns of commercial and industrial ratepayers; residential ratepayers including, but not limited to, low-income ratepayers; economics, financial or investment consulting expertise relative to the fund; regional environmental concerns; academic issues related to power generation, distribution or the development or commercialization of renewable energy sources; institutions of higher education; municipal or regional aggregation matters; and renewable and clean energy issues. The board shall consult with the oversight board in discharging its obligations under this section.
SECTION 30. Said section 4E of said chapter 40J, as so appearing, is hereby further amended by striking out subsection (k) and inserting in place thereof the following subsection:-
(k) On or by August 15th of each year, the board, in conjunction with the oversight board, shall annually submit to the governor, the joint committee on telecommunications, utilities and energy, and the house and senate committees on ways and means a report detailing the expenditure and investment of monies from the fund over the previous fiscal year and the ability of the fund to meet the requirements and provisions of this section, progress in the implementation of the strategic plan described in paragraph (m), including any recommendations regarding necessary modifications to the plan, and any recommendations for improving the ability of the board, the corporation, and the fund to meet said requirements and provisions. The oversight board shall be given the opportunity to review and comment on said report before its filing, and said filing shall include any such comments.
SECTION 30A. The general court finds and declares that:
(a) Coastal population
(a) Coastal population growth and rapid advances in technology and commerce have led to a significant increase in the demands on the commonwealth’s ocean resources;
(b) Ocean resources management in the commonwealth has historically been focused on particular resources or activities and public decisions about whether to allow certain activities in the commonwealth's ocean waters have been reactive and fragmented;
(c) The commonwealth’s ocean management policy must be adjusted to account for evolving needs and values, emerging technologies and evolving understanding and knowledge of ocean ecosystems to meet the commonwealth's public trust responsibilities;
(d) Commercial and recreational fisheries are an integral and historic part of our culture and contribute substantial economic benefits to our citizens;
(e) Regulation of these fisheries shall be, exclusively, by the Massachusetts division of marine fisheries and the relevant federal and interstate management agencies;
(f) Stewardship of the commonwealth’s ocean waters shall be carried out through an ocean management plan that protects, maintains and restores the abundance and diversity of native species and habitats and the health and productivity of coastal and marine ecosystems to fulfill the ecological, economic, educational, social, cultural, nutritional, recreational and other needs of present and future generations in a sustainable manner; and
(g) The Massachusetts ocean management task force, through an active public process, has studied and made recommendations for improved stewardship of the commonwealth’s ocean resources.
SECTION 30B. Chapter 10 of the General Laws is hereby amended by inserting after section 35EE the following 2 sections:-
Section 35FF. There shall be established and set up on the books of the commonwealth a separate fund to be administered by the secretary of energy and environmental affairs, as trustee, in consultation with the department of environmental protection, to be known as the Ocean Resources and Waterways Trust Fund. There shall be credited to the fund the revenue from the compensation or mitigation related to ocean development, the income derived from the investment of amounts credited to the fund and any appropriation or grant explicitly made to the fund. The priority for use of funds derived from compensation or mitigation for ocean development projects shall be to restore or enhance marine habitat and resources related to the impacts of the specific project related to the compensation or mitigation. The funds derived from compensation or mitigation related to public navigational impacts shall be dedicated to public navigational improvements, provided, that any funds for the enhancement of fisheries resources shall be directed to the Marine Fisheries Trust Fund to conduct the needed fisheries restoration and management programs, and any other amounts credited to the fund shall be used, without further appropriation, solely for the purposes of environmental enhancement, restoration and coordination of ocean resources by the secretary pursuant to this section, including the cost of employees or consultant services necessary to implement these priorities. Money remaining in the fund at the end of the fiscal year shall not revert to the General Fund and shall be available for expenditure in the following fiscal year.
Section 35GG. There shall be established and set up on the books of the commonwealth a separate fund to be administered by the director of the division of marine fisheries, as trustee, to be known as the Marine Fisheries Trust Fund. There shall be credited to the fund the revenue from compensation or mitigation related to fisheries management, any income derived from the investment of amounts credited to the fund and any appropriation or grant explicitly made to the fund. Funds credited to the fund for compensation or mitigation related to fisheries management shall be expended without further appropriation for the preservation, enhancement, restoration or management of marine fisheries. Money remaining in the fund at the end of the fiscal year shall not revert to the General Fund and shall be available for expenditure in the following fiscal year.
SECTION 30C. Section 4A of chapter 21A of the General Laws, as appearing in the 2006 Official Edition, is hereby amended by inserting after the word “benefits” in line 15 the words: - of section 4C and.
SECTION 30D. Said chapter 21A is hereby further amended by inserting after section 4B the following section: -
Section 4C. (a) The ocean waters and ocean-based development of the commonwealth, within the ocean management planning area described in this section, shall be under the oversight, coordination and planning authority of the secretary of energy and environmental affairs, in accordance with the public trust doctrine, as established by common law and codified in the Colonial Ordinances of 1641-47 and subsequent relevant statutes and cases, and in regular consultation with the members of the ocean management advisory commission and all other relevant agencies, on behalf of the people of the commonwealth pursuant to the authority vested in the secretary by sections 1 through 6 of this chapter. The secretary shall exercise this authority by promulgating an ocean management plan, which shall include maps, illustrations and other media setting forth, among other things, the commonwealth’s goals, policies and standards for ensuring its effective stewardship of the ocean waters held in trust for the benefit of the public. This stewardship shall be carried out in accordance with sound management practices and shall take into account the existing natural, social, cultural, historic and economic characteristics of the planning area; protect the public trust; value biodiversity and ecosystem health; protect special, sensitive or unique estuarine and marine life and habitats; address climate change and sea-level rise; respect the interdependence of ecosystems; coordinate uses that include international, federal, state and local jurisdictions; take into account the importance of the waters of the commonwealth to its citizens who derive livelihoods and recreational benefits from fishing; foster sustainable uses that capitalize on economic opportunity without significant detriment to the ecology or natural beauty of the ocean; preserve and enhance public access; support the infrastructure necessary to sustain the economy and quality of life for the citizens of the commonwealth; use the best available information and expertise; encourage public participation in decision-making; and adapt to our evolving knowledge and understanding of the ocean environment.
Nothing in this section shall be construed to alter the jurisdictional authority of the division of marine fisheries.
Ocean-based development, for the purposes of this section, shall include the creation, development and installation of permanent or temporary structures and the mining, removal or other exploitation of marine resources not currently subject to chapter 130, which shall remain in full force and effect.
(b) The geographic area subject to an ocean management plan shall include any waters and associated submerged lands of the ocean, including the seabed and subsoil, lying between the line designated as the “Nearshore Boundary of the Ocean Management Planning Area”, which is depicted on a plan dated January 31, 2006, prepared by the office of coastal zone management and maintained at the executive office of energy and environmental affairs and with the clerks of the House and the Senate, and the seaward boundary of the commonwealth. An ocean management plan may also address activities in adjacent seaward waters and, to the maximum extent consistent with federal law, shall apply to activities occurring in adjacent federal waters that are functionally connected or otherwise related to the management of resources within the ocean management planning area. An ocean management plan may take into account the different regional characteristics of the commonwealth's waters.
(c)(1) There shall be an ocean management advisory commission to assist the secretary in the development of an ocean management plan. This commission shall consist of 16 members: 2 members of the senate, 1 to be appointed by the president of the senate and 1 appointed by the minority leader of the senate; 2 members of the house of representatives, 1 to be appointed by the speaker of the house of representatives and 1 to be appointed by the minority leader of the house of representatives; the director of the office of coastal zone management or his designee; the director of the division of marine fisheries or his designee; and 10 members to be appointed by the governor as follows: 1 representative of a commercial fishing organization; 1 representative of a recreational fishing organization; 2 representatives of environmental organizations; 1 representative of a non-fishing, ocean-dependent industry; 3 mayors or members of a city council or board of selectmen of coastal municipalities of diverse size and location; and 2 directors of regional planning agencies. Members shall be appointed for a term of 3 years, except that, initially, 6 members appointed by the governor shall be appointed for terms of 2 years and 3 members appointed by the governor shall be appointed for terms of 1 year. The appointing authority may fill any vacancy that occurs in an unexpired term. The members of the ocean management commission shall be selected with due regard to coastal geographic distribution.
The commission shall annually elect a chairman and clerk, shall keep accurate records of its meetings and hearings and shall meet at least quarterly and at the call of the chairman. 8 members shall constitute a quorum to conduct business. The commission shall hold public meetings relative to matters within the jurisdiction of the ocean management plan and shall make recommendations to the secretary for the proper management and development of the plan. The secretary or his designee shall attend all meetings and hearings of the commission. The secretary shall ensure that the ocean management plan is consistent with the recommendations of the commission.
The Office of Coastal Zone Management and Division of Marine Fisheries shall provide technical support to the commission.
(2) There shall be an ocean science advisory council to assist the secretary in creating a baseline assessment, subject to clause (1) of the subsection (e), and any other scientific information necessary for the development of an ocean management plan. The council shall consist of 9 members, to be appointed by the secretary: 3 scientists from academic institutions, at least 1 of whom shall be from the School of Marine Science and Technology at the University of Massachusetts at Dartmouth; and at least 1 of whom shall be from the department of environment, earth & ocean science at the University of Massachusetts at Boston; 3 scientists from private nonprofit organizations, including 1 scientist designated by the Massachusetts Fishermen’s Partnership; and 3 scientists from government agencies with demonstrated technical training and experience in the fields of marine ecology, geology, biology, ichthyology, mammalogy, oceanography or other related ocean science disciplines, at least 1 of whom shall be from the division of marine fisheries. The secretary shall serve as coordinator of the council. The council shall meet at such times as the secretary shall set, which shall be no less than once every 3 months to assist the secretary compile the scientific information necessary for the development of an ocean management plan.
(d) Upon the secretary’s adoption of an ocean management plan, no structure, use or activities that could significantly alter the ocean resources of the geographic area subject to an ocean management plan under subsection (b) may occur, except as allowed by subsections (j) and (k) if the structure, use or activity conforms to the applicable provisions of the ocean management plan and except for commercial and recreational fishing pursuant to chapter 130. The offices and departments of the executive office of energy and environmental affairs and the other agencies, departments, divisions, units, commissions, boards and authorities of the commonwealth shall enforce laws and regulations within their respective jurisdictions, conduct regulatory reviews, administer programs, disburse funds, perform or supervise construction activities and otherwise conduct their activities in a manner that ensures conformance with the applicable provisions of an ocean management plan and this section.
(e) The secretary shall develop, implement and enforce an ocean management plan by regularly consulting with the ocean management advisory commission and by performing duties that shall include, but not be limited to, the following:
(1) Creating, in consultation with the ocean science advisory council, a baseline assessment of the commonwealth’s ocean resources and resource use that will serve as the basis for evaluating alternatives and choosing courses of action and that shall incorporate the best available engineering applications and scientific understanding of marine and ocean resources, including the identification of special, sensitive or unique estuarine and marine life and habitats, through research, mapping, monitoring, and consideration of public and agency input and other relevant natural, infrastructure, social, cultural, historic and economic planning information;
(2) Establishing an outreach and participation program which shall include early and continuing interaction with the public, the business sector, other interested groups and local, state, regional and federal officials as described in subsection (g), and regular consultation with the ocean management advisory commission, the ocean science advisory council, the department of environmental protection, the department of conservation and recreation, the department of public utilities, the energy facilities siting board, the executive offices of economic development and public safety, the highway department, the division of energy resources, the port authorities, the department of agricultural resources and other state and federal agencies having jurisdiction over resources or activities within or affecting the ocean management planning area to achieve maximum feasible compatibility with the plans, programs or projects for which such departments, divisions, boards and other agencies are responsible. A summary of the outreach and participation program shall be included in an ocean management plan;
(3) Identifying management measures, including but not limited to, setting performance standards, mitigation requirements and use limitations, as may be applicable to specific geographic areas, to be developed in a manner consistent with applicable state statutes and regulations that control or otherwise affect development or other ocean use in the planning area. These management measures shall be compatible, to the maximum extent feasible, with all applicable plans, programs and projects for which a state agency may be responsible. The division of marine fisheries, pursuant to chapter 130 and any other applicable general or special law, shall have sole responsibility for developing and implementing any fisheries management plans or fisheries regulations that the division determines to be necessary based on the best available scientific information. Marine fisheries shall be managed in compliance with the applicable rules and regulations of the division of marine fisheries and federal or interstate fishery management plans issued pursuant to chapter 130 or any other applicable general or special law and shall be integrated, to the maximum extent practicable, with an ocean management plan. Fisheries management plans shall be integrated with an ocean management plan in a manner that enhances the ability of the division of marine fisheries to fulfill its responsibilities and to avoid any alterations of the jurisdictional authority of the division of marine fisheries. Waterfowl hunting shall be managed in compliance with the rules and regulations of the division of fisheries and wildlife issued pursuant to chapter 131 or any other general or special law, and shall be integrated, to the maximum extent practicable, with an ocean management plan. Nothing contained in this section shall prohibit the transiting of commercial fishing and recreational boats in Massachusetts ocean waters;
(4) Implementing a specific strategy to ensure effective application of the identified management measures within the planning area in question. Implementation arrangements may include, as appropriate, memoranda of understanding or other instruments of agreement to ensure coordination between the secretary and other relevant state agencies;
(5) Establishing a time period during which an ocean management plan is to remain effective and a proposed date, not to exceed 5 years from the date of plan adoption, on which re-evaluation of the plan will commence for purposes of renewal and amendment. The re-evaluation process shall include, but not be limited to, an opportunity for public comments, informational meetings and public meetings, as described in subsection (g). An ocean management plan shall remain in effect until a renewed or amended ocean management plan is adopted; and
(6) Creating other such elements as may be considered appropriate by the secretary to serve the purposes of this section.
(f) Within 6 months of the passage of this act, the commission, in consultation with regional planning agencies, shall appoint working groups to advise the commission on ocean protection and management goals and objectives and strategies. The working groups shall be comprised of members of the general public, the business sector, local, state, regional, and federal officials and other interested groups for the following geographic areas: the coastal region north of Boston that is not considered an Ocean Sanctuary; Cape Cod Ocean Sanctuary, Cape Cod Bay Ocean Sanctuary, Cape and Islands Ocean Sanctuary, North Shore Ocean Sanctuary, and South Essex Ocean Sanctuary, as described in the section 13 of chapter 132A; the region within the Cape and Islands Ocean Sanctuary comprised of all the waters of Buzzards Bay bordered by the mainland of the commonwealth on the west, Cape Cod and the Elizabeth Islands on the east and the Massachusetts and Rhode Island ocean bound
