Permitting of Renewable Energy Interconnection Facilities

Del. Code tit. 17, ch. 20

in effect

Del. Code tit. 17, § 2001 Findings of public policy.

The General Assembly finds and declares as follows: (1) Development of renewable energy sources and their connection to the electric power grid are declared to be matters of statewide concern and interest. (2) The Delaware Department of Transportation is responsible for the care, management, and control of State-owned roadway rights-of-way. (3) To foster the development of renewable energy and a clean energy future in this State, responsible and reasonable accommodation of renewable energy interconnection facilities in the State-owned roadway rights-of-way shall be encouraged as an integral part of the State’s infrastructure.

Del. Code tit. 17, § 2002 Definitions.

For the purposes of this chapter: (1) “Applicable codes” means laws, rules, regulations, engineering standards, engineering guidance, and established best practices as recognized by the Department of Transportation or the Federal Highway Administration. (2) “Department” means the Delaware Department of Transportation. (3) “Eligible energy resource” or “eligible energy resources” shall have the defined meaning in § 352 of Title 26. (4) “Fair market rental rate” means a recurring rate for the use of the State’s roadway rights-of-way based on a fair market appraisal of the use of that land. (5) “Offshore wind interconnection facilities” shall have the meaning defined in § 203F of Title 26. (6) “Renewable energy developer” means a person or company, whether acting on its own behalf or acting as the agent of a renewable energy owner or renewable energy operator on a temporary basis, developing or constructing 1 or more eligible energy resources. A renewable energy developer may also be a renewable energy operator or a renewable energy owner. (7) “Renewable energy entity” means any entity that is either a renewable energy developer, a renewable energy operator, a renewable energy owner, or any combination of these. (8) “Renewable energy interconnection facilities” shall have the meaning defined in § 203F of Title 26. (9) “Renewable energy operator” means a person or company, whether acting on its own behalf or acting as the agent of a renewable energy owner on a semi-permanent basis, operating 1 or more renewable energy resources. (10) “Renewable energy owner” means a person or company who owns the renewable energy interconnection facilities to be located in the State-owned right-of-way. (11) “Right-of-way” or “ROW” means all those lands owned by the State in fee simple or lesser rights or under the management or control of the Department and operated as a public roadway, whether located within or outside incorporated municipalities. A ROW may include lands owned and operated by the State such as bicycle and pedestrian pathways, and recreational trails or railroads that are separate from State-owned roadway rights of way.

Del. Code tit. 17, § 2003 Regulations.

The Secretary of the Department shall have the authority to promulgate regulations to fully define the requirements necessary to implement the provisions of this chapter.

Del. Code tit. 17, § 2004 Permits.

(a) A renewable energy entity must first obtain a certificate of public convenience and necessity from the Public Service Commission under the provisions § 203F of Title 26, and thereafter may apply for a permit from the Department prior to constructing, modifying, or maintaining renewable energy interconnection facilities in the State’s ROW. (b) The Department shall receive applications for, process, and issue such permits subject to the following requirements: (1) The applicant shall, wherever possible, place renewable energy interconnection facilities underground, but the Department can authorize above-ground facilities where safety and other consideration allow such placement. (2) Within 30 days of receiving an application, the Department will determine and notify the applicant whether the application is complete. If an application is incomplete, the Department must identify the missing information. (3) The Department will process permits within 90 days either approving the permit request, or denying the permit request for cause based on the Department finding that the permit request fails to comply with any of the following: a. Protection of the public health, safety and welfare along Delaware’s roadways. b. Minimization of conflicts with the use of the State’s ROW for the primary purpose of transportation. c. Objective, reasonable design standards. d. Applicable codes including applicable provisions of the Delaware Utilities Manual Regulations, unless or until the Secretary of the Department promulgates regulations specific to accommodation of renewable energy interconnection facilities in the State’s ROW.

Del. Code tit. 17, § 2005 Use and occupancy agreement.

(a) In conjunction with the issuance of a permit by the Department under § 2004 of this title, the Department is authorized to enter into use and occupancy agreements with renewable energy entities for the locating of renewable energy interconnection facilities in the ROW under terms that: (1) Protect the public health, safety and welfare along Delaware’s roadways. (2) Minimize conflicts with the use of the State’s ROW for the primary purpose of transportation. (3) May prohibit the renewable energy entity from owning and placing poles as part of renewable energy interconnection facilities in the State’s ROW. (4) Establish a preference that renewable energy interconnection facilities be located underground, but would authorize above-ground facilities in a ROW near a roadway where safety and other considerations allow such facilities. (5) Ensure that the renewable energy entity entering into a use and occupancy agreement has the financial, technical, organizational, and managerial resources needed to site and operate in the ROW for the full-term of the use and occupancy agreement. (6) Are competitively neutral and nondiscriminatory. (7) Charge a fair market rental rate for the use of the State’s ROW by renewable energy entities. (b) Such use and occupancy agreements shall be for a term of 30 years with an option to renew for additional 5-year terms subject to compliance with performance requirements set by the Department, and the authority of the Department to revoke such agreements for cause. (c) Such use and occupancy agreements shall be nonassignable and nontransferable without the reasonable consent of the Department based on the assignee or transferee having the financial, technical, organizational, and managerial resources needed to operate in the ROW for the term of the use and occupancy agreement and protecting the public health, safety and welfare. (d) Each renewable energy entity entering into a valid use and occupancy agreement shall comply with the Underground Utility Damage Prevention and Safety Act, Chapter 8 of Title 26, to the extent applicable. (e) Notwithstanding the provisions hereof related to restrictions on assignment and transfer, a renewable energy entity may pledge and/or collaterally assign its interest in the use and occupancy agreement and associated renewable energy interconnection facilities in the ordinary course of securing financing for any renewable energy interconnection facilities, or associated renewable energy project, without the consent of the Department, provided that no entity may take possession of the renewable energy interconnection facilities in a public right of way, and no entity may receive any interest under a use and occupancy agreement, unless and until the Department has provided its consent to such a transfer under the provisions of subsection (c) of this section.

Del. Code tit. 17, § 2006 Removal of renewable energy interconnection facilities.

Any renewable energy entity wanting to decommission an existing renewable energy interconnection facility or cease operations thereof shall first obtain approval from the Public Service Commission. It shall thereafter notify the Department not less than 60 days prior to commencing such decommissioning or ceasing operations as to the disposition of their renewable energy interconnection facilities. Acceptable disposition includes removal of the interconnection facilities from the ROW, or transfer of the interconnection facilities to another renewable energy entity subject to the approval of the Department in accordance with the provisions of § 2005(c) of this title.

Del. Code tit. 17, § 2007 Relocation of renewable energy infrastructure.

Whenever it becomes necessary to relocate any renewable energy interconnection facilities due to expansion of the transportation system, or if the renewable energy interconnection facilities are found to interfere unreasonably with ingress and egress to adjacent properties or their development, or for reasons deemed in the public interest by the Department, the renewable energy entity shall relocate its infrastructure at its sole expense to a location mutually agreed upon by the renewable energy entity and the Department.

Source: DE Code (Official Site)URL: https://delcode.delaware.gov/title17/c020/index.htmlFetched: 10/4/2026