DOE Announces Modified Possessory Rights Requirements for Contract Applications for Solar/Biomass Development and Applications for Declaration of Commerciality

In an advisory dated 29 April 2023, the Department of Energy (“DOE”) announced that it will no longer require proof of ownership or possessory rights over the proposed area/site for solar and biomass power projects. The agency will also no longer require proof of ownership or possessory rights over the proposed production area during transition of the renewable energy (“RE”) project from Pre-Development to Development Stage. 

From the date of posting of the advisory, all RE Applicants for solar and biomass development and RE Developers seeking confirmation of commerciality of RE projects are instead directed to submit an Affidavit of Acquisition of Possessory Rights (the “Affidavit”) and a copy of the Board Resolution authorizing the affiant to execute the instrument for and on behalf of the RE Applicant or RE Developer. The Affidavit must conform with the template found in Annexes “A” to “D” of the advisory, which can be found here.

 However, under certain circumstances, the DOE may still require the RE Applicant or RE Developer to submit the contracts, deeds, agreements, applications, and other documents substantiating the statements made in the Affidavit.

The DOE is currently undertaking a review of Department Circular No. DC2019-10-0013 or the Omnibus RE Guidelines to reflect the latest policy in support of RE development.