NY Office of Renewable Energy Siting Issues Draft Regulations to Facilitate Swift Development of Large-Scale Renewable Energy Projects
On September 16, 2020, the newly formed Office of Renewable Energy Siting (“ORES”) issued draft regulations intended to streamline permitting and development of large-scale renewable energy projects in New York State. The draft regulations, which are now available for public comment, reflect New York’s ongoing effort to achieve the Climate Leadership and Community Protection Act’s ambitious climate and energy goals, including that 70% of the State’s electricity will be generated by renewable sources by 2030. The draft regulations are split into two parts: the first addresses application requirements, and the second addresses uniform standards and conditions for all proposed projects.
ORES issued the draft regulations to implement the Accelerated Renewable Energy Growth and Community Benefit Act (the “Act”), which Governor Cuomo signed into law in April of this year. As we detailed in a previous post, the Act created ORES to oversee and accelerate the development of major renewable energy facilities across the State by creating a one-stop shop for permitting and environmental review. Rather than seeking a permit through Article 10 of the Public Service Law – a process that often takes several years – the Act creates a streamlined review process under the purview of ORES. Critically, the Act provides that ORES will issue final decisions on permit applications for ordinary development sites within one year; for certain former industrial and commercial sites, the review period is just six months.
The draft regulations implement the Act’s goal of accelerating development of renewable energy sources in several ways, all of which share a common goal: creating regulatory certainty for developers and local communities. For example, Section 900-1.3 of the draft regulations details the procedures and benchmarks that a developer must achieve prior to submitting a formal application to ORES. These include consultation with local agencies and meeting with the local community; the regulations also require coordination with ORES, in consultation with the New York State Department of Environmental Conservation (“NYSDEC”) and the New York State Historic Preservation Office (“SHPO”), respectively, to delineate environmental and cultural resources, and to inform design.
Local Community Involvement
The draft regulations require an applicant, not less than 60 days prior to filing an application with ORES, to conduct a pre-application meeting with municipal authorities. The applicant must provide a description of the proposed facility and its environmental setting, a map of the proposed facility showing relevant regulatory boundaries, and a summary of substantive local laws applicable to construction, operation, and maintenance of the proposed facility. Applicants also must identify for the municipality each local law provision for which the applicant will request that ORES make a finding that compliance therewith would be unreasonably burdensome.
Applicants must conduct at least one meeting with community members who may be adversely impacted by the siting of the proposed facility. Such a meeting must take place not less than 60 days before an application is filed, but following any meeting(s) with local agencies. Applicants are also required to submit documentation of the local consultation process as part of the permit application.
Finally, any municipality that has received notice of the filing of an application must submit to ORES and the applicant a statement indicating whether the proposed facility is designed to be sited, constructed and operated in compliance with applicable local laws and regulations, if any, concerning the environment, or public health and safety. This includes local zoning.
The draft regulations require an applicant to obtain several environmental approvals from ORES prior to submitting an application. At the earliest possible time in the planning process, applicants are required to delineate federal, state and locally regulated wetlands present on the facility site and within one hundred feet of areas to be disturbed by construction, including the interconnections, access roadways, and utility tie-ins. After consultation with ORES, applicants must then submit a draft wetland delineation report to ORES, with a copy to NYSDEC, and ORES must provide a final approved jurisdictional determination within 60 days (or as soon as practicable thereafter) of receiving the draft report. Finally, applicants must submit the approved wetland delineation and associated report in the final application.
Applicants must undertake a similar consultation and approval process with respect to stream delineation to identify federal and State waters regulated under Article 15 of the New York Environmental Conservation Law, as well as locally-regulated surface waters.
Applicants also are required to conduct a wildlife site characterization to identify threatened or endangered species or species of special concern. The initial site characterization must include, among other things, a list of species documented at the proposed facility, an evaluation of the current suitability of the habitat for each such species, and a review of National Audubon Society climate change modeling for any documented bird species. Within four weeks after the applicant provides the results of the site characterization to ORES and NYSDEC, the agencies and the applicant must hold a meeting at which the agencies will provide feedback on the site characterization and recommend habitat assessments and/or field surveys “that can be completed in the appropriate seasonal windows within one year.” If surveys are conducted, the applicant is required to provide draft reports to ORES and NYSDEC within 6 weeks after completing each study. If threatened or endangered species are documented, the applicant must provide a summary of the sightings and detailed location information in advance of the draft report and within 3 weeks after completing the study. The agencies and the applicant have 30 days to review and consult on any draft survey reports, and then ORES has another 30 days to provide a draft determination regarding any occupied habitat used by threatened or endangered species and the amount of any mitigation funding necessary if impacts cannot be avoided or mitigated. As with other environmental studies, the applicant must submit the approved wildlife site characterization, habitat assessment and/or survey reports, and a Net Conservation Benefit Plan (if necessary) as part of the ORES permit application.
Finally, the draft regulations require applicants to conduct a Phase IA archeological/cultural resources study if any portion of the project impact area falls within an area of archeological sensitivity, as determined by the statewide archaeological inventory map. Applicants will submit results of the Phase IA to ORES, after which time ORES, in consultation with SHPO, will inform the applicant within 60 days if a Phase IB field study will be required. If necessary, the applicant will then conduct a Phase II site evaluation to assess any cultural resources identified in the Phase I studies. Here again, all archaeological/cultural resources studies must be submitted to ORES with a final application.
These detailed pre-application procedures are likely to accelerate the often lengthy environmental review process common in the Article 10 procedure while providing a degree of certainty for developers and local communities once an application is submitted.
Filing an Application with ORES
The draft regulations set forth requirements for the preparation, service and filing of an application, including the required contents of a series of application exhibits addressing areas of impacts including land use, public health, safety and security, noise and vibration, cultural resources, endangered and threatened species, visual impacts, water quality and wetlands. Such exhibits set forth specific design goals and methodologies for analyzing impacts, as well as measures to avoid, minimize and mitigate impacts to natural resources. For instance, for sites determined to contain jurisdictional wetlands, Section 900-2.15 of the draft regulations contains a table setting forth the precise wetland mitigation requirements that a developer can meet to begin work on a site. Section 900-2.14 provides a similar table specifying waterbody mitigation requirements based on the type of impact and whether the project affects a protected stream or navigable water. Section 900-2.6 outlines precise setback requirements for wind turbine towers and solar facility components.
The draft regulations also set forth the uniform standards and conditions applicable to all major renewable energy facilities. ORES retains authority to issue site-specific conditions, either at the request of the developer or to address impacts unique to a particular facility.
Once an application is submitted, ORES will have 60 days to issue a completeness determination. Upon determining an application complete, ORES will then have 60 days to prepare and issue a draft permit for public review and comment. Such draft permit will include all applicable uniform standards and conditions, as well as site specific conditions. The public will have no less than 60 days to review and comment on an application. If significant and substantive issues are raised, an adjudicatory hearing will be required. The draft regulations set forth hearing procedures, including the process for determining party status and issues for adjudication. The adjudicatory standards and procedures are similar to those applied by NYSDEC in 6 NYCRR Part 624.
What Comes Next
Comments on the draft regulations may be submitted until December 7, 2020. In addition to public comments, ORES plans to hold several public statement hearings in November, including two virtual public hearings and five in-person hearings across the state. Information about the public hearings can be found here.